Supreme Court, New York County, September 20, 2017

Edelstein & Grossman, New York City (Jonathan Edelstein of counsel), and Glass Krakower LLP, New York City (Bryan D. Glass of counsel), for petitioners.

Zachary W. Carter, Corporation Counsel, New York City (Kerri Devine and Amy Weinblatt of counsel), for respondents.

Petitioners Sysco Metro NY, LLC, which owns and operates a fleet of vehicles in New York City, and Parking Survival Experts (PSE), which appears on Sysco Metro's behalf at hearings on traffic summonses issued to Sysco Metro, bring this hybrid proceeding pursuant to CPLR article 78 and class action to vacate parking summonses issued by respondent City of New York. Petitioners seek to vacate over 1,000 parking summonses issued to Sysco Metro alone.

I. Undisputed Background Facts

Respondent City issued 1,019 summonses to Sysco Metro's tractors, alleging violations of the Vehicle and Traffic Law and regulations under the Vehicle and Traffic Law, that petitioners contend misdescribed the offending tractors' body type. Each of these "body type" summonses listed the body type not as a "tractor," but as a "truck," a "DELV," or another notation. PSE contested the summonses before respondent New York City Department of Finance Commercial Adjudications Unit (CAU) on Sysco Metro's behalf, claiming the summonses misdescribed the tractors' body type in violation of Vehicle and Traffic Law § 238 (2). PSE produced evidence showing each vehicle was a tractor and not a "truck" or another delivery vehicle. CAU administrative law judges rejected petitioners' claim, found Sysco Metro guilty, and imposed fines for each summons. Petitioners appealed to the CAU Appeal Board, which affirmed each finding.

Respondent City also issued to Sysco Metro 367 "lift gate" summonses alleging that its tractors violated 34 RCNY 4-08 (k) (7), which prohibits a commercial vehicle from parking on a street with the vehicle's lift gate down while the vehicle is unattended. Each summons, however, lists the license plate and state of the tractor, which has no lift gate, but which pulls a trailer housing the lift gate. Many of these summonses also do not list the offending tractor's body type as "tractor." PSE contested these lift gate summonses as well, claiming that they misdescribed the offending vehicle's license plate and state in violation of Vehicle and Traffic Law § 238 (2). Petitioners contend that the statute requires the summonses to list the license plate and state of the trailer that houses the offending lift gates, not the tractor pulling the trailer. PSE produced evidence showing each license plate listed was affixed to a tractor and that each tractor did not have a lift gate. CAU administrative{**59 Misc 3d at 730} law judges rejected petitioners' claim and found Sysco Metro guilty, followed by the CAU Appeal Board's affirmance of the finding for each summons.

This proceeding and class action now seeks to vacate the CAU's determinations finding petitioner Sysco Metro guilty of violations on 1,019 "body type" summonses and 387 "lift gate" summonses and to recover all fines Sysco Metro paid for these violations. Petitioners seek a declaratory judgment that respondents' failure to use the body type notation "tractor" on summonses issued to tractors and issuance of summonses for lift gate violations to tractors instead of trailers violate Vehicle and Traffic Law § 238 (2). (CPLR 3001.) Petitioners further seek to enjoin respondents (1) from adjudicating guilt of violations on any future summonses issued to tractors that do not describe the "body type" as "tractor" or are for "lift gate" violations, (2) to dismiss all such summonses currently before the CAU, and (3) to vacate all previous adjudications of guilt of violations on such summonses. The parties have stipulated to discontinue the proceeding against respondent Jiha in his individual capacity. (CPLR 3217 [a] [2].)

II. PSE's Standing

[1] Respondents claim that PSE's appearance on Sysco Metro's behalf at CAU administrative hearings does not give PSE standing to challenge respondents' actions. To challenge respondents' actions, PSE must show that it has suffered an injury in fact and that the injury falls within the zone of interests protected by the laws under which petitioners claim relief. (Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579, 587 [1998]; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-774 [1991]; Roberts v Health & Hosps. Corp., 87 AD3d 311, 318-319 [1st Dept 2011]; Matter of Citizens Emergency Comm. to Preserve Preserv. v Tierney, 70 AD3d 576, 576 [1st Dept 2010].) To show an injury in fact, PSE must delineate how respondents' actions actually harmed it and how the injury suffered is personal and distinct from injury to the general public. (Roberts v Health & Hosps. Corp., 87 AD3d at 318.)

Because PSE has not shown that it suffered any injury from respondents' administrative actions, PSE lacks standing to challenge them. PSE's appearance on Sysco Metro's behalf at the administrative hearings and PSE's representation of other parties in similar administrative hearings shows an interest in respondents' adjudication of the summonses issued to Sysco{**59 Misc 3d at 731} Metro, but not an actual injury, and therefore does not confer standing. (Citizens Emergency Comm. to Preserve Preserv. v Tierney, 70 AD3d at 576; see Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d at 587; Society of Plastics Indus. v County of Suffolk, 77 NY2d at [*3]778; Roberts v Health & Hosps. Corp., 87 AD3d at 319.)

Nor does PSE show any injury within the zone of interests protected by the statutes and regulations under which respondents acted, as respondents' issuance of summonses for parking infractions affects only PSE's representation of its clients, without any direct effect on PSE itself. (Roberts v Health & Hosps. Corp., 87 AD3d at 319.) Therefore the court dismisses PSE's claims against respondents.

III. Sysco Metro's Claims

A. Applicable Standards

Vehicle and Traffic Law §§ 235-237 and Administrative Code of City of NY §§ 19-201 and 19-203 create a "parking violations bureau," now known as the CAU, to accept pleas to parking violations and to hear and determine guilt of charges of parking violations. The CAU is part of the Department of Finance and includes administrative law judges appointed by Commissioner Jiha who hold these hearings. (Administrative Code § 19-202.)

The court may overturn the CAU's determinations only if they were arbitrary, lacked a rational basis in the administrative record, or lacked a basis in law. (CPLR 7803 [3]; Matter of Rossi v New York City Dept. of Parks & Recreation, 127 AD3d 463, 467 [1st Dept 2015]; Matter of Nestle Waters N. Am., Inc. v City of New York, 121 AD3d 124, 127 [1st Dept 2014]; Matter of 20 Fifth Ave., LLC v New York State Div. of Hous. & Community Renewal, 109 AD3d 159, 163 [1st Dept 2013]; Matter of Langham Mansions, LLC v New York State Div. of Hous. & Community Renewal, 76 AD3d 855, 857 [1st Dept 2010]; see Matter of London Terrace Gardens L.P. v New York State Div. of Hous. & Community Renewal, 149 AD3d 521, 521 [1st Dept 2017].) The CAU's interpretation of the regulations and statutes governing parking, stopping, and standing of motor vehicles that the CAU is charged with enforcing (Administrative Code § 19-201) is entitled to deference as long as that interpretation is rational and consistent with governing law. (Barenboim v Starbucks Corp., 21 NY3d 460, 470-471 [2013]; Matter of Chesterfield Assoc. v New York State Dept. of Labor, 4 NY3d 597, 604 [2005]; Nestle Waters N. Am., Inc. v City of New {**59 Misc 3d at 732}York, 121 AD3d at 127; see Matter of Murphy v New York State Div. of Hous. & Community Renewal, 21 NY3d 649, 654-655 [2013]; Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State Dept. of Envtl. Conservation, 14 NY3d 161, 176-177 [2010]; Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 285-286 [2009].) Although the court need not defer to the CAU's expertise or interpretation when discerning the plain meaning of a statute or regulation (Roberts v Tishman Speyer Props., L.P., 13 NY3d at 285-286; Matter of ATM One v Landaverde, 2 NY3d 472, 476-477 [2004]; Associated Mut. Ins. Coop. v 198, LLC, 78 AD3d 597, 598 [1st Dept 2010]; Matter of Smith v Donovan, 61 AD3d 505, 508-509 [1st Dept 2009]), when the terms of the statute or regulation are ambiguous and susceptible to conflicting interpretations, the court will accord deference to the CAU's interpretation and uphold it as long as it is reasonable. (Matter of Golf v New York State Dept. of Social Servs., 91 NY2d 656, 667 [1998]; Matter of Chin v New York City Bd. of Stds. & Appeals, 97 AD3d 485, 487 [1st Dept 2012]; Matter of Espada 2001 v New York City Campaign Fin. Bd., 59 AD3d 57, 64 [1st Dept 2008].)

Vehicle and Traffic Law § 238 (2) requires that

"[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 . . . shall be inserted therein." (Emphases added.)

Vehicle and Traffic Law § 238 (2-a) (b) provides that "[i]f 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." The parties agree that their use of the term "summonses" refers to notices of violations as used in Vehicle and Traffic Law § 238. Section 238 requires strict compliance with the statutory mandate that any misdescription or omission of any prescribed identification element in a notice of violation will lead to dismissal of that violation. (Matter of Wheels, Inc. v Parking Violations Bur. of Dept. of Transp. of City of N.Y., 80 NY2d 1014, 1016 [1992]; Matter of Ryder Truck Rental v Parking Violations Bur. of Transp. Admin. of City of N.Y., 62 NY2d 667, 669-670 [1984]; Nestle Waters N. Am., Inc. v City of New York, 121 AD3d at 129.){**59 Misc 3d at 733}

Vehicle and Traffic Law § 125 defines "Motor vehicle[ ]" as: "[e]very vehicle operated or driven upon a public highway that is propelled by any power other than muscular power." Vehicle and Traffic Law § 158 defines "Truck" as: "Every motor vehicle designed, used, or maintained primarily for the transportation of property." Vehicle and Traffic Law § 151-a defines "Tractor" as:

"A motor vehicle designed and used as the power unit in combination with a semitrailer or trailer, or two such trailers in tandem. Any such motor vehicle shall not carry cargo except that a tractor and semitrailer engaged in the transportation of automobiles may transport motor vehicles on part of the power unit."

Vehicle and Traffic Law § 156 defines "Trailer" as: "Any vehicle not propelled by its own power drawn on the public highways by a motor vehicle as defined in section one hundred twenty-five."

B. The "Lift Gate" Summonses

[2] The CAU's determinations affirming the 367 "lift gate" summonses were not arbitrary or contrary to law. Vehicle and Traffic Law § 238 (2) requires a notice of a violation to be served on the operator of a "motor vehicle" and to include license plate information, body type, make, and model of "said vehicle." "Said vehicle" refers back to the statute's previous use of the term "motor vehicle," thus requiring the notice to include license plate, body type, make, and model information of the operator's "motor vehicle." The Vehicle and Traffic Law distinctly defines a "tractor" as a motor vehicle and a "trailer" as only a "vehicle." (Vehicle and Traffic Law §§ 151-a, 156.) Vehicle and Traffic Law § 156's omission of "motor" to modify "vehicle" evinces the legislature's intent that a "trailer" is not a "motor vehicle" under the Vehicle and Traffic Law, so that treating a trailer as a motor vehicle under the Vehicle and Traffic Law ignores section 156's plain text and impermissibly renders superfluous section 238 (2)'s use of the modifier "motor" where it is intended to apply. (See Kimmel v State of New York, 29 NY3d 386, 392 [2017]; Matter of Manouel v Board of Assessors, 25 NY3d 46, 50 [2015]; Gammons v City of New York, 24 NY3d 562, 570 [2014]; Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55, 60 [2013].)

Consequently, the CAU's interpretation of Vehicle and Traffic Law § 238 (2) to allow a notice of violation to describe the{**59 Misc 3d at 734} characteristics of the tractor and not the trailer housing the lift gate is rational, with a sound basis in the law, as a tractor is a "motor vehicle" under the Vehicle and Traffic Law, while a trailer is not. Even if Vehicle and Traffic Law § 238 (2) were susceptible of another interpretation, such as the one petitioners advocate, the two conflicting interpretations regarding whether the provision applies to trailers would require the court to give the CAU's interpretation deference and uphold its reasonable interpretation. (Golf v New York State Dept. of Social Servs., 91 NY2d at 667; Chin v New York City Bd. of Stds. & Appeals, 97 AD3d at 487; Espada 2001 v New York City Campaign Fin. Bd., 59 AD3d at 64.)

C. The "Body Type" Summonses

[3] The CAU's determinations that the 1,019 "body type" summonses did not misdescribe the subject tractors' body types in violation of Vehicle and Traffic Law § 238 (2) are inconsistent with the Vehicle and Traffic Law and thus arbitrary. Neither of the Vehicle and Traffic Law's separate definitions of "truck" and "tractor" allows a "tractor" to fall under the definition of a "truck." (Vehicle and Traffic Law §§ 151-a, 158.) Multiple provisions of the Vehicle and Traffic Law treat "truck" and "tractor" as distinct vehicles, including Vehicle and Traffic Law § 401 (7) (B), which sets one registration fee for trucks and "light" delivery vehicles and another for tractors, and Vehicle and Traffic Law § 501 (2) (a) (iv), which expressly excludes tractors from license classes permitting operation of trucks, as well as Vehicle and Traffic Law §§ 603 (1); 605, 1683 (a) (7) and 1800. The CAU's determination that a "tractor" may be accurately described as a "truck" and its use of the terms interchangeably, when the Vehicle and Traffic Law repeatedly distinguishes the two terms, is thus unsupported by and contrary to the Vehicle and Traffic Law and arbitrary.

The CAU's deviation from strict compliance with Vehicle and Traffic Law § 238 (2) extends beyond the deviation overturned in Nestle Waters N. Am., Inc. v City of New York (121 AD3d at 129.) There the Court dismissed respondent City of New York's parking summonses because the [*4]notices of violation described trucks' license plates as "IRP" when the plates actually were labeled "apportioned." (Id. at 125.) The Court recognized that the New York City Parking Violations Bureau used "IRP" and "APPORTIONED" interchangeably, but the use of "IRP" in place of "APPORTIONED" was still a misdescription that violated Vehicle and Traffic Law § 238 (2)'s requirements (id.{**59 Misc 3d at 735} at 129), because the statute mandates strict compliance and does not allow for "administrative expedience." (Id. at 130.)

Here, petitioners presented evidence to the CAU that respondent City issued summonses to tractors that list the body type as "TRAC," short for "tractor" (verified petition, exhibit E-1, at 6), and thus that respondents' own internal systems separate trucks and delivery vehicles from tractors, yet respondent City's agents arbitrarily used "truck," "DELV," and "TRAC" interchangeably. Strict compliance with Vehicle and Traffic Law § 238 required the City's agents to describe Sysco Metro tractors' body type accurately as "TRAC." Respondents' acquiescence in the use of "truck" and "DELV" on summonses issued to tractors thus allowed a misdescription that mandates dismissal of the summonses. (Vehicle and Traffic Law § 238 [2-a] [b]; Wheels, Inc. v Parking Violations Bur. of Dept. of Transp. of City of N.Y., 80 NY2d at 1016; Ryder Truck Rental v Parking Violations Bur. of Transp. Admin. of City of N.Y., 62 NY2d at 669-670; Nestle Waters N. Am., Inc. v City of New York, 121 AD3d at 130.) Therefore the CAU's affirmances of Sysco Metro's guilt of the violations on these summonses are arbitrary, are contrary to the Vehicle and Traffic Law, and must be vacated.

IV. Conclusion

For the reasons explained above, the court grants the petition to the following extent. (CPLR 409 [b]; 7803 [3]; 7806.) The court vacates the CAU's determinations finding petitioner Sysco Metro guilty of the violations on the 1,019 summonses that misdescribe the offending tractors' body type as anything other than "TRAC" or "tractor" and dismisses all those summonses. Respondents shall remit all fines petitioner Sysco Metro paid for these 1,019 violations and are enjoined from finding Sysco Metro guilty of the violations on any future summonses issued to tractors that misdescribe the tractor's body type as anything other than "TRAC" or "tractor." The court otherwise denies the petition and dismisses its other claims for relief, including petitioner Parking Survival Experts' claims and all claims against respondent Jiha individually. (CPLR 409 [b]; 3217 [a] [2]; 7803 [3]; 7806.)