Bibi Khan-Soleil v. Rashad

Appellate Division of the Supreme Court of the State of New York

Nov 13, 2013

Versions:111 A.D.3d 727

974 N.Y.S.2d 798

Blackstone

Board, arguing that the penalty was disproportionate to her offense because there was no finding of gross negligence, she had a spotless driving record, and it was likely that a one-year suspension would cause her to lose her job. The DMV Appeals Board affirmed the ALJ‘s determination, and the petitioner thereafter commenced this proceeding pursuant to CPLR article 78, seeking to annul the penalty on the ground that it was disproportionate to the offense and thus, in effect, an abuse of discretion. The Supreme Court granted the petition to the extent of reducing the license suspension to a period of 60 days.

Pursuant to Vehicle and Traffic Law § 510 (3) (a), the DMV is authorized, in its discretion, to suspend or revoke driving privileges for “any violation” of the Vehicle and Traffic Law. “An administrative penalty must be upheld unless it ‘is so disproportionate to the offense . . . as to be shocking to one‘s sense of fairness,’ thus constituting an abuse of discretion as a matter of law” (Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775, 776 [2004], quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 237 [1974]). Judicial review of an administrative sanction is limited to the record adduced before the agency upon which the penalty was assessed (see Matter of Kelly v Safir, 96 NY2d 32, 39 [2001]).

Here, the administrative record before the DMV included the petitioner‘s unblemished driving record prior to this accident and her assertion before the DMV Appeals Board, unsupported by any evidence, that she believed that her employer of 20 years would terminate her employment if she could not drive for one yeаr. The record also included her undisputed testimony that she was driving on an unfamiliar road while she was tired after a long and exhausting work week, and that she had no recollection of the events immediately preceding the accident, when she admittedly fell asleep and crossed the center line, causing a head-on collision with resulting fatality. Under all of the circumstances of this case, the one-year suspension of the petitioner‘s driving privileges was not so disproportionate to the offense as to be shocking to one‘s sense of fairness, thus constituting an abuse of discretion as a matter of law (see Matter of Kreisler v New York City Tr. Auth., 2 NY3d at 776; Matter of Hernigle v Macduff, 305 NY 367, 369 [1953]; Matter of Rosenhauch v Swarts, 85 AD3d 1187 [2011]; cf. Matter of De Rooy v Martinez, 27 AD3d 1139 [2006]). Accordingly, the Supreme Court should have confirmed the determination.

Angiolillo, J.P., Hall, Austin and Miller, JJ., concur.

In the Matter of Bibi Khan-Soleil, Petitioner, v Armani Rashad, Respondent. Austin I. Idehen, Nonparty Appellant. (Proceeding No. 1.) In the Matter of Armani Rashad, Petitioner, v Bibi Khan-Soleil, Respondent. Austin I. Idehen, Nonparty Appellant. (Proceeding No. 2.) [974 NYS2d 798]

In related child custody proceedings pursuant to Family Court Act article 6, nonparty Austin I. Idehen appeals from an order of the Family Court, Kings County (Hepner, J.), dated June 11, 2012, which, sua sponte, imposed a sanction upon him in the sum of $500.

Ordered that on the Court‘s own motion, the notice of appeal is deemed an application for leave to appeal, and leave to appeal is granted (see Family Ct Act § 1112 [a]); and it is further,

Ordered that the order is affirmed, without costs or disbursements.

Sanctions may be imposed “either upon motion in compliance with CPLR 2214 or 2215 or upon the court‘s own initiative, after a reasonable opportunity to be heard” (22 NYCRR 130-1.1 [d]). “The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case” (22 NYCRR 130-1.1 [d]; see Breslaw v Breslaw, 209 AD2d 662, 663 [1994]). The decision of whether to award sanctions and the amount or nature of those sanctions is generally entrusted to the trial court‘s sound discretion (see Navin v Mosquera, 30 AD3d 883, 883-884 [2006]; Riley v ISS Intl. Serv. Sys., 304 AD2d 637 [2003]; Sawh v Bridges, 120 AD2d 74, 78 [1986]).

Here, the imposition of a sanction was warranted, and the nonparty-appellant was afforded a reasonable opportunity to be heard (see Polidori v Societe Generale Group, 57 AD3d 369 [2008]; RCN Constr. Corp. v Fleet Bank, N.A., 34 AD3d 776, 777 [2006]; see also Breslaw v Breslaw, 209 AD2d at 663). Furthermore, the Family Court adequately explained the basis for its decision to impose a sanction (compare Polidori v Societe Generale Group, 57 AD3d at 369). Although the court did not set forth “the reasons why the court found the amount . . . imposed to be appropriate” (22 NYCRR 130-1.2), we find that the record is sufficient and that the sum imposed upon the nonparty-appellant was appropriate in light of his waste of judicial resources (see Selletti v Liotti, 104 AD3d 835, 836-837 [2013]; Schwab v Phillips, 78 AD3d 1036, 1037 [2010]; Bernadette Panzella, P.C. v DeSantis, 36 AD3d 734 [2007]). Skelos, J.P., Cohen, Miller and Hinds-Radix, JJ., concur.

In the Matter of Bibi Khan-Soleil, Appellant, v Armani Rashad, Respondent. (Proceeding No. 1.) In the Matter of Armani Rashad, Respondent, v Bibi Khan-Soleil, Appellant. (Proceeding No. 2.) [978 NYS2d 226]