Yonkers Nissan, Inc. v. Adduci

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Motor Vehicles, dated November 3, 1989, affirming a determination of that agency dated May 23, 1989, which, after a hearing, suspended the petitioner’s new and used vehicle registration for 15 days and imposed a civil penalty of $1,600.

Adjudged that the petition is granted to the extent that the determination is modified, on the law, by vacating the penalty; as so modified, the determination is confirmed and the proceeding is otherwise dismissed on the merits, with costs to the respondent, and the matter is remitted to the respondent for the imposition of a new penalty which shall in no event exceed a five-day suspension of the petitioner’s new and used vehicle registration and a $1,600 civil penalty.

The determination under review, insofar as it sustained the 10 charges listed in the respondent’s notice of hearing dated March 27, 1989, is supported by substantial evidence (see, Matter of Hannon v Cuomo, 52 NY2d 775; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). We find, *707however, that the penalty imposed is disproportionate to the offense. The charges all stem from a single transaction in which the petitioner sold a customer a 1981 Datsun automobile in admittedly poor condition, committing numerous violations of the respondent’s regulations in the process. An investigation and hearing revealed additional problems with the petitioner’s record-keeping concerning this vehicle. Nevertheless, none of the violations evinces behavior justifying the penalty imposed, which in this particular case threatens the existence of the business itself (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233-235; Crystal Oldsmobile v Foschio, 99 AD2d 462; Government Empl. Ins. Co. v Commissioner of Motor Vehicles, 94 AD2d 695; cf., Dunn Appraisal Co. v Foschio, 94 AD2d 695). We also note that the petitioner voluntarily refunded the customer’s purchase price in full, including moneys expended in a repair effort, notwithstanding the customer’s acknowledgement that he knew the car was being sold "as is”. Thompson, J. P., Lawrence, Copertino and Santucci, JJ., concur.