IN RE: Gerald D. LISOWSKI (2024)

MEMORANDUM AND ORDER

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

Memorandum: 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. Petitioner contends that the police lacked reasonable grounds to believe that he had been driving while intoxicated or impaired, which is a prerequisite for suspension of his license under Vehicle and Traffic Law § 1194 (2) (a) (1), and that the arresting officer's approach of his vehicle was unlawful under People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976). Because petitioner did not advance those contentions at the administrative hearing, however, he failed to preserve them for our review (see generally Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001]; Matter of Reuss v. Schroeder, 217 A.D.3d 1083, 1084, 191 N.Y.S.3d 203 [3d Dept. 2023]), and we have no discretionary authority to review those contentions in this CPLR article 78 proceeding (see Khan, 96 N.Y.2d at 880, 730 N.Y.S.2d 783, 756 N.E.2d 71; Matter of Parsons v. New York State Dept. of Motor Vehs. Appeals Bd., 224 A.D.3d 1263, 1264, 204 N.Y.S.3d 694 [4th Dept. 2024]).

We reject petitioner's further contention that the Department of Motor Vehicles Appeals Board improperly drew an adverse inference against him based upon his failure to testify at the hearing (see Matter of Vasquez v. Egan, 174 A.D.3d 811, 813, 107 N.Y.S.3d 44 [2d Dept. 2019]; Matter of Barr v. New York State Dept. of Motor Vehs., 155 A.D.3d 1159, 1161, 63 N.Y.S.3d 599 [3d Dept. 2017], lv denied 31 N.Y.3d 907, 2018 WL 2122426 [2018]; Matter of Peeso v. Fiala, 130 A.D.3d 1442, 1443-1444, 13 N.Y.S.3d 742 [4th Dept. 2015], lv denied 26 N.Y.3d 910, 2015 WL 6457395 [2015]).

We have reviewed petitioner's remaining contentions and conclude that none warrants annulment of the determination.