IN RE: Silvio E. RESCINITI

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

IN RE: Silvio E. RESCINITI, petitioner, v. DEPARTMENT OF MOTOR VEHICLES OF the STATE OF NEW YORK, respondent.

Decided: November 30, 1998

ALBERT M. ROSENBLATT, J.P., DANIEL S. RITTER, FRED T. SANTUCCI and LEO F. McGINITY, JJ. Silvio E. Resciniti, Brooklyn, N.Y. (Thomas Torto of counsel), petitioner pro se. Dennis C. Vacco, Attorney-General, New York, N.Y. (Robert A. Forte and Sapna Shah of counsel), for respondent.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Appeals Board, Department of Motor Vehicles of the State of New York, dated August 27, 1997, which affirmed a decision of an Administrative Law Judge of the State of New York Department of Motor Vehicles, dated March 15, 1995, which, after a hearing, found the petitioner guilty of violating Vehicle & Traffic Law § 1111(d)(1), and imposed a fine of $50 and a surcharge of $25.

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

The determination that the petitioner violated Vehicle & Traffic Law § 1111(d)(1) is supported by substantial evidence and must be confirmed (see, 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 379 N.E.2d 1183;  Matter of Ballen v. Commissioner of Motor Vehicles, 147 A.D.2d 560, 537 N.Y.S.2d 899).   The petitioner's challenge to the administrative determination rests upon an issue of credibility which was primarily for the fact-finder to resolve (see, Matter of Kahn v. State of New York Dept. of Motor Vehicles, 134 A.D.2d 594, 521 N.Y.S.2d 494).

The minor discrepancy in the police officer's description of the petitioner's vehicle (a black 1993 Toyota sedan) as a black 1991 Toyota sedan, is “insufficient to overcome the great weight that is accorded to the Administrative Law Judge's findings” (Matter of Toplitz v. Adduci, 162 A.D.2d 271, 556 N.Y.S.2d 629).

MEMORANDUM BY THE COURT.

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