Opinion
16118 Index No. 451282/21 Case No. 2021-02402
06-09-2022
CITY OF NEW YORK, Plaintiff–Respondent, v. BEAM BIKE CORP., doing business as Joco Bikes, Defendant–Appellant.
Windels Marx Lane & Mittendorf, LLP, New York (Scott R. Matthews of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Elian Drucker of counsel), for respondent.
Windels Marx Lane & Mittendorf, LLP, New York (Scott R. Matthews of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Elian Drucker of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Gesmer, Shulman, Rodriguez, JJ.
Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about June 29, 2021, which granted plaintiff City of New York's (the City) motion for a preliminary injunction, unanimously affirmed, without costs.
The court providently exercised its discretion in granting the City's motion for a preliminary injunction (see Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191 [2005] ). A municipality seeking a preliminary injunction to enforce compliance with its ordinances or regulations in order to protect the public interest – in this case, Administrative Code of City of N.Y. § 19–151(c) – need only demonstrate a likelihood of success on the merits and that the equities weigh in its favor (see County of Westchester v. United Water New Rochelle, 32 A.D.3d 979, 980, 822 N.Y.S.2d 287 [2d Dept. 2006] ); it is not required to show proof of irreparable harm (see People v. Apple Health & Sports Clubs, 174 A.D.2d 438, 438–439, 571 N.Y.S.2d 23 [1st Dept. 1991], affd 80 N.Y.2d 803, 587 N.Y.S.2d 279, 599 N.E.2d 683 [1992] ; see also e.g. People ex rel. Bennett v. Laman, 277 N.Y. 368, 383–384, 14 N.E.2d 439 [1938] ).
As to the City's likelihood of success on the merits, we find unavailing defendant's argument that it does not operate a "bicycle sharing system" within the meaning of Rules of City of New York Department of Transportation (DOT) (34 RCNY) § 4–01(b), or a "shared bicycle system" within the meaning of Vehicle and Traffic Law § 1243(1), because its users’ trips begin and end in a private parking garage, as opposed to a "public highway." On the contrary, for something to be a "public highway" within the meaning of Vehicle and Traffic Law § 134 – which defines that term as "[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way" – "it must be a way ‘over which the public have a general right of passage’ " ( People v. Thew, 44 N.Y.2d 681, 682, 405 N.Y.S.2d 433, 376 N.E.2d 906 [1978], quoting People v. County of Westchester, 282 N.Y. 224, 228, 26 N.E.2d 27 [1940] ). Stated differently, "[t]he test of whether ... a road or way is a ‘public highway’ is not ownership but rather access. If the public has a general right of passage ..., then the road or way will be considered to come under the term ‘public highway’ " ( People v. Garcia, 85 Misc.2d 693, 694, 380 N.Y.S.2d 491 [Dist. Ct., Suffolk County 1975] ; see People v. Ostermeier, 118 Misc.2d 68, 71, 460 N.Y.S.2d 238 [County Ct., Suffolk County 1983] ). The fact that, in this case, the public has ready and unrestricted access to defendant's bikes obviates the fact that its bikes are technically docked on private property. Because DOT's interpretation of 34 RCNY 4–01(b) was neither irrational nor unreasonable, it was entitled to deference (see Matter of Gaines v. New York State Div. of Hous. & Community Renewal, 90 N.Y.2d 545, 548–549, 664 N.Y.S.2d 249, 686 N.E.2d 1343 [1997] ), and thus establishes the City's likelihood of success on the merits.
Based on the evidence it submitted to the motion court concerning the importance of regulating the bicycle share system within its borders, and the public benefits that its bicycle share system endeavors to offer, the City also established that the equities balance in its favor.