The question in this case is whether substantial evidence supported a determination by the New York State Department of Motor Vehicles (DMV) that clear and convincing evidence established that petitioner violated Vehicle and Traffic Law (VTL) § 1146(c)(1).
Vehicle and Traffic Law (VTL) § 1146(c)(1) makes a driver liable if it is established by clear and convincing evidence that the driver “cause[d] serious physical injury as defined in article ten of the penal law to a pedestrian or bicyclist while failing to exercise due care.” See VTL § 227(1) (imposing clear and convincing evidence standard).
In this case, petitioner NYC Transit bus driver collided with an 88-year-old pedestrian. According to an accident report, the collision occurred when petitioner made a right turn into a street that the pedestrian was crossing. The report stated that the pedestrian was admitted to the hospital and further stated, without explanation, that the pedestrian died at the hospital over one month later “as a result of his injuries.” The DMV suspended petitioner’s license for six months after an administrative hearing, at which an ALJ found clear and convincing evidence that petitioner violated VTL § 1146.
Petitioner then commenced this CPLR article 78 proceeding, which Supreme Court transferred to the Appellate Division for substantial evidence review. A divided panel of the First Department annulled the DMV’s determination. The majority noted that, although the substantial evidence standard of review was typically a “minimal standard,” in this case it required a showing of “evidence that could, . . . with the proper amount of deference, reasonably be called clear and convincing.” The court found this standard satisfied with respect to DMV’s determination that petitioner failed to exercise due care; there was not sufficient evidence, however, to support DMV’s determination that clear and convincing evidence showed that petitioner caused the pedestrian’s death. Two judges dissented, noting that DMV’s determination could be sustained so long as substantial evidence showed that petitioner caused the pedestrian “protracted impairment of health or loss or impairment of the function of any bodily organ”–a standard that the dissenters would have found satisfied here.
DMV appealed to the Court of Appeals as a matter of right.