The following papers numbered 1 to 8 were read on this petition for an order pursuant to CPLR Article 78 annulling the order of the New York City Department of Finance, Adjudication Division:

Papers

Numbered

Notice of Amended Petition...........................1 - 4

Respondent's Verified Answer - Memorandum of Law.....5 - 8

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Petitioner commenced this Article 78 proceeding for an [*2]order, pursuant to CPLR 7806, reviewing and annulling two separate determinations of the Appeals Board of the New York City Department of Finance, Adjudication Division. The Appeals Board upheld the determination of the Administrative Law Judge at the Parking Violations Bureau finding the petitioner guilty of two separate parking violations.

Petitioner received the first summons, Violation No.7324225871 on January 6, 2010 at 6:01 p.m. when the petitioner's vehicle, an Oldsmobile registered in the State of Virginia, was issued a violation for being double-parked in front of 2039 First Avenue, New York, New York.

On April 1, 2010, the petitioner appeared before Administrative Law Judge Bradlee Biller and pled not guilty on the ground that his vehicle's body type had been misdescribed on the notice of violation as a "4DSD" meaning four-door sedan, rather than a two-door sedan. Petitioner claimed that since his car was a two-door vehicle which was misdescribed on the ticket as a four-door vehicle, the court was required to dismiss the violation under Vehicle and Traffic Law § 238(2-a)(b).

Pursuant to New York State Vehicle and Traffic Law § 238:

"(2) A notice of violation shall be served personally upon the operator of a motor vehicle who is present at the time of service, and his name, together with the plate designation and the plate type as shown by the registration plates of said vehicle and the expiration date; the make or model, and body type of said vehicle; a description of the charged violation, including but not limited to a reference to the applicable traffic rule or provision of this chapter; information as to the days and hours the applicable rule or provision of this chapter is in effect.

2-a(b) If any information which is required to be inserted on a notice of violation is omitted from the notice of violation, misdescribed, or illegible, the violation shall be dismissed upon application of the person charged with the violation.

By decision and order dated April 1, 2010, ALJ Biller found the petitioner guilty, holding that "the body type on the summons is deemed a reasonable assessment of the out of state vehicle's body type" and therefore, the fact that the officer indicated that the sedan had four doors, rather than two, was not a sufficient basis to hold that the violation should be dismissed as a misdescription pursuant to VTL § 238(2-a)(a). The petitioner was fined $115.00 and assessed a penalty of $30.00.

The petitioner appealed ALJ Biller's decision and appeared at a hearing before a three judge panel on June 6, 2010. The petitioner argued that the decision of the ALJ was incorrect as [*3]the body type was misdescribed on the violation. By decision and order dated June 7, 2010 the Appeals Board upheld the decision finding no error of law or fact.

The petitioner received a second violation No. 7289924010, on November 27, 2009 at 11:17 a.m. for standing in a no standing zone opposite 216 E. 99th Street in an area where standing a vehicle is prohibited by signs, makings or traffic-control devices. At that time he was driving a Ford with Virginia license plates.

On March 4, 2010, the petitioner appeared before Administrative Law Judge Tina Wasser-Millman and pled not guilty on the ground that the ticket was defective because some of the details regarding the "no standing" sign were written in the "Complainant's Comments" section of the summons because there was not enough room to fit all of the language in the box delineated for specification of the violation. By decision and order dated March 4, 2010, ALJ Wasser-Millman found the petitioner guilty of the violation and fined him $115.00 with a penalty assessment of $30.00. The ALJ found that the petitioner's defense that all of the information relevant to the charged violation was not contained in the appropriate area and that some of the information was found in the area on the ticket provided for complainant's comments was not a valid defense.

The petitioner appealed ALJ Wasser-Millman's decision and was heard before the same three judge panel on June 6, 2010. The petitioner argued that the ALJ was incorrect because a portion of the stated violation appeared under the heading "complainant's comments" and the full description of the violation, which included the language on the no standing sign did not appear in the appropriate area on the ticket. Thus, the petitioner argued that the summons should have been dismissed pursuant to VTL§ 238(2-a)(a) because the sign was misdescribed on the face of the summons by reason of the complaint's omission of required information in the appropriate area. By decision and order dated June 7, 2010, the Appeals Board upheld the decision finding no error of law or fact. During the argument on appeal, ALJ Gaynor stated that although he agreed that the text of the violation did appear in two separate sections on the summons, he noted that the signature of the officer making the complaint appears below all of the information so that all of the information above his signature which he attested to is true as he observed it.

Pursuant to CPLR §7803(3), the relevant inquiry in this case is "whether a 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." As a general rule, an action is deemed to be arbitrary if it is taken without a sound basis in reason and generally without regard to the facts (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 [*4]of Towns of Scarsdale & Mamaroneck, 34 NY2d 222, 231 [1974]; Matter of Trump on the Ocean, LLC v Cortes-Vasquez, 76 AD3d 1080 [2d Dept. 2010]). "An agency's interpretation of a statute it is charged with implementing is entitled to deference if not irrational or unreasonable" (Matter of Hamil Stratten Properties, LLC v New York State Department of Environmental Conservation, 79 AD3d 747 [2d Dept. 2010]; also see Matter of New York Botanical Garden v Board of Stds. & Appeals of City of NY, 91 NY2d 413; Flacke v Onondaga Landfill Sys., Inc., 69 NY2d 355 [1987]). A reviewing court may not substitute its judgment for that of the administrative agency (Matter of Consol. Edison Co. v New York State Div. of Human Rights, 77 NY2d 411, 417 [1991]).

With respect to Violation No. 7289924010, this Court finds it was reasonable for the Appeals Board to find that where all of the elements of the no standing violation could not fit within the box provided for that purpose, placing the remaining language in an empty portion of the summons above the attesting officer's signature is not a valid defense as it does not constitute a misdescription of any of the elements required to be inserted in the notice of violation. The finding of the Appeals Board as to this violation was reasonable and rational. The fact that the officer continued the language of the no standing sign in an empty area on the summons in order to give the petitioner notice of the violation does not invalidate the summons. The information provided by the officer regarding the violation was not incorrect nor was it a misdescription of the violation. The Board's determination was not made in violation of lawful procedure, was not affected by an error of law, was not arbitrary and capricious or an abuse of discretion and was not irrational or unreasonable (CPLR 7803 [3]; see Matter of Hamil Stratten Properties, LLC v New York State Department of Environmental Conservation,79 AD3d 747 [2d Dept. 2010]; Matter of Johnson v. State of New York, 26 AD3d 379 [2d Dept. 2006]). Therefore, the petition is denied as to this violation.

With respect to Violation No. 7324225871, this court finds that although the description of the body of the vehicle as a sedan was correct, it is not disputed that the vehicle was a two- door sedan and not a four-door sedan. Thus, the summons which described the body type as "4DSD" contained a misdescription of the vehicle. In respondent's memorandum of law they concede that the two-door vehicle was misdescribed, however, respondent contends that "the identification of the two-door sedan as a four-door sedan on a parking ticket is not a fatal mistake, because it does not reach the level of misdescription of the body type as required by VTL §238." [*5]

However, the Court of Appeals clearly stated in Matter of Wheels, Inc., v Parking Violations Bureau, 80 NY2d 1014 [1992] that a misdescription of any of the five mandatory identification elements mandates dismissal. Contrary to the respondent's contention, the Court of Appeals ruling in Matter of Wheels, Inc, supra., does not provide for levels of misdescription and it does not provide for an exception for small errors. Here, because the body type of the car was clearly misdescribed, the Adjudication Bureau was mandated to dismiss the summons pursuant to VTL§ 238(2-b)(a). Thus, as the determination of the Appeals Board was based upon an error of law, the determination of the Board with respect to Violation No. 7324225871 must be annulled.

Accordingly based upon the foregoing it is hereby

ORDERED that with respect to Parking Violation No. 7324225871, the finding of the Adjudication Board is annulled and the City of New York, Department of Finance shall refund to the petitioner the total sum of $145.00, and it is further,

ORDERED, that with respect to violation No.7289924010, the petition is denied.

Dated: Long Island City, NY

April 28, 2011

______________________________

ROBERT J. MCDONALD

J.S.C.