IN RE: Michael DiGEORGIO

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IN RE: Michael DiGEORGIO, doing business as DiGeorgio Enterprises, Petitioner-Respondent, v. David J. SWARTS, Commissioner, Department of Motor Vehicles of State of New York, Respondent-Appellant.

Decided: December 30, 2009

PRESENT: HURLBUTT, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ. Andrew M. Cuomo, Attorney General, Albany (Owen Demuth of Counsel), for Respondent-Appellant. Peter Bereskin, Utica, for Petitioner-Respondent.

Respondent appeals from a judgment in this CPLR article 78 proceeding that, inter alia, ordered him to “approve” petitioner's application for an inspection station license. We agree with respondent that there was a rational basis for his denial of petitioner's application and that judicial intervention therefore was not warranted (see Matter of Blake Bus. School v. Sobol, 176 A.D.2d 1139, 1140, 575 N.Y.S.2d 955, appeal dismissed 80 N.Y.2d 825, 587 N.Y.S.2d 907, 600 N.E.2d 634; Matter of Berger v. Leach, 103 A.D.2d 1018, 478 N.Y.S.2d 395). Contrary to petitioner's contention, respondent was entitled to consider past violations of inspection laws and regulations by all of the owners and employees of the prospective inspection station in determining whether to grant the application, i.e., he should issue the license “only when satisfied that the station is properly equipped and has competent personnel to make such inspections and that such inspections will be properly conducted” (Vehicle and Traffic Law § 303[a][1]; see generally Spencer v. NYC Taxi & Limousine Commn., 30 A.D.3d 300, 816 N.Y.S.2d 682; Matter of New York City Tr. Auth. v. Pierrot, 144 A.D.2d 814, 816, 534 N.Y.S.2d 561).

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

MEMORANDUM: