Opinion
102545/09.
October 6, 2010.
Eric Josey, New York, NY, Petitioner, pro se.
Michael A, Cardozo, Corporation Counsel for the City of New York, New York, NY, for Respondent.
DECISION AND ORDER
Papers considered in review of this petition:
Amended Petition ....... 1 Answer ................. 2 Mem of Law ............. 3In this Article 78 proceeding, petitioner Eric Josey ("Josey") challenges the January 29, 2009 and July 2, 2009 determinations of the respondent New York City Department of Finance, Adjudication Division ("DOF"), which upheld guilty determinations for two separate parking violation summonses.
On August 30, 2008, Josey was issued a parking violation, Summons # 125045646-0 (the "2008 summons"). The 2008 summons was issued to a rental car, which Josey admits was in his possession and control at the time, parked in an area of West 130th Street which was designated as "No Parking Anytime." Josey pled not guilty via hearing by mail. Josey argued only because the notice of violation omitted the expiration date of the vehicle registration sticker and indicated that it was not shown, there was insufficient prima facie evidence and a procedural defect which warranted dismissal of the summons.
On December 31, 2008, hearing examiner Administrative Law Judge Edward M. Siegal issued a Decision and Order, which provides:
No defense to the violation is submitted. Respondent claims that the ticket should be dismissed because it was improperly written. . . . Respondent's claim is not persuasive because I find that for this out-of-state vehicle (a) all required ticket elements are correctly or reasonably stated, and (b) the Registration Expiration date was not clearly visible when the ticket was issued. Guilty.
The decision and order indicated the total amount due for the violation was $60.00.
Josey appealed this Decision and Order to the DOF, arguing that "[t]his decision errs as a matter of law." Josey pointed to NYC VTL § 238(2-a)(a), and asserted that the summons did not indicate the condition which caused the registration sticker to be unreadable. On January 29, 2009, the DOF issued its decision, which states "Upon review of the entire record before us, we find no error of fact or law. The Judge's decision is upheld."
On April 18, 2009, Josey was issued another notice of parking violation, summons # 7991264713 (the "2009 summons"). The 2009 summons provides that Josey's car was parked within seven (7) feet of a fire hydrant, in violation of § 4-08(e)(2). The fine amount was $115.00. Josey again pled not guilty via hearing by mail. In his "statement of defense," Josey argued that the summons should be dismissed "pursuant to defective evidence." In particular, Josey asserted that his car was parked more than fifteen (15) feet from the hydrant, and submitted photographs in support. Josey also requested issuance of a subpoena duces tecum "to compel the production for examination and introduction into evidence, any papers, notes or other thing relevant to complainant's method for determination of" the location of the vehicle.
The photographs submitted by Josey show another car parked where he asserts his car had been parked at the time the 2009 summons was issued.
On June 8, 2009, Administrative Law Judge Alese Rubinroit issued a determination following a hearing-by-mail on the 2009 summons. Judge Rubinroit found that
Respondent's general denial of the facts in the summons is not supported by persuasive evidence. Respondent submits 3 photographs which are not persuasive to establish that respondent's vehicle was not parked within 15 feet of the fire hydrant on the day and time of the violation. Respondent is found guilty of the violation. . . . Total amount due = [$]115.00.
Josey appealed this decision to the DOF. Josey argued that the photographs submitted show he was parked "before the alternate parking posted sign and faded yellow hydrant zone." Josey argues that because the summons did not indicate the "method of measurement" from the hydrant, it therefore failed to meet the "substantial evidence" requirement of VTL § 240(2). Josey also notes that the decision of Judge Rubinroit fails to address his request for a subpoena duces tecum.
On July 2, 2009, the DOF issued a decision, finding that "Upon review of the entire record before us, we find no error of fact or law. The Judge's decision is upheld."
In his amended verified petition, Josey argues that these determinations were in violation of lawful procedure, "affected by error of law," the result of abuse of discretion, and arbitrary and capricious.
In opposition to the amended petition, the DOF asserts that its determinations were rational and reasonable, and not arbitrary and capricious. DOF further argues that the fines issued to Josey were not shocking to the conscience.
Discussion
It is well settled that judicial review of an administrative determination pursuant to CPLR Article 78 is limited to a review of the record before the agency and the question of whether its determination was arbitrary or capricious and has a rational basis in the record. See CPLR § 7803(3); Gilman v. N.Y. State Div. of Hous. Community Renewal, 99 N.Y.2d 144 (2002); Nestor v. New York State Div. of Hous. Community Renewal, 257 A.D.2d 395 (1st Dep't 1999). "In short, '[j]udicial review of an administrative determination is limited to the grounds invoked by the agency.'" Matter of Rizzo v. DHCR, 6 N.Y.3d 104, 110 (2005) (quoting Matter of Aronosky v. Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 N.Y.2d 997, 1000 (1990)). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken 'without sound basis in reason and without regard to the facts.'" Matter of Rohan v. New York City Housing Authority, 2009 NY Slip Op 30177U, at *6-*7 (Sup. Ct. N.Y. Co. Jan. 23, 2009) (quoting Matter of Pell v. Board of Education, 23 N.Y. 2d 222,231 (1974)).
In addition, "[t]his Court has the authority to review an administrative sanction that 'shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law.'" Matter of Toomer v. Rhea, 2010 NY Slip Op 31130U, at *5 (Sup. Ct. N.Y. Co. April 23, 2010) (quoting Peoples v. New York City Housing Authority, 281 A.D.2d 259 (1st Dep't 2001)).
Turning first to the 2008 summons, Josey has not denied that the rental vehicle he was operating was parked in an area designated "No Parking Anytime." Instead, Josey challenges the sufficiency of the summons, stating that is does not comply with VTL § 238(2-a). On the 2008 summons, the issuing officer indicated that the registration expiration date of the vehicle was "not shown." The First Department has held that such a designation on an out of state vehicle satisfies the requirement set forth in VTL § 238 (2-a)(a). See Gold Key Lease v. City of New York Dep't of Finance, 276 A.D.2d 322 (1st Dep't 2000) ("Insofar as respondent agency generally interprets Vehicle and Traffic Law § 238 (2-a) as permitting "not available" as a description of a condition preventing an issuing officer from listing the vehicle registration expiration date on a parking summons, this Court will defer to that interpretation of the statute").
VTL § 238(2-a)(a) provides:
Where the plate type or expiration date are not shown in either the registration plates or sticker of a vehicle or where the registration sticker is covered, faded, defaced or mutilated so that it is unreadable, the plate type or the expiration date may be omitted from the notice of violation; provided, however such condition must be so described and inserted on the notice of violation.
Moreover, it is well settled that the "construction given statutes and regulations by the agency responsible for their administration, 'if not irrational or unreasonable,' should be upheld." Samiento v. World Yacht Inc., 10 N.Y.3d 70, 79 (2008) (citing Matter of Chesterfield Assoc. v New York State Dept. of Labor, 4 N.Y.3d 597, 604 (2005)). Josey has presented nothing to suggest that the DOF construction of VTL § 238(2-a)(a) was irrational or unreasonable.
Therefore, the Court finds nothing to support Josey's claim that the DOF's finding was arbitrary and capricious. Moreover, the $60.00 fine issued in association with this summons is not disproportionate, or shocking to the conscience. Accordingly, Josey's Article 78 petition as it pertains to the 2008 summons is denied.
Similarly, Josey has not met his burden to show that the DOF's determination to uphold to 2009 summons was arbitrary and capricious. The 2009 summons was issued for parking within seven (7) feet of a fire hydrant. However, parking within fifteen (15) feet of a fire hydrant is prohibited. See 34 RCNY § 4-08(e)(2). Josey argues that his car was not parked in violation of 34 RCNY § 4-08(e)(2), either because the signage near his car created an exception to the rule, or because the summons failed to indicate the method of measurement used. Josey also submitted photographs which he claims support his position. However, there is no dispute that Josey submitted photographs of another car parked in the vicinity of the location indicated in the 2009 summons. Judge Rubinroit found that these photographs did not constitute persuasive evidence, and Josey has failed to establish otherwise.
Therefore, regarding the 2009 summons, the Court finds nothing to support Josey's claim that the DOF's finding was arbitrary and capricious. Additionally, the $115.00 fine issued in association with this summons is not disproportionate, or shocking to the conscience. Accordingly, Josey's Article 78 petition as it pertains to the 2009 summons is also denied.
In accordance with the foregoing it is
ORDERED and ADJUDGED that petitioner Eric Josey's petition is denied and the proceeding is dismissed.
This constitutes the decision and order of the court.