Opinion
Index No. 157542/2020 MOTION SEQ. No. 001
03-15-2024
ABRAM MULADZHANOV, BINYAMIN SCHWARTZ, GEORGE PRINGLE, JOHN SANTANA, individually, and on behalf of all others similarly situated, Petitioners, v. THE CITY OF NEW YORK, MAYOR BILL DE BLASIO, IN HIS OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, COMMISSIONER POLLY TROTTENBERG, IN HER OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, COMMISSIONER JACQUES JIHA, IN HIS OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, DEPUTY COMMISSIONER JEFFREY SHEAR, IN HIS OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, JOHN AND JANE DOE CITY OF NEW YORK EMPLOYEES, IN THEIR OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, JOHN AND JANE DOE NEW YORK CITY DEPARTMENT OF TRANSPORTATION EMPLOYEES, IN THEIR OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, JOHN AND JANE DOE NEW YORK CITY DEPARTMENT OF FINANCE EMPLOYEES, IN THEIR OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, JOHN AND JANE DOE NEW YORK CITY PARKING VIOLATIONS BUREAU EMPLOYEES, IN THEIR OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, JOHN AND JANE DOE NEW YORK CITY PARKING VIOLATIONS BUREAU ADMINISTRATIVE LAW JUDGES, IN THEIR OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, Respondents.
Unpublished Opinion
MOTION DATE 06/09/2023
PRESENT: HON. DEBRA A. JAMES Justice
DECISION + ORDER ON MOTION
Debra A. James, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 18, 19, 20, 2122 23, 24, 25, 26, 27, 28, 29, 30, 31,32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 44, 45, 46, 47, 48, 49, 5051' 52, 53, 54, 55, 56, 57, 58, 59, 60, 61,62, 63, 64, 65, 66, 67, 68, 69, 70 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER).
ORDER
Upon the foregoing documents, it is
ORDERED and ADJUDGED that the cross motion of respondents to dismiss the proceeding pursuant to CPLR 3211(a) (7) is granted: and it is further
ORDERED and ADJUDGED that the petition is denied, and the proceeding is dismissed, with costs and disbursements to respondents; and it is further
ADJUDGED that respondents, having address (es) at ___, do recover from petitioners, having an address at ___, costs and disbursements in the amount of $ ___, as taxed by the Clerk, and that respondent have execution therefor.
DECISION
Petitioners do not contend that their speeding adjudications were not supported by substantial evidence proffered at the hearings but claim that the speeding camera signage was inadequate and camera operational tests insufficient to set a legal speed limit or to establish that such speed limit was exceeded, respectively, and that therefore the adjudications were arbitrary and capricious. As respondents move to dismiss, as a matter of law, pursuant to CPLR 3211(a) (7) , there is no substantial evidence issue raised pursuant to CPLR § 7803 .
To the extent that respondents rely upon documentary record evidence, the court deems the true nature of their application as pursuant to CPLR 3211(a) (1).
This court does not consider respondents' arguments with respect to the 2017 speed camera Notices of Liability issued pursuant to Vehicle and Traffic Law (VTL) § 1108-b (prohibiting speeding near schools) that petitioners Muladzhanov and Schwartz are barred because such petitioners pled guilty to the speeding charges set forth in such Notices, as such would be part of any review by the Appellate Division, First Department, upon transfer pursuant to CPLR § 7804. See Jones v Fletcher, 279 AD 1118 (3d Dept 1952) and Serby v City of New York, 215 A.D.3d 438 (1st Dept 2023) .
As argued by respondents, none of petitioners' claims state a viable cause of action against the individual defendants, personally, as same are challenges to official actions, which actions involve the exercise of discretion. See Tango v Tulevech, 61 N.Y.2d 34, 40 (1983).
Petitioners do not deny that each were afforded an opportunity to challenge the Notices of Violations at an evidentiary hearing conducted by respondent administrative agency. Therefore, as a matter of law, their constitutional rights to due process were not violated. See Miller v Schwartz, 128 A.D.2d 783 (2d Dept 1987).
Nor do the challenges of petitioners to the verbiage on the signs providing notice of speed cameras have any merit, as a matter of law. As respondents contend, the National Manual on Uniform Traffic Control Devices for Streets and Highways provides that New York State may vary such requirements, subject to substantial compliance with such Manual. In addition, New York State laws, specifically Vehicle and Traffic Law §§ 1680(c) and 1682, permit respondent City to diverge from the state specifications raised by petitioners to the extent respondent City "in its discretion deems practicable". As respondent New York City did so, petitioners' challenge thereon shall be dismissed.
Given the "coding error" explanation set forth in the letter dated June 11, 2018 that the signature of the technician on the Certificate of Charging Liability in some instances is not viewable from certain computer monitors, and the removal of the verification requirement by VTL § 208 removal, petitioners have no basis to assail the authenticity of the Technician's Certificates. See Street v City of New York, 202 A.D.3d 542, 543 (1st Dept 2022) .
Petitioners' challenge to the Daily Set-up Log likewise likes merit as the record evidence, in the form of the Daily Logs themselves (NYSCEF Documents Number 9), demonstrates that respondent City's implementation of such Set-up comports with VTL § 1180-b(3) mandates, as a matter of fact and law. Further, respondent City's discretion therewith is entitled to deference by this court. See Serby v City of New York, supra, at p. 439, citing Street, supra.
Finally, for the reasons asserted by respondents, this court finds that petitioners' other challenges lack merit. Therefore dismissed are petitioners' claims of or for (1) deprivation of due process (see Halberstam v City of New York, Index No. 654239/2012, [Order dated December 14, 2013, Kathryn Freed, JSC, NYSCEF Document Number 63]; Nestle Waters N Am Inc v City of New York, 689 Fed.Appx 87, 88 [2d Cir 2017]; and Muladzhanov v City of New York, 18 CV 930 [US Court, EDNY 2018]); (2) civil damages for violations of VTL §§ 1180-b(a)(2), 1180-b(d), 1180-b(g)(2) and 1180-b(a) (see Weinman v New York State Department of Motor Vehicles Traffic Violations Bureau, 203 A.D.3d 1050 [2d Dept 2022]); and (3) fraudulent concealment/fraudulent inducement, negligent misrepresentation, unjust enrichment (see Michael R. Gianatasio, PE, PC v City of New York, 53 Misc.3d 757, 774-775 [Sup Ct NY Co 2016, Kornreich, J); declaratory judgment (see Press v Monroe County, 50 N.Y.2d 695 (1980).