Rizzo Associates, Inc. v. Martinez

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Raymond E Martinez, Commissioner of the New York State Department of Motor Vehicles, dated December 30, 2002, which confirmed the findings of an Administrative Law Judge, made after a hearing, that the petitioner violated New York City Traffic Rules and Regulation (34 RCNY) § 4-15 (b) (9), and Vehicle and Traffic Law § 401 (7) (F) (b), and imposed a penalty.

Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

Contrary to the petitioner’s contention, where, as here, summonses are issued, inter alia, for alleged violations of New York City Traffic Rules and Regulations governing overweight vehicles, the applicable and controlling service provision is Vehicle and Traffic Law § 385 (20-a), not CPLR 311 (a) (1) (see Matter of IESI NY Corp. v Martinez, 8 AD3d 667 [2004]; Matter of Sureway Towing, Inc. v Martinez, 8 AD3d 490 [2004]). Accord*591ingly, the service of the summonses on the driver in this case was proper.

Moreover, the seizure of the petitioner’s truck, which occurred at a weigh station and pursuant to a nondiscriminatory pattern of selection by the officer weighing the vehicles, was constitutional (see Matter of Masons v Martinez, 8 AD3d 671 [2004]; Matter of City Hawk Indus. v Martinez, 2 AD3d 635 [2003]; see also People v Scott, 63 NY2d 518 [1984]). Prudenti, P.J., S. Miller, Ritter and Goldstein, JJ., concur.