Budget Tire Center, Inc. v. Jackson — 235 A.D.2d 975

Majority

p. 975

In the Matter of Budget Tire Center, Inc., et al., Appellants, v Richard Jackson, as Commissioner of the New York State Department of Motor Vehicles, Respondent.

[653 NYS2d 872]

Appeal from a judgment of the Supreme Court (Bradley, J.), entered June 21, 1995 in Albany County, which dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent, inter alia, revoking petitioners’ license to inspect motor vehicles.

p. 976

We agree with Supreme Court that petitioners, having failed to raise the substantial evidence issue on administrative appeal to respondent, have waived their right to raise the issue in this CPLR article 78 proceeding (see, Matter of Valentine v Coughlin, 200 AD2d 838 ; Matter of Cushing-Gale v Kelly, 155 AD2d 996 ). In our view, the fact that respondent’s review included a sua sponte consideration of the issue does not alter that result. In any event, we conclude that respondent’s determination that petitioners violated certain provisions of the Vehicle and Traffic Law and regulations of respondent relating to the inspection of motor vehicles was supported by substantial evidence on the record as a whole.

On appeal to this Court, petitioners have advanced no challenge to Supreme Court’s determination that the penalty imposed was not so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222 , 233), thereby abandoning the issue (see, First Natl. Bank v Mountain Food Enters., 159 AD2d 900 , 901).

Cardona, P. J., Mikoll, Crew III and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.

Cases cited

Pell v. Board of Education 34 NY2d 222 N.Y. 1974-05-15 at 233 p. 976
First National Bank v. Mountain Food Enterprises, Inc. 159 AD2d 900 N.Y. App. Div. 1990-03-29 at 901 p. 976