Opinion
No. SCK–836–14/KI.
07-13-2015
Walter C. PARRISH, III, Plaintiff, v. CITY OF NEW YORK, Defendant.
Claimant Walter C. Parrish, III, Pro–Se. City of New York Taxi and Limousine Commission, General Counsel by Daniel H. Hoddin, esq., New York, Attorneys for Defendant.
Claimant Walter C. Parrish, III, Pro–Se.
City of New York Taxi and Limousine Commission, General Counsel by Daniel H. Hoddin, esq., New York, Attorneys for Defendant.
DEVIN P. COHEN, J.
Upon review of the foregoing papers, defendant's motion to dismiss on collateral estoppel grounds and pursuant to CPLR 3211(a)(7) on the grounds that the "claim is without merit" is decided as follows:
Claimant, Walter C. Parrish III, commenced this small claims action against defendant, the Taxi and Limousine Commission (TLC), on or about March 5, 2014, seeking to recover $3,500 for "loss of use of property" (Small Claims Notice of Claim, index No. SCK–836–14). This claim stems from defendant's seizure of claimant's vehicle based on his alleged unlicensed use of that vehicle to transport a passenger for hire in violation of Section 19–506(b)(1) of the Administrative Code of the City of New York. After a hearing before the Taxi and Limousine Tribunal Mr. Parrish was found "not guilty" by decision of Administrative Law Judge (ALJ) Igor Vaysberg, on the grounds that the TLC lacked jurisdiction over the matter because the passenger was picked up outside of New York City limits (Taxi & Limousine Commission v. Walter Parrish, Lic. No. 5506087 [October 15, 2013] ). Defendant now moves to dismiss this action on collateral estoppel grounds, based upon a prior small claims decision of Hon. Pamela L. Fisher. Defendant also moves to dismiss pursuant to CPLR 3211(a)(7), contending that the "claim is without merit" because the TLC's officer is immune from civil liability for actions taken in the exercise of quasi-judicial functions. Mr. Parrish opposes the motion citing the decision of ALJ Vaysberg that the TLC lacked jurisdiction over Mr. Parrish's alleged offense and reiterating his request for damages for the loss of his property.
The branch of defendant's motion seeking dismissal on collateral estoppel grounds is denied as small claims judgments are specifically divested of collateral estoppel effect (see CCA 1808 [small claims judgments "shall not be deemed an adjudication of any fact at issue or found therein in any other action or court"]; and see Tsafatinos v. Stavropoulos, 979 N.Y.S.2d 216, 218 [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2013] ). Defendant does not assert that this is the same claim as was previously decided but only that the case dealt with the same issues (see Gerstman v. Fountain Terrace Owners Corp., 31 Misc.3d 148[A] [App Term, 2d 11th & 13th Jud Dists 2011] [small claims judgments divested of issue preclusive effect but not claim preclusive effect] ). Accordingly, any determinations made on issues in the prior small claims actions by Justice Fisher do not have preclusive effect in this case.
Defendant also moves to dismiss pursuant to CPLR 3211(a)(7) on the grounds that the "claim has no merit." However, defendant both misstates and misunderstands the standard for dismissal under CPLR 3211(a)(7). The applicable test under CPLR 3211(a)(7) is "whether the pleading states a cause of action, not whether the proponent of the pleading, in fact, has a meritorious cause of action" (VIT Acupuncture P.C. v. State Farm Auto. Ins. Co., 28 Misc. 1230[A] [Civ Ct, Kings County] [Cohen, J.] [CPLR 3211(a) motions "should not be used as pre-answer alternatives to what is more properly a request for summary judgment"]; see Sokol v. Leader, 74 AD3d 1180 [2d Dept 2010] ). Contrary to defendant's assertion, "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus" (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11 [2005] ). The question is whether "accepting as true the factual averments of the complaint and according the plaintiff the benefits of all favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any reasonable view of the facts stated" (Board of Educ. of City School Dist. of City of New Rochelle v. County of Westchester, 282 A.D.2d 561, 562 [2d Dept 2001] ). The threshold for dismissal is even higher here as, "given the informal and simplified procedure' (CCA 1804 ) governing small claims matters [dismissal for failure to state a cause of action] is rarely, if ever, available" (Sarver v. Pace University, 5 Misc.3d 70 [App Term, 1st Dept 2004] ).
The proper inquiry here then becomes, in part, whether under the exceedingly liberal pleading standard of the Small Claims Court, the "facts as alleged fit within any cognizable legal theory" (Leon v. Martinez, 84 N.Y.2d 83 [1994] ). Defendant argues that this claim is barred by absolute governmental immunity. Defendant cites to Tango v. Tulevech, 61 N.Y.2d 34, 40 [1983] for the proposition that "when official action involves the exercise of discretion, the [public] officer [or municipality] is not liable for the injurious consequences of that action even if resulting from negligence or malice." Defendant contends that the TLC has absolute immunity from liability for seizing claimant's vehicle and that, therefore, the action must be dismissed.
However, governmental immunity does not attach to every action of an official with any discretionary duties (Mon v. New York, 574 N.Y.S.2d 529, 532 [1991] ). Absolute immunity for official discretionary actions is limited to judicial, quasi-judicial, legislative and executive branch activities (see Siegel, 15 N.Y. Prac–Torts § 17:54 ; see also Arteaga v. State, 532 N.Y.S.2d 57 [1988] ; and see Tango, 61 N.Y.2d 34 ). Other official discretionary acts are typically subject to qualified immunity, and the immunity is negated by evidence of bad faith or the lack of any reasonable basis for the action (see Siegel, 15 N.Y. Prac–Torts § 17:54 ; and see McCormack v. City of New York, 80 N.Y.2d 808 [1992] [qualified immunity applied for police judgment in giving "no-shoot" order and choice in bullet proof vests, at least where choice not irrational] ). In contrast, ministerial acts by public officers or employees, which do not involve the exercise of discretion based on policy and are not capable of producing different acceptable results are not immune from civil liability (id.; and see Arteaga, 532 N.Y.S.2d 57 [1988] [emphasis added] ). "When the action is exclusively ministerial, the officer will be liable if it is otherwise tortious and not justifiable pursuant to statutory command" (Rodriguez v. City of New York, 189 A.D.2d 166 [1st Dept 1993] ).
New York Courts "take a functional approach when analyzing claims of immunity" (Rodrigues v. City of New York, 193 A.D.2d 79 [1st Dept 1993] ; and see Arteaga, 532 N.Y.S.2d 57 ). Whether an action receives qualified or absolute immunity "requires an analysis of the functions and duties of the particular government official or employee whose conduct is in issue" (Arteaga, 532 N.Y.S.2d at 59 ).
"If a functional analysis of the actor's position shows that it is sufficiently discretionary in nature to warrant immunity, it must then be determined whether the conduct giving rise to the claim is related to an exercise of that discretion. Obviously, governmental immunity does not attach to every action of an official having discretionary duties, but only to those involving an exercise of that discretion"
(Mon, 574 N.Y.S.2d at 532 ).
In New York, courts have determined that many enforcement actions taken by police officers fall into the categories of either non-immune ministerial "day-by-day" acts or are subject to a qualified immunity (compare Broughton v. State, 37 N.Y.2d 451 [1975]and Colao v. Mills, 39 AD3d 1048 [3d Dept 2007] [police officers have qualified immunity or privilege to make arrest if arrest is based upon warrant or probable cause because actions involve exercise of discretion] with Rodriguez, 189 A.D.2d 166 [1st Dept 1993] [qualified immunity for police officer's errors in judgment in discretionary functions but no immunity attaches where "immutable procedures" or clearly defined standards of conduct govern functions and officer acts clearly outside realm of acceptable police practice] ).
New York General Municipal Law § 50 —j(1) provides that local governmental entities are "liable for ... any negligent act or tort [committed by a police officer], provided such police officer, at the time of the negligent act ... was acting in the performance of his duties and within the scope of his employment." Police officers performing law enforcement activities requiring the exercise of discretion are afforded qualified immunity from liability for negligence claims provided that the officers' actions are not inconsistent with acceptable police practice (see Lubecki v. City of New York, 304 A.D.2d 224, 233–234 [1st Dept 2003], 758 N.Y.S.2d 610 ; Rodriguez, 189 A.D.2d 166, 177–178 ). Qualified immunity will not attach where a police officer's evaluation of probable cause is not objectively reasonable (see, e.g. Holland v. City of Poughkeepsie, 90 AD3d 841 [2d Dept 2011] ). Such qualified immunity is negated by evidence of bad faith or the lack of any reasonable basis for the action (see Arteaga v. State, 532 N.Y.S.2d 57 [1988] ).
Here, the actions of the TLC officer are akin to that of a police officer. In fact, the statute prohibiting operation of an unlicensed vehicle for hire provides that violations may be enforced by either TLC officers or police officers (see Administrative Code § 19–506[h][1]["[a]ny officer or employee of the commission designated by the chairperson of the commission and any police officer may seize any vehicle which he or she has probable cause to believe is operated or offered to be operated for hire without a vehicle license"] ). Thus, it would follow that the TLC officer's actions in this case would, at most, either be subject to qualified immunity (and its exceptions), or constitute non-immune ministerial acts.
In this case, defendant acknowledges that claimant was pulled over by TLC Officer Cooper for a broken taillight. Officer Cooper questioned the backseat passenger, who stated that claimant had taken him on a ride from Newark Airport to the Hyatt hotel for the fee of $75 (TLC Summons No.708601146A). At that point Officer Cooper knew or had reason to believe that no violation had occurred. Nevertheless, the officer issued a TLC summons and seized the vehicle based upon claimant's alleged unlicensed operation of a vehicle for-hire in violation of Administrative Code § 19–506(b)(1). After a hearing, during which Officer Cooper acknowledged on cross-examination that the TLC did not have jurisdiction over trips originating in New Jersey, ALJ Vaysberg found claimant "not guilty" and dismissed the case. In his decision, ALJ Vaysberg cited to several prior TLC tribunal decisions and indicated it was well settled that "[a]ny vehicle is free to transport and drop off passengers for-hire within the City, as long as the trip originated outside the City" (Taxi & Limousine Commission v. Walter Parrish, Lic. No. 5506087 [October 15, 2013] quoting Taxi & Limousine Commission v. Ashraf S. Mohamad, Lic. No. 5091833 [March 9, 2009] ). Thus, although the issue need not (and will not) be decided on this motion, it is at least arguable that the TLC officer's seizure of the vehicle was inconsistent with acceptable TLC practices and procedures (as well as the tribunal's established precedent), lacked a reasonable basis and was in bad faith, thereby negating any qualified immunity.
When taken in the light most favorable to claimant, the claim for "loss of use of property" appears to state, perhaps among other things, a colorable claim for common law conversion or negligence in the seizing and retaining claimant's vehicle (see White v. City of Mount Vernon, 221 A.D.2d 345 [2d Dept 1999] [discussing conversion claim against City for seizure of vehicle based on subsequently dismissed unpaid tickets, although in the context of finding claimant's Notice of Claim untimely]; see also Esposito v. State, 35 Misc.3d 1216[A] [NY Ct Cl 2011] [discussing Commission of Labor's seizure of fireworks and holding that "insofar as claimants allege that no statutory or regulatory authority empowered the Commission of Labor to order the seizure and destruction of fireworks, claimant alleged sufficient facts to state a cause of action"]; and see Robbins v. City of New York, 25 Misc.3d 662 [Civ Ct, Richmond County 2009] [Levin, J.] [finding police department liable for destruction of plaintiff's car on grounds it acted negligently and in violation of acceptable police practice in handling car, ultimately resulting in its demolition] ). As such, defendant fails to establish that claimant does not state a cause of action on the grounds that the TLC is entitled to absolute immunity for its actions. This is particularly so in light of Officer Cooper's testimony at the Taxi & Limousine Tribunal hearing that he was aware that the TLC lacked jurisdiction over trips commencing in New Jersey. Thus, it is at the very least arguable that Officer Cooper knew or should have known that claimant was not violating the vehicle for hire law, that the officer had no reasonable basis for seizing claimant's vehicle, and that the officer's actions were inconsistent with acceptable TLC practice and procedure.
Defendant has not moved to dismiss on the grounds that this action should be commenced as an Article 78 proceeding. Here, claimant is not seeking to challenge the administrative hearing determination, which found him not guilty, but is seeking to recover consequential damages for the improper seizure and loss of use of his vehicle. This would appear, at least on first blush, to state a claim for common law conversion or negligence.
For the foregoing reasons, defendant's motion to dismiss is denied and the matter shall proceed to trial in the Small Claims Part on August 13, 2015 at 6:30pm. This constitutes the decision and order of the court.