
    In the Matter of the Application of Patrick C. Brown, Petitioner, v James P. Melton, as Commissioner of Motor Vehicles, et al., Respondent.
    Supreme Court, Herkimer County,
    June 16, 1975
    
      
      Philip D. O'Donnell for petitioner. Louis J. Lefkowitz, Attorney-General (Robert J. Hahn of counsel), for respondent.
   Edward F. McLaughlin, J.

Petitioner moves under CPLR article 78 for an order annulling, vacating and setting aside a determination of respondent dated April 25, 1975, suspending petitioner’s license to operate a motor vehicle for 60 days for a speeding conviction, pursuant to section 510-b of the Vehicle and Traffic Law.

Petitioner, who had held a New York State operator’s license for about 10 years, overlooked renewing his license on June 30, 1973, and later applied for and on December 10, 1974 received a class 3 license which contained a probationary period of six months commencing October 29, 1974. On February 2, 1975, petitioner was charged with violation of subdivision (d) of section 1180 of the Vehicle and Traffic Law, and after a trial in City Court, Little Falls, on April 11, 1975, petitioner was found guilty. This conviction, which is the basis of the 60-day suspension issued by respondent, is presently on appeal to Herkimer County Court, with a stay issued by that court until the validity of the conviction is determined.

The sole issue before this court for review is whether the suspension is arbitrary, capricious and without basis in law or fact. The petitioner argues that the six-month probationary period provided in section 510-b of the Vehicle and Traffic Law, should apply only to "new or first time drivers” and not to him, since he previously held a license for over 10 years and therefore is not a "new driver” subject to probation from the issuance date of the new license.

The aforesaid statute is clear and unambiguous and there is no need to resort to legislative or executive memorandum to construe its meaning. The court holds that section 510-b of the Vehicle and Traffic Law, applies to petitioner in this case. (See Matter of Lewitus v Tofany, 28 AD2d 1097.)

For the reasons cited above, the petitioner’s application must be denied and his petition is dismissed without prejudice to the pending appeal and stay issued by Herkimer County Court.  