Herskovic v. New York State Department of Motor Vehicles

No basis exists for annulling the determination of the New York State Department of Motor Vehicles Appeals Board (hereinafter the Appeals Board) limiting the petitioner’s administrative appeal from a determination of an Administrative Law Judge (hereinafter the ALJ) to whether the penalty imposed was excessive (see CPLR 7803 [3]; see also Vehicle and Traffic Law § 228 [2] [b], [c]; 15 NYCRR 126.2 [c]). Accordingly, the Supreme Court properly denied that branch of the petition which was to annul the Appeals Board’s determination limiting the petitioner’s administrative appeal to the issue of whether the penalty imposed was excessive.

Since the petitioner’s administrative appeal was properly limited to the ALJ’s determination concerning the propriety of the penalty imposed, judicial review of the ALJ’s determination that the petitioner violated the Vehicle and Traffic Law is unavailable (see Vehicle and Traffic Law § 228 [9] [a]; cf. Matter of Brady v Department of Motor Vehs., 98 NY2d 625, 626 [2002]). Accordingly, the Supreme Court properly dismissed, on the ground of lack of subject matter jurisdiction, that branch of the *996petition which was to review so much of the ALJ’s determination as concluded that the petitioner violated the Vehicle and Traffic Law.

The petitioner’s remaining contentions are without merit. Spolzino, J.E, Covello, Balkin and Belen, JJ., concur.