IN RE: MASTRONARDI MASONS

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

IN RE: MASTRONARDI MASONS, petitioner, v. Raymond P. MARTINEZ, Commissioner of the New York State Department of Motor Vehicles, respondent.

Decided: June 28, 2004

A. GAIL PRUDENTI, P.J., DAVID S. RITTER, BARRY A. COZIER, and PETER B. SKELOS, JJ. Margolis & Flanary, LLP, Garden City, N.Y. (Walker G. Flanary III of counsel), for petitioner. Eliot Spitzer, Attorney-General, New York, N.Y. (Michael S. Belohlavek and Thomas B. Litsky of counsel), for respondent.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Raymond P. Martinez, the Commissioner of the New York State Department of Motor Vehicles, dated September 23, 2002, which confirmed the findings of an Administrative Law Judge, made after a hearing, that the petitioner violated New York City Traffic Rules and Regulations (34 RCNY) § 4-15(b)(9), and Vehicle and Traffic Law § 401(7)(F)(b), 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 a determination rendered by an administrative body after a hearing is limited to whether that determination is supported by substantial evidence upon the entire record (see 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;  Matter of L. Camino Trucking v. Martinez, 5 A.D.3d 597, 774 N.Y.S.2d 158).   Substantial evidence has been defined as “ such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, supra at 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   Moreover, “ [t]he 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, 522 N.Y.S.2d 478, 517 N.E.2d 193, quoting Matter of Stork Rest. v. Boland, 282 N.Y. 256, 267, 26 N.E.2d 247).   As the determination is supported by substantial evidence, we decline to disturb it.

 The testimony of the traffic enforcement agent who issued summonses regarding the condition of the roadway at the location of the weighing site in question, his training, the accuracy of the scales, the manner in which he weighed the petitioner's vehicle, and the weight observed and recorded for each measurement, provided a sufficient basis for the determination of the Administrative Law Judge (see Matter of Maspeth Ave. Operating Corp. v. Martinez, 2 A.D.3d 446, 767 N.Y.S.2d 868;  Matter of Scara-Mix, Inc. v. Martinez, 305 A.D.2d 418, 758 N.Y.S.2d 507).

 Moreover, the seizure of petitioner's truck, which occurred at the weigh station and pursuant to a nondiscriminatory pattern of selection by the officer weighing the vehicles, was constitutional (see Matter of City Hawk Indus. v. Martinez, 2 A.D.3d 635, 768 N.Y.S.2d 353;  see also People v. Scott, 63 N.Y.2d 518, 483 N.Y.S.2d 649, 473 N.E.2d 1;  cf. People v. Mirin, 280 A.D.2d 495, 496, 721 N.Y.S.2d 59).

The petitioner's remaining contentions are without merit (see Matter of Clinton Ave. Constr. Corp. v. Martinez, 8 A.D.3d 273, 777 N.Y.S.2d 688;  Matter of L. Camino Trucking v. Martinez, supra ).

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