Petitioner CANDACE BOURNE (BOURNE) moves by order to show cause, pursuant to Article 78 of the Civil Practice Law and Rules (CPLR), for a judgment directing respondents NEW YORK CITY DEPARTMENT OF FINANCE (DOF) and NEW YORK CITY MARSHAL FRANK SIRACUSA (SIRACUSA) to: (1) stop the auction of petitioner BOURNE's 2001 Infiniti, seized by respondent SIRACUSA on May 16, 2011, for nonpayment of judgments entered against her by DOF for parking violations; (2) pay $100,000 in compensation to [*2]petitioner BOURNE; and, (3) order all outstanding parking violations in petitioner BOURNE's name deemed satisfied.

Respondent DOF opposes the instant petition, alleging: petitioner BOURNE fails to state a claim against DOF because DOF followed proper procedures to satisfy outstanding judgments against petitioner BOURNE for unpaid parking tickets of petitioner BOURNE; petitioner BOURNE never administratively challenged the actual parking violations nor exhausted her administrative remedies; the judgments on petitioner BOURNE's parking violations were rational and reasonable and in conformity with applicable statutes, laws and regulations; Marshal SIRACUSA properly executed on the judgments against petitioner BOURNE; petitioner BOURNE's claim for $100,000 in compensation is barred by petitioner BOURNE's failure to allege that she filed a notice ofclaim against the City of New York, pursuant to General Municipal Law (GML) §50-i.

The Court, after hearing oral arguments and reviewing the papers filed by petitioner BOURNE and respondent DOF, finds, for the reasons to follow, that: petitioner BOURNE fails to state a claim against respondents; petitioner BOURNE failed to administratively challenge the outstanding parking violations against her and exhaust her administrative remedies; the judgments on petitioner BOURNE's parking violations were rational, reasonable and in conformity with applicable statutes, laws and regulations; and, Marshal SIRACUSA properly executed on the outstanding judgments against petitioner BOURNE. Therefore, the instant order to show cause is denied and the instant petition is dismissed. All stays will be vacated ten (10) days after respondent DOF serves petitioner BOURNE with a copy of this order and a notice of entry.

Petitioner BOURNE did file a notice of claim with the Office of the Comptroller of the City of New York in a timely manner. However, the notice of claim is rendered moot by the dismissal of the instant action.

Petitioner BOURNE alleged that SIRACUSA, on May 16, 2011, towed her 2001

Infiniti for non payment of parking violations judgments secured against her by respondent DOF. She claims that these judgments were satisfied when a 2005 Lincoln she owned was towed by SIRACUSA, on August 12, 2009, and subsequently auctioned on January 8, 2010 for $6,400.00. Out of the $6,400.00 SIRACUSA received at the auction, he applied $567.31 to satisfy outstanding judgments and $861.02 in fees for, among other things, storage, towing, the auctioneer and poundage. SIRACUSA refunded to petitioner BOURNE the remaining balance of $4,971.67.

However, petitioner BOURNE fails to mention in her papers that when her Lincoln was seized there were two other violations in judgment against her Lincoln for red light violations, which at the time were not incorporated into DOF's summons tracking system and could not be the basis for a vehicle seizure until September 2010. Further, subsequent to the Lincoln's seizure, five other violations - two for red lights and three for parking - came into judgment against her Lincoln, totaling $887.86.

Moreover, petitioner BOURNE also had six outstanding judgments against her 1993 Isuzu, issued in 2006 and 2007, totaling $879.94. The judgments against the Isuzu were not part of the Lincoln's seizure because the Isuzu was registered in New York and the Lincoln in [*3]Georgia. New York license plates at that time were not linked to out-of- state license plates in DOF's summons tracking system. The May 16, 2011 seizure of petitioner's Infiniti was based upon the $879.94 in judgment debt for the six violations issued to her Isuzu. Since both the Isuzu and the Infiniti were registered to petitioner BOURNE in New York, DOF's computer system had the judgments linked together. The outstanding judgment debt of $887.86 for petitioner's Lincoln, registered in Georgia, was not part of the execution resulting in the seizure of petitioner's Infiniti. After SIRACUSA seized the Infiniti, petitioner BOURNE obtained various sales holds from DOF, including an indefinite hold pending the resolution of this litigation.

Petitioner claims in her petitioner that "I have tried to resolve this issue at the agency level, and I was constantly lied to, misinformed, giving the run-around to no avail, in helping to eradicate the problem [sic]" and "I have repeatedly tried to resolve this issue on agency level [sic]." There is no evidence presented by petitioner BOURNE that she challenged any of the violations with DOF or how she tried to resolve the summonses with respondent DOF.

Respondent DOF alleges in its answer that petitioner BOURNE fails to state a claim, because she is unable to substantiate that DOF committed any wrongdoing. Further, DOF claims, in ¶ 43 of its answer, that "the facts show that Petitioner failed to pay summonses for parking violations, which were then appropriately entered as judgments against her. DOF followed their proper procedures and the applicable provisions of law, and seized Petitioner's Infiniti an attempt to satisfy the outstanding judgments." Moreover, DOF notes, in ¶ 44 of its answer, that petitioner "never administratively challenged the actual parking violations or appealed the judgments." Further, DOF states, in ¶ 45 of its answer, that "[t]he judgments on Petitioner's parking violations were rational and reasonable and in all respects conforms with the applicable statutes, laws and regulations. The Marshal properly executed on those judgments by seizing Petitioner's Infiniti."

It is axiomatic that in an Article 78 proceeding the function of the Court is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious (see Pell v Board of Educ. of Union School District No.1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974] ). "Arbitrary action is without sound basis in reason and is generally taken without regard to the fact." (Pell at 231). A rational basis exists where the determination is "[supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination." (Ador Realty, LLC v Division of Housing and Community Renewal, 25 AD3d 128, 139-140 [2d Dept 2005], quoting Pell at 231).

A reviewing court will not substitute its judgment for that of the agency unless the agency's determination is arbitrary, capricious, or contrary to law. (See Pell at 231; Matter of Brockport Cent. School Dist. v New York State & Local Employees' Retirement System, 270 AD2d 706, 707-708 [3d Dept 2000]). Pursuant to CPLR § 7803 (3), the question raised in an Article 78 proceeding is "whether a determination was made in violation of lawful procedure, was affected by an error of law of was arbitrary and capricious or an abuse of discretion."

In the instant action it is clear that petitioner BOURNE fails to state a claim and [*4]

respondents' action in seizing petitioner's Infiniti and holding the car for auction is rational and reasonable, in conformity with applicable statutes and regulations, and not arbitrary, capricious or an abuse of discretion. The facts demonstrate that petitioner BOURNE failed to pay outstanding summonses for parking violations, which were then appropriately entered as judgments against her. Moreover, petitioner BOURNE never challenged the actual parking violations nor appealed the judgments nor exhausted her administrative remedies.

Respondents complied with New York State and City's statutory framework dealing with parking violations and judgments. The New York City Parking Violations Bureau (PVB), a branch of DOF, was established pursuant to: Article 2-B of the New York State Vehicle and Traffic Law (VTL), "Adjudication of Parking Infractions";

§ 1504 (4) of the New York City Charter; and, Title 19, § 201 of the New York City Administrative Code (AC). VTL § 235 (1), part of Article 2-B of the VTL, authorizes a municipality to establish a parking violations bureau to hear and render determinations on parking violations. VTL § 237 (5) authorizes a parking violations bureau "to enter judgments and enforce them, without court proceedings, in the same manner as the enforcement of money judgments in civil actions in any court of competent jurisdiction or any other place provided for the entry of civil judgment within the state of New York." VTL § 237 (9) authorizes a parking violations bureau to prepare and issue notices of violation, which are called by the public, "parking summonses" or "parking tickets."

VTL § 236 (1) defines a parking violation as "the violation of any law, rule or regulation providing for or regulating the parking, stopping or standing of a vehicle."

Title 34 of the Rules of the City of New York (RCNY) § 4-08 governs unlawful parking, stopping and standing and 19 RCNY Chapter 39 sets forth the rules concerning

the adjudication of parking violations. In accordance with the provisions of VTL § 238 (1) and AC § 19-204 (a), each parking summons warns the registrant of an illegally parked vehicle that a failure to plead in the manner and time required shall be deemed an admission of liability and lead to the entry of a subsequent default judgment. Recipients of a parking summons may contest the summons at a PVB hearing, pursuant to AC § 19-206 and 19 RCNY § 39-08. The PVB hearing officer is empowered to make a determination of the charges set forth in a parking summons, pursuant to VTL § 241 and AC § 19-207. The determination of the PVB hearing officer may be reviewed by PVB's Appeals Board, pursuant to VTL § 242, AC § 19-208 and 19 RCNY § 39-12. Pursuant to

AC § 19-209, "The order of the appeals board shall be the final determination of the bureau [PVB]. Judicial review may be sought pursuant to article seventy-eight of the civil practice law and rules."

AC § 19-212 limits the removal from any street or public area of a motor vehicle to satisfy PVB judgment or judgments "for parking violations against the owner unless

the total amount of such judgment or judgments, including interest, is greater than three

hundred fifty dollars. The provisions of this section shall not be construed to prohibit the [*5]removal of a motor vehicle which is illegally parked, stopped or standing." In the instant proceeding, PVB has judgments outstanding against petitioner BOURNE for more than $350.00. DOF followed proper procedures and applicable provisions of law in the

seizure of petitioner's Infiniti to satisfy the outstanding judgments. Marshal SIRACUSA properly executed on the outstanding PVB judgments against petitioner BOURNE when he seized her Infiniti.

Petitioner BOURNE's contention, that the proceeds from the prior sale of her Lincoln should have been used by the Marshal to satisfy her debt for all her parking violations, instead of the Marshal refunding $4,971.67 of the sales proceeds to her, lacks merit. At the time of the Lincoln's seizure it was registered in Georgia and the other outstanding judgments were for red light violations, not then the subject of a tow, or for her Isuzu, registered in New York. At that time, cars registered in New York were not linked in PVB's database with out-of-state registrations. Thus, the judgment debt from the New York registered Isuzu, when the Lincoln was towed, was not the basis for the seizure of the Georgia registered Lincoln. Since in-state and out-of-state plates were not linked in PVB's database, the New York registered Isuzu judgments could not have been satisfied by the proceeds for the sale of the Georgia registered Lincoln. Moreover,

petitioner Bourne had outstanding parking violations issued to her Isuzu and subsequently

to her Infiniti that were not yet in judgment.

It is clear that petitioner BOURNE failed to offer any credible evidence establishing that DOF's judgment debt against her was not reasonable and rational or that Marshal SIRACUSA's execution on those judgments was improper. Therefore, petitioner BOURNE's instant order to show cause is denied, the instant petition is dismissed and Marshal SIRACUSA may proceed with the auction of petitioner's Infiniti when the stay is vacated.

Accordingly, it is

ORDERED, that the order to show cause of petitioner CANDACE BOURNE, for a judgment, pursuant to Article 78 of the Civil Practice Law and Rules, directing respondents, NEW YORK CITY DEPARTMENT OF FINANCE and NEW YORK CITY MARSHAL FRANK SIRACUSA to: (1) stop the auction of petitioner CANDACE BOURNE's 2001 Infiniti, seized by respondent CITY MARSHAL FRANK SIRACUSA on May 16, 2011, for non-payment of judgments entered against her by respondent NEW YORK CITY DEPARTMENT OF FINANCE for parking violations; (2) pay $100,000 in compensation to petitioner CANDACE BOURNE; and, (3) order all outstanding parking violations in petitioner CANDACE BOURNE's name deemed satisfied, is denied in all

respects; and it is further

ORDERED, that the petition of petitioner CANDACE BOURNE, for a judgment, pursuant to Article 78 of the Civil Practice Law and Rules, against respondents NEW YORK CITY DEPARTMENT OF FINANCE and NEW YORK CITY MARSHAL FRANK SIRACUSA is dismissed; and it is further [*6]

ORDERED, that all stays in this action will be are vacated ten (10) days after respondent NEW YORK CITY DEPARTMENT OF FINANCE serves petitioner CANDACE BOURNE with a copy of this order and a notice of entry.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACK

J. S. C.