Opinion
100028/2017
07-21-2020
In the Matter of the Application of Glen BOLOFSKY, individually and as President of Alternate Side of the Street Suspended Parking Calendar Corporation d/b/a parkingticket.com d/b/a Parking Survival Experts, on their own behalf and on behalf of all clients for whom they have filed transcript requests with the New York City Parking Violations Bureau; Atlantic Cooling Technologies and Services; Concept National, LLC ; King Freeze; UB Distributors, LLC; Royal Rose Burton Kitchen Supply, LLC; and Sysco Metro NY, LLC, Petitioners, v. CITY OF NEW YORK; New York City Department of Finance; Jeffrey Shear, Deputy Commissioner of Department of Finance; Diana Beinart, Deputy Commissioner and General Counsel of Department of Finance; New York City Parking Violations Bureau of New York City Department of Finance; and Jacques Jiha, Commissioner of New York City Department of Finance, Respondents, For an Order and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules and for Injunctive and Equitable Relief and a Declaratory Judgment as a Plenary Action.
For Petitioners Jonathan Edelstein Esq., Edelstein & Grossman, 501 5th Avenue, New York, NY 10017, Bryan D. Glass Esq., Glass Harlow & Hogrogian LLP, 85 Broad Street, New York, NY 10004 For Respondents Kerri Devine, Assistant Corporation Counsel, Amy Weinblatt, Assistant Corporation Counsel New York City Law Department, 100 Church Street, New York, NY 10007
For Petitioners Jonathan Edelstein Esq., Edelstein & Grossman, 501 5th Avenue, New York, NY 10017, Bryan D. Glass Esq., Glass Harlow & Hogrogian LLP, 85 Broad Street, New York, NY 10004
For Respondents Kerri Devine, Assistant Corporation Counsel, Amy Weinblatt, Assistant Corporation Counsel New York City Law Department, 100 Church Street, New York, NY 10007
Lucy Billings, J.
Petitioners challenge respondents' procedures for appealing a finding of guilty after issuance of a notice of violation (NOV) of parking laws and their failure to respond to inquiries concerning NOVs. Respondents move to dismiss the Second Amended Petition because petitioners lack standing and the Second Amended Petition fails to state a claim. C.P.L.R. § 3211(a)(3) and (7).
I. STANDING AND MOOTNESS
A. Petitioner Bolofsky
Petitioners do not dispute that petitioner Bolofsky has not received or been found guilty of any of the NOVs for which petitioners seek relief. Petitioners contend, however, that the other five petitioners, businesses that own vehicles, have received and been found guilty of these NOVs, which respondents implicitly concede when they maintain that they have vacated 929 determinations of petitioners' administrative appeals based on petitioners' claims in this proceeding, addressed below. Respondents also concede that petitioners other than Bolofsky have inquired concerning NOVs issued to those petitioners, a basis for their further claims addressed below.
Bolofsky's appearance or payment of fees on his clients' behalf at respondents' administrative hearings and appeals, however, does not give him standing to challenge respondents' actions. To challenge respondents' actions, he must show that he has suffered an injury in fact and that the injury falls within the zone of interests protected by the laws under which petitioners claim relief. Mental Hygiene Legal Serv. v. Daniels , 33 NY3d 44, 50 (2019) ; Association for a Better Long Is., Inc. , 23 NY3d 1, 6 (2014) ; New York State Assn. of Nurse Anesthetists v. Novello , 2 NY3d 207, 211 (2004) ; Roberts v. Health & Hosps. Corp. , 87 AD3d 311, 318-19 (1st Dep't 2011).
To show an injury in fact, Bolofsky must delineate how respondents' actions actually harmed him and how the injury suffered is personal and distinct from injury to the general public. Mental Hygiene Legal Serv. v. Daniels , 33 NY3d at 50 ; Real Estate Bd. of NY, Inc. v. City of New York , 165 AD3d 1, 8 (1st Dep't 2018) ; Roberts v. Health & Hosps. Corp. , 87 AD3d at 318. Because Bolofsky has not shown that he suffered any injury from respondents' administrative actions, he lacks standing to challenge them. His appearance and payment of fees on his clients' behalf for administrative hearings and appeals and his representation of other parties in similar administrative hearings and appeals show an interest in respondents' adjudication of the NOVs issued to his clients, but not an actual injury, and therefore do not confer standing. Mental Hygiene Legal Serv. v. Daniels , 33 NY3d at 52-53 ; Citizens Emergency Comm. to Preserve Preserv. v. Tierney , 70 AD3d 576, 576 (1st Dep't 2010). See Transactive Corp. v. New York State Dept. of Soc. Servs. , 92 NY2d 579, 587 (1998) ; Society of Plastics Indus., Inc. v. County of Suffolk , 77 NY2d 761, 778 (1991) ; Roberts v. Health & Hosps. Corp. , 87 AD3d at 319.
Nor does Bolofsky show any injury within the zone of interests protected by the statutes and regulations under which respondents acted, as respondents' issuance of NOVs of parking laws affects only his representation of his clients, without any direct effect on himself. Bloomfield v. Cannavo , 123 AD3d 603, 605 (1st Dep't 2014) ; Roberts v. Health & Hosps. Corp. , 87 AD3d at 319. Therefore the court dismisses Bolofsky's claims against respondents.
B. The $2.00 Fee for Transcripts of Administrative Hearings
The remaining petitioners challenge the $2.00 fee imposed by respondent New York City Department of Finance (DOF) Parking Violations Bureau (PVB) for it to determine the cost of a transcript of an administrative hearing on an NOV and to enable a person charged then to obtain the transcript upon payment of the cost. 19 R.C.NY § 39-08(g) provides that: "A record shall be made of every hearing .... A transcript of such record shall be supplied to the respondent [person charged] on application and payment of a fee of $2.00 and the cost of such transcript. The director may establish procedures for application for transcript."
Petitioners do not dispute that respondents no longer impose the $2.00 fee. Bolofsky affirmatively attests that: "On October 30, 2019, DOF published ... procedures which clearly state[ ] that DOF does not charge any administrative fee to obtain the price of a transcript." Aff. of Glen Bolofsky ¶ 6. He reiterates that "DOF's new position on administrative fees (effective October 30th, 2019) states they are no longer charging administrative fees to acquire the price of hearing transcripts." Id. ¶ 7. He again acknowledges that "DOF has now issued its new policy, as per its release of October 30, 2019 ... where no administrative fees are required to obtain the price of what a hearing transcript would cost." Id. ¶ 12. Petitioners thus leave no doubt that respondents no longer impose the $2.00 fee.
Nor do petitioners seek a refund of fees previously paid. See Ryan, Inc. v. New York State Dept. of Taxation & Fin. , 83 AD3d 482, 483 (1st Dep't 2011). Therefore none of petitioners shows any injury or adverse practical effect on them from respondents' regulation requiring payment of the fee. Saratoga County Chamber of Commerce v. Pataki , 100 NY2d 801, 811 (2003) ; Citizens Emergency Comm. to Preserve Preserv. v. Tierney , 70 AD3d at 576 ; Hernandez v. Department of Hous. Preserv. & Dev. , 68 AD3d 407, 407 (1st Dep't 2009). Nor do petitioners show any reason to believe that respondents will reimpose the fee without rulemaking that will afford petitioners notice and an opportunity to comment on the proposed rule and to challenge the new one, which well may be different from the old one. N.Y.C. Charter § 1043; Big Apple Food Vendors' Assn. v. Street Vendor Review Panel , 90 NY2d 402, 405 (1997) ; Lynch v. New York City Civilian Complaint Review Bd. , 183 AD3d 512, 518 (1st Dep't 2020) ; 439 E. 88 Owners Corp. v. Tax Commn. of City of NY , 307 AD2d 203, 203 (1st Dep't 2003) ; Miah v. Taxi & Limousine Commn. of City of NY , 306 AD2d 203, 203 (1st Dep't 2003). See Saratoga County Chamber of Commerce v. Pataki , 100 NY2d at 811 ; Ryan, Inc. v. New York State Dept. of Taxation & Fin. , 83 AD3d at 483. Until respondents reimpose the fee, petitioners' challenge to the fee is moot. Saratoga County Chamber of Commerce v. Pataki , 100 NY2d at 811 ; Santiago v. Berlin , 111 AD3d 487, 487 (1st Dep't 2013) ; Eve & Mike Pharm., Inc. v. Greenwich Pooh, LLC , 107 AD3d 505, 505 (1st Dep't 2013) ; Ryan, Inc. v. New York State Dept. of Taxation & Fin. , 83 AD3d at 483.
New York Vehicle and Traffic Law (VTL) § 237(6), moreover, authorizes the fee imposed by 19 R.C.NY § 39-08(g). The statute applies to all requested transcripts and requires the PVB to furnish "transcripts to the person charged at said person's own expense upon timely request, and upon said person complying with the regulations of the bureau ." (emphasis added) VTL § 242(3) specifies when the PVB must furnish a transcript to an appellant appealing from a a decision after an administrative hearing: upon receipt of a notice of an administrative appeal, "furnish to the appellant, at his [sic] request and at his [sic] own expense, a transcript of the original hearing." This statute does not expressly require compliance with the PVB's regulations, but neither does the statute supplant or conflict with VTL § 237(6), which does require that compliance. See Albany Law School v. New York Off. of Mental Retardation & Dev. Disabilities , 19 NY3d 106, 121 (2012) ; Khela v. Neiger , 85 NY2d 333, 336-67 (1995). For all the above reasons, the court dismisses the Second Amended Petition's fourth and fifth causes of action to invalidate the $2.00 fee, to relieve petitioners from paying it, or to impose a single $2.00 fee to obtain the cost of hearing transcripts for an entire day.
C. The Determination of Administrative Appeals Before Furnishing Requested Transcripts
Petitioners further claim that respondents have determined appeals without giving petitioners an opportunity to submit a transcript and use it to support an appeal. VTL § 242(3) expressly provides that: "No appeal shall be conducted less than ten days after the mailing of the transcript to the appellant or his [sic] attorney." Both VTL § 237(6) and VTL § 242(3) envision that appellants that timely request a transcript will receive it to support an appeal before the appeal is determined. Respondents concede this purpose and have vacated determinations of appeals when petitioners had requested but not yet received transcripts. The appeals are to be redetermined after the appellants have received the transcripts.
Petitioners again do not dispute this corrective action, but insist that the premature determination of their appeals without the requested transcripts effects an automatic dismissal of the underlying NOV. VTL §§ 237(6) and 242(3), however, unlike VTL § 237(8) discussed below and other VTL provisions, do not provide for dismissal of an NOV when respondents violate the provision, nor provide any other remedy. Therefore respondents' remedy is fully adequate. It restores appellants to the status quo before their appeals were determined and awaits their receipt of the requested transcripts that petitioners have complained they did not receive. Ryan, Inc. v. New York State Dept. of Taxation & Fin. , 83 AD3d at 483.
Petitioners now complain that revival of their appeals "would be" burdensome, but fail to specify what that burden is. Aff. in Opp'n of Brian D. Glass ¶ 34. The purposes of the transcripts are to support points petitioners have raised in their appeals or to raise points that petitioners have not raised. Again, none of petitioners shows any injury or adverse practical effect on them from respondents' redetermination of petitioners' appeals after their receipt of requested transcripts and an opportunity to use them to support points petitioners have raised in their appeals or to raise new points. Saratoga County Chamber of Commerce v. Pataki , 100 NY2d at 811 ; Citizens Emergency Comm. to Preserve Preserv. v. Tierney , 70 AD3d at 576 ; Hernandez v. Department of Hous. Preserv. & Dev. , 68 AD3d at 407. Nor do petitioners show either a likelihood that respondents will revert to determining appeals without giving petitioners an opportunity to submit a transcript and use it to support an appeal or that, should respondents do so, petitioners will be unable to challenge the practice so that it will evade judicial review in the future. Saratoga County Chamber of Commerce v. Pataki , 100 NY2d at 811 ; Ryan, Inc. v. New York State Dept. of Taxation & Fin. , 83 AD3d at 483.
Until respondents revert to their premature determinations of appeals, petitioners' challenge to that practice is moot. Saratoga County Chamber of Commerce v. Pataki , 100 NY2d at 811 ; Santiago v. Berlin , 111 AD3d at 487 ; Eve & Mike Pharm., Inc. v. Greenwich Pooh, LLC , 107 AD3d at 505 ; Ryan, Inc. v. New York State Dept. of Taxation & Fin. , 83 AD3d at 483. Therefore the court dismisses the Second Amended Petition's third and sixth causes of action for dismissal of NOVs when respondents have determined an appeal of a guilty finding before providing the appellant a requested transcript.
II. PETITIONERS' REMAINING CLAIMS
In determining respondents' motion to dismiss the Second Amended Petition under C.P.L.R. § 3211(a)(7), the court must accept petitioners' factual allegations as true, liberally construe them, and draw all reasonable inferences in their favor. JF Capital Advisors, LLC v. Lightstone Group, LLC , 25 NY3d 759, 764 (2015) ; Miglino v. Bally Total Fitness of Greater NY, Inc. , 20 NY3d 342, 351 (2013) ; ABN AMRO Bank, N.V. v. MBIA Inc. , 17 NY3d 208, 227 (2011) ; Drug Policy Alliance v. New York City Tax Comm'n , 131 AD3d 815, 816 (1st Dep't 2015). Dismissal is warranted only if petitioners fail to allege facts that fit within any cognizable legal theory. Faison v. Lewis , 25 NY3d 220, 224 (2015) ; ABN AMRO Bank, N.V. v. MBIA Inc. , 17 NY3d at 227 ; Lawrence v. Graubard Miller , 11 NY3d 588, 595 (2008) ; Nonnon v. City of New York , 9 NY3d 825, 827 (2007).
The statutory premise for petitioners' claim that NOVs issued to petitioners be dismissed is VTL § 237(8). It requires that NOVs be dismissed when the persons charged or their attorneys have (1) requested from the PVB a copy of the original NOV, which the PVB has not supplied, or (2) made "relevant and reasonable inquiries" concerning NOVs to the PVB, to which it has not responded within 45 days.
A. Requests for Transcripts
Petitioners claim that requests for transcripts constitute "relevant and reasonable inquiries," which if not answered within 45 days, require dismissal of the NOVs to which the transcripts pertain. VTL § 237(8). VTL § 237(8) assigns discrete meanings to a "request," for a copy of the original NOV, and to "inquiries," concerning an NOV. See Friedman v. Rice , 30 NY3d 461, 477-78 (2017) ; Rosner v. Metropolitan Prop. & Liab. Ins. Co. , 96 NY2d 475, 479-80 (2001) ; Bliss v. Bliss , 66 NY2d 382, 389 (1985) ; Samuelsen v. New York City Tr. Auth. , 101 AD3d 537, 540-41 (1st Dep't 2012). Although the Legislature did not define these terms, they are familiar concepts, "intelligible to the average person," with ascertainable and definite meanings. People v. Cruz , 48 NY2d 419, 427 (1979). See Rosner v. Metropolitan Prop. & Liab. Ins. Co. , 96 NY2d at 480.
A "request" for a transcript is not an "inquiry" concerning an NOV. VTL § 237(8). VTL § 237(8) addresses requests, but only requests for a copy of the original NOV. The court may not extend the statute's reach beyond its plain words' "usual and commonly understood meaning," We're Assoc. Co. v. Cohen, Stracher & Bloom , 65 NY2d 148, 151 (1985), to encompass requests for anything more than a copy of the original NOV, see Artibee v. Home Place Corp. , 28 NY3d 739, 747-48 (2017) ; Drew v. Schenectady County , 88 NY2d 242, 246 (1996) ; Bliss v. Bliss , 66 NY2d at 389 ; Samuelsen v. New York City Tr. Auth. , 101 AD3d at 540-41, especially where the statute imposes duties on respondents "unknown at common law." We're Assoc. Co. v. Cohen, Stracher & Bloom , 65 NY2d at 151. See 315 W. 103 Enters. LLC v. Robbins , 171 AD3d 466, 467 (1st Dep't 2019) ; Green v. Himon , 165 AD3d 590, 591 (1st Dep't 2018). VTL §§ 237(6) and 242(3) address requests for transcripts, but specify no time limit for responding to those requests, nor remedy if requests are not met.
VTL § 237(8) thus does not effect an automatic dismissal of an NOV any more than § 237(6) or § 242(3) when the PVB has not supplied a transcript of the hearing on that NOV within 45 days after a request for the transcript. Therefore the court dismisses the Second Amended Petition's first cause of action based on VTL § 237(8), that an NOV must be dismissed when the PVB has not supplied a transcript of the hearing on that NOV within 45 days of a request, and second cause of action for an injunction against enforcement of the NOV.
B. Inaccurate and Incomplete Transcripts
In conceding that respondents have vacated 929 determinations of petitioners' appeals when they had requested but not received transcripts, respondents implicitly concede petitioners' standing for their claims relating to administrative appeals. Petitioners also claim that the transcripts received are not accurate and complete. For the same reason that nonreceipt of transcripts does not effect an automatic dismissal of NOVs to which the transcripts pertain, neither does receipt of an inaccurate or incomplete transcript effect an automatic dismissal of NOVs.
Inaccurate or incomplete transcripts do require a remedy, however, as deficient transcripts may be as useless as no transcripts in supporting appeals. VTL § 237(6) requires respondents to maintain an accurate and complete record of every hearing. Although this claim may be particular to each hearing, the need for particularization does not dilute the validity of the claim at the pleading stage.
Respondents insist that petitioners' claims of inaccuracy and incompleteness are limited to the "reason codes" used by respondents' hearing examiners "to identify petitioner's primary defense to a parking violation and the basis for respondents' determination," which "does not violate the due process obligation to provide sufficient information for an intelligent appellate review." Bolofsky v. City of New York , 146 AD3d 693, 694 (1st Dep't 2017). First, the Second Amended Petition is not so limited. It alleges respondents' "inability to produce accurate and complete transcripts," Aff. in Supp. of Kerri A. Devine Ex. B ¶ 46, based at least in part on "the lack of a court reporter at PVB hearings." Id. ¶ 47.
Second, Bolofsky v. City of New York , 146 AD3d at 694, focussed on the hearing examiners' written decisions and was based on the assumption that the transcript of the oral hearing clarified the defense claimed and the basis for the decision and explained the codes used. Here, petitioners point out that the transcripts themselves use the "reason codes" and thus fail to articulate in intelligible terms the basis or rationale for the decision and "to provide sufficient information for an intelligent appellate review." Id.
In opposition to respondents' motion to dismiss the Second Amended Petition, petitioners may rely on admissible affidavits to supplement their pleading. C.P.L.R. § 403(b) ; Nonnon v. City of New York , 9 NY3d at 827 ; Cron v. Hargro Fabrics , 91 NY2d 362, 366 (1998) ; US Suite LLC v. Barata, Baratta & Aidala LLP , 171 AD3d 551, 551 (1st Dep't 2019) ; Ray v. Ray , 108 AD3d 449, 452 (1st Dep't 2013). Bolofsky attests that "hearing examiners refuse to give any rationale behind the ... codes," Bolofsky Aff. ¶ 14, and:
on a daily basis ... as a matter of course, PVB hearing examiners do not provide an oral explanation as to why they uphold tickets. Therefore, any transcript of those hearings would show that no rational basis for upholding the ticket is recorded, making the transcripts ... woefully incomplete and essentially worthless.
Id. ¶ 13. While petitioners may learn that the code "NC" translates to "not convincing" or "OG" translates to "other guilty," this decoding still does not permit an intelligent appeal or a reviewing body's intelligent review.
The supplementation of the Second Amended Petition's allegations reveals that petitioners do not necessarily claim that the transcripts inaccurately or incompletely record what occurred at the hearing. Although petitioners' attorney claims that hearing examiners turn off the tape recording before they have completed the recitation of their decision, neither the Second Amended Petition nor petitioners' affidavits support this claim. Instead, petitioners claim that what occurs does not provide an accurate or complete record, in intelligible terms, articulating the basis or reasoning supporting the decision, to permit an intelligent appeal or a reviewing body's intelligent review. The key point is that petitioners have alleged facts that fit within a cognizable legal theory, even if it is not the precise theory claimed in the Second Amended Petition. Faison v. Lewis , 25 NY3d at 224 ; ABN AMRO Bank, N.V. v. MBIA Inc. , 17 NY3d at 227 ; Lawrence v. Graubard Miller , 11 NY3d at 595 ; Nonnon v. City of New York , 9 NY3d at 827. Therefore the court sustains the Second Amended Petition's seventh cause of action that respondents' hearing transcripts violate VTL § 237(6) because they are inaccurate, incomplete, and not fit for intelligent appellate review.
C. Untimely Determinations of Appeals
In opposition to respondents' motion, petitioners claim that respondents have unlawfully failed to determine administrative appeals within 60 days after petitioners' filing of a notice of appeal. Petitioners rely on 19 R.C.NY § 39-12(e), which requires respondents to determine appeals: "Within sixty days after the filing of the notice of appeal, ... briefs or completion of oral argument, whichever date shall come last." 19 R.C.NY § 39-12(e). Thus the 60 days runs from the filing of briefs or the completion of oral argument if either is after the notice of appeal. Nevertheless, the notice of appeal itself must set forth "the reason why the decision should be reversed or modified," 19 R.C.NY § 39-12(b)(1); briefs are not required, 19 R.C.NY § 39-12(c)(1); and, if a brief is filed, it "shall be filed ... at the time of filing of the the notice of appeal, unless the time to do so is extended by the Appeals Board for good cause." 19 R.C.NY § 39-12(c)(3). "All appeals shall be submitted ... without oral argument, unless ... requested by the appellant in the notice of appeal." 19 R.C.NY § 39-12(d)(1).
In sum, petitioners claim that once respondents receive a notice of appeal without a request for an extension of time to file a brief or for oral argument, the 60 days begin to run. Expiration of the 60 days without a determination, however, does not effect an automatic dismissal of the NOV on appeal. 19 R.C.NY § 39-12(e). Again, the extent to which respondents have exceeded this deadline may be particular to each appeal, but the need for particularization and the absence of a remedy in the regulation do not dilute the validity of the claim or the need for a remedy short of dismissal of the NOV and guilty finding that petitioners have appealed.
Nevertheless, the Second Amended Petition alleges no petitioner that has not received a determination of an administrative appeal within the required 60 days, nor any other facts or any cause of action that respondents have exceeded the 60 days within which respondents are required to determine an appeal. Therefore there is no such claim before the court for it to dismiss or sustain.
D. Other Relevant and Reasonable Inquiries
Finally, petitioners allege that they made two inquiries that respondents concede were not requests for transcripts and relate to NOVs issued to petitioners other than Bolofsky. On May 9, 2017, and December 26, 2017, regarding specified NOVs, petitioners inquired as to:
(1) the serial numbers of the hand-held electronic devices that generated the original NOVs;
(2) the data uploaded to respondents' computers from the hand-held electronic devices and the date the data first were uploaded;
(3) the dates any data were reloaded and who authorized the reloading;
(4) what data were reloaded, the dates, the source of the reloaded data, and the data that the reloaded data replaced.
Respondents responded to each of these inquiries within 10 days, but simply acknowledged receipt of the inquiries and did not provide the information sought, even within 45 days. The Second Amended Petition alleges that respondents responded "that the information sought would not be in the possession of the New York City Department of Finance, but rather the NYPD, as hand-held computers are the property of the Police Department," answering only the first inquiry and ignoring the remaining inquiries. Devine Aff. in Supp. Ex. B ¶ 56. In support of respondents' current motion, respondents claim that all the inquiries are irrelevant to prosecution or defense of the NOVs and unreasonably burdensome.
In Sysco Metro NY, LLC v. City of New York , 62 Misc 3d 997, 1003-1004 (Sup. Ct. NY Co 2018), the court explained why at least part of these data may be relevant to the defense of NOVs. Petitioners claim that the version of an NOV recorded in respondents' computer system often differs from the version of the NOV served personally on a vehicle's operator or by affixation to the vehicle. See VTL § 238(2). In these instances the NOV served may omit required information that nonetheless inexplicably appears in the electronic version of the NOV.
VTL § 238(1) provides that the original NOV "or a facsimile thereof" is the one entered in respondents' computer system, and a duplicate "shall be served" by delivery to the operator of the vehicle or affixation on the vehicle charged with the violation. Once the ticketing officer delivers or affixes that duplicate, it is no longer subject to alteration by the officer. It is subject to alteration only by the operator or other persons with access to the duplicate via the operator or the vehicle. Therefore petitioners may need to call the operator to attest to the duplicate's unaltered form after service when there is a discrepancy between the duplicate and the original NOV or its facsimile entered in respondents' computer system. See Sysco Metro NY, LLC v. City of New York , 62 Misc 3d at 1003-1004.
While this electronic version may not be subject to alteration by anyone outside DOF, petitioners seek to ascertain whether, after the duplicate has been served, the electronic version is free from alteration, inadvertent or otherwise, by the ticketing officer when entering the information or afterward. They may also seek to ascertain whether the version served is free from alteration before service, so that that version is not in fact the "duplicate" that "shall be served," thus violating VTL § 238(1). In sum, petitioners seek to ascertain any alteration of either the original NOV, its facsimile, or the duplicate in either of these instances. See Sysco Metro NY, LLC v. City of New York , 62 Misc 3d at 1004.
Where there is a discrepancy between the two versions, it may not be reconciled by hearing examiners' rote acceptance of the NOV recorded in respondents' computer system. This shortcut forecloses authentication of that original or facsimile NOV as unaltered, when petitioners have challenged that version's very authenticity, and ignores 19 R.C.NY § 39-08(f)(4). This regulation first provides that: "A reproduction of the summons [NOV] or the original thereof filed with the Bureau may be used at the hearing in lieu of the copy from which it was made." Depending whether the phrase "filed with the Bureau" modifies a "reproduction of the summons" as well as that phrase's immediately antecedent noun, the "original thereof," or only the latter, "reproduction" refers to either the facsimile filed or recorded with the PVB, instead of the original NOV, or the duplicate served. In either event, this provision suggests that the original NOV entered in respondents' computer system actually is made from another copy. The only other copy is the NOV served on the vehicle operator or the vehicle. Although the regulation's terminology is confusing, whatever is the correct interpretation of its references to "reproduction," "original," and "copy," and even if the NOV served is not in fact the first version generated, the regulation is clear that all copies, reproductions, or versions of the NOV are to be recognized and considered. No single version, such as the electronic version, is to be recognized and considered to the exclusion of all other copies, each of which is subject to authentication when there is a discrepancy between versions. See Sysco Metro NY, LLC v. City of New York , 62 Misc 3d at 1004.
Thus, whether respondents have altered any version of the NOV and whether they have created more than one version are vital to petitioners' defense against NOVs. Their inquiries, except perhaps the first category, the serial numbers of the hand-held electronic devices that generated the original NOVs, are relevant to these very questions: whether respondents have altered any version of the NOV and whether they have created more than one version.
Petitioners insist that even the hand-held devices' serial numbers are relevant, because they may reveal that particular devices are associated with a high incidence of alterations. The central inquiry, however, is whether NOVs have been altered, not the means by which they have been altered. Thus, to the extent that petitioners ask who authorized reloading of data, this inquiry, like the inquiry identifying the hand-held devices, but unlike the several other relevant inquiries, may be irrelevant.
If no alterations occur in uploading data to respondents' computers from ticketing officers' hand-held electronic devices or in reloading data to respondents' computers, then petitioners' inquiries are easy to answer. If alterations do occur, and reloaded data replaces previously uploaded data, this information may be highly relevant to petitioners' defense of NOVs, and respondents have not explained why it would be unreasonable to provide the information sought. Whether the inquiries are unreasonably burdensome because they seek information about multiple NOVs collectively and would be more reasonable and less burdensome if posed individually or whether respondents may respond within the 45 days that the information sought will require more time to gather are not issues to be determined at the pleading stage. Therefore the court sustains the Second Amended Petition's eighth cause of action that respondents have violated VTL § 237(8) by not responding to petitioners' inquiries dated May 9, 2017, and December 26, 2017.
III. CONCLUSION
In sum, for the reasons explained above the court grants respondents' motion to dismiss the Second Amended Petition's:
first cause of action based on VTL § 237(8), that NOVs must be dismissed when the PVB has not supplied a transcript of the hearing on the NOVs within 45 days of a request;
second cause of action for an injunction against enforcement of NOVs when the PVB has not supplied a transcript of the hearing on the NOVs within 45 days of a request;
third and sixth causes of action for dismissal of NOVs when respondents have determined an appeal of a guilty finding before providing the appellant a requested transcript;
fourth and fifth causes of action to invalidate the $2.00 fee to obtain the cost of a hearing transcript, to relieve petitioners from paying the fee, or to impose a single $2.00 fee to obtain the cost of hearing transcripts for an entire day; and
seventh and eighth causes of action by petitioner Bolofsky.
C.P.L.R. § 3211(a)(3) and (7). The court denies respondents' motion to dismiss the Second Amended Petition's:
seventh cause of action, that respondents' hearing transcripts violate VTL § 237(6) because they are inaccurate, incomplete, and not fit for intelligent appellate review, and
eighth cause of action, that respondents have violated VTL § 237(8) by not responding to petitioners' inquiries dated May 9, 2017, and December 26, 2017, by all petitioners except Bolofsky. C.P.L.R. § 3211(a)(7).
This decision constitutes the court's order. The Clerk shall enter a judgment dismissing the Second Amended Petition by petitioner Bolofsky and dismissing its first through sixth causes of action. C.P.L.R. § 3211(a)(3) and (7).