Opinion
31691/10.
Decided May 3, 2011.
Alan Katz, Esq., Saretsky Katz Dranoff Glass, LLP, New York, NY, Attorney for Plaintiff.
Matthew Daus, Esq., Windels Marx Lane Mittendorf, LLP, New York, NY, Attorney for Defendants.
The following papers numbered 1 to 32 read on these motions:
Papers Numbered 1-818-21 9-1422-28 Memoranda of Law 15-1729-32
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed Opposing Affidavits (Affirmations) Reply Affidavits (Affirmations) Affidavit (Affirmation) Other PapersPlaintiff Private One of NY, LLC (plaintiff) seeks a permanent injunction and damages against defendant Golden Touch Transportation of NY, Inc. (defendant), and has moved, by order to show cause, for a preliminary injunction, pursuant to CPLR 6301, enjoining defendant, its agents, servants, and employees, and all persons acting on its behalf, pending the determination of this action, from providing high volume scheduled motor coach service for passengers to and from New York City airports pursuant to a permit granted by the Port Authority of New York and New Jersey (the Port Authority). Defendant moves for an order, pursuant to CPLR 3211 (a) (1), (3), and (7), dismissing plaintiff's complaint upon the grounds that a defense is founded upon documentary evidence, that plaintiff lacks the capacity to sue, and that plaintiff has failed to state a cause of action upon which relief may be granted.
Defendant is a motor coach carrier, which, in December 2010, was the successful bidder for a permit granted by the Port Authority to operate high volume motor coach transportation services at LaGuardia and John F. Kennedy International Airports, and to pick up and discharge passengers at these airports in route to the Port Authority Bus Terminal, the vicinity of Grand Central Terminal, and Lincoln Harbor Hotel in Weehawken, New Jersey. In connection with these services, the Port Authority granted defendant the right to use the routes, roads, and ways of the airports, including departing and arriving locations at the airports, Grand Central Terminal, and selected hotels. Defendant was granted this permit by the Port Authority's Procurement Department, following public open competitive bidding, at which both it and plaintiff submitted sealed bids. Defendant was selected by the Port Authority after it was found to satisfy the Port Authority's qualification requirements and to be the highest bidder based on the revenue which would be provided to the Port Authority. On or about January 5, 2011, the award and issuance of the Port Authority permit was memorialized in an agreement between the Port Authority and defendant (the Port Authority contract).
Plaintiff previously possessed the permit from the Port Authority to provide these transportation services to airport passengers, which it had provided since 1997, but its permit expired on December 31, 2010. By letter dated December 6, 2010, the Port Authority formally advised plaintiff that a new operator (defendant), would be providing the scheduled motor coach services under a new permit commencing January 1, 2011, and that, upon the expiration of plaintiff's permit, plaintiff would be prohibited from operating on Port Authority airport property as it had previously been permitted to do under the terms and conditions of its permit. The Port Authority, in its letter, further recognized that since plaintiff presently has a franchise agreement with the New York City Department of Transportation, which designates bus stops within Manhattan and references provisions for public access to both John F. Kennedy International and LaGuardia Airports, plaintiff would continue to be permitted to provide scheduled motor coach service to the airports under its franchise agreement, but only at the designated areas of Leffert's Boulevard Airtrain Station at John F. Kennedy International Airport, and at the Marine Air Terminal, Hangar 7N bus stop, and Bus Shelter No. 8/Hangar 4, along Central Terminal Drive, at LaGuardia Airport.
Plaintiff contends that, while defendant has a certificate from the New York State Department of Transportation dated June 16, 2009 to operate as a common carrier between the city airports and various points within the city, and a certificate issued by the Federal Motor Carrier Safety Administration (FMCSA) to operate interstate bus service, defendant does not possess the required New York City franchise authorizations to operate as a regular route common carrier of passengers upon the city streets, and, without such authorization, its operations are illegal. Complaining that defendant is competing with it for customers, plaintiff asserts that the Port Authority permit cannot legally authorize defendant's services. Plaintiff maintains that since it operates under a valid New York City franchise, whereas defendant lacks the required authorization to provide bus service, defendant is operating as an unlicensed, illegal competitor.
On December 30, 2010, plaintiff moved for a temporary restraining order and a preliminary injunction, naming Golden Touch Transportation, Inc., an inactive corporate predecessor of defendant, as the defendant in its complaint. Defendant did not receive timely notice of plaintiff's motion, and a temporary restraining order was granted, without opposition, on December 30, 2010 by Justice Richard Velasquez, pending the hearing of plaintiff's motion for a preliminary injunction. The temporary restraining order was in effect from January 1, 2011 through January 5, 2011, resulting in defendant being unable to provide motor coach service to and from the New York City airports on the subject routes pursuant to the permit issued by the Port Authority and inconveniencing thousands of passengers.
Following the argument before me on plaintiff's motion, which was opposed by defendant and the Port Authority, which was not named as a party but which appeared by its counsel, Kathleen M. Collins, Esq., this court, by decision and order dated January 6, 2011, vacated the temporary restraining order, finding that the evidence before the court did not support a finding that there exists a reasonable probability that plaintiff will ultimately prevail on the merits, and that Unconsolidated Laws § 7105 would appear to preclude the granting of the injunctive relief sought.
Plaintiff filed a supplemental summons and an amended complaint, dated January 25, 2011, which now correctly names defendant. Plaintiff's amended complaint contains plaintiff's original demands for permanent injunctive relief, and adds various causes of action seeking damages. Specifically, plaintiff's amended complaint alleges a first cause of action seeking an injunction for violation of Federal Transportation Law, 49 USC § 13901, a second cause of action seeking an injunction for violation of New York State's Transportation Law § 152, a third cause of action seeking an injunction for violation of Administrative Code of the City of New York § 6-202, a fourth redundant cause of action seeking an injunction for violation of New York State's Transportation Law and the New York City Administrative Code based upon interstate transportation originating in New Jersey, a fifth cause of action for a declaratory judgment that defendant has no authority to provide the services as required under the Port Authority contract awarded to it, a sixth cause of action seeking an injunction for violation of General Business Law § 349 (a) and (h), a seventh cause of action seeking damages for violation of General Business Law § 349 (a) and (h), an eighth cause of action seeking damages for tortious interference with prospective business relations, a ninth cause of action seeking damages for injurious falsehood/commercial defamation, and a tenth cause of action seeking damages based upon unjust enrichment. Plaintiff moves for a preliminary injunction consistent with the allegations of its amended complaint. Defendant has moved to dismiss plaintiff's amended complaint.
"[I]n order to prevail on a motion for a preliminary injunction, the movant has the burden of demonstrating (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that a balancing of equities favors the movant's position" ( Walter Karl, Inc. v Wood, 137 AD2d 22, 26; see also Aetna Ins. Co. v Capasso, 75 NY2d 860, 862; W.T. Grant Co. v Srogi, 52 NY2d 496, 517; Berkoski v Board of Trustees of Inc.Vil. of Southampton , 67 AD3d 840 , 844; Tatum v Newell Funding, LLC , 63 AD3d 911 , 912; Gluck v Hoary , 55 AD3d 668 , 668).
Defendant contends that plaintiff cannot show a likelihood of ultimate success on the merits since none of its claims are viable and are refuted by documentary evidence; that plaintiff will not be irreparably harmed absent the granting of an injunction since plaintiff has already lost its permit with the Port Authority and cannot therefore demonstrate that it will sustain any loss as a result of defendant's performance under its Port Authority permit; and that the balance of the equities do not favor plaintiff as an injunction will adversely affect passengers and harm defendant's business, since defendant has already entered into contracts and leases, and is paying its employees to carry out its duties under the Port Authority contract and permit.
Defendant argues that plaintiff's first cause of action, which alleges a violation of 49 USC § 13901, is legally deficient because, under 49 USC § 13506 (a) (8) (A), "transportation of passengers by motor vehicle incidental to transportation by aircraft" is exempt from this Federal statute. Defendant further argues that all of the motor vehicle transportation at issue is also exempt from 49 USC § 13901 since it is within the "New York, NY Zone," with Weehawken, New Jersey encompassed within this zone because it is less than three miles from the municipal limit of New York, NY ( see 49 USC § 13506 [b] [1]; 49 CFR § 372.235). At oral argument, plaintiff admitted that the federal statute would not apply under the zone exemption if defendant has the required permit from the state or city.
Plaintiff's second and fourth causes of action allege violation of Transportation Law § 152 (1), which provides that "[n]o person or persons shall engage in intrastate transportation as a common carrier of passengers by motor vehicle on any highway in this state, or hold themselves out by advertising or any other means to provide such transportation, unless there is in force with respect to such person or persons a certificate issued by the commissioner." Defendant asserts that this cause of action is refuted by the documentary evidence of a Certificate of Operating Authority, dated June 16, 2009, issued by the New York State Department of Transportation, authorizing defendant to engage in transportation as a common carrier of passengers by motor vehicle as follows:
"Passengers, on a non-scheduled, prearranged or individual basis; between the City of New York and Nassau, Suffolk and Westchester counties, on the one hand, and, on the other, John F. Kennedy International Airport and LaGuardia Airport in the City of New York."
Plaintiff argues that this certificate is insufficient because the service defendant is providing under the Port Authority permit is scheduled, and not pre-arranged or on an individual basis. Plaintiff notes that the permit expressly provides for high volume "scheduled" coach service, and that there is a schedule for the bus service provided by defendant.
Defendant, in response, argues that the services it provides under its permit with the Port Authority are on a pre-arranged or individual basis. In support of this argument, defendant has submitted the sworn affidavit of Louis G. Uritz, the general manager of NYC Airporter, a division of defendant responsible for the operations and supervision of its motorcoach services, attesting that defendant sells tickets to passengers for bus transportation to and from LaGuardia and John F. Kennedy International Airports on a pre-arranged and individual basis in the following ways: (1) defendant's on-site ticket agents sell arriving passengers a one-way or round trip ticket securing a reservation on its buses using a handheld device that accepts credit cards, vouchers, or cash as a form of payment, transmitting the reservation in real time to its dispatcher who then coordinates the arrival of the buses to ensure customers are picked up in a timely fashion; (2) defendant offers online reservations to passengers; (3) defendant has agreements with various hotel concierges to pre-sell tickets to passengers; (4) defendant has entered into an agreement with the MTA to pre-sell tickets to passengers; (5) defendant has entered into an agreement with Newark Airport Express to pre-sell tickets to passengers; and (6) defendant accepts pre-printed vouchers from its Airline and Travel Partners for transporting passengers on its buses. All passenger reservations are pre-booked either curbside or otherwise in advance of and prior to the arrival of the designated bus and no passenger transactions are undertaken on the bus.
In addition, defendant has submitted the sworn affidavit of Vincent A. Vesce, the Manager of the Airport Access Programs in the Aviation Department of the Port Authority, who explains that, through the use of self-service telephones at the Welcome Center at each terminal at John F. Kennedy International Airport and LaGuardia Airport, an airport patron is able to pre-arrange transportation services on an individual basis for the motor coach services provided by defendant, and can also pre-arrange service on an individualized basis by purchasing a ticket from a ticket agent, who is authorized, through the permit with the Port Authority, to be outside each terminal at the bus stop location designated for defendant's buses to pick up and drop off passengers. Mr. Vesce also notes that passengers may alternatively pre-arrange service on an individualized basis by purchasing a ticket online.
Plaintiff's third cause of action alleges that defendant's operations are in violation of Administrative Code § 6-202, which provides:
" § 6-202. Stage and omnibus routes forbidden until franchise obtained.
It shall be unlawful for any omnibus route or routes for public use, or any alteration or extension thereof, or any alteration or extension of any existing stage or omnibus route to be operated in or upon any street within the city until and unless a franchise or right therefor shall be obtained from the board of estimate in like manner as, and subject to the limitations and conditions relating to, franchises or rights provided and imposed by the charter and the code."
Defendant argues that Administrative Code § 6-202 is preempted by Transportation Law § 80 (5), which, in pertinent part, provides:
"[T]he commissioner shall have exclusive jurisdiction with respect to the operations of motor vehicles as van services or other such common carriers of passengers covered under article seven of this chapter to or from an airport in such city when such van services or other such common carriers of passengers have been issued a permit by the port authority of New York and New Jersey to operate at an airport in such city or apply for such permit and within a reasonable period of time are issued such permit by such authority."
Defendant contends that under Transportation Law § 80 (5), the State of New York has exclusive jurisdiction over its operations as a common carrier of passengers by motor vehicle, since it has been issued a permit by the Port Authority to operate at an airport, and that no New York City franchise is required in order to lawfully perform under the Port Authority permit. Transportation Law § 2 (7) defines a "common carrier of passengers by motor vehicle" as follows:
" Common carrier of passengers by motor vehicle' means any person that transports passengers by motor vehicle for compensation by providing service for the general public on an individual fare basis over regular or irregular routes. It shall include a bus line as defined by subdivision three of this section."
However, pursuant to Transportation Law § 151 (9), the provisions of Article 7, which require that a common carrier obtain a certificate from the Department of Transportation, do not apply "to any transportation for compensation that is provided in vehicles larger than sedans or station wagons when that transportation is performed . . . [b]y bus lines operating wholly within any City having regulatory control or jurisdiction over bus line operations pursuant to subdivision four of section eighty of this chapter." Transportation Law § 2 (3) defines a "bus line" as follows:
" Bus line' is a sub-classification of common carrier of passengers by motor vehicle that is usually characterized by the use of vehicles having a seating capacity of greater than twenty passengers; by multiple pickup and discharge points along designated routes; and by no prearrangements or reservations by passengers."
In arguing that a city franchise is required for legal performance under the Port Authority permit, plaintiff relies upon Transportation Law § 80 (4), which provides:
"Notwithstanding any other provision of law, the commissioner shall not have jurisdiction over the regulation of any bus line operations that are wholly within the boundaries of any city when such city has adopted an ordinance, local law or charter to regulate or franchise bus line operations, except that the commissioner shall have jurisdiction with respect to safety of operation of motor vehicles and self-insurance requirements of such bus lines. The commissioner shall, however, have exclusive jurisdiction over the regulation of common carriers of passengers by motor vehicle that provide operations on a prearranged basis over non-specified or irregular routes within a city, except as provided in subdivision five of this section or as otherwise provided in this chapter. It is further provided, however, that once the commissioner issues a certificate to a motor carrier to operate as a common carrier of passengers by motor vehicle, such motor carrier shall be under the exclusive jurisdiction of the commissioner with respect to the service performed under such certificate, except as provided in subdivision five of this section."
Transportation Law § 80 (5) provides for concurrent jurisdiction of city and state authorities over enforcement of safety standards and shared jurisdiction over handicapped-accessible vehicles. It appears to be undisputed that New York City's Administrative Code meets the criteria set forth in the statute as a "local law or ordinance" which preempts the jurisdiction of the commissioner to regulate common carriers of passengers by motor vehicle operating within a city of over one million.
Defendant argues that its motor coach services are pre-arranged and since "bus line operations" are characterized by "no pre-arrangements," Transportation Law § 80 (5), rather than Transportation Law § 80 (4), is applicable and its certificate from the Department of Transportation authorizes its use of the streets and highways as necessary to its performance under the permit. This position is supported by Port Authority official Vincent Vesce who states in his affidavit that the Port Authority permit "grants the right to operate high volume motor coach transportation services from the [the city airports] to the Port Authority Bus Terminal and certain other areas in Manhattan, New York, as well as the Lincoln Harbor in Weehawken, New Jersey." Upon the definition of "bus line" contained in Transportation Law § 2(3), this court agrees. The language of the statutory definition suggests that a "bus line" provides service along a pre-determined route to the general public with numerous and frequent designated bus stops along public streets without any prior reservation made by the prospective passenger, a type of service with which anyone walking the streets of New York City would be familiar ( cf. Matter of Samuelsen v Yassky , 29 Misc 3d 840 , 845-847 [Sup Ct, New York County 2010]; City of New York v Transportazumah LLC, 31 Misc 3d 1207(A) [Sup Ct, New York, County 2011]). It would not appear to apply to the service provided by defendant under the Port Authority permit.
Moreover, a contrary interpretation would render meaningless Transportation Law § 80(5), insofar as it appears to confer upon the State Commissioner exclusive regulatory authority when a permit is issued by the Port Authority. It is further noted that, even under Transportation Law § 80(4), cross-referencing Transportation Law § 80(5), "once the commissioner issues a certificate to a motor carrier to operate as a common carrier of passengers by motor vehicle, such motor carrier shall be under the exclusive jurisdiction of the commissioner with respect to the service performed under such certificate." Reading the statute as a whole, as required to give meaning to all of the provisions contained therein ( see McKinney's Cons Laws of NY, Book I, Statutes §§ 97, 98; Matter of Cintron v Calogero , 15 NY3d 347 , 355; People v Giordano, 87 NY2d 441, 448), it appears that the State Commissioner of Transportation has the exclusive authority to supervise and license common carriers which provide the type of pre-arranged service at issue here to passengers embarking or disembarking at an airport and for which the Port Authority has issued a permit. The documentary evidence establishes, therefore, that defendant is possessed of the necessary certificate.
It is noted, however, that plaintiff has submitted a letter dated December 28, 2010 from Acting Chief Administrative Law Judge Robert A. Rybak of the State of New York Department of Transportation, which states, in response to an inquiry from Josephine Herrschaft, defendant's vice-president, that based upon the description of the type of service defendant will be providing under the Port Authority permit, "it would appear that this service would meet the definition of a bus line under Transportation Law Section 2 (3)," and that "pursuant to Transportation Law § 80 (4), [the Department of Transportation] does not have jurisdiction over any bus line operations that are wholly within the boundaries of any city which has chosen to regulate such service." It appears that the administrative interpretation of the statutory structure by the Department of Transportation does not comport with this court's interpretation of the statutory scheme.
The inquiry by Ms. Herrschaft, to which Judge Rybak was responding, has not been provided to the Court.
Defendant responds that this issue is rendered moot by a notice dated February 2, 2011 from the New York City Department of Transportation congratulating its parent company on winning a franchise. The letter from the City Department of Transportation to Tom Herrschaft, the Region Vice-President of Veolia Transportation Services, Inc. (Veolia), defendant's parent corporation, states that Veolia is the successful proposer for "Unsubsidized Express Bus Service along Designated Routes between the Borough of Manhattan and LaGuardia and Kennedy Airports in the Borough of Queens and between Those Airports," and will be awarded a franchise contract following the submission of certain requested documents and an approval process. According to the affidavit of the Port Authority Manager for Airport Access Programs, Vincent A. Vesce, although plaintiff will continue to provide more limited service under its City franchise until its expiration on June 30, 2011, the New York City Department of Transportation has chosen not to award plaintiff a new franchise commencing on July 1, 2011 and plaintiff will no longer be legally entitled to pickup and discharge passengers at airport locations
In moving to dismiss, defendant contends that, pursuant to McKinney's Unconsolidated Laws of NY § 7105, plaintiff lacks standing to bring this action. Under Uncons Laws § 7105, the Port Authority cannot be enjoined without its consent except in an action brought by the Attorney General ( see Matter of New York City Ch., Inc. of Natl. Elec. Contrs. Assn. v Fabber, 73 Misc 2d 859, 864, affd 41 AD2d 821; Matter of Lewis v Lefkowitz, 32 Misc 2d 434, 436-437). Plaintiff argues that its claims against defendant are not precluded by Unconsol Laws § 7105 because that section only applies to injunctive relief that is sought against the Port Authority itself, and it has not named the Port Authority as a defendant. However, the injunction requested by plaintiff would effectively also enjoin the Port Authority because it would nullify its determination to award the permit to defendant by preventing defendant from carrying out its duties under such permit and the Port Authority contract ( see American Flagpole Equip. Co., Inc. v The Port of New York Auth., NYLJ, Nov. 17, 1964, at 16, cols 3-4 [Sup Ct, NY County, Hofstadter, J.). This court finds, therefore, that plaintiff is precluded from obtaining the injunctive relief it seeks against defendant under Uncons Laws § 7105.
Moreover, the issue is not simply that of plaintiff's lack of standing, but, rather, the failure of plaintiff to bring the proper form of proceeding and to join the Port Authority as necessary party. "A court may always consider whether there has been a failure to join a necessary party" ( City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475; see also Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272, 282; Censi v Cove Landings, Inc. , 65 AD3d 1066 , 1068). Necessary parties are defined as "[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action" (CPLR 1001 [a]). An action must be dismissed if there has been a failure to join a necessary party (CPLR 1003). This rule not only serves judicial economy by preventing a multiplicity of suits, but more importantly, in this case, it will assure fairness to a third party, i.e., the Port Authority, "who ought not to be prejudiced or embarrassed by judgments purporting to bind [its] rights or interest where [it] ha[s] had no opportunity to be heard'" as a party to the proceeding ( City of New York, 48 NY2d at 475, quoting First Nat. Bank v Shuler, 153 NY 163, 170 [1897]).
"[T]he operation of the airports is within the sole discretion of the Port Authority and its decisions relative to the operation of the airports are controlling and conclusive" ( City of New York v Long Is. Airports Limousine Serv. Corp., 91 AD2d 1149, 1150, on rearg, 96 AD2d 998, affd on other grounds, 62 NY2d 846). "In accordance with this statutory and contractual framework, the Port Authority effectively governs the lands occupied by the two airports" ( id.). "Furthermore, it is likewise noteworthy that the Port Authority has the vitally important responsibility of developing mass transportation facilities to provide travelers with better means of access to the airports" ( id.). Plaintiff is, in effect, attempting to nullify the Port Authority's role in choosing an entity and contracting with it to provide travelers with vital transport service between the airports and designated locations by bringing this action against defendant, rather than the Port Authority.
Moreover, the resolution of this controversy requires a determination of the rights and powers of the Port Authority, as well as of the State Commissioner of Transportation and the City of New York, under the Transportation Law. However, although it has appeared to oppose plaintiff's motion, the Port Authority has not been joined as a party in this action. The propriety and effect of the Port Authority's granting of the permit to defendant is not merely incidental to the case at bar ( see City of New York, 48 NY2d at 475). Plaintiff's allegations create a tension between the exercise of the Port Authority's powers and the jurisdiction of the State Commissioner of Transportation and/or the City of New York. The Port Authority's determination of defendant's qualifications for the permit, and whether it found that defendant had the requisite licenses and regulatory authorizations to legally undertake its obligations under the permit in accordance with statutory requirements, is integral to the resolution of this action.
At oral argument, the Port Authority's counsel, Kathleen M. Collins, Esq., was present and indicated that an applicant would have to "qualify" after an award of a bid based on price. Ms. Collins stated that the Port Authority would require a "representation" as to the necessary authorizations prior to awarding the permit. Vincent A. Vesce, Manager of the Airport Access Programs in the Aviation Department of the Port Authority, states that the permit awarded to defendant granted it the right to operate scheduled high volume motor coach service from John F. Kennedy and LaGuardia Airports to the Port Authority Bus Terminal and certain other areas in Manhattan, as well as the Lincoln Harbor in Weehawken, New Jersey, after the Procurement Department reviewed defendant's qualifications and found that defendant satisfied the Port Authority's requirements. Mr. Vesce further states that before the permit was awarded to defendant, plaintiff submitted protests to the Port Authority's Procurement Department, which were examined and answered by the Port Authority, thus indicating some degree of administrative review. Mr. Vesce, however, does not state whether plaintiff sought a final administrative determination in this regard, or whether plaintiff exhausted its administrative remedies.
Plaintiff's arguments concerning the alleged illegality of defendant's performance under its permit with the Port Authority based upon the various statutes should have been addressed through the administrative process and challenged by way of a CPLR article 78 proceeding ( see e.g. Matter of New York City Tr. Auth. v Pierrot, 144 AD2d 814, 815 [addressing the interpretation of the Transportation Law in a CPLR article 78 proceeding]; Matter of New York City Tr. Auth. v White, 144 AD2d 782, 783-784, affd 75 NY2d 734 [same]; Matter of Alert Coach Lines v White, 138 AD2d 879, 880 [same]). The resolution of this case requires an interpretation of Transportation Law §§ 152, as qualified by § 80, in the circumstances presented where the Port Authority has issued a permit. The expertise to make such determination is vested, in the first instance, in the Commissioner of Transportation ( see Albany-Binghamton Express, Inc. v Borden, Inc., 192 AD2d 887, 888 [3d Dept 1993]). As to the requirement for a franchise from the City, Transportation Law § 80 (5) requires that there be an administrative mechanism available to make such determination.
Plaintiff has improperly brought this action directly against defendant, who is merely the successful competitor that was awarded the permit which plaintiff had hoped would be granted to it, since it was not defendant's determination to issue the permit. The action taken, i.e., the granting of the permit, which plaintiff now seeks to challenge, is that of the non-party Port Authority. Plaintiff may not do an end-run around this determination by seeking to enjoin defendant from carrying out its duties under the Port Authority contract and from operating under the permit as an allegedly unqualified entity when the administrative agency has presumably found otherwise.
Thus, plaintiff's only appropriate recourse to obtain the relief which plaintiff seeks is, after exhausting its administrative remedies, to bring a CPLR article 78 proceeding against the Port Authority, challenging its final administrative determination to deny plaintiff the permit and grant it to defendant, and joining defendant as the successful bidder. It is the initial province of the Port Authority to determine whether a successful bidder has met the legal qualifications necessary to perform the functions required under the permit awarded. In challenging the Port Authority's decision, plaintiff could raise the claims of eligibility raised herein, providing the administrative authority the opportunity to explain its interpretation and application of the statutes which plaintiff claims are controlling. See CPLR § 7803. Upon the record before this court, this action cannot be converted to a CPLR article 78 proceeding pursuant to CPLR 103 (c) because it is unclear whether such proceeding would be timely, whether plaintiff has exhausted its administrative remedies, and because plaintiff has failed to join the Port Authority.
Consequently, plaintiff's request for a preliminary injunction against defendant in this plenary action must be denied since its remedy is against the Port Authority in a CPLR article 78 proceeding. Moreover, the failure to join the Port Authority as a necessary party requires dismissal of the complaint. Thus, plaintiff's first through fourth causes of action, which allege that defendant is operating illegally under its permit in violation of statutes, and seeking an injunction against defendant to prevent it from fulfilling its services under the Port Authority contract, must be dismissed ( see CPLR 3211 [a] [3], [7]). Similarly, plaintiff's fifth cause of action for a declaratory judgment that defendant has no authority to provide scheduled high volume bus service as required under the Port Authority contract, and that such conduct is therefore illegal, must also be dismissed as defendant has demonstrated that it does possess a certificate from the Department of Transportation, the sufficiency of which must be determined by the administrative authorities in the first instance.
Plaintiff's sixth and seventh causes of action under General Business Law § 349 (a) and (h) seek an injunction and money damages, respectively. General Business Law § 349 (a) provides that "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful." General Business Law § 349 (h) provides:
"(h) In addition to the right of action granted to the attorney general pursuant to this section, any person who has been injured by reason of any violation of this section may bring an action in his own name to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater, or both such actions. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to one thousand dollars, if the court finds the defendant willfully or knowingly violated this section. The court may award reasonable attorney's fees to a prevailing plaintiff."
Plaintiff alleges that defendant's operations pursuant to the Port Authority permit and its advertising constitute a "deceptive act" because it does not have the appropriate Federal, state, and local regulatory authority to engage in such services. However, plaintiff cannot show that it has been injured by reason of any violation of General Business Law § 349 because it is not authorized to provide the services under a Port Authority permit, even if defendant were to cease to provide such services. Thus, since plaintiff cannot show that it suffered injury as a result of defendant's allegedly deceptive act, it cannot state a claim under General Business Law § 349, and it is not entitled to injunctive relief or damages ( see Stutman v Chemical Bank, 95 NY2d 24, 29). Dismissal of plaintiff's sixth and seventh causes of action must, therefore, be granted ( see CPLR 3211 [a] [7]).
Plaintiff's eighth cause of action alleges that defendant has tortiously interfered with its prospective business relations by representing to the Port Authority that it had or would obtain the requisite operating authority to provide the motor services at issue. Plaintiff further alleges, in this cause of action, that defendant, by its operations, advertising, promotional, and other statements, has misled plaintiff's potential passengers, plaintiff's employees, and plaintiff's business partners into believing that it offered bus services in compliance with applicable regulatory requirements, thereby tortiously interfering with these prospective business relations of plaintiff. This cause of action must be dismissed because such claim requires conduct " motivated solely by malice or to inflict injury by unlawful means rather than by self-interest or other economic considerations'" ( Prestige Foods v Whale Sec. Co., 243 AD2d 281, 282, quoting Matter of Entertainment Partners Group v Davis, 198 AD2d 63, 64; see also Kenneth H. Brown Co., Inc. v Dutchess Works One-Stop Empl. Training Ctr., Inc. , 73 AD3d 984 , 985; Monex Fin. Servs., Ltd. v Dynamic Currency Conversion, Inc. , 62 AD3d 675 , 675). Here, defendant's conduct in obtaining and operating under its permit with the Port Authority was motivated by its own self-interest and economic considerations and does not qualify as tortious interference with plaintiff's business prospects.
Plaintiff's ninth cause of action for injurious falsehood/commercial defamation alleges that defendant has falsely stated or implied in public documents, in advertising, and in promotional material on the internet, and by the actual operation of bus services under the Port Authority contract, that it had or would obtain operating authority to provide scheduled high volume bus transportation to the general public for a fare between Manhattan and the New York Airports, and that defendant has told its ticket agents and others that plaintiff was going out of business. Special damages must be alleged in order to plead a cause of action for injurious falsehood ( see Wasserman v Maimonides Med. Ctr., 268 AD2d 425, 426; DiSanto v Forsyth, 258 AD2d 497, 498). Plaintiff's allegations of lost sales from unidentified customers is insufficient, particularly since any alleged loss in plaintiff's business is attributable to the fact that it lost the bid for the Port Authority permit and is no longer authorized to operate the motor coach services at issue, rather than any alleged statement or conduct by defendant. Similarly, plaintiff's claim for defamation is legally insufficient because plaintiff fails to allege any defamatory statement or any special damages flowing from the alleged defamation ( see Drug Research Corp. v Curtis Publ. Co., 7 NY2d 435, 440-441; Manfredonia v Weiss , 37 AD3d 286 , 286). Thus, dismissal of plaintiff's ninth cause of action is required ( see CPLR 3211 [a] [7]).
Plaintiff's tenth cause of action for unjust enrichment alleges that the defendant's illegal operation of bus services has deprived it of customers it otherwise would have served. "To state a cause of action for unjust enrichment, a plaintiff must allege that it conferred a benefit upon the defendant, and that the defendant will obtain such benefit without adequately compensating plaintiff therefor" ( Smith v Chase Manhattan Bank, USA, 293 AD2d 598, 600, quoting Nakamura v Fujii, 253 AD2d 387, 390). Since plaintiff did not bestow a benefit on defendant, no cause of action for unjust enrichment has been stated, and dismissal of plaintiff's tenth cause of action is mandated ( see Aymes v Gateway Demolition Inc. , 30 AD3d 196 , 197).
Accordingly, having failed to demonstrate a probability of success on the merits or that the equities balance in its favor, plaintiff's motion for a preliminary injunction is denied. Defendant's motion to dismiss plaintiff's amended complaint is granted.
This constitutes the decision, order, and judgment of the court.