Walter C.
Parrish, III, Plaintiff,
against
City of New York, Defendant.
|
SCK-836-14/KI
Claimant Walter C. Parrish, III, Pro-Se
Attorneys for Defendant
City of New York Taxi and Limousine Commission, General Counsel
By Daniel H. Hoddin, Esq.
33 Beaver Street
New York, NY 10004
Devin P. Cohen, J.
Upon review of the foregoing papers, defendant's motion to dismiss on collateral
estoppel grounds and pursuant to CPLR 3211 (a) (7) on the grounds that the "claim is
without merit" is decided as follows:
Claimant, Walter C. Parrish III, commenced this small claims action against
defendant, [*2]the Taxi and Limousine Commission
(TLC), on or about March 5, 2014, seeking to recover $3,500 for "loss of use of
property" (Small Claims Notice of Claim, index No. SCK-836-14). This claim stems
from defendant's seizure of claimant's vehicle based on his alleged unlicensed use of that
vehicle to transport a passenger for hire in violation of Section 19-506 (b) (1) of the
Administrative Code of the City of New York. After a hearing before the Taxi and
Limousine Tribunal Mr. Parrish was found "not guilty" by decision of Administrative
Law Judge (ALJ) Igor Vaysberg, on the grounds that the TLC lacked jurisdiction over
the matter because the passenger was picked up outside of New York City limits
(Taxi & Limousine Commission v Walter Parrish, Lic. No. 5506087
[October 15, 2013]). Defendant now moves to dismiss this action on collateral estoppel
grounds, based upon a prior small claims decision of Hon. Pamela L. Fisher. Defendant
also moves to dismiss pursuant to CPLR 3211 (a) (7), contending that the "claim is
without merit" because the TLC's officer is immune from civil liability for actions taken
in the exercise of quasi-judicial functions. Mr. Parrish opposes the motion citing the
decision of ALJ Vaysberg that the TLC lacked jurisdiction over Mr. Parrish's alleged
offense and reiterating his request for damages for the loss of his property.
The branch of defendant's motion seeking dismissal on collateral estoppel
grounds is denied as small claims judgments are specifically divested of collateral
estoppel effect (see CCA 1808 [small claims judgments "shall not be deemed an
adjudication of any fact at issue or found therein in any other action or court"]; and
see Tsafatinos v Stavropoulos, 979 NYS2d 216, 218 [App Term, 2d Dept, 2d, 11th,
& 13th Jud Dists 2013]). Defendant does not assert that this is the same claim as
was previously decided but only that the case dealt with the same issues (see Gerstman v Fountain Terrace
Owners Corp., 31 Misc 3d 148 [A] [App Term, 2d 11th & 13th Jud Dists
2011] [small claims judgments divested of issue preclusive effect but not claim
preclusive effect]). Accordingly, any determinations made on issues in the prior small
claims actions by Justice Fisher do not have preclusive effect in this case.
Defendant also moves to dismiss pursuant to CPLR 3211 (a) (7) on the
grounds that the "claim has no merit." However, defendant both misstates and
misunderstands the standard for dismissal under CPLR 3211 (a) (7). The applicable test
under CPLR 3211 (a) (7) is "whether the pleading states a cause of action, not
whether the proponent of the pleading, in fact, has a meritorious cause of action"
(VIT Acupuncture P.C. v State Farm Auto. Ins. Co., 28 Misc 1230 [A] [Civ Ct,
Kings County] [Cohen, J.] [CPLR 3211 (a) motions "should not be used as pre-answer
alternatives to what is more properly a request for summary judgment"]; see Sokol v Leader, 74 AD3d
1180 [2d Dept 2010]). Contrary to defendant's assertion, "[w]hether a plaintiff can
ultimately establish its allegations is not part of the calculus" (EBC I, Inc. v Goldman, Sachs
& Co., 5 NY3d 11 [2005]). The question is whether "accepting as true the
factual averments of the complaint and according the plaintiff the benefits of all
favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any
reasonable view of the facts stated" (Board of Educ. of City School Dist. of City of
New Rochelle v County of Westchester, 282 AD2d 561, 562 [2d Dept 2001]). The
threshold for dismissal is even higher here as, "given the informal and simplified
procedure' (CCA 1804) governing small claims matters [dismissal for failure to state a
cause of action] is rarely, if ever, available" (Sarver v Pace University, 5 Misc 3d 70 [App Term, 1st
Dept 2004]).
The proper inquiry here then becomes, in part, whether under the
exceedingly liberal pleading standard of the Small Claims Court, the "facts as alleged fit
within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83 [1994]).
Defendant argues that this claim is barred by absolute governmental immunity.
Defendant cites to Tango v Tulevech, 61 NY2d 34, 40 [1983] for the proposition
that "when official action involves the exercise of discretion, the [public] officer [or
municipality] is not liable for the injurious consequences of that action even if resulting
from negligence or malice." Defendant contends that the TLC has absolute immunity
from liability for seizing claimant's vehicle and that, therefore, the action must be
dismissed.
However, governmental immunity does not attach to every action of an
official with any discretionary duties (Mon v New York, 574 NYS2d 529, 532
[1991]). Absolute immunity for official discretionary actions is limited to judicial,
quasi-judicial, legislative and executive branch activities (see Siegel, 15 NY
Prac-Torts § 17:54; see also Arteaga v State, 532 NYS2d 57 [1988]; and
see Tango, 61 NY2d 34). Other official discretionary acts are typically subject to
qualified immunity, and the immunity is negated by evidence of bad faith or the lack of
any reasonable basis for the action (see Siegel, 15 NY Prac-Torts § 17:54;
and see McCormack v City of New York, 80 NY2d 808 [1992] [qualified
immunity applied for police judgment in giving "no-shoot" order and choice in bullet
proof vests, at least where choice not irrational]). In contrast, ministerial acts by public
officers or employees, which do not involve the exercise of discretion based on policy
and are not capable of producing different acceptable results are not immune
from civil liability (id.; and see Arteaga, 532 NYS2d 57 [1988] [emphasis
added]). "When the action is exclusively ministerial, the officer will be liable if it is
otherwise tortious and not justifiable pursuant to statutory command" (Rodriguez v
City of New York, 189 AD2d 166 [1st Dept 1993]).
New York Courts "take a functional approach when analyzing claims of
immunity" (Rodrigues v City of New York, 193 AD2d 79 [1st Dept 1993];
and see Arteaga, 532 NYS2d 57). Whether an action receives qualified or
absolute immunity "requires an analysis of the functions and duties of the particular
government official or employee whose conduct is in issue" (Arteaga, 532
NYS2d at 59).
"If a functional analysis of the actor's position shows that it is sufficiently
discretionary in nature to warrant immunity, it must then be determined whether the
conduct giving rise to the claim is related to an exercise of that discretion. Obviously,
governmental immunity does not attach to every action of an official having discretionary
duties, but only to those involving an exercise of that discretion"
(Mon, 574 NYS2d at 532).
In New York, courts have determined that many enforcement actions taken
by police officers fall into the categories of either non-immune ministerial "day-by-day"
acts or are subject to a qualified immunity (compare Broughton v State, 37 NY2d
451 [1975] and Colao v
Mills, 39 AD3d 1048 [3d Dept 2007] [police officers have qualified immunity
or privilege to make arrest if arrest is based upon warrant or probable cause because
actions involve exercise of discretion] with Rodriguez, 189 AD2d 166 [1st Dept
1993] [qualified immunity for police officer's errors in judgment in discretionary
functions but no immunity attaches where "immutable procedures" or [*3]clearly defined standards of conduct govern functions and
officer acts clearly outside realm of acceptable police practice]).
New York General Municipal Law § 50—j(1) provides that local
governmental entities are "liable for ... any negligent act or tort [committed by a police
officer], provided such police officer, at the time of the negligent act ... was acting in the
performance of his duties and within the scope of his employment." Police officers
performing law enforcement activities requiring the exercise of discretion are afforded
qualified immunity from liability for negligence claims provided that the officers' actions
are not inconsistent with acceptable police practice (see Lubecki v City of New York,
304 AD2d 224, 233—234 [1st Dept 2003], 758 NYS2d 610; Rodriguez,
189 AD2d 166, 177—178). Qualified immunity will not attach where
a police officer's evaluation of probable cause is not objectively reasonable (see, e.g. Holland v City of
Poughkeepsie, 90 AD3d 841 [2d Dept 2011]). Such qualified immunity
is negated by evidence of bad faith or the lack of any reasonable basis for the action
(see Arteaga v State, 532 NYS2d 57 [1988]).
Here, the actions of the TLC officer are akin to that of a police officer. In fact, the
statute prohibiting operation of an unlicensed vehicle for hire provides that violations
may be enforced by either TLC officers or police officers (see Administrative
Code § 19-506 [h] [1] ["[a]ny officer or employee of the commission designated by
the chairperson of the commission and any police officer may seize any vehicle which he
or she has probable cause to believe is operated or offered to be operated for hire without
a vehicle license "]). Thus, it would follow that the TLC officer's actions in this case
would, at most, either be subject to qualified immunity (and its exceptions), or constitute
non-immune ministerial acts.
In this case, defendant acknowledges that claimant was pulled over by TLC Officer
Cooper for a broken taillight. Officer Cooper questioned the backseat passenger, who
stated that claimant had taken him on a ride from Newark Airport to the Hyatt hotel for
the fee of $75 (TLC Summons No.708601146A). At that point Officer Cooper knew or
had reason to believe that no violation had occurred. Nevertheless, the officer issued a
TLC summons and seized the vehicle based upon claimant's alleged unlicensed operation
of a vehicle for-hire in violation of Administrative Code§ 19-506 (b)(1). After a
hearing, during which Officer Cooper acknowledged on cross-examination that the TLC
did not have jurisdiction over trips originating in New Jersey, ALJ Vaysberg found
claimant "not guilty" and dismissed the case. In his decision, ALJ Vaysberg cited to
several prior TLC tribunal decisions and indicated it was well settled that "[a]ny vehicle
is free to transport and drop off passengers for-hire within the City, as long as the trip
originated outside the City" (Taxi & Limousine Commission v Walter
Parrish, Lic. No. 5506087 [October 15, 2013] quoting Taxi & Limousine
Commission v Ashraf S. Mohamad, Lic. No. 5091833 [March 9, 2009]). Thus,
although the issue need not (and will not) be decided on this motion, it is at least
arguable that the TLC officer's seizure of the vehicle was inconsistent with acceptable
TLC practices and procedures (as well as the tribunal's established precedent), lacked a
reasonable basis and was in bad faith, thereby negating any qualified immunity.
When taken in the light most favorable to claimant, the claim for "loss of use
of property" appears to state, perhaps among other things, a colorable claim for common
law conversion or negligence in the seizing and retaining claimant's vehicle (see
White v City of Mount Vernon, 221 [*4]AD2d 345
[2d Dept 1999] [discussing conversion claim against City for seizure of vehicle based on
subsequently dismissed unpaid tickets, although in the context of finding claimant's
Notice of Claim untimely]; see also Esposito v State, 35 Misc 3d 1216 [A] [NY
Ct Cl 2011] [discussing Commission of Labor's seizure of fireworks and holding that
"insofar as claimants allege that no statutory or regulatory authority empowered the
Commission of Labor to order the seizure and destruction of fireworks, claimant alleged
sufficient facts to state a cause of action"]; and see Robbins v City of New York, 25 Misc 3d 662 [Civ
Ct, Richmond County 2009] [Levin, J.] [finding police department liable for destruction
of plaintiff's car on grounds it acted negligently and in violation of acceptable police
practice in handling car, ultimately resulting in its demolition]). As such, defendant fails
to establish that claimant does not state a cause of action on the grounds that the TLC is
entitled to absolute immunity for its actions. This is particularly so in light of Officer
Cooper's testimony at the Taxi & Limousine Tribunal hearing that he was aware that
the TLC lacked jurisdiction over trips commencing in New Jersey. Thus, it is at the very
least arguable that Officer Cooper knew or should have known that claimant was not
violating the vehicle for hire law, that the officer had no reasonable basis for seizing
claimant's vehicle, and that the officer's actions were inconsistent with acceptable TLC
practice and procedure.
Defendant has not moved to dismiss on the grounds that this action should
be commenced as an Article 78 proceeding. Here, claimant is not seeking to challenge
the administrative hearing determination, which found him not guilty, but is seeking to
recover consequential damages for the improper seizure and loss of use of his vehicle.
This would appear, at least on first blush, to state a claim for common law conversion or
negligence.
For the foregoing reasons, defendant's motion to dismiss is denied and the
matter shall proceed to trial in the Small Claims Part on August 13, 2015 at
6:30pm. This constitutes the decision and order of the court.
Dated: 7/13/15
Hon. Devin P. Cohen, AJSC