IN RE: Marek GAZDA (2018)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Administrative Appeals Board dated July 28, 2015, affirming a determination of an administrative law judge dated July 28, 2014, which, after a hearing, found that the petitioner refused to submit to a chemical test in violation of Vehicle and Traffic Law § 1194, and revoked his driver license, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Cacace, J.), dated January 4, 2016, which denied the petition and dismissed the proceeding on the ground that he failed to exhaust his administrative remedies.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the proceeding on the ground that the petitioner failed to exhaust his administrative remedies, and substituting therefor a provision dismissing the proceeding on the merits;  as so modified, the judgment is affirmed, without costs or disbursements.

“It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law” (Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560).  In the context of CPLR article 78 proceedings, a reviewing court may not consider arguments that were not raised at the administrative level (see Matter of Hughes v. Suffolk County Dept. of Civ. Serv., 74 N.Y.2d 833, 834, 546 N.Y.S.2d 335, 545 N.E.2d 625;  Matter of Klapak v. Blum, 65 N.Y.2d 670, 491 N.Y.S.2d 615, 481 N.E.2d 247;  Matter of Failing v. Fiala, 111 A.D.3d 723, 724, 974 N.Y.S.2d 541;  Matter of Molinsky v. New York State Dept. of Motor Vehs., 105 A.D.3d 960, 960–961, 962 N.Y.S.2d 710;  Matter of Kearney v. Village of Cold Spring Zoning Bd. of Appeals, 83 A.D.3d 711, 713, 920 N.Y.S.2d 379;  Matter of Citylights at Queens Landing, Inc. v. New York City Dept. of Envtl. Protection, 62 A.D.3d 871, 872, 878 N.Y.S.2d 896;  Matter of Kaufman v. Incorporated Vil. of Kings Point, 52 A.D.3d 604, 607, 860 N.Y.S.2d 573).  Here, contrary to the Supreme Court's determination, the issue of whether the petitioner was adequately warned of the consequences of refusing to submit to a chemical test to determine his blood alcohol content (see Vehicle and Traffic Law § 1194[2] ) was raised and considered by the agency.  Thus, the court erred in dismissing the proceeding on the ground that the petitioner failed to exhaust his administrative remedies.

Since the petition, now reinstated, raises an issue of substantial evidence and the full record is before this Court, this Court shall retain jurisdiction and decide the proceeding on the merits in the interest of judicial economy (cf. Matter of Tomczak v. Bd. of Educ., 144 A.D.3d 1165, 1166, 42 N.Y.S.3d 311;  Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 772–773, 809 N.Y.S.2d 98).

“ ‘To annul an administrative determination after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination’ ” (Matter of DeMichele v. Dept. of Motor Vehs. of N.Y. State, 136 A.D.3d 629, 630, 24 N.Y.S.3d 402, quoting Matter of Mannino v. Department of Motor Vehs. of State of N.Y.-Traffic Violations Div., 101 A.D.3d 880, 880, 956 N.Y.S.2d 120).  “Substantial evidence consists of ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ ” (Matter of Wagner v. Fiala, 113 A.D.3d 694, 695, 978 N.Y.S.2d 699, quoting 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183).  Substantial evidence consists of more than speculation, conjecture, or a mere scintilla of evidence (see Matter of Wagner v. Fiala, 113 A.D.3d at 695, 978 N.Y.S.2d 699;  Matter of Marshall v. Fischer, 103 A.D.3d 726, 958 N.Y.S.2d 800;  Matter of Miserendino v. City of Mount Vernon, 96 A.D.3d 946, 946 N.Y.S.2d 640).  “ ‘The duty of weighing the evidence and resolving conflicting testimony rests solely upon the administrative agency’ ” (Matter of Wagner v. Fiala, 113 A.D.3d at 695, 978 N.Y.S.2d 699, quoting Matter of Wright v. Commissioner of N.Y. State Dept. of Motor Vehs., 189 A.D.2d 767, 768, 592 N.Y.S.2d 408).

Here, the evidence adduced at the hearing demonstrated that the arresting officer gave the petitioner sufficient warning of the consequences of refusing to submit to a chemical test (see Vehicle and Traffic Law § 1194[2][c][3];  Matter of Hickey v. New York State Dept. of Motor Vehs., 142 A.D.3d 668, 669, 36 N.Y.S.3d 720;  Matter of Wagner v. Fiala, 113 A.D.3d at 695, 978 N.Y.S.2d 699).  Contrary to the petitioner's contention, the record does not demonstrate that the arresting officer, who testified at the hearing, gave the petitioner an incorrect explanation of the refusal warnings (see Matter of Wagner v. Fiala, 113 A.D.3d at 695, 978 N.Y.S.2d 699).  The findings of the administrative law judge are supported by substantial evidence in the record, and the New York State Department of Motor Vehicles Administrative Appeals Board properly drew an adverse inference from the petitioner's failure to testify at the hearing (see Matter of Hickey v. New York State Dept. of Motor Vehs., 142 A.D.3d at 669, 36 N.Y.S.3d 720).

The petitioner's remaining contentions either are without merit or have been rendered academic by our determination.

Accordingly, the Supreme Court should have dismissed the proceeding on the merits.

DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.