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MATTER TRAVEL HOUSE BUFFALO v. EDWARD A. GRZECHOWIAK (12/05/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 1968.NY.43751 <http://www.versuslaw.com>; 296 N.Y.S.2d 689; 31 A.D.2d 74 December 5, 1968 IN THE MATTER OF TRAVEL HOUSE OF BUFFALO, INC., APPELLANT,v.EDWARD A. GRZECHOWIAK, CITY OF BUFFALO DIRECTOR OF LICENSES, ET AL., RESPONDENTS Appeal (1) from a judgment of the Supreme Court (William B. Lawless, J.), entered May 1, 1967 in Erie County, dismissing a petition for a judgment pursuant to CPLR article 78 directing respondent Director of Licenses to annul certain taxicab licenses and (2) from an order of said court entered May 24, 1967 in said county, which denied a motion to set aside said judgment. Hodgson, Russ, Andrews, Woods & Goodyear (Victor T. Fuzak of counsel), for Travel House of Buffalo, Inc., appellant. Anthony Manguso, Corporation Counsel, for Edward A. Grzechowiak, respondent. Raichle, Moore, Banning & Weiss (James O. Moore, Jr., of counsel), for Van Dyke Taxi & Transfer Co., Inc., respondent. Charles J. McDonough for Madison Taxi of Buffalo, Inc., respondent. Robert P. Freedman for City Service Taxicab of Buffalo, Inc., respondent. John J. Olszewski, petitioner in person. Del Vecchio, J. Bastow, P. J., and Witmer, J., concur with Del Vecchio, J.; Henry, J., concurs in all respects except that he dissents from that part of the opinion which says that the Director of Licenses should act upon petitioner's application for unissued licenses as though filed for 1969. Williams, J., dissents, and votes to affirm the judgment as to all the parties involved. Author: Del Vecchio


Appeal (1) from a judgment of the Supreme Court (William B. Lawless, J.), entered May 1, 1967 in Erie County, dismissing a petition for a judgment pursuant to CPLR article 78 directing respondent Director of Licenses to annul certain taxicab licenses and (2) from an order of said court entered May 24, 1967 in said county, which denied a motion to set aside said judgment.

Del Vecchio, J. Bastow, P. J., and Witmer, J., concur with Del Vecchio, J.; Henry, J., concurs in all respects except that he dissents from that part of the opinion which says that the Director of Licenses should act upon petitioner's application for unissued licenses as though filed for 1969. Williams, J., dissents, and votes to affirm the judgment as to all the parties involved.

Author: Del Vecchio

 This is an appeal from a judgment dismissing the petition in an article 78 proceeding by which petitioner sought to annul the action of respondent City of Buffalo Director of Licenses in renewing certain taxicab licenses for the year 1965 and to compel him to accept and act upon applications for such licenses filed by petitioner. Appeal is also taken from an order denying petitioner's motion to set aside the judgment.

In 1930 the City of Buffalo, recognizing that the taxicab business was a matter of public concern and interest, adopted ordinances regulating such business within the city. Section 302 thereof provided:

"License required -- application for license -- conditions governing. No person shall use any motor vehicle in the conduct of a taxicab business unless a license therefor issued by the director of licenses is in full force and effect.

"No taxicab shall be licensed unless the same is equipped with a taximeter of approved design and in good working order.

"Application for such license shall be made to the director of licenses by the owner, in writing, duly sworn to, upon forms to be furnished by said director, and shall show the owner's name and address, the motor number and make of the vehicle, the year manufactured, the New York state license number attached thereto, the size of the tires used, and the make, type and number or other descriptive designation of the taximeter, together with an accurate and complete statement of the color of said taxicab, and if more than one color, a description of the color design thereof. The director of licenses may require such further information as he deems necessary.

"The director of licenses shall cause the motor vehicle described in the application to be inspected and the taximeter attached thereto to be tested. If the motor vehicle is found to be clean and in proper condition for the safe transportation of passengers, and the taximeter attached thereto upon test is found to register correctly, the director of licenses shall issue a license for such vehicle and the taximeter attached thereto shall be sealed. The director of licenses shall securely affix to such licensed taxicab on the outside thereof at the rear of the taxicab, in a conspicuous place, a metal plate, showing the number assigned to such taxicab." (Emphasis supplied.) The following sections of the ordinance are also relevant to the present case:

"§ 303. Renewal -- surrender of license. The holder of a taxicab license now in force shall be permitted to renew the same annually, providing all ordinance provisions relating thereto are complied with, and the application for such renewal is filed with the director of licenses not later than February 15th of each year. * * *

"In case of the disuse for taxicab purposes of any licensed taxicab the holder of the taxicab license may have the same transferred to another vehicle, with the approval of the director of licenses and the payment of a transfer fee of five dollars ($5.00)."

"§ 305. Assignment prohibited -- license fee. * * * No taxicab license shall be assigned from one person to another, and no plate attached to a taxicab by the director of licenses shall be transferred from one vehicle to another except as otherwise herein permitted. * * *"

"§ 306. Taximeters. * * * It shall be unlawful to change the size of the front wheels or tires of a taxicab or the gears operating the taximeter, or to change said instrument from one vehicle to another without a reinspection and approval of the director of licenses." (Emphasis supplied.)

In 1964 the Director of Licenses had issued 212 licenses for the operation of taxicabs by fleet operators (the total number authorized by the ordinance) to respondent licensees as follows: 122 to Van Dyke Taxi & Transfer Co., Inc., 35 to Madison Taxi of Buffalo, Inc., and 55 to City Service Taxi of Buffalo, Inc. In January, 1965 petitioner Travel House of Buffalo, Inc. and intervenor-petitioner John J. Olszewski paid a fee to register their names with the Director of Licenses for the purpose of being considered for fleet licenses in the event that any should become available through abandonment, surrender or revocation. About the same time, the three named fleet operator-licensees filed applications for renewal of the licenses then held by them. Because of complaints filed with the Director charging that Van Dyke had discontinued use and operation of 60 licensed vehicles in May or June, 1964 he withheld issuance of 60 renewal licenses to Van Dyke pending an investigation, among other things, as to why it had transferred 60 licenses to new taxicabs without filing applications for the transfers, without payment of the required transfer fees, and without inspection. Mr. Downey, president of Van Dyke, appeared before the Director and presented both oral and written statements to the effect that during the 25 years he had been with Van Dyke he had never heard of a $5 fee for car-to-car transfers of taxicab licenses; that the company had never paid any such fee; that it had never made application to the Director for permission to make transfers of licenses during the year; and that the custom and practice in relation to approving the transfer of licenses from an old licensed vehicle to a new vehicle was to wait until the licenses expired in January of each year and not to collect or request a transfer fee in addition to the regular fee. Representatives of Madison and City Service also appeared before the Director and gave similar statements to the effect that fleet operators had never paid $5 transfer fees and had not applied for permission to transfer licenses from one taxicab to another during the year. An Assistant Director of Licenses and an Assistant Corporation Counsel of the City of Buffalo substantiated the statements of the fleet operators as to non-enforcement of the transfer requirements.

Relying upon all of the foregoing, respondent Director renewed the 60 licenses of Van Dyke which had been ...


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