Opinion
INDEX No. 13-33806
02-19-2015
VILLAGE OF ISLANDIA, Plaintiff, v. COUNTY OF SUFFOLK, SUFFOLK COUNTY LEGISLATURE, and SUFFOLK COUNTY TRAFFIC AND PARKING VIOLATIONS AGENCY, Defendants.
JOSEPH W. PROKOP, PLLC Attorney for Plaintiff 267 Carlton Avenue Central Islip, New York 11722 DENNIS M. BROWN, ESQ. Suffolk County Attorney By: John R. Petrowski, Esq. 100 Veterans Memorial Highway P.O. Box 6100 Hauppauge, New York 11788
SHORT FORM ORDER PRESENT: Hon. ARTHUR G. PITTS Justice of the Supreme Court MOTION DATE 6/4/14 (#003)
MOTION DATE 9/23/14 (#004)
ADJ. DATE 10/30/14
Mot. Seq. #003 - MotD
Mot. Seq. #004 - XMD
JOSEPH W. PROKOP, PLLC
Attorney for Plaintiff
267 Carlton Avenue
Central Islip, New York 11722
DENNIS M. BROWN, ESQ.
Suffolk County Attorney
By: John R. Petrowski, Esq.
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, New York 11788
Upon the following papers numbered 1 to 29 read on this motion to dismiss; cross motion to stay determination of the motion pending discovery; Notice of Motion/ Order to Show Cause and supporting papers 1-7; Notice of Cross Motion and supporting papers 8-25; Answering Affidavits and supporting papers ___; Replying Affidavits and supporting papers 26-27; 28-29; Other ___; ( and after hearing counsel in support and opposed to the motion ) it is,
ORDERED that the motion by the defendants for an order dismissing the complaint pursuant to CPLR 3211 (a) (1), (3), (5), and (7), is considered as a motion for an order dismissing the plaintiff's amended complaint and, as such, is granted to the extent of dismissing the third, sixth, and seventh causes of action pleaded in the amended complaint, and is otherwise denied; and it is further
ORDERED that the cross motion by the plaintiff for an order (i) compelling the defendants to respond to its notice for discovery and inspection dated August 26, 2014 prior to the court's determination of the defendants' motion to dismiss, and (ii) preliminarily enjoining the defendants, while this action is pending, from adjudicating or transferring to the Suffolk County Traffic and Parking Violations Agency for adjudication any appearance tickets, summonses or other process or causes of action that have been issued for violations of the Vehicle and Traffic Law and any other state or local law which has occurred in the Village of Islandia and which were issued to be returnable at the Islandia Village Justice Court, is denied.
In this action for declaratory and injunctive relief, inter alia, the plaintiff challenges the formation and operation of the Suffolk County Traffic and Parking Violations Agency (TPVA) as it pertains to the plaintiff's alleged right to adjudicate and enforce tickets issued for traffic and parking violations occurring within its borders. The plaintiff commenced the action on December 24, 2013.
According to the complaint, the plaintiff was incorporated as a village on April 11, 1985, subsequent to the creation of the Suffolk County Police District in the five western towns of Suffolk County. As such, it is within the territory of the Suffolk County Police District, and the Suffolk County Police Department is obligated to provide police coverage for the enforcement of state law, including the Vehicle and Traffic Law. Its territory contains several miles of state and county roadways, including the Long Island Expressway (roughly, between exits 57 and 59), Veterans Memorial Highway, and Vanderbilt Motor Parkway. From the time of the plaintiff's formation until about 2009, the Suffolk County Police Department (and subsequently through 2012, on the Long Island Expressway only, the Suffolk County Sheriff's Department) performed traffic patrols and issued tickets for traffic violations that took place within its borders to be returnable in the Islandia Village Justice Court. In 2012, a total of 9, 178 such tickets were issued, generating significant revenues for the plaintiff. On or about January 1, 2013, however, the Suffolk County Police Department began issuing tickets for traffic violations that took place in the territory of the Village to be returnable at the TPVA, resulting in a substantial loss of revenues for the plaintiff. The plaintiff claims, in part, that the TPVA has improperly acted outside its jurisdiction by accepting and processing tickets issued for traffic violations which took place within the territory of the Village and by appropriating the fine revenues generated by those tickets.
In a letter dated November 26, 2013 to Allan M. Dorman, Mayor of the Village of Islandia, Suffolk County Executive Steven Bellone writes that notwithstanding the plaintiff's concerns, he has been assured by Police Commissioner Ed Webber "that the policy of the Police Department is that tickets issued by the Suffolk County Police within a village are returnable to the village," and "that this policy is being followed."
The plaintiff pleads four causes of action in its complaint. The first is for judgment declaring that the proper jurisdiction for the adjudication of tickets issued for traffic and parking violations in the territory of the Village of Islandia under the Vehicle and Traffic Law and other laws is the Islandia Village Justice Court and that tickets for such violations should properly be issued to be returnable in the Islandia Village Justice Court. The second is for a permanent injunction, enjoining the defendants from adjudicating any tickets issued for traffic and parking violations in the territory of the Village of Islandia under the Vehicle and Traffic Law and other laws, and requiring that such tickets be returnable to and adjudicated in the Islandia Village Justice Court. The third is for judgment declaring that the resolutions adopted by the Suffolk County Legislature at each stage of the legislative process by which the TPVA was created-a June 12, 2012 resolution adopting a Home Rule Message, a November 7, 2012 resolution approving a bond or indebtedness in the amount of $2.5 million, a November 7, 2012 resolution approving a capital construction project to create the physical space for the TPVA, a December 18, 2012 resolution adopting a local law creating the TPVA-and subsequent actions taken by the defendants in creating the TPVA were void, invalid, and illegal due to the defendants' failure to comply with SEQRA requirements. The fourth is to recover damages for loss of revenue caused by the defendants' adjudication of tickets issued for traffic and parking violations in the territory of the Village of Islandia under the Vehicle and Traffic Law and other laws.
The defendants now move, pre-answer, to dismiss the complaint, and the plaintiff cross-moves (i) to stay the determination of the defendants' motion pending their compliance with a notice for discovery and inspection served as part of the plaintiff's cross motion and (ii) for preliminary injunctive relief.
In response to the defendants' motion, the plaintiff has served an amended complaint in which it further alleges that since on or about October 1, 2013, the defendants have improperly attempted to exercise exclusive jurisdiction over tickets issued for traffic and parking violations in the territory of the Village of Islandia by taking tickets that had properly been made returnable in the Islandia Village Justice Court and unilaterally making them returnable at the TPVA. The plaintiff pleads eleven causes of action in the amended complaint, adding seven new causes of action to the original four.
The fifth cause of action (i.e., the first of the new causes of action) is for judgment declaring that the actions of the defendants in attempting to exercise exclusive jurisdiction of all tickets issued for violations in the territory of the Village of Islandia under the Vehicle and Traffic Law and other laws are illegal, improper, and without any basis in law. The sixth is for judgment declaring that the actions of the defendants in forming and operating the TPVA are void and illegal in that the defendants failed to conduct the referendum required under Municipal Home Rule Law § 33-a. The seventh is for judgment declaring that the actions of the defendants in forming and operating the TPVA are void and illegal in that the defendants failed to conduct the referendum required under NY Constitution article IX, §§ 1 and 2. The eighth is for judgment declaring that the actions of the defendants in forming and operating the TPVA and in attempting to exercise exclusive jurisdiction of all tickets issued for violations in the territory of the Village of Islandia under the Vehicle and Traffic Law and other laws is a violation of the plaintiff's constitutional right to establish a village justice court and of due process and other rights under the laws of the State of New York. The ninth is for judgment declaring that the actions of the defendants in exercising exclusive jurisdiction over tickets made returnable in the Islandia Village Justice Court and taking all of the fine revenues for such tickets are in violation of the stated purpose of the Suffolk County Legislature in forming the TPVA and are unauthorized. The tenth is to recover damages on a theory of unjust enrichment. The eleventh is to recover damages on a theory of moneys had and received.
As the defendants correctly note in their reply, amendment of a pleading does not automatically abate a motion to dismiss that is addressed to the original, superseded pleading; rather, the moving party has the option to decide whether to apply its motion to the new pleading ( Livadiotakis v Tzitzikalakis , 302 AD2d 369. 753 NYS2d 898 [2003]; Sage Realty Corp. v Proskauer Rose , 251 AD2d 35, 675 NYS2d 14 [1998]). Here, the defendants have elected to direct their motion to the amended complaint, and seek dismissal for the reasons stated in their moving papers, namely, that the plaintiff's claims are barred by the applicable four-month statute of limitations set forth in CPLR 217, that the plaintiff lacks legal capacity and standing to sue, and that the plaintiff has failed to state a claim or cause of action upon which relief can be granted.
So directed, the defendants' motion is granted to the extent of dismissing, as untimely, the plaintiff's third, sixth, and seventh causes of action. In order to determine the statute of limitations applicable to a declaratory judgment action, a court must "examine the substance of that action to identify the relationship out of which the claim arises and the relief sought" ( Solnick v Whalen , 49 NY2d 224, 229, 425 NYS2d 68, 71 [1980]). "If the court determines that the parties' dispute can be, or could have been, resolved through a form of action or proceeding for which a specific limitation period is statutorily provided, that limitation period governs"' ( Matter of Dandomar Co. v Town of Pleasant Val. Town Bd ., 86 AD3d 83, 90, 924 NYS2d 499, 505-506 [2011]; accord Matter of Save the Pine Bush v City of Albany , 70 NY2d 193, 518 N YS2d 943 [ 1987]). While the general rule is that an article 78 proceeding is not available to challenge the validity of a legislative act, it is also recognized that "when the challenge is directed not at the substance of the ordinance but at the procedures followed in its enactment, it is maintainable in an article 78 proceeding" (id. at 202. 518 NYS2d at 946). Here, in its third cause of action, the plaintiff challenges the resolutions that ultimately led to the creation of the TPVA based on the defendants' failure to comply with SEQRA; in its sixth and seventh causes of action, the plaintiff challenges the defendants' actions in forming and operating the TPVA based on their failure to hold a mandatory referendum. Such challenges are patently directed at the procedures followed by the defendants in creating the TPVA, not at any aspect of the content or facial substance of the enabling legislation (see Matter of Dandomar Co. v Town of Pleasant Val. Town Bd ., supra; Atkins v Town of Rotterdam , 266 AD2d 631, 697 NYS2d 780 [1999]). Where, as here, a challenge "goes not to the wisdom or merit of the law, but to the procedure by which it was enacted," relief may be had in an article 78 proceeding ( P & N Tiffany Props , v Village of Tuckahoe , 33 AD3d 61, 66, 817 NYS2d 345, 349 [2006], appeal dismissed 8 NY3d 943, 834NYS2d 720 [2007] [internal quotation marks omitted]). This is so "[r]egardless of the severity" of the procedural infirmity (id. at 66, 817 NYS2d at 349), "even when conduct inconsistent with a statute or the state constitution is alleged" ( Rural Community Coalition v Village of Bloomingburg , 118 AD3d 1092, 1096, 987 NYS2d 654, 658-659 [2014]).
Consequently, the plaintiff's third, sixth, and seventh causes of action are governed by the four-month statute of limitations set forth in CPLR 217. Whether the four months is measured from December 18, 2012 (when the final piece of enabling legislation was enacted by the defendants), January 1, 2013 (when the claimed usurpation of the plaintiff s right to adjudicate and enforce tickets issued for traffic and parking violations occurring within its borders began to take place), or April 1, 2013 (when the TPVA became operational), those causes of action are time-barred. As to the plaintiff's remaining causes of action for declaratory relief, the court finds that they are directed at the substantive validity of the legislation and, as such, are not maintainable in an article 78 proceeding and are not governed by the four-month statute of limitations.
Insofar as the defendants' motion is based on lack of standing and capacity to sue, their argument is expressly limited to the claim that the plaintiff is without standing to raise a SEQRA challenge. That argument appears to be relevant only to the plaintiff's third cause of action, which the court has already dismissed as untimely.
As to the remaining branch of their motion, the defendants offer no persuasive argument to dismiss the amended complaint for failure to state a cause of action. On a motion to dismiss a complaint under CPLR 3211 (a) (7), the test is whether the pleading states a cause of action, not whether the plaintiff has a cause of action, and the burden never shifts to the plaintiff to rebut a defense asserted by the defendant ( Sokol v Leader . 74 AD3d 1180, 904 NYS2d 153 [2010]). A court must determine whether, accepting the facts as alleged in the complaint as true and according the plaintiff the benefit of every favorable inference, those facts fit within any cognizable legal theory ( Leon v Martinez , 84 NY2d 83, 614 NYS2d 972 [1994]). Here, even if the District Court of Suffolk County and the Islandia Village Justice Court may have concurrent jurisdiction with respect to tickets issued for traffic and parking violations taking place in the territory of the Village, as the defendants contend, it does not necessarily follow that Suffolk County Police Department may validly make such tickets returnable at the TPVA in violation of stated policy (see n 1, supra), nor that the TPVA may exclusively adjudicate and take all the fine revenues for such tickets, nor that the defendants may take tickets originally made returnable in the Islandia Village Justice Court and unilaterally make them returnable at the TPVA-all of which claims form the basis of the amended complaint. The defendants have not argued, much less demonstrated, that those claims fail to state a cause of action cognizable under New York law, and the court is not prepared to make such a finding on the record presented.
The plaintiff's cross motion is denied in its entirety. To the extent the plaintiff seeks to postpone a determination of the motion to dismiss pending the defendants' production of certain requested documents, the cross motion is moot, and would have been denied in any event for failure to demonstrate that such discovery is necessary to oppose the motion to dismiss (see CPLR 3211 [d]; Beesmer v Besicorp Dev ., 72 AD3d 1460, 900 NYS2d 472 [2010]). Nor, on the record presented, is the plaintiff entitled to injunctive relief. In order to prevail on a motion for a preliminary injunction, a plaintiff "must demonstrate by clear and convincing evidence, (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that a balancing of equities favors the movant's position" ( Apa Sec. v Apa , 37 AD3d 502, 503, 831 NYS2d 201, 202 [2007]). If the plaintiff "can be fully compensated by a monetary award, an injunction will not issue because no irreparable harm will be sustained in the absence of such relief ( Mar v Liquid Mgt. Partners , 62 AD3d 762, 763, 880 NYS2d 647, 648 [2009]). Here, the plaintiff has alleged only loss of revenue which is presumably compensable by money damages (see EdCia Corp. v McCormack , 44 AD3d 991, 845 NYS2d 104 [2007]); its claims that the defendants' actions will create "harm to the environment and the quality of life as well as the public safety of [Village] residents" are conclusory and unsubstantiated.
The defendants shall serve their answer to the amended complaint within 10 days after service of a copy of this order with notice of its entry (see CPLR 3211 [f]). Dated: February 19, 2015
/s/_________
J.S.C.