MASTRODONATO v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES BUREAU OF CONSUMER AND FACILITY SERVICES (2006)

 Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination revoking his driver's license based on his refusal to submit to a chemical test following his arrest for driving while intoxicated.   The record establishes that a police officer stopped the vehicle driven by petitioner based on petitioner's failure to signal a lane change and, although the police officer warned petitioner of the consequences of refusing to submit to a chemical test, petitioner nevertheless refused testing.   Petitioner contends for the first time in his CPLR article 78 petition that there was no evidence that he was operating the vehicle, and he therefore failed to exhaust his administrative remedies with respect to that contention (see Matter of Nawaz v. State Univ. of N.Y. Univ. at Buffalo School of Dental Medicine, 295 A.D.2d 944, 744 N.Y.S.2d 590;  Matter of Nelson v. Coughlin, 188 A.D.2d 1071, 591 N.Y.S.2d 670, appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297).   Contrary to petitioner's further contention, the determination is supported by substantial evidence.   “ Hearsay evidence is admissible in administrative hearings” (Matter of Scaccia v. Martinez, 9 A.D.3d 882, 883, 779 N.Y.S.2d 680), “and if sufficiently relevant and probative may constitute substantial evidence” (People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).   The police officer's report established that the officer administered warnings to petitioner and that petitioner refused to submit to a chemical test, and the Administrative Law Judge was entitled to discredit petitioner's testimony to the contrary (see generally Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193;  Matter of Barhite v. Village of Medina, 23 A.D.3d 1114, 1115, 804 N.Y.S.2d 526).

It is hereby ORDERED that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

MEMORANDUM: