Opinion
1365.1 CAF 14-02042.
11-20-2015
WESTOVER CAR RENTAL, LLC, Doing Business as Dollar/Thrifty Car Rental, and Westover Car Rental, LLC, Doing Business as Thrifty Airport Parking, Plaintiffs–Appellants–Respondents, v. NIAGARA FRONTIER TRANSPORTATION AUTHORITY, Defendant–Respondent–Appellant.
Paladino Cavan Quinlivan & Pierce, Buffalo (Shannon M. Heneghan of Counsel), for Plaintiffs–Appellants–Respondents. Jaeckle Fleischmann & Mugel, LLP, Buffalo (Heath J. Szymczak of Counsel), for Defendant–Respondent–Appellant.
Paladino Cavan Quinlivan & Pierce, Buffalo (Shannon M. Heneghan of Counsel), for Plaintiffs–Appellants–Respondents.
Jaeckle Fleischmann & Mugel, LLP, Buffalo (Heath J. Szymczak of Counsel), for Defendant–Respondent–Appellant.
Opinion
MEMORANDUM:
Defendant is a public benefit corporation that operates the Buffalo Niagara International Airport. Plaintiffs own and operate businesses located across the street from the airport that provide airport parking, car rentals, and a shuttle service to and from the airport. Pursuant to 21 NYCRR 1160.21, operators of car rental businesses and off-airport parking lots such as plaintiffs are charged a tariff or access fee for access to the airport property. The access fee is calculated as a percentage of the gross revenue of the car rental business or off-airport parking lot, with a minimum fee of 4% of any gross revenue under $500,000, and a maximum fee of 10% of any gross revenue over $1,500,000 (see 21 NYCRR 1160.21). Plaintiffs commenced this action seeking, inter alia, an order determining that defendant's business practices are unlawful and that the imposition of the access fees violates plaintiffs' rights under the constitutions of the United States and the State of New York. Plaintiffs appeal and defendant cross-appeals from an order that granted in part defendant's CPLR 3211(a)(7) motion by dismissing the complaint with the exception of the fourth cause of action.
On appeal, plaintiffs contend that Supreme Court erred in granting defendant's motion with respect to the first and third causes of action because plaintiffs properly stated claims for violations of their right to due process. We reject that contention. In order to establish that they were denied substantive due process, plaintiffs “must establish a cognizable property interest, meaning a vested property interest” and “must show that the governmental action was wholly without legal justification” (Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617, 627, 781 N.Y.S.2d 240, 814 N.E.2d 410). Here, plaintiffs' allegations in the complaint that the fees imposed for access to the airport “unreasonably interfere[ ] with [plaintiffs'] vested property right to make a profit” do not implicate a cognizable property interest inasmuch as “the activity of doing business, or the activity of making a profit is not property in the ordinary sense” (College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675, 119 S.Ct. 2219, 144 L.Ed.2d 605). We further conclude that plaintiffs failed to allege facts establishing that “there is absolutely no reasonable relationship to be perceived between the regulation and a legitimate governmental purpose” (Brightonian Nursing Home v. Daines, 21 N.Y.3d 570, 576, 977 N.Y.S.2d 147, 999 N.E.2d 510; see Transport Limousine of Long Is., Inc. v. Port Auth. of N.Y. & N.J., 571 F.Supp. 576, 584; see generally Bower Assoc., 2 N.Y.3d at 628–629, 781 N.Y.S.2d 240, 814 N.E.2d 410).
We likewise reject plaintiffs' contention that the court erred in granting defendant's motion with respect to the second cause of action, for unfair business practices. A cause of action for unfair business practices requires a showing of “the bad faith misappropriation of a commercial advantage belonging to another by infringement or dilution of a trademark or trade name or by exploitation of proprietary information or trade secrets” (Eagle Comtronics v. Pico Prods., 256 A.D.2d 1202, 1203, 682 N.Y.S.2d 505; see Macy's Inc. v. Martha Stewart Living Omnimedia, Inc., 127 A.D.3d 48, 56). Here, the allegations set forth in the complaint lack the requisite elements to set forth such a cause of action inasmuch as “plaintiffs did not allege that the defendant[ ] misappropriated their labors, skills, expenditures, or good will or otherwise attempted to capitalize on [plaintiffs'] name or reputation in the [car parking or rental] business” (Abe's Rooms, Inc. v. Space Hunters, Inc., 38 A.D.3d 690, 693, 833 N.Y.S.2d 138; see Eagle Comtronics, 256 A.D.2d at 1203, 682 N.Y.S.2d 505).
In addition, we reject plaintiffs' contention that the court erred in granting defendant's motion with respect to the sixth cause of action, which alleges that the access fees imposed upon plaintiffs violated the Commerce Clause. Even assuming, arguendo, that defendant acts as a market regulator and not a market participant and is therefore subject to the restraints of the Commerce Clause (see Airline Car Rental, Inc. v. Shreveport Airport Auth., 667 F.Supp. 303, 305–306; see generally Reeves, Inc. v. Stake, 447 U.S. 429, 436–437, 100 S.Ct. 2271, 65 L.Ed.2d 244), we conclude that the access fees imposed upon plaintiffs pursuant to 21 NYCRR 1160.21 of no more than 10% of gross revenues “[are] a reasonable levy and [do] not constitute an objectionable burden on interstate commerce” (Toye Bros., Yellow Cab Co. v. Irby, 437 F.2d 806, 811; see Airline Car Rental, Inc., 667 F.Supp. at 313–314; Transport Limousine, 571 F.Supp. at 583).
We agree with defendant on its cross appeal, however, that the court erred in denying its motion with respect to the fourth cause of action, alleging an equal protection violation. We therefore modify the order by granting defendant's motion in its entirety and dismissing the complaint. To state a cause of action for violation of equal protection based upon a claim of selective enforcement of a statute or regulation, the plaintiff must allege that “first, a person (compared with others similarly situated) is selectively treated and second, such treatment is based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person” (Bower Assoc., 2 N.Y.3d at 631, 781 N.Y.S.2d 240, 814 N.E.2d 410; see Masi Mgt. v. Town of Ogden [Appeal No. 3], 273 A.D.2d 837, 838). Here, plaintiffs do not allege that any purported selective treatment was based upon race, religion, or an attempt to punish them for exercising a constitutional right (see Bower Assoc., 2 N.Y.3d at 631, 781 N.Y.S.2d 240, 814 N.E.2d 410), nor have plaintiffs alleged “that ‘defendant[ ] maliciously singled out [plaintiffs] with the intent to injure [them]’ ” (Masi Mgt., 273 A.D.2d at 838, 709 N.Y.S.2d 734, quoting Crowley v. Courville, 76 F.3d 47, 53). Contrary to plaintiffs' contention, allegations that plaintiffs were treated differently from a similarly situated business are not sufficient to state a claim for an equal protection violation inasmuch as “a demonstration of different treatment from persons [or businesses] similarly situated, without more, [will not] establish malice or bad faith” (Crowley, 76 F.3d at 53).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting defendant's motion in its entirety and dismissing the complaint and as modified the order is affirmed without costs.