Opinion
283/2016
07-07-2017
Michael R. CHANDLER, Petitioner, v. NEW YORK CITY DEPARTMENT OF FINANCE, Respondent.
Michael Chandler—Pro-se petitioner Zachary Carter Corporation Counsel Firm Name: New York City Corporation Counsel Address: 100 Church Street, New York, NY 10007–2601 Phone: 212–356–0800 Attorneys for respondent New York City Department of Finance
Michael Chandler—Pro-se petitioner
Zachary Carter Corporation Counsel Firm Name: New York City Corporation Counsel Address: 100 Church Street, New York, NY 10007–2601 Phone: 212–356–0800 Attorneys for respondent New York City Department of Finance
Paul Wooten, J.
Notice of Motion/ Order to Show Cause—Affidavits—Exhibits ...
Answering Affidavits—Exhibits (Memo)Replying Affidavits (Reply Memo)
In this Article 78 proceeding, commenced by Verified Petition on March 21, 2016, Michael Chandler (petitioner) seeks a judgment vacating and annulling the determination of the respondent Department of Finance Parking Violation Bureau (PVB) Appeal Board's determination to uphold Notices of Liability (NOL) for violation numbers: 4609827517 (NOL 517), 4609628831 (NOL 831), and 4609690482 (NOL 482) for speed zone violations and 5088471117 (NOL 117), and 5088671684 (NOL 684) for red light camera violations. Petitioner also seeks an Order dismissing NOL 4611893698 (NOL 698), 4612271245 (NOL 245), 4612443500 (NOL 500), and 4613386640 (NOL 640) for school speed zone violations. PVB opposes petitioner's application on several grounds. Firstly, PVB argues that NOL 698, 245, 500 and 640 are barred by petitioner's failure to exhaust all his administrative remedies in that petitioner failed to administratively appeal the PVB's determination on said NOLs after a hearing on December 16, 2015, and as such, this Court lacks subject matter jurisdiction to review any challenges regarding these NOLs. Secondly, PVB argues that NOL 517, 831, 482, 117 and 684 should be transferred to the Appellate Division Second Department for substantial evidence. Thirdly, PVB argues that its determination should be upheld as same was reasonable, rational and supported by the evidence.
DISCUSSION
"A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government" (Matter of Gottlieb v. City of New York , 129 AD3d 724, 725 [2d Dept 2015] ). The standard of judicial review in the instant matter is whether the PVB's determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" ( CPLR 7803[3] ; see also Matter of Scherbyn v. Wayne–Finger Lakes Bd. of Coop. Educ. Servs. , 77 NY2d 753, 758 [1991] ; Matter of Gottlieb, 129 AD3d at 725 ). " ‘An arbitrary determination is one that is without a sound basis in reason, and is made without regard to the facts’ " (Matter of Hollander v. Suffolk County Dept. of Social Services , 140 AD3d 1064, 1065 [2d Dept 2016], quoting Matter of Gottlieb, 129 AD3d at 725 ). Furthermore, the Court of Appeals has held "that the interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if that interpretation is not irrational or unreasonable" ( Matter of Gaines v. New York State Div. of Hous. & Community Renewal , 90 NY2d 545, 548–549 [1997] ; see also Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County , 34 NY2d 222, 231 [1974] ). "Courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise" ( Peckham v. Calogero , 12 NY3d 424, 431 [2009] ; see Matter of Deerpark Farms, LLC v. Agricultural and Farmland Protection Bd. of Orange County , 70 AD3d 1037, 1038 [2d Dept 2010] ). As such, if the Court finds that the determination is supported by a rational basis, "it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency" ( Peckham , 12 NY3d at 431 ; Matter of Deerpark Farms, LLC , 70 AD3d at 1038 ).
As a preliminary matter, PVB argues that NOLs 517, 831, 482,117 and 684 should be transferred to the Appellate Division, on the basis that a question regarding substantial evidence is raised.
CPLR 7804(g) states as follows:
(g) Hearing and determination; transfer to appellate division. Where the substantial evidence issue specified in question four of section 7803 is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced. When the proceeding comes before it, whether by appeal or transfer, the appellate division shall dispose of all issues in the proceeding, or, if the papers are insufficient, it may remit the proceeding.
The petitioner is seeking to annul a determination made by the PVB after a full evidentiary hearing in which testimony was taken and photographs were submitted and reviewed (see Hearing Transcript dated December 16, 2015). Since the petition here raises a question of substantial evidence, and since there are no other issues or objections before this Court which would dispose of the proceeding, this matter must be transferred to the Appellate Division in accordance with CPLR 7804(g) (see Matter of Alegre Deli v. New York State Liq. Auth. , 298 AD2d 581, 582 [2d Dept 2002] ["It is well settled that upon judicial review of a determination rendered by an administrative body following a hearing, the issue presented for this Court's determination is whether it is supported by substantial evidence"]; Matter of Lee v. New York City Hous. Auth. , 138 AD3d 745 [2d Dept 2016] ; Matter of Pogorzelska v. New York State Dept. of Motor Vehs. , 137 AD3d 796 [2d Dept 2016] ; Gonzalez v. Mulligan , 45 AD3d 841 [2d Dept 2007] ).
Turning now to the merits the petitioner's request seeking an Order dismissing NOL 698, 245, 500 and 640, the Court finds that petitioner's application must be denied as petitioner failed to exhaust all his administrative remedies before commencing this Article 78 proceeding. Specifically, the record demonstrates that petitioner failed to seek appellate relief of the PVB's determination after the December 16, 2015 hearing on the above listed NOLs by the PVB Appeal Board (see Brunjes v. Nocella , 40 AD3d 1088, 1089 [2d Dept 2007] ["it is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a Court of law"]; Henderson v. Zoning Bd. of Appeals , 72 AD3d 684 [2d Dept 2010] ). Thus, this Court lacks subject matter jurisdiction to render a decision as to the merits of petitioner's claims regarding these NOLs.
CONCLUSION
For these reasons and upon the foregoing papers, it is,
ORDERED that the portion of petitioner's Article 78 petition seeking to dismiss the Notice of Liability numbers: 517, 831, 482, 117 and 684 is hereby transferred to the Appellate Division, Second Department, pursuant to CPLR 7803(4) and 7804(g) ; and it is further,
ORDERED that the remaining portions of petitioner's Article 78 petition seeking to dismiss Notice of Liability numbers: 698, 245, 500 and 640 is denied as and the proceeding is dismissed as to those violations, without costs or disbursements to respondent; and it is further,
ORDERED that counsel for respondent shall serve a copy of this Order, with Notice of Entry, upon the petitioner and the Clerk of the Court who is directed to enter judgment accordingly and send the papers to the Appellate Division, Second Department.
This constitutes the Decision and Order of the Court.