Opinion
Index No. 152138/2023 Motion Seq. Nos. 001 002
10-12-2023
In the Matter of the Application of ARABELLA PALMA and SHALOM KATZ, Individually, and on behalf of all others similarly situated, Plaintiffs-Petitioners, v. THE CITY OF NEW YORK, DEPARTMENT OF TRANSPORTATION COMMISSIONER YDANIS RODRIGUEZ both individually and in his official capacity, DEPARTMENT OF FINANCE COMMISSIONER PRESTON NIBLACK, both individually and in his official capacity, DEPUTY COMMISSIONER FOR TREASURY AND PAYMENT SERVICES JEFFREY SHEAR, both individually and in his official capacity, JOHN and JANE DOE CITY OF NEW YORK EMPLOYEES, both individually and in their official capacities, JOHN and JANE DOE NEW YORK CITY DEPARTMENT OF TRANSPORTATION EMPLOYEES, both individually and in their official capacities, JOHN and JANE DOE NEW YORK CITY DEPARTMENT OF FINANCE EMPLOYEES, both individually and in their official capacities, JOHN and JANE DOE NEW YORK CITY PARKING VIOLATIONS BUREAU EMPLOYEES, both individually and in their official capacities, and JOHN and JANE DOE PARKING VIOLATIONS BUREAU ADMINISTRATIVE LAW JUDGES, both individually and in their official capacities, Defendants-Respondents.
Unpublished Opinion
MOTION DATE 03/03/2023, 05/11/2023
PRESENT: HON. ERIKA M. EDWARDS Justice
DECISION + ORDER ON MOTION
ERIKA M. EDWARDS, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8 9,10,11,12,13,14,15,16,18,19,20,21,22,42 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER)
The following e-filed documents, listed by NYSCEF document number (Motion 002) 23, 24, 25, 26, 2728, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,43, 44, 45, 46, 47 were read on this motion to/for DISMISSAL
Upon the foregoing documents, including oral argument held before the court on July 27 2023, to discuss motion sequence 002, the court grants Defendants-Respondents The City of New York's ("City"), Department of Transportation ("DOT") Commissioner Ydanis Rodriguez's, Department of Finance Commissioner Preston Niblack's, Deputy Commissioner for Treasury and Payment Services Jeffrey Shear's, John and Jane Doe City of New York Employees', Department of Transportation Employees', New York City Department of Finance Employees', New York City Parking Violations Bureau Employees', and Parking Violations Bureau Administrative Law Judges' (collectively, "Defendants-Respondents") motion to dismiss Plaintiffs-Petitioners Arabella Palma's and Shalom Katz's, individually, and on behalf of others similarly situated's (collectively "Plaintiffs-Petitioners") Verified Petition and Complaint and the court dismisses the Verified Petition and Complaint filed under motion sequence 001.
Petitioners brought this hybrid Article 78 Verified Petition and Complaint which is a putative class action on behalf of others similarly situated challenging Defendants-Respondents' policy and practice of issuing "photo school speed zone" infractions, pursuant to § 1180-b of the New York Vehicle and Traffic Law ("VTL") ("Photo School Speed Zone Violations").
Plaintiffs-Petitioners allege in substance that Defendants-Respondents unlawfully and fraudulently issue Photo School Speed Zone Violations that are facially defective, legally insufficient and void ab initio notices of liability ("NOL"). Plaintiffs-Petitioners further allege in substance that the NOLs are invalid because they do not provide evidence that there were posted speed limits in the school speed zones, which could easily include photographs of the signs. They also argue in substance that the NOLs are invalid because the City failed to only install speed cameras in areas with posted compliant speed limit signs which include a warning below the speed limit signs that state that it is "photo enforced" to give written notice to approaching motor vehicle operators that a photo speed violation monitoring system is in use.
Plaintiffs-Petitioners further argue that the language in the statute is clear and unambiguous, yet Defendants-Respondents installed school speed zone cameras in hundreds of school zones without posting speed limit signs and/or without signs notifying approaching drivers that a speed camera is in use. Additionally, they argue that the City Department of Finance's website misled Class Members about the possible defenses to these types of violations by improperly limiting the defenses and failing to include that a possible defense is the failure to provide evidence of a posted speed limit or a sign giving notice to approaching motorists that a photo speed zone violation system was in use. Furthermore, Plaintiffs-Petitioners argue in favor of a class action certification.
Plaintiffs-Petitioners seek an Order of Judgment declaring that NOLs alleging a violation of VTL § 1180-b which fail to provide evidence that there were posted speed limits in the school speed zone and/or that did not include the required language providing notice that a photo speed violation monitoring system was installed and in use are legally insufficient and null ab initio; that they are material false representations and/or omissions; and that there was unjust enrichment. Plaintiffs-Petitioners also seek an order certifying this action as a class action pursuant to CPLR § 901; issuing notice to the Class of this action; appointing Plaintiffs-Petitioners as the representatives of the Class; and appointing their counsel as Class counsel. Plaintiffs-Petitioners also seek an order granting an order prohibiting Respondents from issuing these types of invalid NOLs and from enforcing them; directing the John and Jane Doe Parking Violations Bureau Administrative Law Judges to dismiss sua sponte these types of invalid NOLs; vacating all guilty pleas entered on the invalid NOLs and vacating those where the NOL was subject to final agency action during the Class Period. Plaintiffs-Petitioners also seek restitution to each class member for fines, late fees and associated fees paid with respect to their alleged Photo School Speed Zone Violations; various types of damages; pre-judgment and postjudgment interest; reasonable attorneys' fees; costs and disbursements pursuant to CPLR 909 and other applicable law; and for such other and further relief as the Court deems just and proper.
Defendants-Respondents now move under motion sequence 002 for dismissal of Plaintiffs-Petitioners' Petition and Complaint. Defendants-Respondents argue in substance that the action is premature because the named Plaintiffs-Petitioners failed to exhaust their administrative remedies by failing to appeal their school speed zone camera violations. Defendants-Respondents further argue that Plaintiffs-Petitioners also failed to state a cause of action, pursuant to CPLR 3211(a)(7), because they failed to plausibly allege that the NOLs violated VTL § 1180-b, and failed to sufficiently allege all of the elements of fraudulent concealment/fraudulent inducement, negligent misrepresentation or unjust enrichment. Defendants-Respondents further argue that VTL § 1180-b explicitly sets forth the information required to be included in an NOL and that such requirements do not include proof of signage.
Defendants-Respondents further argue that the NOLs contain evidence that the speed limit was properly posted because they contain a DOT Technician Certificate affirming that the vehicle was traveling at a speed of more than 10 miles per hour above the posted speed limit in effect within the school speed zone. Additionally, the DOT's internal databases contain locations of the signs in school speed zones and they verify that such signs include the speed limit and language that the speed limit is "photo enforced."
Additionally, Defendants-Respondents argue that the claims against the individual Defendants-Respondents must be dismissed.
When considering Defendants' motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). Normally, a court should not be concerned with the ultimate merits of the case (Anguita v Koch, 179 A.D.2d 454, 457 [1st Dept 1992]). However, these considerations do not apply to allegations consisting of bare legal conclusions as well as factual claims which are flatly contradicted by documentary evidence (Simkin v Blank, 19 N.Y.3d 46, 52 [2012]).
VTL § 1180-b outlines the requirements for the school speed zone photo monitoring program. It authorizes the City "to establish a demonstration program imposing monetary liability on the owner of a vehicle for failure of an operator thereof to comply with posted maximum speed limits in a school speed zone within such city when a school speed limit is in effect. . ." (VTL § 1180-b[a][l]). VTL § 1180-b(d) states that "[a] certificate, sworn to or affirmed by a technician employed by the city of New York, or a facsimile thereof, based upon inspection of photographs, microphotographs, videotape or other recorded images produced by a photo speed violation monitoring system, shall be prima facie evidence of the facts contained therein. . ." (VTL § 1180-b[d]).
A technician's certificate contained on the NOL has been determined to be prima facie evidence of a violation for speeding within a school speed zone (Matter of Kuza v New York City Dept, of Fin., 211 A.D.3d 607 [1st Dept 2022], The court held that the sworn technician's certificate contained on the NOL was statutorily deemed to be prima facie evidence of the facts contained in the certificate and the petitioner failed to provide any evidence to overcome the City's prima facie establishment of liability (id. at 607). The sworn technician's certificate affirming that the petitioner's vehicle was traveling at a speed of more than 10 miles per hour above the posted speed limit has been held to constitute prima facie evidence of the violation (Serby v. City of New York, 215 A.D.3d 438, 439 [1st Dept 2023]).
As an initial matter, the court declines to consider Plaintiffs-Petitioners' subsequent correspondence to the court containing additional arguments or the exhibits, including a copy of a Notice of Liability/Certificate Charging the Liability pertaining to Matthew R. Mayers, as this matter was marked fully submitted and oral argument was held. Defendants-Respondents opposed the court's consideration of Plaintiffs-Petitioners' submission. The court finds that the record is closed and such information does not qualify as new evidence or new case law necessary for the court's consideration. Thus, the court finds that the record was closed upon the completion of oral argument.
Additionally, although the named Plaintiffs-Petitioners have not appealed their decisions, the court does not find this action to be premature as it is a putative class action and Plaintiffs-Petitioners have demonstrated that there are perhaps thousands of potential Class members who are similarly situated. Therefore, the court does not find that Plaintiffs-Petitioners failed to exhaust their administrative remedies.
Here, the court grants Defendants-Respondents' motion to dismiss and finds that the Petition and Complaint fail to state a claim as the court finds that the challenged NOLs are facially sufficient and that they include sufficient evidence to support the allegations. The court agrees with Defendants-Respondents and finds that VTL § 1180-b does not require additional evidence of posted speed limit signage, nor a photograph of the sign. As set forth above, VTL § 1180-b(d) states that the technician's certificate is prima facie evidence of the facts contained in the certificate. Therefore, the court finds that the sworn technician certificates are sufficient to establish prima facie evidence of a violation of the school speed zone speed limit as a matter of law.
Further-more, the court dismisses Plaintiffs-Petitioners' Verified Petition and Complaint and finds that they have not demonstrated their entitlement to any of the relief requested. Plaintiffs-Petitioners have not demonstrated their entitlement to declaratory relief, class action designation and certification, injunctive relief, common law claims for damages, nor for any additional relief set forth in their Verified Petition and Complaint. The court finds that the Verified Petition and Complaint fails to state a claim, even when the court affords the pleading a liberal construction, accepts all facts as alleged in the pleading to be true, accords Plaintiffs-Petitioners the benefit of every possible inference, and determines only whether the facts as alleged fit within any cognizable legal theory.
The court is not persuaded by Plaintiffs-Petitioners arguments to the contrary.
Therefore, the court grants Defendants-Respondents motion to dismiss Plaintiffs-Petitioners Verified Petition and Complaint and the court dismisses said Verified Petition and Complaint.
The court has considered any additional arguments raised by the parties which were not specifically discussed herein and the court denies all additional requests for relief not expressly granted herein.
As such, it is hereby
ORDERED that, under motion sequence 002, the court grants Defendants-Respondents The City of New York's, Department of Transportation Commissioner Ydanis Rodriguez's, Department of Finance Commissioner Preston Niblack's, Deputy Commissioner for Treasury and Payment Services Jeffrey Shear's, John and Jane Doe City of New York Employees', Department of Transportation Employees', New York City Department of Finance Employees', New York City Parking Violations Bureau Employees', and Parking Violations Bureau Administrative Law Judges' motion to dismiss Plaintiffs-Petitioners Arabella Palma's and Shalom Katz's, individually, and on behalf of others similarly situated's (collectively "Plaintiffs-Petitioners") Verified Petition and Complaint; and it is further
ORDERED and ADJUDGED that, under motion sequence 001, the court denies Plaintiffs-Petitioners Arabella Palma's and Shalom Katz's, individually, and on behalf of others similarly situated's Verified Petition and Complaint; and it is further
ORDERED that the court dismisses the Verified Petition and Complaint and directs the Clerk of the Court to enter judgment in favor of the Defendants-Respondents as against the Plaintiffs-Petitioners, without costs to any party.
This constitutes the decision and order of the court.