GORMAN v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES (2006)

 In this CPLR article 78 proceeding, transferred to this Court pursuant to CPLR 7804(g), petitioner seeks to annul the determination that he violated Vehicle and Traffic Law § 1129(a), for following another vehicle too closely, and revoking his driver's license for 30 days.   The determination arises out of a multi-vehicle accident in which the vehicle driven by petitioner rear-ended a vehicle that was either stopped or in the process of stopping, pushing the vehicle into the opposing lane of traffic.   That vehicle was then struck by a third vehicle, and a passenger in the third vehicle was killed.   Petitioner did not preserve for our review his contention concerning administrative delay inasmuch as he did not raise an objection on that ground before the Administrative Law Judge (see Matter of King v. New York State Dept. of Health, 295 A.D.2d 743, 745, 743 N.Y.S.2d 206;  Matter of Choe v. Axelrod, 141 A.D.2d 235, 239, 534 N.Y.S.2d 739;  cf. Matter of Lawrence v. DeBuono, 251 A.D.2d 700, 701, 673 N.Y.S.2d 773), and he failed to exhaust his administrative remedies with respect to that contention inasmuch as he did not contend on his administrative appeal that there was undue delay in conducting the hearing (see Matter of Shapard v. Zon, 30 A.D.3d 1098, 815 N.Y.S.2d 852;  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 (see Matter of Cotugno v. Commissioner of Motor Vehs., 304 A.D.2d 1030, 1031, 756 N.Y.S.2d 915;  Matter of Boggia v. Murphy, 212 A.D.2d 931, 622 N.Y.S.2d 631;  see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181-182, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   Finally, we conclude that the penalty is not “so disproportionate to the offense as to be shocking to one's sense of fairness” (Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 237, 356 N.Y.S.2d 833, 313 N.E.2d 321;  see Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280, rearg. denied 96 N.Y.2d 854, 729 N.Y.S.2d 670, 754 N.E.2d 773;  see also Matter of Martin v. Adduci, 138 A.D.2d 599, 526 N.Y.S.2d 181;  Matter of LaBue v. Melton, 87 A.D.2d 975, 450 N.Y.S.2d 101).

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

MEMORANDUM: