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April 12, 1985

Janice DeYoung, together with all others similarly situated, Plaintiffs,
The City of New York and Albert Rosario, Defendant

The opinion of the court was delivered by: CONNER


WILLIAM C. CONNER, District Judge.

 Plaintiff Janice DeYoung ("DeYoung"), a disgruntled victim of New York City's parking enforcement authorities, seeks a vindicate a variety of constitutional rights allegedly violated by the City in connection with its improper towing and impounding of her car. Pursuant to 42 U.S.C. § 1983, *fn1" she has sued the City and Albert Rosario, the traffic enforcement officer who ticketed her car, on behalf of herself and all other similarly situated. She alleges, first, that she sustained monetary damages and emotional injuries after Rosario either intentionally or negligently ticketed her legally parked car; the car was subsequently towed. According to plaintiff, this "seizure" amounted to a violation of her Fourth Amendment and due process rights. Moreover, DeYoung asserts that the City's policies with respect to parking violations are unconstitutional in that prior to any adjudication of the parking violation, they condition release of an impounded vehicle upon payment of all towing and storage fees, and they do not permit the alleged parking violator to post a bond in lieu of full payment. Plaintiff also challenges the constitutionality of the City's "policy of not advising plaintiffs who are found not guilty of parking violations that they have an absolute right to recover their towing and storage charges," Compl. at P 26, and of requiring individuals to execute a form containing a waiver of liability claims against the City before recovering those charges.

 The matter in now before the Court on defendants' motion for summary judgment. Defendants assert: (1) that the complaint states no cause of action under the Fourth Amendment; (2) that DeYoung was accorded all the process she was due under the Fourteenth Amendment; (3) that the City may constitutionally require payment of charges prior to an adjudication of guilty and need not accept a bond in lieu of payment; (4) that there is no policy of not advising individuals of their right to a refund and that, in any event, plaintiff would lack standing to challenge any such policy; and (5) that the City may constitutionally require plaintiff to execute the release in question before obtaining a refund. For the reasons set forth below, defendants' motion for summary judgment is granted with respect to the due process claims. The Court reserves judgment on the Fourth Amendment claim, however, pending additional briefing.


 For purposes of this motion, the following undisputed facts are relevant. On May 20, 1983, Rosario issued a summons to DeYoung for parking a rented car illegally on a Manhattan street. The car was towed and impounded. The next day, plaintiff redeemed to vehicle by paying $80,00 in towing and storage fees. In accordance with City policy, parking authorities would not permit her to post a bond for a lesser amount in lieu of payment.

 DeYoung contested the illegal parking charge at a hearing on July 27, 1983. After testifying and presenting evidence, she was found not guilty of the offense. Several weeks later, she telephoned the New York City Parking Violations Bureau to inquire about recovering the towing and storage charges. The Bureau advised her that she could seek a refund and sent her a "Request for Refund" form. She did not file for a refund, however, because the form contained a waiver provision which she construed as foreclosing any future claim for damages resulting from the improper towing. DeYoung has not yet filed the form and thus has not claimed her refund.


 The parties agree that the Supreme Court's decisions in Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) and Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) effectively foreclose aggrieved persons from filing § 1983 due process claims in order to remedy negligent and intentional deprivations of property by the State, where the acts complained of are random or unauthorized and where there are adequate post-deprivation state tort remedies. These holdings are based upon the Court's conclusion that "in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation." Parratt, 527 U.S. at 541; Hudson, 104 S. Ct. at 3203. Defendants argue that Parratt and Hudson dispose of any constitutional claim based upon the initial seizure of plaintiff's car.

 Plaintiff, on the other hand, asserts that these authorities are inapposite for two reasons: (1) Rosario's act of ticketing the car was neither random nor unauthorized, but was, instead, accomplished "pursuant to an established state procedure, codified in the New York State Vehicle and Traffic law and carried out through the ordinary procedures of the Department of Transportation and the Parking Violations Bureau"; and (2) the towing amounted to a violation of plaintiff's substantive Fourth Amendment rights, which are not subject to the restrictions placed on procedural due process claims by the Supreme Court in Parratt and Hudson. P1.Mem. at p.6.

 Those constitutional claims arising out of the initial seizure of DeYoung's car rest on her contention that the vehicle was, in fact, legally parked. While plaintiff suggests that the car was ticketed and towed "pursuant to established state procedure," she does not actually contend that the City has a policy of authorizing or encouraging the towing of legally parked cars. Regardless of whether Rosario negligently or intentionally ticketed DeYoung's car, his activity resulted in a random, unauthorized deprivation of plaintiff's property, which is actionable under state law. Under these circumstances, the holdings of Parratt and Hudson mandate summary judgment in defendants' favor on this due process claim. *fn2"

 With respect to plaintiff's second contention, I note the parties agree that Parratt and Hudson do not apply to charges that state officials have violated substantive constitutional rights; they disagree as to whether plaintiff's complaint states a Fourth Amendment claim. Defendants assert, first, that the complaint fails to mention the Fourth Amendment as a basis for liability, and that the Court should not permit her to change the nature of her claim so as to avoid summary judgment. Defendants are correct that the complaint does not refer to the Fourth Amendment; it does mention the Fourteenth Amendment, however, and because the latter provision secures Fourth Amendment rights against state intrusion, the Court will not foreclose plaintiff from pursuing this claim.

 The City argues, alternatively, that the Fourth Amendment protects only against governmental intrusions which contravene an individual's reasonable expectation of privacy, and that plaintiff had no such expectation here because she parked her car on a public street. Def.Reply Mem. at 56. While the City's argument carries some appeal, I am not convinced that the Fourth Amendment claim can be disposed of so easily. The allegations of the complaint amount to an assertion that the vehicle was ticketed and subsequently "seized" without probable cause. In order to grant summary judgment on this claim, I would have to conclude that state officials who seize property without a warrant and without probable cause violate no rights secured by the Fourth Amendment if that property is located in public view. I am unprepared to make such a ruling on the basis of the authorities thus far presented. The Court will therefore reserve judgment on defendants' motion insofar as it seeks to defeat a Fourth Amendment claim, pending further submissions on these limited questions: (1) whether Rosario had probable cause to ticket plaintiff's car; and (2) whether, assuming there was no probable cause, the public location of the vehicle defeated any fourth Amendment right DeYoung might otherwise have possessed.

 Plaintiff next attacks the City's requirement that an individual seeks to redeem his vehicle before any adjudication of the merits of the parking violation pay towing and storage charges in full. Towing and storage charges are refundable upon a determination that the vehicle was improperly ticketed, but to the extent there is any delay in the ...

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