IN RE: J. SCARAMELLA TRUCKING

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

IN RE: J. SCARAMELLA TRUCKING, petitioner, v. Raymond P. MARTINEZ, respondent.

Decided: April 24, 2007

ROBERT W. SCHMIDT, J.P., WILLIAM F. MASTRO, EDWARD D. CARNI, and THOMAS A. DICKERSON, JJ. Eric Nelson, Staten Island, N.Y., for petitioner. Andrew M. Cuomo, Attorney General, New York, N.Y. (Robert H. Easton and Carol Fischer of counsel), for respondent.

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Appeals Board dated August 25, 2005, 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)(9) and 4-15(b)(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];  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).   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, 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;  see Matter of River Ave. Contr. Corp. v. Martinez, 22 A.D.3d 761, 802 N.Y.S.2d 376;  Matter of Scara-Mix, Inc. v. Martinez, 305 A.D.2d 418, 758 N.Y.S.2d 507).

 Here, the testimony of the officer who issued the summonses regarding the condition of the roadway where the 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 Mo's Carting Corp. v. Martinez, 28 A.D.3d 560, 813 N.Y.S.2d 505;  Matter of El Camino Trucking Corp. v. Martinez, 21 A.D.3d 491, 799 N.Y.S.2d 819;  Matter of Valente Equip. Leasing Corp. v. Martinez, 19 A.D.3d 701, 798 N.Y.S.2d 86;  Matter of Metro Demolition Contr. Corp. v. Martinez, 12 A.D.3d 513, 784 N.Y.S.2d 652;  Matter of Sprint Recycling, Inc. v. Martinez, 12 A.D.3d 451, 784 N.Y.S.2d 597;  Matter of Quality Concrete of NY, Inc. v. Martinez, 11 A.D.3d 697, 783 N.Y.S.2d 292;  Matter of Omni Waste Servs., Inc. v. Martinez, 11 A.D.3d 696, 782 N.Y.S.2d 917;  Matter of Mastronardi Masons v. Martinez, 8 A.D.3d 671, 779 N.Y.S.2d 537;  Matter of Maspeth Operating Corp. v. Martinez, 8 A.D.3d 670, 779 N.Y.S.2d 536;  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;  Matter of City Hawk Indus. v. Martinez, 2 A.D.3d 635, 768 N.Y.S.2d 353).

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