Opinion
108144/11
09-20-2011
John Samuelsen, as President of Transport, Workers Union of Greater New York, Local 100, Petitioner, v. New York City Transit Authority, and Manhattan and Bronx Surface Transit Operation Authority, Respondents.
For Petitioner CARY KANE, LLP by Nicholas Hanlon. For Respondents MARTIN B. SCHNABEL Vice President and General Counsel by Robert K. Drinan New York.City Transit Authority.
For Petitioner CARY KANE, LLP by Nicholas Hanlon.
For Respondents MARTIN B. SCHNABEL Vice President and General Counsel by Robert K. Drinan New York.City Transit Authority.
Carol R. Edmead, J.
MEMORANDUM DECISION
In this Article 78 proceeding, petitioner, John Samuelsen, as President of Transport Workers Union of Greater New York, Local 100 (the "Transport Union") ("petitioner") seeks to enjoin respondents New York City Transit Authority ("NYCTA") and Manhattan and Bronx Surface Transit Operation Authority ("MABSTOA") (collectively, the "Transit Authority") from eliminating or reducing the subway replacement shuttle service on the IRT No. 2 line in the Bronx, and an injunction requiring the Transit Authority to restore shuttle bus service to appropriate and scheduled levels, notify the City Council at least 30 days prior to any future reductions in service, and hold public hearings on any proposed service reductions if required to do so by the City Council. Factual Background
The Transit Union represents, for purposes of collective bargaining, 36,000 operational, maintenance, and technical employees of the New York City Transit Authority and its subsidiary, the Manhattan and Bronx Surface Transit Operating Authority.
The Factual Background is taken from the Amended Petition.
In 2010, the Transit Authority scheduled and budgeted for certain renovations and/or repairs to be performed in the summer of 2011 on the tracks of the IRT No. 2 and No. 5 lines (collectively, the "No. 2 line") in the Bronx. Service on this line was scheduled to be suspended from 12:01 a.m. Saturdays through 5:00 a.m. Mondays between Saturday July 2, 2011 and Monday July 25, 2011.
On February 11, 2011, the Transit Authority notified the Transport Union of scheduled track work on the No. 2, and as well as other lines, and of its intention to institute shuttle bus service between the affected stations.
The NYCTA and MABSTOA are jointly parties to a single collective bargaining agreement with the Transport Union, which governs the terms and conditions of employment of many of their employees (Affirmation of Nicholas Hanlon, ¶3). Petitioner alleges that he rides the subway system, and that many of the Transit Union's employees regularly ride the No. 2 train.
On May 12, 2011, the Transit Authority provided Transport Union representatives with a "Subway Replacement Bus Forecast," also known as a "General Order" or "G.O." indicating that the suspended service on the IRT No. 2 line would be replaced by 201 shuttle buses on Saturdays and 152 shuttle buses on Sundays which would transport riders between the affected subway stations. However, on June 27, 2011, the Transit Authority notified the Transport Union that the number of shuttle buses would be reduced from 201 to 154 on Saturdays, and from 152 to 126 on Sundays.
On Saturday July 2, 2011, the Transit Authority implemented the reduced shuttle bus service.
In support of the Petition, petitioner contends that PAL § 1204(15) directs the Transit Authority to notify the City Council at least 30 days prior to the implementation of "any proposed modification, discontinuance, curtailment or change of any transit route or method of transportation . . . ." Upon receipt of such notice, the City Council may require the Transit Authority to hold public hearings on the proposed "modification, discontinuance, curtailment or change." Citing caselaw, petitioner contends that in order "to build greater community participation in policy debates and decisions," the New York City Charter Revision Commission proposed that those governmental decisions relative to land use effects be made by the City Council under the Charter revisions." However, the Transit Authority failed to notify the New York City Council (the "City Council") on February 11, 2011of the initial scheduled suspension of service in compliance with Public Authorities Law ("PAL") § 1204(15), or on June 27, 2011 of the subsequent proposed reduction in shuttle bus service.
The Transit Authority is also required to operate the transit system "for the convenience and safety of the public" (PAL § 1204(15)). The suspension of subway service for the No. 2 trains between the Grand Concourse and East 180th Street stations in The Bronx, as well as the subsequent reduction in subway replacement shuttle bus service at the No. 2 subway stations in the Bronx, constitutes a "modification, discontinuance, curtailment or change of [a] transit route" as contemplated by PAL § 1204(15). The reduced shuttle bus service resulted in severe overcrowding and delays for the ridership along the IRT No. 2 train in the Bronx. The overcrowding jeopardized the safety of the riding public and bus operators alike. Riders were forced to stand on the wrong side of the safety line, in the stairwells, and with their faces nearly against the windshield. Unless the Court enjoins the reduction of subway replacement shuttle bus service in the Bronx, the riding public will continue to suffer immediate and irreparable injury to their convenience and safety, and Transport Union workers will suffer immediate and irreparable injury in the form of loss wages and opportunities to work.
In response, the Transit Authority contends that the New York City train system requires maintenance, upgrades, and capital improvements on a regular basis. As track and signal work cannot be performed with active train traffic, and often requires a cessation of electricity to the third rail, such work requires a temporary service diversion, known as the General Order or G.O. The Transit Authority has 50-70 G.O.'s each week in order to perform repairs or maintenance.Temporary service adjustments, which may require providing alternate service for a period of time to permit repair, maintenance and capital work occur most often during non rush hours, i.e., evenings and weekends. Rail and signal repairs, maintenance or capital construction which require service diversions are usually in the planning stages months before the actual work is performed. The Transit Authority prepares a series of forecasts which include tentative service diversions, tentative times and distances of rail closures, and the tentative number of shuttle buses to provide temporary alternate service. The forecasts are revised as the work date approaches to account for public, street fairs, other activities and changes in construction needs. Usually about six to eight weeks prior to scheduled work, a package is reviewed for all G.O.'s on a given weekend.
The operation that the petition complains of was a service adjustment due to maintenance or capital work. G.O.'s can change or be cancelled for any given day or weekend for a number of reasons, including weather, holidays and special events. Frequently, a G.O. requires temporary cessation of service on a portion of a subway line and when other train service does not exist, shuttle bus service may be provided. G.O.'s have never been considered as schedule changes or changes in method of operation for which notice under PAL § 1204(15) has been given.
The initial May 12, 2011 "Subway Replacement Bus Forecast" is, as it is entitled, only a "forecast," meant as an advisory to the Department of Buses, and was not intended as a final statement of the number of buses that would be needed to substitute for subway service due to track replacement for the No. 2 line. When the forecast was prepared, it was anticipated that there would be no service on the No. 2 line for the Grand Concourse to 80th Street for 53 hours. Thus, it was estimated that a certain number of shuttle buses were necessary to provide temporary alternate service.
The G.O. for this project was included in the Week 29 package for all work to be performed during the weekend of July 16 and 17, 2011. This package was approved on June 10, and the actual number of hours for cessation of rail service was reduced from 53 to 42 — 11 hours. The change was approximately 20% and as a result, the actual need was for fewer shuttle buses than originally estimated. The Transit Authority concluded that the average number of riders for each shuttle bus would increase for 55 to 60 persons, and the buses have a capacity of 80 persons and articulated buses, if used, had a capacity of 120 persons.
On average, each shuttle bus costs the Authority approximately $1,000 (the drivers must be paid overtime and overhead charged to the Capital Program). The forecast relied upon by the Union in this case, which was simply a projection or estimate before actual needs were known, was never implemented. The Transit Union receives the shuttle bus schedule approximately one week prior to its implementation. The Union knows, therefore, that the May forecast was changed and knows that the May forecast was never implemented.
The Transit Authority argues that the petition should be dismissed. Petitioner's request for a writ of "prohibition" cannot be granted because petitioner failed to establish a clear legal right to the relief requested. The Transit Union cannot seriously argue that it has a clear legal right to compel the Transit Authority to use a particular estimate of the number of shuttle buses temporarily necessary to permit the repair and maintenance of subway tracks. PAL § 1204(15) fails to provide any basis for a union challenge to a temporary adjustment in service. This statute does not require the Transit Authority to use a certain number of buses, or rely on an incorrect estimate.
There was no obligation to notify the Board of Estimate (which no longer exists) because there was no "proposed modification, discontinuance, curtailment or change of any transit route or method of transportation." The action the Transit Union challenges is the reduction in the estimated number of shuttle buses and the Transit Union seeks to force the Transit Authority to use more union drivers than are actually necessary. Such untenable claim finds no support in the law. Given the Transit Authority's broad statutory mandate to "do all things necessary or convenient to carry out its powers" (PAL § 1207 (17)), including to "construct," "improve," "maintain," and "operate" the transit facility, and because the notice requirement does not and cannot apply to day to day operation, repair and maintenance decisions and judgments, the Transit Union has failed to establish a clear legal right to the relief requested.
Injunctive relief is also unwarranted. The Transit Authority is required to repair and maintain the system and its interest in exercising its responsibilities and fulfilling its statutory duties clearly outweigh any purported harm to the Transit Union, its members and Transit Authority employees resulting from a temporary reduction in alternate service. The equities do not remotely favor the Transit Union. Further, petitioner cannot prove irreparable harm and cannot make a showing that it can prevail on the merits.
Furthermore, petitioner lacks standing in this proceeding, for failing to demonstrate an injury in fact and that the injury fall within the zone of interests or concerns sought to be promoted or protected by a statutory provision. The petition is devoid of any allegation that any of the Transit Union's purported interests falls within the purview of PAL § 1204(15), which was created to protect the public by ensuring that localized communities have an opportunity to comment on a proposed "modification, discontinuance, curtailment or change of any transit route or method of transportation." While the petition contains a general allegation that members of Local 100 ride the No. 2, no such member is named in the petition, and there is no allegation regarding how the Transit Union members are being impacted by not having had an opportunity to comment on the proposed temporary change in service.
Finally, directives similar to the repair and maintenance that required temporary service adjustments at issue here, ultimately involve the ordering of priorities and allocation of resources. Petitioner here seeks judicial review of the day to day management and operation of the transit system. Petitioner's claim that more shuttle buses should be used for a project, and request that this Court order more shuttle buses, are matters which are clearly within the sound discretion of the Transit Authority. These matters involve the management of operations and allocation of manpower as well as assessments of service needs. Such decisions are not proper subjects of judicial review.
In reply, petitioner argues that the Transport Union does not seek "judicial review of Authority decisions to temporarily adjust service in order to perform repairs and maintenance of the system" but seeks judicial review of the Authority's failure to notify the City Council before implementing a particular change in service. The obligation to give notice is a purely ministerial act requiring no exercise of discretion. Thus, an Article 78 proceeding to enjoin the failure to comply with the notice obligation is a proceeding in the nature of mandamus, not prohibition. No argument can be made that the failure to notify the City Council of a scheduled service change requires the exercise of unreviewable discretion, or that the Transit Authority's obligation to comply with a procedural requirement is beyond the scope of judicial review. And, while the statute refers to the "board of estimate," which no longer exists, petitioner contends that the City Council is the body which now must be noticed of changes in routes or methods of transportation. Further, the Transit Union has organizational standing to bring the instant claim because its members are both employees of the Transit Authority and members of the riding public affected by the service cuts. The purpose of PAL §1204(15) is to give the riding public and other constituencies of the City Council an opportunity to be heard regarding service changes which may affect them. Thus, the Transit Union's membership is within the zone of interest protected by the statute, both as members of the riding public and as employees of the Transit Authority.
The language of Public Authorities Law § 1204(15) is broad, and the substitution of shuttle buses for subway service is clearly a "modification" of a route and of a method of transportation. The subsequent reduction of scheduled shuttle bus service is also a "modification" and/or "curtailment" of a method of transportation. The only exception to this notification requirement is for emergencies, which was not the case. The legislature knows how to make an exception in a notice and public hearing requirement for changes implemented for purposes of repair or renovation. For example, PAL § 1205(5) imposes far more burdensome obligations on the Transit Authority than the mere notice requirement established by Section 1204(15), and provides that any "complete or partial closing of a passenger station within the city of New York, or any means of public access to such facility, except for purposes of repair or renovation or in case of emergency shall be accomplished only if approved by resolution of the authority adopted by not less than a majority of the whole number of members of the authority then in office, and only after a public hearing." The legislature's failure to include a similar exclusionary language in PAL § 1204(15) indicates its intent to require notice of service changes necessitated by repairs or renovations. All that is required by Section 1204(15) is notification of the City Council. Public hearings are only required if the Council deems them necessary or appropriate. While the Transit Authority asserts that PAL § 1204(15) could not apply to modifications to routes and methods of service necessitated by maintenance and repairs because of the high volume and frequency of such modifications, merely providing notice to the City Council of changes planned months in advance is clearly not a burdensome task no matter how frequently it must be done.
And, while service on the No. 2 line was scheduled to be suspended from 3:30 a.m. on Saturdays through 10:00 p.m. on Sundays, rather than from 12:01am Saturdays through 5:00 a.m. on Mondays as previously indicated, this should not correspond to a 20% reduction in shuttle bus service. While the hours between midnight and 3am on Saturdays and between 10:00 p.m.
Sundays and 5:00 a.m. Monday mornings constitute approximately 20% of the scheduled weekend service suspension, far less than 20% of weekend passengers ride the trains during these hours. The overwhelming majority of subway riders use the system during the hours that service is suspended — i.e., during the daytime. It is primarily the daytime ridership whose convenience and safety has been imperiled by the Authorities service reductions. Petitioner maintains that loading buses with passengers beyond their capacity is a serious safety issue, and the failure to notify the City Council of its intent to reduce shuttle bus service to unsafe levels constitute a violation of the Public Authorities Law.
In further support of dismissal, the Transit Authority argues that the temporary use of shuttle buses to provide transportation along a small portion of the No. 2 line while work is performed, however, is not an "injury" of the type to establish standing. There have been no "service cuts" and the temporary use of shuttle buses has not caused the Transit Union any injury in fact. The Transit Union represents for collective bargaining purposes the track workers and signal maintainers who repair and maintain the subway tracks and signal system, and represents the train operators and conductors who will work their regular tours despite temporary service diversions, and represents bus operators. The Transit Union has not been "injured" in any way. Customers may or may not be inconvenienced.
The Transit Union only requested that the City Council be notified in the event of a future change in the number of shuttle buses. The only relief requested by the Transit Union requires this Court to review the analysis and decisions related to levels of service. This issue is not justiciable. And, maintenance of subway tracks is within the express powers legislatively conferred to the Authority, and does not involve policy decisions similar to the issues in the cases cited by the union.
Further, the notice provision in PAL §1204(15) is not "purely ministerial" primarily because there is no "clear legal right," such as a person who has satisfied the qualifications and requirement for a driver's license has a clear legal right to the issuance of a driver's license; no part of the decision to issue the license is discretionary.
Further, the Transit Union wrongly assumes, and cites no authority for the proposition, that the City Council should be automatically substituted for theBoard of Estimate. Succession to the Board of Estimate's powers is determined on a case by case basis, to be made in light of Charter Sections 3, 8, 21 and 1152(c), and the particular power at issue. Various powers of the Board of Estimate in the land use context were distributed. The PAL § 1204(15) notice provision does not apply, and the claim that the Board of Estimates' role in §1204(15) devolved to the City Council is far from clear.
Discussion
Standing
Petitioner has standing to pursue this Article 78 proceeding challenging the Transit Authority's alleged failure to provide notice pursuant to PAL § 1204(15). "Courts accord standing under Article 78 to organizations acting in a representative capacity on behalf of their members when: (1) at least one or more members would have had standing as individual petitioners; (2) the claims asserted are sufficiently germane' to the organization's purposes to establish to the court's satisfaction that the organization is an appropriate representative of those interests; and (3) neither the claim asserted nor the available relief would require the participation of individual members" (In re Samuelsen, 29 Misc 3d 225, 907 NYS2d 784 [Sup. Ct., New York County 2010] citing Aeneas McDonald Police Benevolent Assoc. v City of Geneva, 92 NY2d 326, 331, 680 NYS2d 887 [1998])).
In In re Samuelsen, the Transport Union claimed that the New York City Transit Authority ("TA") violated PAL § 1205(5) by attempting to close more than 50 subway station token booths and by closing and attempting to close more than 50 subway station customer assistant kiosks, "without conducting timely public hearings and without giving timely notice to community boards affected by the proposed and already carried out closings" and violated its obligation under PAL§ 1204(15) to operate transit facilities "for the convenience and safety of the public." (Emphasis added). In finding that the Transit Union had standing, the court reasoned that the Transit Union had a "direct stake" in ensuring that the public had an opportunity to offer their opinion as to the need of continued services of the Transit Union members, who were subway token booth operators and station customer assistant kiosk attendants who were threatened with layoffs.
While the Transit Authority insists that petitioner lacks standing since the temporary use of shuttle buses has not caused any injury in fact or an injury to any customer, the record indicates that petitioner, who rides the New York City subway system and who represents employees who ride the particular line at issue, would have standing as an individual petitioner to challenge the failure to provide notice. The Transit Union here, as in In re Samuelsen, has a direct stake in seeing that the ridership of the No. 2 line and public in general have the opportunity to be heard as to the effect of the number of shuttle buses being offered during the subject scheduled service disruption. The Transit Union's members also ride the New York City subway system, including the affected lines at issue, and thus, can appropriately represent the interests of riders along the No. 2 line. And, neither the claim asserted nor the available relief would require the participation of individual members.
Furthermore, petitioner has standing in this Article 78 proceeding, to the extent that petitioner challenges the Transit Authority's failure to comply with the notice provisions of the statute (Stein v Metropolitan Transp. Auth., 110 Misc 2d 1027, 1029, 443 NYS2d 340, 342[Supreme Court, Special Term, Nassau County 1981] ("Petitioners then have standing insofar as they contend that the notice of the public hearing when compared with the fare increase ultimately adopted was defective."))
Justiciability
Contrary to the Transit Authority's contention, it cannot be said that the only relief requested by the Transit Union requires the Court to review the analysis and decisions related to levels of service. The Petition clearly challenges the Transit Authority purported failure to provide 30 days notice of the subject G.O. PAL §1204(15) requires the Transit Authority:
To exercise all requisite and necessary authority to manage, control and direct the maintenance and operation of transit facilities transferred to it for the convenience and safety of the public with power, in its discretion, to extend, modify, discontinue, curtail, or change routes or method of transportation where the convenience or safety of the public would be served thereby or where existing routes or methods are inefficient or uneconomical; provided, however, that (except in cases of emergency) at least thirty days prior to any proposed modification, discontinuance, curtailment or change of any transit route or method of transportation, the authority shall give notice of intention to the board of estimate and shall, upon request of such board within such period, conduct a public hearing thereon.It has been held that courts have the authority "to review challenges based on allegations that officials and administrative bodies did not abide by procedural safeguards which have been developed to protect the citizenry'" (Straphangers Campaign v MTA, 765 NYS2d 422, 426-29 (Sup. Ct., New York County 2003], rev'd on other grounds, 309 AD2d 127 [1st Dept 2003] citing Stein v Metropolitan Transp. Auth., 110 Misc 2d 1027, 1029, 443 NYS2d 340, 342); Stein v Metropolitan Transp. Auth., 110 Misc 2d at 1029 ("Petitioners then have standing insofar as they contend that the notice of the public hearing when compared with the fare increase ultimately adopted was defective.")). Therefore, the issue of whether the Transit Authority failed to provide notice pursuant to PAL §1204(15) is a justiciable issue.
It is uncontested that the Board of Estimate no longer exists, and that the City Counsel is the entity to receive any such notices.
The Court notes that petitioner does not address the argument that the issue regarding the Transit Union's determination of the number of shuttle buses to be used for a project, and the request that the Court order more shuttle buses, are matters which involve the management of operations and are within the Transit Authority's discretion, are not proper subjects of judicial review. Therefore, the Court's review is limited to whether the Transit Authority violated the notice provisions of PAL §1204(15).
The Court notes that the Petition, on its face, seeks both a writ of mandamus and a writ of prohibition.
A writ of mandamus under Article 78 is appropriate to require performance of a specified ministerial act that is required by law to be performed (Levy v Davis, 302 AD2d 309, 756 NYS2d 35 [1st Dept 2003] citing Hamptons Hospital & Medical Center v Moore, 52 NY2d 88, 96, 436 NYS2d 239; see also, Anonymous v Commissioner of Health, 21 AD3d 841, 801 NYS2d 302 [1st Dept 2005]). Given that petitioner requests that the Court "issue an order" directing the Transit Authority to "restore" subway replacement shuttle bus service to the appropriate scheduled levels, and to "notify the City Council at least 30 days prior to any future reductions in shuttle bus service, and to hold informative public hearings on any proposed service reductions if required to do so by the City Council" (Petition, Prayer for Relief, p. 7), petitioner's application is one for a writ of mandamus. In this regard, under CPLR 7803(1) (authorizing an Article 78 proceeding to address the issue of "whether the body or officer failed to perform a duty enjoined upon it by law"), the petitioner "must have a clear legal right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief" (Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757, 570 NYS2d 474 [1991]).
The Petition also seeks to enjoin or prevent the Transit Authority from eliminating or reducing scheduled shuttle bus service, such application is one for a writ of prohibition, as well (see e.g., National Equipment Corp. v Ruiz, 19 AD3d 5, 794 NYS2d 2 [1st Dept 2005] [granting a writ of prohibition against a certain Supreme Court Justice, prohibiting her from taking certain action]). It is settled that "prohibition is an extraordinary remedy which lies only where a clear legal right to such relief exists, and only when the entity "acts or threatens to act either without jurisdiction or in excess of its authorized powers" (Neal v White, 46 AD3d 156, 843 NYS2d 265 [1st Dept 2007] citing Matter of Holtzman v Goldman, 71 NY2d 564, 569, 528 NYS2d 21 [1988]).
In both instances, the petitioner "must have a clear legal right to the relief demanded."
However, petitioner has made clear, in reply, that "Local 100 does not seek judicial review of Authority decisions to temporarily adjust service in order to perform repairs and maintenance of the system...' as respondents assert. (Respondents' Mem., p. 2). Rather, it only seeks judicial review of the Authority's failure to notify the City Council before implementing a particular change in service." (See Memorandum of Law in Response to Respondents' Verified Answer, page 1). Therefore, again, the Court's analysis is limited to this discrete issue of whether the Transit Authority violated the notice provision of PAL §1204 (15).
According to the affidavit of Larry Gould, the Senior Director of Operations Analysis for the Transit Authority, "on any given weekday, 550 trains make 6,519 trips to transport more than 4,000,000 riders" over 722 miles of main line track, 25 subway lines, and 468 stations, which include 11,300 signals. (Affidavit, ¶ 3). This "massive" system requires daily maintenance and upgrades, as well as capital improvements on a regular basis. (Id.). Since track and signal work cannot be performed with active train traffic, requiring "a cessation of electricity to the third rail."(Id. ¶3). Such work requires G.O.'s, or service diversions. (Id. ¶3).While the Transit Authority prepares forecasts months before the actual work is performed, as the work date approaches, adjustments to service diversions become necessary due to changes in construction needs and public events, such as sports events, concerts, street fairs and other public activities. (Id. ¶4). Therefore, G.O.'s are not reviewed until about six to eight weeks prior to the scheduled work. "Usually, 50-70 G.O.' are scheduled for any given week." (Id. ¶4). G.O.'s can change or be cancelled for a number of other reasons, such as weather, holidays and special events. (Id. ¶4). When a G.O. requires "temporary cessation of service on a portion of a subway line and when other train service does not exist, shuttle bus service may be provided." (Id. ¶6) (emphasis added). At issue herein, was train work that required the cessation of rail service, necessitating the use of shuttle buses (Id. ¶¶ 8, 11).
In interpreting a statute, it is fundamental that a court "ascertain and give effect to the intention of the Legislature" (Roberts v Tishman Speyer Properties, L.P., 62 AD3d 71, 874 NYS2d 97 [1st Dept 2009] citing McKinney's Cons. Laws of NY, Book 1, Statutes § 92[a], at 177), and, "[a]s the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (Roberts v Tishman Speyer Properties, L.P., supra, citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583, 673 NYS2d 966 [1998]). A court, in discerning the meaning of statutory language, must "avoid objectionable, unreasonable or absurd consequences" (Roberts v Tishman Speyer Properties, L.P., citing Long v State of New York, 7 NY3d 269, 273, 819 NYS2d 679 [2006]).
In Lewis v New York City Tr. Auth., 55 Misc 2d 972, 286 NYS2d 884 [Sup. Ct., Kings County 1968]), plaintiffs sought to enjoin the Transit Authority from effecting certain changes in the transit lines scheduled to go into effect on a certain date. In the consolidated article 78 proceeding, the petitioner sought a judgment prohibiting the Transit Authority from making said changes and directing the Authority to give prior notice of changes to the Board of Estimate pursuant to the Public Authorities Law. The Transit Authority argued that the changes were changes in service generally and did not involve changes in routes, so as to require 30-day notice. The Court held that the evidence demonstrated "that the changes which it made did not involve changes in routes as to which notice was required."
It is uncontested that 30-days prior notice is required in order to effect "any modification, discontinuance, curtailment or change of any transit route or method of transportation," in order to permit the public an opportunity to voice its concerns of the effects of any such change. It is also uncontested that the notice given triggers the potential for a hearing on the proposal. However, to expand this notice requirement to include temporary changes in service, which do not result in a permanent change or modification of any route, would in effect disable the Transit Authority's overriding obligation and authority "to manage, control and direct the maintenance and operation of transit facilities transferred to it for the convenience and safety of the public." To avoid "unreasonable or absurd consequences," the Court declines to construe PAL § 1204(15) as requiring 30-days notice under the circumstances herein (see also, Lewis v New York City Tr. Auth., 55 Misc 2d 972, 286 NYS2d 884 [Sup. Ct., Kings County 1968] (upholding the Transit Authority's plan to effect changes along the Brighton line)).
And, contrary to petitioner's contention, PAL § 1204(5) does not support the contention that notice is required under the circumstances herein, since such statute exempts from the notice requirement closures due to repair or renovations.
PAL § 1204(5) provides that "Any complete or partial closing of a passenger station within the city of New York, or any means of public access to such facility, except for purposes of repair or renovation or in case of emergency shall be accomplished only if approved by resolution of the authority adopted by not less than a majority of the whole number of members of the authority then in office, and only after a public hearing [to be not less than thirty days after notice of such proposed closing].
Therefore, as petitioner failed to establish a clear right to the relief sought, or any corresponding nondiscretionary duty on the part of the Transit Authority to provide notice of the proposed changes, for Article 78 relief, petitioner likewise cannot establish a main element for entitlement to injunctive relief , i.e., a "likelihood of success on the merits" (1234 Broadway LLC v West Side SRO Law Project, 86 AD3d 18, 924 NYS2d 35 [1st Dept 2011] ("a preliminary injunction will only be granted when the party seeking such relief demonstrates a likelihood of ultimate success on the merits, irreparable injury if the preliminary injunction is withheld, and a balance of equities tipping in favor of the moving party")).
Conclusion
Therefore, based on the foregoing, it is hereby
ORDERED that the petition for an order enjoining the Transit Authority from eliminating or reducing the subway replacement shuttle service on the IRT No. 2 line in the Bronx, and requiring the Transit Authority to restore shuttle bus service to appropriate and scheduled levels, notify the City Council at least 30 days prior to any future reductions in service, and hold public hearings on any proposed service reductions if required to do so by the City Council, is denied, and the proceeding is dismissed.
This constitutes the decision and order of the Court.
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Hon. Carol Robinson Edmead, J.S.C.
In accordance with the accompanying Memorandum Decision, it is hereby
ORDERED and ADJUDGED that the Petition seeking an order enjoining respondents New York City Transit Authority and Manhattan and Bronx Surface Transit Operation Authority from eliminating or reducing the subway replacement shuttle service on the IRT No. 2 line in the Bronx, and requiring respondents to restore shuttle bus service to appropriate and scheduled levels, notify the City Council at least 30 days prior to any future reductions in service, and hold public hearings on any proposed service reductions if required to do so by the City Council, is denied, and the Petition is dismissed.
This constitutes the decision, order and judgment of the Court.