Tzetzo v. Commissioner of Motor Vehicles 97 A.D.2d 978

Judgment unanimously reversed, without costs, and matter remitted to respondent commissioner, for a hearing, in accordance with the following memorandum: Special Term erred in permanently enjoining the State Commissioner of Motor Vehicles from holding a hearing to investigate petitioner’s alleged refusal to submit to a chemical test for the purpose of determining the alcohol content of his blood (Matter of Geary v Commissioner of Motor Vehicles, 92 AD2d 38, affd 59 NY2d 950). The delay in scheduling the hearing was not unreasonable, particularly in view of the fact that much of the delay was occasioned by requests for adjournments from petitioner’s counsel. There is no prejudice to petitioner because he has retained his license since the time of his arrest. However, since no hearing was held, we are unable to treat this proceeding as though it were originally transferred pursuant to CPLR 7803 (subd 4) and 7804 (subd [g]) and we remit to the State Commissioner of Motor Vehicles for a hearing pursuant to section 1194 (subd 3, par a) of the Vehicle and Traffic Law. (Appeal from judgment of Supreme Court, Erie County, Wolf, J. — art 78.) Present — Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.