Triple A Auto Driving School, Inc. v. Foschio , 484 N.Y.S.2d 566 ( 1985 )

Determination of the Commissioner of the Department of Motor Vehicles, dated May 4,1983, revoking the driving school license of petitioner and imposing a civil penalty of $300, is confirmed and the petition to review such determination dismissed, all without costs.

Petitioner, the operator of a driving school, had had its license suspended on two occasions. It was charged, among other things, with operating such school while its license was under suspension. The hearing officer found that on three occasions — May 27,1980, May 31,1980 and June 4,1980 — it operated a driving school, once with respect to Leonard Welch and twice with respect to Ruth Gobin, while its license was so suspended, in violation of section 394 of the Vehicle and Traffic Law. He also found that, in violation of regulation 76.8 (a) (2) (15 NYCRR), the school failed to enter into its cash book the payments made by Gobin. He recommended that, in light of prior suspensions, the appropriate remedy was revocation of petitioner’s license and a fine aggregating $300.

Our dissenting brother would disregard the two charges involving Gobin dealing with the operation of the school when its license was suspended on the ground that the proof of these violations was based on hearsay. However, the residual evidence rule, if ever it had validity in this State, no longer obtains (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180, n), and hearsay proof, of itself, may constitute substantial evidence provided that it is trustworthy and probative and furnishes a rational basis for the conclusion reached. Such, clearly, was here the case.

In light of the findings, which we confirm, there is nothing in the penalty which can be denominated as shocking to the conscience (Matter of Pell v Board of Educ., 34 NY2d 222, 231-233). Concur — Carro, Bloom and Fein, JJ.