be employed in an expeditious pickup, delivery or service call, it is far from irrational to conclude that there is reasonable cause to believe that a vehicle sitting idle in a No Parking or No SETLU zone is not so engaged.
Nor are plaintiffs helped by their focus on their allegation that 85 percent of the summonses issued to their vehicles have been dismissed, as their focus is far too narrow. The parking regulations and enforcement policies at issue apply to all commercial vehicles in the City; they were not -- and need not have been -- designed for these plaintiffs. Government action "need not be rationally related to a legitimate governmental purpose as it applies to each individual. It is enough that [the decisionmaker] rationally might conclude that the statute [or policy], with all its imperfections, would serve a legitimate goal."
Further, while it is unnecessary for the City to prove the rationality of its policies -- as the issue is what reasonably might have been conceived rather than what the evidence would show
-- the evidence, were it material, clearly would support the City. Less than one third of all summonses issued to commercial vehicles were contested in 1994 and 1995, and over half of those contested were upheld.
Thus, over 80 percent of the relevant parking summonses issued to commercial vehicles under the allegedly irrational enforcement policies resulted in determinations of guilt.
For all of the foregoing reasons, plaintiffs' substantive due process challenge to the enforcement policies is without merit.
Plaintiffs allege also that the tickets issued to their vehicles in CD zones and residential areas that resulted in not guilty determinations were the products of malicious prosecution.
Although defendants make a number of potentially dispositive arguments with respect to this claim, the Court need focus only on one.
Assuming arguendo that a constitutional tort analogous to malicious prosecution exists,
that it may be premised on the issuance of a parking ticket which arguably is civil in nature,
and that plaintiffs' claim is not barred by Parratt v. Taylor44 and its progeny, plaintiff nevertheless would be obliged to show: "(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions."
Plaintiffs have not sought to show that probable cause was lacking in any particular instance. Rather, they rest on the assertion that the City policies at issue fell short of establishing probable cause as evidenced by the large proportion of the tickets that plaintiffs themselves successfully sought. They fail, however, to refute the City's evidence that (1) the vast majority of commercial summoners issued are uncontested, and (2) of those actually adjudicated between 1993 and 1995 on the basis of defenses of expeditious delivery or service call, only 44 percent were dismissed.
New York law
defines probable cause as "the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of."
Given the obvious rational connection between the enforcement guidelines noted above and the Rules at issue and the fact that the overwhelming majority of summonses issued to commercial vehicles under those guidelines that result in guilty determinations, there simply is no genuine issue of material fact as to the lack of probable cause.
Plaintiffs fail also to raise an issue as to the existence of malice. "Under New York law, malice does not have to be actual spite or hatred, but means only 'that the defendant must have commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.'"
Plaintiffs have adduced evidence of pressure from various City agencies on the DOT to increase the volume of tickets issued in New York City. They fail, however, to tie this pressure to their claims in any way. Plaintiffs have offered no evidence that the ticketing policies at issue were promulgated as a result of this pressure or that tickets were issued improperly in response to this pressure. In fact, the evidence shows a consistent refusal by the DOT to institute ticketing procedures that would lead to the improper issuing of summonses.
As plaintiffs have failed to raise genuine issue of material fact as to the existence of malice or the lack of probable cause, their malicious prosecution claims are dismissed.
Appellate Policies of the PVB
Plaintiffs challenge the constitutionality of two aspects of the PVB's appellate policies. First, plaintiffs assert that the requirement that appellants attach proof of payment of the ticket to the notice of appeal routinely results in the denial of the right to appeal. The time for filing an appeal is 30 days from an adverse judgment and, plaintiffs allege, it often is impossible, due to the amount of time it takes to receive proof of payment from the PVB, to obtain the required receipt within 30 days.
The conditioning of an appeal on the posting of a bond undeniably is constitutional.
Furthermore, the PVB extends automatically the time in which to file an appeal to 90 days, it accepts cashiers receipts as well as canceled checks as proof of payment, and it processes appeals so long as the PVB's records indicate that payment has been received, which is usually within two days of receipt of payment.
Plaintiffs make no response to these arguments. Because the City has demonstrated that plaintiffs are not denied their right to appeal, defendants are entitled to summary judgment dismissing this claim.
Both sides move for summary judgment on the second PVB appellate procedure at issue. It is undisputed that the PVB's appellate division takes the money owed to appellants who successfully contest summoneses and applies the released funds to outstanding summonses before returning the excess, if any.
Plaintiffs contend that this policy denies them their right to property -- viz. their released funds -- without due process of law. Defendants contend that the process afforded by the post-deprivation hearings ultimately provided in the PVB on the outstanding summonses satisfies constitutional strictures.
No constitutional interests are implicated by the application of refunds due to plaintiffs to outstanding summonses which are overdue. Plaintiffs' failure to contest those summonses is equivalent to a guilty plea. Plaintiffs do, however, have a property interest in funds released that are applied to satisfy summonses that plaintiffs are challenging or planning to challenge. The question therefore is whether the seizure of funds to satisfy summonses issued but not yet adjudicated violates procedural due process.
Mathews v. Eldridge54 establishes the basic framework for determining whether administrative procedures denying pre-deprivation hearings are constitutionally sufficient:
"Consideration of three distinct factors [is proper]: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
Plaintiffs' interest -- possession of funds released by the reversal of summonses on appeal until the summonses against which the funds are offset are adjudicated -- is far from vital. It consists entirely of the right to hold moderate sums of money for short periods of time. The risk of erroneous deprivation -- that is, the risk that the unadjudicated outstanding summons against which a refund is applied will result in a not guilty determination -- is modest.
The City's interest -- ensuring that summonses are paid and avoiding the substantial administrative burdens of issuing a check only to have to re-collect the fine if an unadjudicated outstanding summons is upheld -- is considerable, far outweighing plaintiffs' interest. Indeed, the Supreme Court has held that the need for a pre-deprivation hearing is outweighed by the government's interest in revenue raising through effective tax collection even if, as is not the case here, the taxpayer may be placed "in a precarious financial position."
Accordingly, the Court holds that the PVB's appellate policy does not violate plaintiff's due process.
For the foregoing reasons, defendants' motions for summary judgment dismissing the complaints is granted in all respects. Plaintiffs' motion for partial summary judgment are denied in all respects.
Dated: September 30, 1997
Lewis A. Kaplan
United States District Judge