Supreme Court, New York County, May 3, 2018

Carl Jensen, petitioner pro se.

Zachary W. Carter, Corporation Counsel, New York City, for respondent.

The petition seeking to dismiss three traffic tickets issued by respondent is granted only to the extent that the matter is remanded in accordance with the following decision.

Background

This proceeding arises out of tickets issued to petitioner for his car traveling in a bus lane in the Bronx on March 13, March 29 and April 5, 2017. No ticket was written by a person; rather, the tickets were based on a traffic camera's picture. A driver is permitted to enter a bus lane while approaching an intersection as long as he or she makes a right turn. Respondent contends that petitioner did not make a turn and simply continued through the intersection on each occasion. Petitioner contends that at the hearing he was not provided with an opportunity to cross-examine the "photograph expert" and had no chance to question the photographs anywhere during the process.

Discussion

In a CPLR article 78 proceeding, "the issue is whether the action taken had a rational basis and was not arbitrary and capricious" (Matter of Ward v City of Long Beach, 20 NY3d 1042, 1043 [2013] [internal quotation marks and citation omitted]). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (id.). "If the determination [*2]has a rational basis, it will be sustained, even if a different result would not be unreasonable" (id.). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]).

"In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses" (Goldberg v Kelly, 397 US 254, 269 [1970]). "The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner" (Mathews v Eldridge, 424 US 319, 333 [1976]).

Here, the question is whether petitioner was provided with the requisite due process. With respect to each ticket, respondent{**60 Misc 3d at 515} contends that it submitted video and picture evidence for each violation and that the Administrative Law Judges (ALJ), after each hearing, found that petitioner was illegally driving in the bus lane (there was a separate hearing for each notice of violation).

However, there is no indication in respondent's answer or in the ALJs' decisions that respondent offered any witnesses. For instance, in one of the ALJ's decisions, the ALJ concluded that "[petitioner] testifies that they were not in the bus lane at the time of the violation. A review of city records shows clear, video images that said vehicle was in fact in a bus lane, contrary to [petitioner's] assertion. Violation sustained" (answer, exhibit Q). The three decisions make no mention of a witness for respondent testifying at the hearing. From the record before this court, the only possible inference is that only petitioner testified at the hearings and the ALJs simply accepted the records submitted by respondent as true.

This is a unique situation because it involves the issuance of a ticket by a traffic camera rather than from an officer. If an officer were, for instance, to give a driver a ticket for running a red light, then that officer has to show up at the hearing. In fact, the Vehicle and Traffic Law provides that a hearing officer can dismiss a ticket if the officer does not show up for the hearing (see Vehicle and Traffic Law § 227 [2]). The notices of violation issued to petitioner do not list any specific person who issued the ticket (see e.g. exhibit B). The notice also gives the purported violator three options to contest the ticket: an online hearing, a hearing by mail and an in-person hearing (this is what petitioner chose).

In the answer, respondent points to Vehicle and Traffic Law § 1111-c which provides procedures for notices of liability arising out of the issuance of a bus lane ticket. This section also states that contested tickets are handled by the Parking Violations Bureau. Vehicle and Traffic Law § 1111-c (d) provides that

"[a] certificate, sworn to or affirmed by a technician employed by the city in which the charged violation occurred, or a facsimile there-of, based upon inspection of photographs, microphotographs, videotape or other recorded images produced by a bus lane photo device, shall be prima facie evidence of the facts contained therein. Any photographs, microphotographs, videotape or other recorded images evidencing such a violation shall be available for{**60 Misc 3d at 516} inspection in any proceeding to adjudicate the liability for such violation pursuant to this section."

Respondent also points out that the rules of evidence do not apply at hearings challenging the type of ticket issued to petitioner and that the ticket constitutes "prima facie evidence of the statements contained therein" (19 RCNY 39-08 [f] [1], [4]).

But the rules and laws cited by respondent do not necessarily permit the agency issuing the ticket to simply send a stack of documents, images and videos instead of a person to an in-person hearing. Documents cannot be cross-examined. Documents do not have a demeanor for the trier of fact to evaluate. Documents cannot correct themselves if there is a misrepresentation or answer any questions.

Not having a person testify leaves the ALJ, who is tasked with making findings of fact and evaluating the credibility of the witnesses, to evaluate respondent's evidence on its own without anyone to offer context or answer objections raised by petitioner. And because there is no live witness testifying in support of respondent, the ALJ is the only person in the room to ask questions or to cross-examine petitioner about the incident. How can the ALJ make credibility findings when only one side is present? How can petitioner poke holes in respondent's proof when there are only documents? How can petitioner argue with documents that the ALJ has already deemed unquestionable? Without a doubt, the appearance is that the ALJ is on the agency's side and the alleged offender has no meaningful opportunity to contest the ticket because the ALJ acts as both the trier of fact and as the prosecutor. That the agency does not even bother to have a live witness, that the ALJ cross-examines the petitioner for the agency and no one cross-examines the agency constitutes a lack of due process.

Of course, this court has no issue with the use of traffic cameras to issue tickets—the court is only concerned that drivers might face tickets and not have a legitimate chance to challenge the accuracy of that ticket. The principles of due process cannot be satisfied if the ALJ simply accepts respondent's stack of documents (including pictures and videos) and the person receiving the ticket cannot question anyone about the taking of the photos and videos.

Because petitioner admitted in reply that he was driving in the bus lane for the first ticket (on Mar. 13, 2017), the court finds that petitioner is entitled to a hearing on the subsequent{**60 Misc 3d at 517} two tickets because he was not afforded due process. At that hearing, respondent must produce a live person to speak about respondent's evidence and to submit to cross-examination. The person must be knowledgeable about petitioner's case and about how these traffic cameras work. The most obvious choice would be the technicians who submitted certificates (see exhibits C, E, G). In each certificate, the technician states that "[i]n each of the images that I approved, the photographed vehicle, stood, parked, or entered the bus only lane during restricted hours and did not make an immediate right hand turn." There is no reason why that person cannot attend an in-person hearing to support the issuance of each particular ticket and then perhaps clarify whether this particular vehicle at this particular time was standing in the bus lane, parked in the bus lane, entered the bus lane or something else.

Accordingly, it is hereby ordered and adjudged that the petition is granted only to the extent that this proceeding is remanded to respondent so that hearings can be conducted for the tickets issued on March 29, 2017, and April 5, 2017, in accordance with this decision and denied to the extent that petitioner seeks to dismiss the first ticket issued on March 13, 2017.