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IN RE: Elite Ready Mix Corp. (2012)

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Elite Ready Mix Corp., petitioner, v New York State Department of Motor Vehicles, respondent.

2010–10905 (Index No. 15691/10)

Decided: February 07, 2012

ANITA R. FLORIO, J.P. CHERYL E. CHAMBERS L. PRISCILLA HALL ROBERT J. MILLER, JJ. Graber PLLC, New York, N.Y. (Daniel Graber of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and David Lawrence III of counsel), for respondent.

Argued—January 12, 2012


Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Appeals Board dated March 3, 2010, which confirmed the findings of an Administrative Law Judge, made after a hearing, that the petitioner violated Vehicle and Traffic Law § 401(7)(F)(b) and Rules of City of New York Department of Transportation (34 RCNY) § 4–15(b)(8) and (10), and imposed a penalty.

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

Judicial review of an administrative determination made after a hearing at which evidence was taken is limited to whether the determination is supported by substantial evidence based upon the entire record (see CPLR 7803[4] ).   Moreover, “ ‘the courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists' ” (Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 444, quoting Matter of Stork Rest. v. Boland, 282 N.Y. 256, 267).

Here, the testimony of the officer who issued the summonses to the petitioner regarding the condition of the roadway where vehicle weighing scales were placed, his training, the accuracy of the scales used, and the manner in which he weighed the petitioner's vehicle, provided substantial evidence supporting the determination of the Administrative Law Judge (see Matter of J. Scaramella Trucking v Martinez, 39 AD3d 858, 859;  Matter of El Camino Trucking Corp. v Martinez, 21 AD3d 491, 492;  Matter of Star Rubbish Removal Corp. v Martinez, 15 AD3d 587, 588–589;  Matter of J. Bruno Sons, Inc. v Martinez, 15 AD3d 485, 486).



Aprilanne Agostino

Clerk of the Court

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