Preview
FILED: BROOME COUNTY CLERK 07/01/2022 03:31 AM INDEX NO. EFCA2022000255
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BROOME
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In the Matter of the application of
THOMAS R. PILKINGTON,
AFFIRMATION OF
Petitioner, JAMES M. PASSINEAU
Index No. EFCA2022000255
-against~
NEW YORK STATE DEPARTMENT OF MOTOR
VEHICLES,
Respondents.
For a Judgment Under Article 78 of the New York CPLR
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JAMES M. PASSINEAU affirms, pursuant to CPLR 2106, as follows:
1. I am an Assistant Counsel in Counsel's Office of the New York State Department
of Motor Vehicles (the "DMV"). I submit this affirmation based upon my own personal
· knowledge, a review of the files of the DMV and conversations with DMV employees.
2. I submit this affirmation in opposition to the Petition of Thomas R. Pilkington
("Petitioner") dated February 11, 2022, (the "Petition").
Statutory and Regulatory Review
3. Pursuant to the authority contained in Vehicle and Traffic Law ("YTL")§§ 510(6),
1193(2)(c), and 1194(2)( d)(l ), the Commissioner of Motor Vehicles (the "Commissioner'') is
authorized to exercise discretion to establish criteria for relicensing after revocation of a driver's
license. In 2012, the Commissioner promulgated strict regulations governing the re-licensing of
recidivist drunk/impaired drivers as set forth in 15 NYCRR Part 136.5. These regulations were
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upheld by the New York State Court of Appeals in Matter of Acevedo, v. N. YS. Dep 't of Motor
Veh, 29 N.Y.3d 202 (2017).
4. When a person's driver's license is revoked, with minor exceptions not applicable
here, the person must apply to the Commissioner for re-licensing. The person makes an application
to the DMV's Driver Improvement Unit (the "DIU"), which is responsible for reviewing the
application for re-licensing. In cases where the applicant. has multiple alcohol or drug-related
driving convictions and/or incidents, the DIU applies the criteria set forth in Part 136.5.
5. Under Part 136.5, the DIU performs a lifetime review of an applicant's driving
record. If a person has five or more alcohol or drug-related driving convictions or incidents within
their lifetime, such person must be "permanently" denied re-licensure under 15 NYCRR Part
135.5(b)(l). An alcohol or drug-related driving conviction or incident includes offenses such as:
(1) chemical test refusal; (2) driving while intoxicated; and (3) an out of state convicti0(1, See, 15
NYCRR Part 136.5(a)(l).
The Unusual, Extenuating and Compelling Circumstances Exception
6. Part 136.5 provides a window of opportunity for those who are permanently denied.
Such applicant may request an exception to the denial due to unusual, extenuating and compelling
circumstances ("UEC"). See, 15 NYCRR Part136.5(d). When a UEC request is made by a
permanently denied applicant, DIU will review and consider an applicant's arguments arid
documentation provided on a case-by-case basis.
7. In performing this review, the DIU uses its well-established and uniform UEC
process as set forth on form DS-322. Record ("R") at 51 - 54. This reference relates to the
administrative Record that is made a part of and incorporated by reference in the accompanying
Answer to this Petition.
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· 8. The DIU also considers the nature, frequency, and timeframe of the applicant's
prior violations as well as the severity of the applicant's total situation. R. at 51 - 54.
9. The DIU reviews hundreds of these applications and is in the best position to
.evaluate what circumstances are truly unusual, extenuating and compelling, and what, if any,
verifiable, credible documentation submitted supports the applicant's claim for a UEC exception.
For example, most ' applicants state that they have been through alcohol rehabilitation
. \
and suffer
hardship getting to work without a license. This is true of almost any person who has been
convicted of multiple alcohol-r~lated offenses. There is nothing unusual, extenuating and
compelling about such a situation.
10. Unquestionably, the DMV has set the bar high for granting of an application for re~
licensure based upon a UEC exception. These standards are necessary to prevent recidivist drunk
drivers from posing a grave risk to others on public roads and highways.
Administrative Record of the Petitioner
11. Petitioner submitted an application for re-licensing, which was stamped April 8,
2021. R. at 88 - 89.
12. A review of Petitioner's lifetime driving record indicates that he has been convicted
of driving while ability impaired ("DWAI") (violation date December 22, 2007), he has also been
convicted of driving while intoxicated ("DWI") in New York on three occasions (violation dates
November 8, 1997; April 24, 1993; and April 27, 1991). The DIU also learned ofa DWI conviction
in South Carolina on May 12, 1989, through the National Driver Registry ("NDR"). R. at 81 - 84.
In addition to the convictions noted above, he refused to submit to a chemical test on three occasions
(incident dates December 22, 2007; November 8, 1997; and April 24, 1993.) R. at 2 - 8. Therefore,
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his application for re-licensure was correctly denied by DIU under 15 NYC RR Part l 36.5(b )(1) in
its decision dated June 3, 2021. R. at 62 - 64 .
. 13. The June 3, 2021 denial advised that the Petitioner could, "SUBMIT THE
ATTACHED FORM, 'REQUEST FOR RELICENSING RECONSIDERATION AFTER
DENIAL," TO THE DRIVER IMPROVEMENT BUREAU WITHIN SIXTY (60) DAYS OF
THE DATE OF THIS LETTER requesting reconsideration, IF you have unusual, extenuating, and
compelling circumstances that you believe would justify approval of yolll: driver license
application ... " with additional instructions that followed. R. at 62 - 69.
14. The instructions on the form explicitly indicated that, "[Y]ou must explain in detail
each circumstance ... " and "[Y]ou must provide credible, verifiable documentation to support. all
circumstances claimed ... " R. at 65.
15. In addition, on the bottom of that same form, it states, "[P]lease note: unusual,
extenuating, and compelling circumstances alone do not warrant granting an approval. If your
driving history includes a series of convictions, incidents, and/or crashes, or you have a
medical/mental condition, which is indicative of a significant risk to highway safety, your
application for relicensing may not be approved even with extenuating circumstances." R. at 65 -
66.
16. The Petitioner submitted a "Request for Reconsideration After Denial" form
alleging "unusual, extenuating and compelling circumstances," dated July 27, 2021. R. at 38 -
41.
17. On the "Request for Reconsideration After Denial," Petitioner selected boxes
indicating that no public transportation is available in relation to "Disabilities/Serious lllness,"
that no public transportation is available in relation to "Employment/Requirement for
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employment," that he has a"Long-ter111. recovery for alcohol and/or substance use," and "Other,"
which included handwritten details explaining, among other things, that he completed treatment,
that he is employed, and that he takes taxis to health care appointments
18. Petitioner did not provide any documentation related to "Disabilities/Serious
Illness" or that public transportation is unavailable to travel in relation to his employment or his
unsubstantiated medical needs. He did not document his income, how much and how often he
pays for alternative transportation, or where/how often his medical appointments are.
19. The Petitioner provided DIU with the following documentation in support of his
application:
a. A letter stating that Petitioner paid the full balance of a mortgage;
b. A letter from Petitioner's employer;
c. A substance abuse assessment form from EAP Consultants. I ,I ,C. dated February
2,2021;
d. A letter from Connections at Psychotherapy Associates, signed by Eli I Kassis,
dated February, 9, 2021;
e. A letter from Connections at Psychotherapy Associates, signed by Eli l Kassis,
dated May 15, 2018; R. at 42 - 50.
20. The DIU considered the information provided and issued to the Petitioner a UEC
denial letter dated August 10, 2021. R. at.34 - 35. The DIU denied the application for rc-licensurc
because the Petitioner failed to demonstrate by sufficient verifiable, corroborating documentation
unusual, extenuating and compelling circumstances. The denial states that the request Petitioner
submitted did not demonstrate unusual, extenuating and compelling circumstances beyond the
expected inconvenience of being unlicensed, The DIU also determined that granting Petitioner a
license would be inconsistent with DMV's mission of promoting higlw,,ay safety. R. at 34, ','.',; 2 -
3.
21. The DIU used the checklist in form DS-322 to review the application, as it does
with every such applicant. It was noted in this review that (i) no substantiation of lack of public
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transportation was provided; and (ii) while some documentation was provided, it was not sufficient
to grant a UEC exemption. R. at 51 - 52.
22. Petitioner's UEC request was properly denied for several reasons. Petitioner
claimed that his job site changes frequently, and public transportation is impossible to
accommodate the job site changes. However, Petitioner failed to provide any documentation to
support that claim. In fact, per the letter provided to Petitioner from his employer, he has been
working with the same company for 23 years and "has an outstanding attendance and on time
record". R. at 43. Petitioner's license has been revoked since January 23, 2008, which means his
lack of license has not been a deterrent for his employment for more than fourteen years.
23. While Petitioner provides documentation to show a commitment to sobriety and
rehabilitation, the documentation is vague when it comes to the methods used to verify the claimed
rehabilitation. In fact, the documentation appears to be information that was provided by Petitioner
himself without corroboration. For example, the letters provided by Eli Kassis dated May 15, 2018
and February 9, 2021, state that Petitioner "reportedly abstained from alcohol consumption" but
fails to provide any information to corroborate the self-serving claim. ln addition, no
documentation is provided to show any rehabilitation efforts prior to the May 15, 2018 letter. The
February 9, 2021 letter explains that Petitioner attended therapy between 2014 and 2016, and a
follow up in 2021. There is no evidence of ongoing or current treatment or counseling. DlU
indicated on the review form that the rehabilitation documentation was insufficient to grant a UEC
exception. The need for detailed rehabilitative information, for the entire period of revocation,
from credible, verifiable, credentialed third parties is entirely reasonable, and required by DIU, as
DIU cannot risk re-licensing drivers based on rehabilitation documentation that's insufficient.
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24. The denial of Petitioner's application was not arbitrary and capricious because the
DMV, in considering applications for re-licensure under 15 NYCRR Part 136.5(d), has established
clear, reasonable standards and procedures that are uniformly used to evaluate such applications,
and its evaluation of Petitioner's application followed those procedures.
26. While it is commendable that Petitioner has paid off his mortgage and managed to
maintain an excellent attendance record at work, there was nothing unusual, extenuation and
compelling about the • inconvenience of not being able to drive for work purposes. The
inconvenience and expense of not having a license is not unusual. There was nothing unusual,
extenuation and compelling that would· have warranted granting a license to this repeat alcohol·
offender, who offered minimal documentation about the lack of a driver's license being an
inconvenience and an expense. Given Petitioner's recidivist driving history, and the lack of
supporting documentation in credible, verifiable form, re-licensing the Petitioner would pose a
significant risk to highway safety. Even if he presented unusual,. compelling and extenuating
circumstances, DMV is not compelled to consider a UEC request and discretion of whether to
grant an exception lies solely with DMV.
25. Therefore, the denial of his request was proper in all respects, the Petition should
be denied, and the proceeding dismissed.
June 30, 2021
Albany, New York
sistant Counsel,
NYS Department of Motor Vehicles
6 Empire State Plaza, Room 522A
Albany, New York 12228
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FILED: BROOME COUNTY CLERK 07/01/2022 03:31 AM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BROOME - - - - - - - - - - - - - - - - - - -X In the Matter of the application of THOMAS R. PILKINGTON, AFFIRMATION OF Petitioner, JAMES M. PASSINEAU Index No. EFCA2022000255 -against~ NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Respondents. For a Judgment Under Article 78 of the New York CPLR - - - - - - - - - - - - - - - - - - -X JAMES M. PASSINEAU affirms, pursuant to CPLR 2106, as follows: 1. I am an Assistant Counsel in Counsel's Office of the New York State Department of Motor Vehicles (the "DMV"). I submit this affirmation based upon my own personal · knowledge, a review of the files of the DMV and conversations with DMV employees. 2. I submit this affirmation in opposition to the Petition of Thomas R. Pilkington ("Petitioner") dated February 11, 2022, (the "Petition"). Statutory and Regulatory Review 3. Pursuant to the authority contained in Vehicle and Traffic Law ("YTL")§§ 510(6), 1193(2)(c), and 1194(2)( d)(l ), the Commissioner of Motor Vehicles (the "Commissioner'') is authorized to exercise discretion to establish criteria for relicensing after revocation of a driver's license. In 2012, the Commissioner promulgated strict regulations governing the re-licensing of recidivist drunk/impaired drivers as set forth in 15 NYCRR Part 136.5. These regulations were 1 of 7 FILED: BROOME COUNTY CLERK 07/01/2022 03:31 AM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/01/2022 upheld by the New York State Court of Appeals in Matter of Acevedo, v. N. YS. Dep 't of Motor Veh, 29 N.Y.3d 202 (2017). 4. When a person's driver's license is revoked, with minor exceptions not applicable here, the person must apply to the Commissioner for re-licensing. The person makes an application to the DMV's Driver Improvement Unit (the "DIU"), which is responsible for reviewing the application for re-licensing. In cases where the applicant. has multiple alcohol or drug-related driving convictions and/or incidents, the DIU applies the criteria set forth in Part 136.5. 5. Under Part 136.5, the DIU performs a lifetime review of an applicant's driving record. If a person has five or more alcohol or drug-related driving convictions or incidents within their lifetime, such person must be "permanently" denied re-licensure under 15 NYCRR Part 135.5(b)(l). An alcohol or drug-related driving conviction or incident includes offenses such as: (1) chemical test refusal; (2) driving while intoxicated; and (3) an out of state convicti0(1, See, 15 NYCRR Part 136.5(a)(l). The Unusual, Extenuating and Compelling Circumstances Exception 6. Part 136.5 provides a window of opportunity for those who are permanently denied. Such applicant may request an exception to the denial due to unusual, extenuating and compelling circumstances ("UEC"). See, 15 NYCRR Part136.5(d). When a UEC request is made by a permanently denied applicant, DIU will review and consider an applicant's arguments arid documentation provided on a case-by-case basis. 7. In performing this review, the DIU uses its well-established and uniform UEC process as set forth on form DS-322. Record ("R") at 51 - 54. This reference relates to the administrative Record that is made a part of and incorporated by reference in the accompanying Answer to this Petition. 2 2 of 7 FILED: BROOME COUNTY CLERK 07/01/2022 03:31 AM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/01/2022 · 8. The DIU also considers the nature, frequency, and timeframe of the applicant's prior violations as well as the severity of the applicant's total situation. R. at 51 - 54. 9. The DIU reviews hundreds of these applications and is in the best position to .evaluate what circumstances are truly unusual, extenuating and compelling, and what, if any, verifiable, credible documentation submitted supports the applicant's claim for a UEC exception. For example, most ' applicants state that they have been through alcohol rehabilitation . \ and suffer hardship getting to work without a license. This is true of almost any person who has been convicted of multiple alcohol-r~lated offenses. There is nothing unusual, extenuating and compelling about such a situation. 10. Unquestionably, the DMV has set the bar high for granting of an application for re~ licensure based upon a UEC exception. These standards are necessary to prevent recidivist drunk drivers from posing a grave risk to others on public roads and highways. Administrative Record of the Petitioner 11. Petitioner submitted an application for re-licensing, which was stamped April 8, 2021. R. at 88 - 89. 12. A review of Petitioner's lifetime driving record indicates that he has been convicted of driving while ability impaired ("DWAI") (violation date December 22, 2007), he has also been convicted of driving while intoxicated ("DWI") in New York on three occasions (violation dates November 8, 1997; April 24, 1993; and April 27, 1991). The DIU also learned ofa DWI conviction in South Carolina on May 12, 1989, through the National Driver Registry ("NDR"). R. at 81 - 84. In addition to the convictions noted above, he refused to submit to a chemical test on three occasions (incident dates December 22, 2007; November 8, 1997; and April 24, 1993.) R. at 2 - 8. Therefore, 3 3 of 7 FILED: BROOME COUNTY CLERK 07/01/2022 03:31 AM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/01/2022 his application for re-licensure was correctly denied by DIU under 15 NYC RR Part l 36.5(b )(1) in its decision dated June 3, 2021. R. at 62 - 64 . . 13. The June 3, 2021 denial advised that the Petitioner could, "SUBMIT THE ATTACHED FORM, 'REQUEST FOR RELICENSING RECONSIDERATION AFTER DENIAL," TO THE DRIVER IMPROVEMENT BUREAU WITHIN SIXTY (60) DAYS OF THE DATE OF THIS LETTER requesting reconsideration, IF you have unusual, extenuating, and compelling circumstances that you believe would justify approval of yolll: driver license application ... " with additional instructions that followed. R. at 62 - 69. 14. The instructions on the form explicitly indicated that, "[Y]ou must explain in detail each circumstance ... " and "[Y]ou must provide credible, verifiable documentation to support. all circumstances claimed ... " R. at 65. 15. In addition, on the bottom of that same form, it states, "[P]lease note: unusual, extenuating, and compelling circumstances alone do not warrant granting an approval. If your driving history includes a series of convictions, incidents, and/or crashes, or you have a medical/mental condition, which is indicative of a significant risk to highway safety, your application for relicensing may not be approved even with extenuating circumstances." R. at 65 - 66. 16. The Petitioner submitted a "Request for Reconsideration After Denial" form alleging "unusual, extenuating and compelling circumstances," dated July 27, 2021. R. at 38 - 41. 17. On the "Request for Reconsideration After Denial," Petitioner selected boxes indicating that no public transportation is available in relation to "Disabilities/Serious lllness," that no public transportation is available in relation to "Employment/Requirement for 4 4 of 7 FILED: BROOME COUNTY CLERK 07/01/2022 03:31 AM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/01/2022 employment," that he has a"Long-ter111. recovery for alcohol and/or substance use," and "Other," which included handwritten details explaining, among other things, that he completed treatment, that he is employed, and that he takes taxis to health care appointments 18. Petitioner did not provide any documentation related to "Disabilities/Serious Illness" or that public transportation is unavailable to travel in relation to his employment or his unsubstantiated medical needs. He did not document his income, how much and how often he pays for alternative transportation, or where/how often his medical appointments are. 19. The Petitioner provided DIU with the following documentation in support of his application: a. A letter stating that Petitioner paid the full balance of a mortgage; b. A letter from Petitioner's employer; c. A substance abuse assessment form from EAP Consultants. I ,I ,C. dated February 2,2021; d. A letter from Connections at Psychotherapy Associates, signed by Eli I Kassis, dated February, 9, 2021; e. A letter from Connections at Psychotherapy Associates, signed by Eli l Kassis, dated May 15, 2018; R. at 42 - 50. 20. The DIU considered the information provided and issued to the Petitioner a UEC denial letter dated August 10, 2021. R. at.34 - 35. The DIU denied the application for rc-licensurc because the Petitioner failed to demonstrate by sufficient verifiable, corroborating documentation unusual, extenuating and compelling circumstances. The denial states that the request Petitioner submitted did not demonstrate unusual, extenuating and compelling circumstances beyond the expected inconvenience of being unlicensed, The DIU also determined that granting Petitioner a license would be inconsistent with DMV's mission of promoting higlw,,ay safety. R. at 34, ','.',; 2 - 3. 21. The DIU used the checklist in form DS-322 to review the application, as it does with every such applicant. It was noted in this review that (i) no substantiation of lack of public 5 5 of 7 FILED: BROOME COUNTY CLERK 07/01/2022 03:31 AM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/01/2022 transportation was provided; and (ii) while some documentation was provided, it was not sufficient to grant a UEC exemption. R. at 51 - 52. 22. Petitioner's UEC request was properly denied for several reasons. Petitioner claimed that his job site changes frequently, and public transportation is impossible to accommodate the job site changes. However, Petitioner failed to provide any documentation to support that claim. In fact, per the letter provided to Petitioner from his employer, he has been working with the same company for 23 years and "has an outstanding attendance and on time record". R. at 43. Petitioner's license has been revoked since January 23, 2008, which means his lack of license has not been a deterrent for his employment for more than fourteen years. 23. While Petitioner provides documentation to show a commitment to sobriety and rehabilitation, the documentation is vague when it comes to the methods used to verify the claimed rehabilitation. In fact, the documentation appears to be information that was provided by Petitioner himself without corroboration. For example, the letters provided by Eli Kassis dated May 15, 2018 and February 9, 2021, state that Petitioner "reportedly abstained from alcohol consumption" but fails to provide any information to corroborate the self-serving claim. ln addition, no documentation is provided to show any rehabilitation efforts prior to the May 15, 2018 letter. The February 9, 2021 letter explains that Petitioner attended therapy between 2014 and 2016, and a follow up in 2021. There is no evidence of ongoing or current treatment or counseling. DlU indicated on the review form that the rehabilitation documentation was insufficient to grant a UEC exception. The need for detailed rehabilitative information, for the entire period of revocation, from credible, verifiable, credentialed third parties is entirely reasonable, and required by DIU, as DIU cannot risk re-licensing drivers based on rehabilitation documentation that's insufficient. 6 6 of 7 FILED: BROOME COUNTY CLERK 07/01/2022 03:31 AM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/01/2022 24. The denial of Petitioner's application was not arbitrary and capricious because the DMV, in considering applications for re-licensure under 15 NYCRR Part 136.5(d), has established clear, reasonable standards and procedures that are uniformly used to evaluate such applications, and its evaluation of Petitioner's application followed those procedures. 26. While it is commendable that Petitioner has paid off his mortgage and managed to maintain an excellent attendance record at work, there was nothing unusual, extenuation and compelling about the • inconvenience of not being able to drive for work purposes. The inconvenience and expense of not having a license is not unusual. There was nothing unusual, extenuation and compelling that would· have warranted granting a license to this repeat alcohol· offender, who offered minimal documentation about the lack of a driver's license being an inconvenience and an expense. Given Petitioner's recidivist driving history, and the lack of supporting documentation in credible, verifiable form, re-licensing the Petitioner would pose a significant risk to highway safety. Even if he presented unusual,. compelling and extenuating circumstances, DMV is not compelled to consider a UEC request and discretion of whether to grant an exception lies solely with DMV. 25. Therefore, the denial of his request was proper in all respects, the Petition should be denied, and the proceeding dismissed. June 30, 2021 Albany, New York sistant Counsel, NYS Department of Motor Vehicles 6 Empire State Plaza, Room 522A Albany, New York 12228 7 7 of 7