In this Article 78 proceeding, petitioner Erich Milord moves, by order to show cause, for an order vacating and annulling the determination of the Appeals Board of respondent New York State Department of Motor Vehicles (respondent/DMV) dated July 26, 2013, which sustained the suspension and revocation of the petitioner's driver's license imposed upon him by the Administrative Law Judge (Robert Krengel), following a hearing held on November 30, 2012; and directing the respondent to tender a valid Class E driver's license to the petitioner.

On December 22, 2011, the petitioner made application for a Class E driver's license (the December 22, 2011 license application), and presented himself for a driver's license photo. On the submitted application, located on page two of the "NYS Application for Driver License or Non Driver Id Card (MV-44)" the petitioner answered "No" to the following question: "Have you had a driver license, learner, permit, or privilege to operate a motor vehicle suspended, revoked or cancelled, or an application for a license denied in this state or elsewhere, in this or any other name?"According to DMVs December 23, 2011 "Division of Field Investigation Internal Report of Complaint," Mr Milford's photo came up on DMV's facial recognition software, which indicated a picture of Mr. Milford in connection with a May 6, 1998 license application (the May 6, 1998 license application). According to the respondent's February 27, 2012 "Division of Field Investigation Charge Sheet," John McLaughlin, an investigator for the respondent's Division of Field Investigation Unit, determined that the petitioner knowingly made a false statement when he indicated that his privilege to operate a motor vehicle had not been revoked. [*2]Specifically, Mr. McLaughlin found that, based on his research (discussed below) the petitioner had previously obtained a Class E driver's license in 1998 under the name of Milford, Jean Erich (CID#993861336), which had been revoked.

The respondent subsequently issued an order, dated March 16, 2012, which suspended Mr. Milford's license for invalid proof of insurance with respect to a 2003 Chevrolet which was registered in his name. By letter dated May 7, 2012, the respondent informed petitioner that: (1) on January 17, 2012, a 2003 Chevrolet was registered in petitioner's name, listing State Farm as the insurance carrier; (2) State Farm had notified the respondent that they did not cover this vehicle; (3) and license plates FST8424 had been returned to the respondent on April 26, 2012. Pursuant to a Suspension Order dated April 27, 2012, petitioner received a 100-day registration and license suspension. Mr. Milford informed the respondent, sometime thereafter, that his name had been fraudulently used in registering a vehicle. By letter dated May 7, 2012, the respondent enclosed form F-17, entitled "Report of Unauthorized Use of License /Registration" for the petitioner to fill out and return to the respondent. The respondent also informed the petitioner that the license suspension time was to be served on July 15, 2012 after the petitioner paid a $50 license suspension termination fee.

By letter dated September 20, 2012, the petitioner requested a hearing on the grounds that he did not obtain any documents, including a learner's permit, a non-driver ID, or a driver's license at the respondent's facility on May 6, 1998. Pursuant to Section 510 (3) of the Vehicle and Traffic Law of the State of New York, a hearing was held on November 30, 2012 to investigate a violation of Section 392 of the Vehicle and Traffic Law. Vehicle and Traffic Law § 510 (3-a) provides that, where revocation or suspension of a driver's license by the Commissioner of Motor Vehicles is permissive, the holder shall have an opportunity to be heard, except where based solely on a court conviction or commitment to a mental institution (see also 24B Carmody-Wait 2d § 145:1501).

At the November 30, 2012 hearing, Mr. McLaughlin testified that the facial recognition system is a computer program which breaks a person's facial features into a mathematical algorithm, that it runs against every other algorithm in its system. Mr. McLaughlin stated that the facial recognition software revealed the existence of a Class E license bearing a photo of the petitioner under the name Jean Erick Milord, date of birth December 20, 1967, which had been subsequently revoked for an insurance lapse. He also indicated that he conducted a full record search under the respondent's COMPASS record system, wherein Mr. McLaughlin found an order issued on February 4, 1998 for an unregistered motor vehicle infraction with respect to the petitioner that had taken place in Philadelphia.

Mr. McLaughlin further testified that, on February 2012, he met with the petitioner and showed the petitioner the picture submitted for the May 6, 1998 license application. According to Mr. McLaughlin, at the February 2012 meeting, the petitioner informed him that the picture looked like him. Lastly, Mr. McLaughlin testified that the signature on the May 6, 1998 license application looks similar to the petitioner's English signature on his Haitian passport, which was marked as an exhibit.

The petitioner testified that he has never previously submitted an application for a non-driver's license, learner permit or a driver's license prior to December 22, 2011, and he has never registered a vehicle in the United States. Specifically, the petitioner stated he was not in the United States between November 1995 and January 1998. He testified that, although the photographic image taken in connection with the May 6, 1998 license application does look like him, the photo is not of the petitioner. The petitioner testified that the photographic image also [*3]looks like his brother, Reginald, and his friend, Mario Dupont. Mr. Milford stated that, contrary to the information listed on the May 6, 1998 license application, he never lived at the listed address of 483 East 43rd Street in Brooklyn. He testified that, although the signature on the May 6, 1998 license application is written in English, the petitioner only signs his name in Hebrew, with the exception of his Haitian passport which was signed in English upon instruction of the Haitian government. In addition, the petitioner noted that, although the May 6, 1998 license application indicates that the petitioner has a "Th.D," he does not have a doctorate in theology. Rather, the petitioner testified that he has three master's degrees and a doctorate unrelated to theology. Lastly, Mr. Milford stated that he was never mailed a driver's license in relation to the May 6, 1998 license application.

The petitioner maintained that in 1998, he reported to the police (63rd Precinct) that he lost his passport and travel documents, and the petitioner believes someone may have used the documents to steal his identity.According to the petitioner, he wrote a September 20, 2012 letter to the respondent's office in Poughkeepsie, informing them that someone had fraudulently registered a motor vehicle in his name. He also testified that, at the respondent's request, he submitted a "Report of Unauthorized Use of License Registration" to the respondent. Following the November 30, 2012 hearing, on January 8, 2013, Administrative Law Judge Robert J. Krengel found that the petitioner knowingly made a false statement in connection with the December 22, 2011 license application. By letter dated January 18, 2013, revoked the petitioner's driver's license for violation of Vehicle and Traffic Law § 392, effective February 16, 2013, for one year.

The petitioner appealed the original decision via appeal form and attachments, which were respectively received by the DMV on February 8th and 11th, 2013. A "Notice of Restoration" dated March 5, 2013 stayed the suspension of the petitioner's driver's license pending the appeal. On May 28, 2013, the Administrative Appeals Board issued a Decision of Appeal whereby it affirmed the original determination, and vacated the stay. In doing so, the Administrative Appeals Board stated that the testimony of both the DMV Investigator and the petitioner, together with the documentary and photographic evidence, was sufficient to support the violations found. Consequently, the petitioner received an Order of Suspension or Revocation dated July 26, 2013, whereby the petitioner's license was permissibly revoked effective August 24, 2013, for 348 days.

The petitioner argues that the affirmation of the Appeals Board is based on the record of someone else other than the petitioner, and that the alleged occurrences in relation to the May 6, 1998 license application occurred when the petitioner was teaching and finishing a second master's degree outside the United States. The petitioner also maintains that any allegation having to do with the petitioner owning a car or driving any type of vehicle in any state up until September 2012 is unfounded. According to the petitioner, the respondent's claim that the petitioner had a previous license which had been permissively revoked is chronologically, physically, and logically "unprovable." Thus, the petitioner states that he did not make a false statement on his December 22, 2011 license application.

The petitioner contends that, at the hearing, he provided sufficient information to clarify the matter. Mr. Milford alleges that, throughout the hearing, he was unfairly precluded from voicing his objections. The petitioner also maintains that the Investigator perjured himself at the hearing by presenting the fraudulent May 6, 1998 license application, which contained a picture that merely resembled the petitioner.

The respondent contends that this is a substantial evidence issue such that the matter must be transferred to the Appellate Division, as the Appeals Board made its determination after a hearing at which evidence was taken. According to the respondent, there is substantial evidence in the record to fully support the Appeals Board's finding. Thus, the determination that the petitioner was still in violation at the time of the hearing, and the penalty imposed as a result of that violation, were based on substantial evidence and conformed with the Administrative Code.

CPLR 7803 provides that "[t]he only questions that may be raised in a proceeding under this article are: "1. whether the body or officer failed to perform a duty enjoined upon it by law; or 2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or 4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence." Pursuant to CPLR 7803, a the petitioner may challenge the decision because either it is not supported by "substantial evidence," or it is not rationally based and, thus, is "arbitrary and capricious."

CPLR 7804 (g) provides that: "[w]here the substantial evidence issue specified in question four of section 7803 is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced. When the proceeding comes before it, whether by appeal or transfer, the appellate division shall dispose of all issues in the proceeding, or, if the papers are insufficient, it may remit the proceeding."

In accordance with CPLR 7804 (g), a "substantial evidence" question must be transferred to the Appellate Division. If, however, the question presented concerns the interpretation of law or the magnitude of the penalty imposed transfer to the Appellate Division is not required (see Matter of Rosenkrantz v McMickens, 131 AD2d 389, 390 [1987]). This court finds that the present petition challenges the weight and sufficiency of the evidence adduced at the hearing and, thus, raises the issue of whether substantial evidence supported the determination. Specifically, the petitioner disputes the determination based upon the evidence that he submitted. He also contends that the record, as a whole, contains evidence sufficient to satisfy a reasonable person of all the facts necessary to demonstrate that: (1) the petitioner did not apply for the May 5, 1998 previous license application; and that (2) the petitioner did not lie on his December 22, 2011 application. Substantial evidence contains such relevant proof as a reasonable mind might accept as adequate to support a conclusion or ultimate fact (Bush v Mulligan, 57 AD3d 772 [2008] see also Vecchia v Town of North Hempstead, 174 AD2d 739 [1991] Matter of Lahey v Kelly, 71 NY2d 135 [1987]). The substantial evidence question raised herein necessitates a transfer of this proceeding to the Appellate Division, Second Department, under CPLR 7804(g). As a result, the court cannot address any legal issues or the merits of the claims set forth in the petition.

This constitutes the decision and order of the court.

E N T E R,

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yvonne lewis, J.S.C.