356 N.Y.S.2d 833, 313 N.E.2d 321 (N.Y. 1974). However, New York's Article 78 has a well-developed and distinguished history as a leader in assuring meaningful review of administrative agency decisions. One of the principles that the New York Court of Appeals has enunciated within the folds of Article 78 is a robust form of equal protection, namely that administrative agencies must treat similarly situated applicants consistently. Thus, in Matter of Field Delivery Serv. Inc., 66 N.Y.2d 516, 520, 498 N.Y.S.2d 111, 488 N.E.2d 1223 (N.Y. 1985) (Meyer, J.) (hereinafter Field), the court wrote: "Absent . . . an explanation, failure to conform to agency precedent will . . . require reversal on the law as arbitrary, even though there is in the record substantial evidence to support the determination made."
In Field, the New York Court of Appeals found that the jurisprudential and policy rationales for demanding consistency in judicial decisions likewise applied to agency determinations: "to provide guidance for those governed by the determination made; to deal impartially with litigants; promote stability in the law; allow for efficient use of the adjudicatory process; and to maintain the appearance of justice." Field at 519 (citations omitted). Inconsistent determinations compromise these precepts and erode the credibility of agency decisionmaking. A meaningful and searching Article 78 review, therefore, requires inquiry into precedent to ensure that those similarly situated receive similar treatment.
Here, because the waiver evaluation process was not public, a method was fashioned for comparing the administrative files of plaintiffs with those of carters whose waiver applications the Commission had granted. Plaintiffs were furnished copies of the waiver applications of these ten carters. Unlike those instances where there was a denial of waivers, some 148 in toto,
the Commission did not prepare written reports giving reasons for the granting of waivers; it merely announced the 55 carters at the meeting on January 17. Clearly the absence of written reports stating the reasons for granting waivers renders case comparison more difficult than it would have been had such documents existed. More importantly, it substantially increased the risk of unintentional disparate treatment. And, indeed, the complications that arose in the course of this limited inquiry bespeak the necessity for a more comprehensive comparative review of the Commission's decisions.
As a result of this comparison group analysis, the Commission has revisited the files of no fewer than four carters. The Commission reopened the Brown file to determine whether Morris Napolitano, Sr. was, in fact, a director of an indicted trade waste association. While the Commission was not aware of Mr. Napolitano's alleged directorship because he did not indicate on his submission that he held this position and it cannot be charged with inconsistency with respect to this submission, the end result from the plaintiffs' perspective is the same - disparate treatment. The Commission revisited the Meeker file in order to place on the record that Meeker had, in fact, been denied waivers despite the mistaken public announcement on January 11 that such waivers had been granted. See Vignola Supp. Decl. dated 5/6/97 PP 5-6 & n.4. Even assuming that the Meeker snafu was attributable solely to a clerical error, this episode also indicates a need for a more complete review in order to inspire public and a court's confidence in the Commission's waiver determination process. Hollywood's file was reopened because plaintiff's lawyer made allegations "concerning Hollywood and its truthfulness on its waiver application and other information obtained by the Commission's staff." Ltr. to Ct. from Vignola dated 5/15/97. The particulars of these allegations are not part of the record, but the Commission's resultant reluctance to include Hollywood in the comparison group suggests that such inclusion would have worked to the perceived advantage of plaintiffs and disadvantage of defendants. Finally, and frankly, most disturbingly, the Commission is now reopening the file of Argento after discovering upon reexamination of its DCA violation history a fine resulting from a complaint of customer overcharging. See Vignola Supp. Decl. dated 8/13/ 97 P 12.
There is no question that the Commission was acting under serious time pressure and needed to review more than two hundred applications. With such a large number to be considered in a short period, it is not surprising that mistakes occurred. Nevertheless, this sequence of case reopenings - especially with respect to the Argento overcharge violation - indicates that the rule of Field has not been met and requires that these two plaintiffs' waiver applications be remanded to the Commission for reevaluation.
This decision, concededly, departs from the tack taken by most, if not all, of the other courts that have addressed this issue. In Imperial Sanitation Corp. v. City of New York, CV-97-0682, 1997 WL 375745 (E.D.N.Y. June 23, 1997), the court rejected plaintiff's selective enforcement claim, finding that the carter had not shown that "companies that have similar histories, affiliations and violations received waivers." Id. at *6. However, the court does not indicate what means, if any, it used to compare the plaintiff's application with those of carters whose applications had been granted. It is also noteworthy that in both Imperial Sanitation Corp. and Fava et al. v. City of New York et al., CV-97-0179, the courts granted defendants' motions for summary judgment on Article 78 claims without mentioning Field or the principle of New York law promulgated therein. See Imperial Sanitation Corp., 1997 WL 375745 at *7; Fava Tr. at 42-43. The fact that these courts appear not to have taken into account the Field doctrine erodes some of the persuasive value of their Article 78 holdings.
D & D Carting Co., Inc. v. City of New York, 658 N.Y.S.2d 825 (Sup. Ct. N.Y. Cty. 1997) is, however, a directly-on-point state court Article 78 proceeding wherein petitioner carters challenged the denial of their waivers by the Commission. Petitioners argued:
The Commission has acted inconsistently, in that it has granted waivers to other companies who are allegedly 'guilty' of the same wrongdoing attributed to petitioners. Petitioners name several companies which allegedly were also members of indicted trade associations, whose principals also sat on the associations' Boards of Directors, and whose contracts contained the same terms which the Commission used against petitioners, who yet were granted waivers.
Id. at 828. Without citing Field, the court dismissed the Article 78 claim, finding that "the court sees no inequity in the fact that other carters may have received waivers, even though they, too, belonged to indicted trade associations, or utilized coercive contract terms." Id. at 829. The court took the Commission at its word that in spite of these activities, there was no evidence of cartel participation by those carters who were granted waivers. Id. The court essentially insulated the Commission from meaningful Article 78 review by finding that "the Commission's determination to consider the 'totality' of the cited grounds was a rational one, and defeats any charge of inconsistency based on the granting of waivers to other carters." Id. This type of conclusion seems to neatly gloss over the rule articulated in Field and seems contrary to well-developed New York law.
The Field rule applies, even when those whom it would protect are, to some minds, less than savory members of society or have participated in a scheme that has cost the public dearly. This is so even though the benefit sought from the city is a privilege, not a right. In Matter of Goldstein v. Brown, 189 A.D.2d 649, 592 N.Y.S.2d 343 (1st Dep't 1993), petitioner, the publisher of Screw Magazine, filed an Article 78 proceeding challenging the police commissioner's determination denying his application for a license to carry a concealed weapon. After reiterating the Field doctrine, the court announced:
We recognize that the burden of establishing 'proper cause' for the issuance of a carry permit is on the applicant. However in this case the respondent failed to provide any explanation regarding why it distinguished the petitioner from other applicants to whom carry permits were granted upon less specific proof of threats. Accordingly, we remand the matter to the respondent for a further explanation of its departure from prior practice.
Id. at 651 (internal citation omitted). As in Goldstein, plaintiffs in this case do carry the burden of establishing why granting them waivers would not be inconsistent with the aims of Local Law 42. And also as in Goldstein, plaintiffs certainly are not entitled to receive such waivers. But these facts do not make the rule in New York that agency determinations must treat like parties alike an empty shibboleth. And, if nothing more, plaintiffs are entitled to a determination (even if it is a denial) that is consistent with the others rendered by the Commission.
In this connection, the Imperial Sanitation Corp. court opined that "if the Commission found that another company was in every respect similarly situated to [plaintiff], granting the waiver to that company would circumvent the goals of Local Law 42. The correct result would be to rescind that company's waiver." Imperial Sanitation Corp., 1997 WL 375745 at n.7. Mr. Vignola also expresses this sentiment in his submissions to this Court. See, e.g., Vignola Supp. Decl. dated 8/13/97 at n.4. This perhaps should be the result. And this may, in fact, be the best way to ensure that the Commission has accurately and adequately realized the aims of Local Law 42. But the law - whether wisely or not - permits waivers, and plaintiffs are entitled a fair consideration of their applications.
Remanding plaintiffs' claims may well impose a burden on the Commission to engage in a scrupulous second look at all the carters to whom it granted waivers. And if the past (as manifest in the comparison group experiment) is prelude, this may well result in the reopening of more than a few cases. But this consequence should be embraced, not reviled. For it will benefit the public by ensuring that the mandates of Local Law 42 are achieved; it will strengthen the authority of the Commission by ensuring that its decisions are consistent; and it will protect the plaintiffs by ensuring that the determinations of their waiver applications are effectuated in a manner that comports with the equal treatment requirements of New York law.
For the reasons stated herein, the Clerk of the Court is instructed to enter judgment in accordance with these instructions. With respect to plaintiffs Frank Lomangino & Sons, Inc., Chelsea Sanitation Service, Inc., East End Sanitation Corp., M & M Sanitation Corp. and C.T. Carting Corp., defendants' motion for summary judgment is granted in total. With respect to plaintiffs J. Cafaro, Inc. and Isabella City Carting Corp., defendants' motion for summary judgment is denied as to only the Article 78 claim and the case is remanded to the Commission for reconsideration.
Dated: Brooklyn, New York
September 30, 1997
David G. Trager
United States District Judge