Opinion
No. 1603/10.
2010-08-16
ALLTOW, INC. and Action Automotive, Inc., Petitioners/, Plaintiffs, v. VILLAGE OF WAPPINGERS FALLS and Carl Calabrese, Respondents/, Defendants.
Jon Holden Adams, Esq., Corbally, Gartland & Rappleyea, LLP, Poughkeepsie, Attorneys for Petitioners. Kenneth K. Haldenstein, Esq., O'Connor, Mcguinness, Conte, Doyle, Oleson & Collins, Esqs., White Plains, Attorneys for Respondents.
Jon Holden Adams, Esq., Corbally, Gartland & Rappleyea, LLP, Poughkeepsie, Attorneys for Petitioners. Kenneth K. Haldenstein, Esq., O'Connor, Mcguinness, Conte, Doyle, Oleson & Collins, Esqs., White Plains, Attorneys for Respondents.
JAMES D. PAGONES, J.
The plaintiffs/petitioners describe the instant proceeding as a “hybrid Article 78 proceeding and complaint requesting relief (pursuant to Article 78) ... and damages under 42 USC § 1983.”
The Village of Wappingers Falls Police Department maintains a “tow rotation list” which consists of “authorized” tow truck operators who are called on a rotational basis by the Village of Wappingers Falls Police Department to respond to accident scenes and other instances where disabled vehicles need to be removed from public thoroughfares. The police department maintains a written list of requirements for tow truck operators who wish to remain on the rotational tow list. The village has never adopted a local law regarding towing or any formal procedure for getting on the list or for being removed. In the past, the village has nonetheless approved additions to the list upon recommendation of the police department. On or about January 18, 2010, the petitioners were notified by defendant/respondent Calabrese that they had been removed from the rotational list. The plaintiffs/petitioners maintain that they have been on the list since on or about July 9, 2008. The plaintiffs/petitioners contend, inter alia, that such removal was illegal, arbitrary, capricious and without factual or legal foundation and contrary to the petitioners' due process and civil rights.
A special proceeding instituted pursuant to CPLR Article 78 “partakes of the character of a motion for summary judgment, in which the court must determine whether or not there is a triable issue of fact.” (CPLR Rule 7804 [h]; Matter of Gagnon v. Board of Education of Manhasset Union Free School District, 119 A.D.2d 674 [2d Dept.1986].)
In this Article 78 proceeding, the court must initially deem all the allegations contained in the petition to be true and must consider the facts therein in their most favorable light. (Parisella v. Town of Fishkill, 209 A.D.2d 850 [3d Dept.1994]; DePaoli v. Board of Education, Somers Central School District, 92 A.D.2d 894 [2d Dept.1983].)
In order to state a claim under 42 USC § 1983, a complainant must demonstrate that the defendants are acting under color of state law at the time of the acts in question and that the defendants deprived the complainant of a right, privilege and immunity secured by the constitution or laws of the Unites States. (District of Columbia v. Carter, 409 U.S. 418, 423–425 [1973].) These include the right to acquire and enjoy property (Lynch v. Household Finance Corp., 405 U.S. 538 [1972] ) and the freedom of business enterprise. (Allgeyer v. Louisiana, 165 U.S. 578 [1897].)
The instant petition does not set forth facts which would establish, on a prima facie basis, that the defendants deprived the plaintiffs of any right, privilege or immunity secured by the constitution or laws of the United States.
The plaintiffs were and are free to conduct their business within the Village of Wappingers Falls. There is no allegation that the defendants have interfered with the plaintiffs' business enterprise. There is no statute or constitutional right for the plaintiffs to be called by the police on an ad hoc basis in the event of an accident or in other circumstances where a vehicle needs to be towed from the public roadways. The plaintiffs have not alleged that the defendants have interfered in any circumstance where an owner of a vehicle has requested the plaintiffs' services. Assuming all of the allegations set forth in the plaintiffs' 42 USC § 1983 causes of action to be true, the court finds that that they fail to state a cause of action. Therefore, it is ordered that the plaintiffs' 42 USC § 1983 causes of action are dismissed.
This court's review, pursuant to CPLR Article 78, of the respondents' conduct is limited to whether that conduct violated lawful procedure, was effected by an error of law or was arbitrary and capricious or an abuse of discretion. (CPLR § 7803[3]; Kahn v. Pasnik, 90 N.Y.2d 569 [1997].) The instant petition fails to set forth facts which would establish that the respondents' conduct in any way violated some lawful procedure. The uncontroverted fact is that no statute or regulation exists in the Village of Wappingers Falls to determine which towing company will respond to a police request. The decision to remove the petitioners from the ad hoc list cannot be said to be arbitrary or capricious since there is no statute, regulation or procedure governing the challenged conduct. The ad hoc towing list amounts to nothing more than an internal police procedure which governs an officer's conduct when encountering, as part of his/her official duties, a situation where a vehicle needs to be towed. The facts establish that the respondents did not act in an irrational, arbitrary, capricious or illegal manner by deciding not to use the petitioners for that purpose. (Matter of Pell v. Board of Education, 34 N.Y.2d 222 [1974].) The court finds that there are no triable issues of fact which would preclude it from awarding a judgment without a hearing. (CPLR Rule 7804[e]; Moores Lane Development Corp. v. Suffolk County Water Authority, 267 A.D.2d 460 [2d Dept.1999].) Therefore, it is ordered that the instant petition brought pursuant CPLR Article 78 is denied and the respondents shall have judgment therefore.
The foregoing constitutes the decision and order of the Court.