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

IN RE: FERNANDO A. BERROA, Appellant, v. BARBARA J. FIALA, as Commissioner of Motor Vehicles, Respondent.


Decided: November 26, 2014

Before:  Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ. James Kleinbaum, Chatham, for appellant. Eric T. Schneiderman, Attorney General, New York City (Matthew W. Grieco of counsel), for respondent.


Calendar Date:  October 14, 2014

Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered October 25, 2013 in Albany County, which, among other things, dismissed petitioner's application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review a determination of respondent denying petitioner's application for a driver's license.

Petitioner, who had committed 22 driving offenses between 2004 and 2011, had his driver's license revoked in 2011.   In July 2012, petitioner applied for, and was denied, a reinstatement of his driver's license, a decision that was affirmed by the Administrative Appeals Board.   Petitioner then commenced this hybrid CPLR article 78 proceeding and action for declaratory judgment, seeking annulment of the determination and an order either granting petitioner a driver's license or remitting and requiring review by respondent under the regulations existing at the time of petitioner's application rather than the revised regulations in place at the time of the denial.   Supreme Court dismissed petitioner's application.   Petitioner now appeals arguing that the court erred when it found that the application of 15 NYCRR former 136.5(a)(3) and (b)(2) was not based on an error of law, arbitrary and capricious, irrational or an abuse of discretion.

For the reasons set forth in Matter of Scism v. Fiala (_ AD3d _ [decided herewith] ), we affirm.

Peters, P.J., Stein, Rose and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.


Robert D. Mayberger

Clerk of the Court

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