Opinion
June 19, 1967
In a proceeding pursuant to CPLR article 78 to annul determinations of the Police Department of the City of New York which (1) revoked petitioners' tow car license and medallion and (2) denied their application for a new tow car license, the Department's Commissioner and its Deputy Commissioner in charge of its Division of Licenses appeal from a judgment of the Supreme Court, Kings County, dated October 18, 1966, which annulled the determination as to a new license and directed said Commissioner and Deputy Commissioner to grant the application as to a new license and medallion. Judgment reversed, on the law and the facts, without costs, proceeding dismissed and determination denying a new license confirmed. On November 15, 1962, petitioners' tow car license was revoked after a hearing in which one of the petitioners pleaded guilty to a charge of maintaining and monitoring a radio capable of receiving police messages, in violation of the regulations established by the Police Commissioner pursuant to section 436-7.0 of the Administrative Code of the City of New York. No timely proceeding to review that determination was commenced. In December, 1965, petitioners applied for a restricted towing car license. The application was disapproved on December 22, 1965 and the disapproval was confirmed after a hearing held on January 26, 1966. A further hearing was held on May 31, 1966 pursuant to a judgment in a prior article 78 proceeding, but on June 1, 1966, the application was once more disapproved. Petitioners then instituted the instant proceeding. Special Term has found that the testimony adduced and the other evidence in the record are not sufficiently substantial to support the determination denying petitioners a new license and that that determination is tantamount to an abuse of discretion, and directed the issuance of a license. At the May 31, 1966 hearing there was testimony of the use by petitioners of their private cars to go to scenes of accidents and there to solicit business in which they would use their tow truck. There was testimony by Officer Manuccis that from the loudspeaker in petitioners' garage he heard calls to various precincts, of the kind received on police car radios from Central. This justified a conclusion that these were calls meant for receipt by police radio. In our opinion, this use by petitioners of their private cars to go to scenes of accidents and there to solicit business in which they would use their tow truck was a violation of the spirit, general intent and purpose of section 436-7.0 of the Administrative Code, whether or not their actions constituted a direct, unequivocal violation of the section; and the fact of the prior revocation of a license plus the conduct of petitioners since such revocation warranted the conclusion that a license should not be issued to them in light of section 436-7.0, which provides in pertinent part as follows: "§ 436-7.0 Licensing and regulation of towing cars. — a. Legislative findings. — It is hereby declared and found that the rates and charges imposed for the towing of disabled motor vehicles in the streets of the city is a matter affecting the public interest and consequently should be subject to supervision and administrative control, for the purpose of safeguarding the public against fraud, exorbitant rates and similar abuses." It cannot be said that the action of respondents is tantamount to an arbitrary or capricious abuse of discretion ( Matter of Davis v. Broderick, 25 A.D.2d 851). Rabin, Benjamin and Munder, JJ., concur; Brennan, Acting P.J., and Hopkins, J., dissent and vote to affirm the judgment.