Opinion
Index No. SC-001742-22/NY
09-19-2023
Hunter Severini, Claimant, v. Department of Environmental Protection, Defendant.
Claimant: self-represented Attorney for defendant: NYC Law Department.
Unpublished Opinion
Claimant: self-represented
Attorney for defendant: NYC Law Department.
Ilana Marcus, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
PapersNumbered
Notice of Motion, Affirmation
in Support, Memo of Law, Exhibits1
Papers in Opposition2
Reply Affirmation3
Claimant, self-represented, brings this small claims action against defendant, Department of Environmental Protection (DEP), for $1,065.00, alleging defendant improperly prosecuted violations of New York City Administrative Code (AC) 24-163 [Operation of Motor Vehicle; idling of engine] that he reported pursuant to AC 24-182 [Citizen's Complaint], thereby preventing him from recovering certain civil penalties authorized by the Rules of the City of New York (RCNY) 43-02. Defendant makes the instant motion to dismiss pursuant to CPLR 3211(a)(2). Claimant opposes to which defendant submits reply. The motion is granted as follows:
By way of background, claimant brings this action under the Citizen Air Complaint Program. The Citizen Air Complaint Program encourages civilian reporters to contact the DEP to address and ideally reduce transportation emissions (Transporation Emissions, Citizens Air Complaint Program, https://www.nyc.gov/site/ dep/environment/idling-citizens-air-complaint- program.page [last accessed on Sept. 19, 2023]). The DEP incentivizes civilian reports of idling vehicles by authorizing an "award" for civilian "enforcement efforts" (see id.). Claimant refers to these awards in the instant small claims summons as "commissions."
In pertinent part, AC 24-163 prohibits the "engine of a motor vehicle, other than a legally authorized emergency motor vehicle, to idle for longer than three minutes,..., unless the engine is used to operate a loading, unloading or processing device" (AC-24-163[a]). Offenders found guilty of such offense are subject to a fine of $350 for the first offense, $440 for a second offense, and $600 for a third offense (see RCNY 43-02). Civilians may file a complaint with the DEP alleging a violation of AC 24-163.
Where the DEP successfully prosecutes civilian-referred claims, the office of administrative trials and hearings (OATH) awards the civilian complainant 25% of the proceeds collected (see AC 24-182[d]). Where the DEP fails to serve the offender with a summons within forty-five days from service of the civilian complaint, the civilian may directly serve the offender with a notice of violation, and file such notice with OATH (see AC 24-182[b]). In those instances where the civilian commences and prosecutes the alleged violation, the civilian does so at their own expense, and the DEP may intervene at any time (see AC 24-182[c]). On violations prosecuted by civilians, if successful, a civilian is awarded 50% of any penalty imposed (see AC 24-182[e]).
Claimant, here, states that "[p]rior to March 26, 2022, none of [his] violations were categorized by the DEP as [second] or [third] offenses, which reduced the fines companies paid as well as [the] commissions" to which claimant argues he is entitled to pursuant to the statutory framework (see Deft Exh C [Notice of Claim]). Claimant lists ten incidents where he argues that defendant should have charged the offense as a second- or third-time offense. Claimant further contends that there is no procedure established by the DEP for claimant to self-prosecute offenses. The lack of procedure, claimant argues, prevents him from recovering 50% per offense when self-prosecuted as provided in the statute (see AC 24-182[e]). Claimant provides seven incidents where he claims that he was prevented from self-prosecuting those alleged offenses (see Deft Exh C).
In its motion to dismiss, defendant asserts that claimant's action requests mandamus relief because it seeks to compel defendant, a governmental agency, to prosecute an action arising out of a violation of AC 24-163 in a specific way. Defendant further argues that the Civil Court does not have subject matter jurisdiction to adjudicate such claims because applications for mandamus relief must be brough in Supreme Court (see CPLR 7804[b]; Adams v Hunter Coll., 87 Misc.2d 436 [Civ Ct, New York County 1976] ["[t]he Small Claims Court does not have mandamus power and hence no jurisdiction to entertain a proceeding under CPLR article 78"]).
Claimant opposes defendant's motion, arguing that his claim does not seek mandamus relief, but instead, seeks an award based on defendant's alleged "breach of duty" (see Claimant Opp). Claimant argues that pursuant to AC 21-112, the DEP "Inspector" is obligated to ensure that each summons issued as a result of a civilian complaint is properly plead and reflects all past offenses (see id., pp.2-3). Claimant concedes that the DEP's governmental website contains a notice indicating that DEP is not able to prosecute an AC 24-163 summons as a second or third offense unless the citizen complainant notifies DEP of such at the time that the complaint is submitted (see id.; Deft Exh B). Claimant further argues that AC 24-182(b) confers upon him a "legal right to self-prosecute complaints which have not had summonses served [on the offender by defendant] within forty-five days" because "[d]efendant has a legal obligation to do so" (Claimant Opp, p.2).
Generally, pre-trial motion practice is strongly disfavored in small claims court (see Williams v Friedman Mgmt. Corp., 11 Misc.3d 139 (A) [App Term, 1st Dept 2006]; Friedman v Seward Park Housing Corp., 167 Misc.2d 57 [App Term, 1st Dept 1995]; Weiner v Tel Aviv Car & Limousine Serv., Ltd., 141 Misc.2d 339, [Civ Ct, New York Cty 1988]). The goal of small claims court - to adjudicate disputes quickly and inexpensively while doing substantial justice (CCA 1804, 1807) - is frustrated by requiring self-represented litigants to participate in formal motion practice (Friedman v Seward Park Housing Corp., 167 Misc.2d at 58). In most scenarios, substantial justice is best served by "a prompt, transcribed trial of plaintiff's claim" (Williams v Friedman Mgmt. Corp., 11 Misc.3d 139 (A), at *1).
However, there are exceptions. When a defendant raises a clear issue of law on a motion to dismiss and the "resolution of that issue serves, rather than impedes, notions of substantial justice," then the motion is proper (Gotbetter v Grinberg, 20 Misc.3d 1126 (A) [Civ Ct, New York County 2008] citing Clegg v Bon Temps, Ltd., 114 Misc.2d 805, 805 [Civ Ct, New York County 1982][internal quotations omitted])
To determine the proper judicial proceeding appropriate for claimant's action, "it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought" (Solnick v Whalen, 49 N.Y.2d 224 [1980]). Broadly, a CPLR article 78 proceeding is appropriate where claimant seeks to challenge a determination made by a state or city agency (see CPLR 7801 et seq). A party asserts a claim for mandamus, also pursuant to CPLR article 78, when it seeks to enforce a legal right after a public official or agency "failed to perform a duty enjoined by law" (New York C.L. Union v State, 4 N.Y.3d 175 [2005]). Those types of actions must be brought in the Supreme Court - the court with exclusive jurisdiction to hear such claims (see CPLR 7804[b]; Clayton v New York City Taxi & Limousine Comm'n, 117 A.D.3d 602 [1st Dept 2014]).
Here, claimant's action seeks damages as a result of: 1) defendant's alleged failure to perform its duty as a governmental enforcement agency to properly prosecute certain violations of AC 24-163 as second or third violations instead of first offenses; and 2) that defendant failed to perform its alleged duty as a governmental enforcement agency to permit claimant to self-prosecute certain claims after defendant failed to serve the purported offender with a summons after forty-five days of receiving a civilian complaint. Claimant's action seeks relief germane to an article 78 proceeding, the merits of which must be decided in Supreme Court. Therefore, claimant's small claims action is dismissed without prejudice for lack of subject matter jurisdiction.
Accordingly, it is hereby
ORDERED, that defendant's motion to dismiss is granted to the extent that claimant's small claims action is dismissed without prejudice; and it is further
ORDERED that within 30 days of entry of this order, defendant shall serve a copy of this order upon claimant with Notice of Entry and shall also file such Notice of Entry with proof of service with the Clerk of the Court.
This constitutes the decision and order of the court.