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ALL AIRE CONDITIONING, INC. v. CITY OF NEW YORK

September 30, 1997

ALL AIRE CONDITIONING, INC., et al., Plaintiffs, against THE CITY OF NEW YORK, et al., Defendants. HENICK-LANE, INC., Plaintiff, -against- THE CITY OF NEW YORK, et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 Parking space on the streets of Manhattan is among the scarcest of commodities. It is of special importance to the owners of commercial vehicles used to make deliveries or to respond to service calls, especially those whose vehicles are used to bring heavy or bulky packages or equipment to their customers' premises.

 The City has sought to accommodate the needs of such enterprises by permitting temporary parking for expeditious loading, unloading and service calls in areas in which parking otherwise is restricted. Nevertheless, plaintiffs contend that the policies and guidelines used by various City agencies in determining when to ticket vehicles parked in these areas are unconstitutional because they result in the issuance to them of large numbers of summonses which ultimately are dismissed, but which must be defended at considerable cost and inconvenience.

 The defendants (collectively, the "City") move for summary judgment dismissing the complaints in both of these actions. Plaintiffs move for partial summary judgment on certain of their claims.

 Facts

 Plaintiffs

 Plaintiffs are businesses engaged primarily in installing, maintaining and repairing heating, air-conditioning and ventilation systems throughout New York City. Because their repair equipment and spare parts can weigh as much as 300 pounds, plaintiffs rely on curbside parking spaces near customer locations to conduct their business. Perhaps not surprisingly, plaintiffs have received a large number of parking summonses over the last several years. They have spent a good deal of time and money defending against them and assert that approximately 85 percent of the tickets received ultimately were dismissed.

 In order to place plaintiffs' claims in context, it is essential to understand both the relevant parking regulation and the means by which they are enforced.

 The Pertinent Parking Regulations

 Plaintiffs' challenge turns on the enforcement of parking regulations against commercial vehicles in two basic circumstances.

 First, the City permits parking for certain limited commercial purposes in two types of otherwise restricted zones (collectively, "CD" zones). The first is designated by signs stating "No Standing Except Trucks Loading and Unloading" ("No SETLU" zones) and is governed by Section 4-08(k)(2) of the New York City Traffic Rules and Regulations (the "Rules"), which permits commercial vehicles to park in a No SETLU zone "for the purpose of expeditiously making pickups, deliveries or service calls." *fn1" The second is designated by familiar "No Parking" signs ("No Parking" zones) and is governed by Section 4-08(a)(4) of the Rules. Section 4-08(a)(4) allows commercial vehicles to park in No Parking Zones "temporarily for the purpose of and while expeditiously . . . loading or unloading property to or from the curb." *fn2"

 Second, Section 4-08(k)(6) of the Rules excludes "vehicles owned or operated by gas or oil heat suppliers or gas or oil heat system maintenance companies, the agents or employees thereof, or any public utility" from a prohibition against the parking of commercial vehicles in residential areas between 9 p.m. and 5 a.m.

 Enforcement Agencies and their Practices

 Parking tickets are issued in New York City by civilian Traffic Enforcement Agents and Parking Control Specialists (collectively "TEA"s) and New York City police officers. The TEAs were employed and supervised by the New York City Department of Transportation until August 8, 1996, when they were shifted to the jurisdiction of the New York City Police Department.

 Enforcement Policies in CD Zones

 At least prior to the changeover, the two agencies used somewhat different guidelines for their personnel with respect to when tickets should be issued to commercial vehicles parked in CD zones. *fn3"

 The DOT enforced Sections 4-08(k)(2) and 4-08(a)(4) through a "30 minute observation policy." If a TEA saw no sign of activity at a parked vehicle, he or she was to note the time. If the TEA returned more than 30 minutes later and again saw no activity, the TEA was to issue a ticket. *fn4" The Police Department, on the other hand, instructed its officers to apply "some observation period" to commercial vehicles parked in No SETLU zones. If they observed no activity, they were to make discretionary judgments whether to ticket. They were permitted to ticket commercial vehicles in No Parking zones immediately if no loading or unloading was observed. *fn5"

 Enforcement Policies Regarding Overnight Parking in Residential Areas

 Although Section 4-08(k)(6) permits overnight parking in residential areas of commercial "vehicles owned or operated by gas or oil heat suppliers or gas or oil heat system maintenance companies, the agents or employees thereof, or any public utility," DOT's policy was to have TEAs ticket all commercial vehicles parked in residential areas during the prohibited hours unless they readily were identifiable as exempt. *fn6" The Police Department had no stated policy with regard to the Section 4-08(k)(6) exemption.

 Adjudication of Charges

 The Court previously has described the procedures by which the charges of illegal parking made in parking tickets are disposed of. *fn7" If the recipient of a ticket pleads guilty, the recipient mails the ticket with a check for the fine to the City's Parking Violations Bureau ("PVB"). If the recipient pleads not guilty, the recipient is entitled to a hearing before a PVB administrative law judge ("ALJ"). If the charges are sustained, the defendant, within 30 days of the adverse determination and after paying the fine or posting a bond, may appeal to the Appeals Board of the PVB. An appellant, moreover, is required to attach proof of payment of the fine to its notice of appeal. In the event the charge is dismissed, the fine previously collected is offset against any outstanding summonses to the appellant, with the excess being returned to the appellant. *fn8"

 In deciding whether to uphold a summons issued under either Sections 4-08(k)(2) or 4-08(a)(4), the PVB applies a system of affirmative defenses. If evidence of commercial activity is presented, the ticket is dismissed, regardless of the time that the activity took to complete. In making this determination, the PVB inspects all of the credible evidence presented. *fn9"

 Those ticketed for overnight parking in residential areas may schedule exemption hearings before the PVB. If the vehicle owner establishes that it is an oil or gas supplier or maintenance company, the summons at issue is dismissed and the owner receives a decision that enables it to dispose of future tickets by sending the PVB a copy of the decision along with the summons. *fn10"

 This litigation has had a long and somewhat ...


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