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VAZQUEZ v. CITY OF NEW YORK

May 11, 1998

RODOUANE A. JAOUAD and JOSE A. VAZQUEZ, Plaintiffs, against THE CITY OF NEW YORK et al., Defendants.


The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

 Plaintiffs Redouane A. Jaouad and Jose A. Vazquez ("Jaouad and Vazquez") sued, in the form of a class action, defendants City of New York, New York City Department of Transportation ("DOT"), New York City Department of Finance ("DOF"), and New York City Parking Violations Bureau ("PVB") (collectively: "the City") under 42 U.S.C. § 1983. The City moved to dismiss under Fed.R.Civ.Proc. 12(b)(6). For the reasons to be discussed below, the motion is GRANTED. However, plaintiffs are given 60 days to file an amended complaint.

 Motley, J:

 BACKGROUND

 New York's Vehicle and Traffic Law § 238(2) sets forth required elements to be written on parking tickets issued in cities with populations greater than 100,000, including New York City. Specifically:

 
A notice of violation shall be served personally upon the operator of a motor vehicle who is present at the time of service, and his name, together with the plate designation and the plate type as shown by the registration plates of said vehicle and the expiration date; the make or model, and body type of said vehicle; a description of the charged violation . . . information as to the days and hours of the applicable rule or provision of this chapter is in effect. . . the meter number for a meter violation. . . and the date, time and particular place of occurrence of the charged violation, shall be inserted therein. . . . . The notice of violation shall be served upon the owner of the motor vehicle if the operator is not present, by affixing such notice to said vehicle in a conspicuous place. Whenever such notice is so affixed, in lieu of inserting the name of the person charged with the violation in the space provided for the identification of said person, the words "owner of the vehicle bearing license" may be inserted to be followed by the plate designation and the plate type as shown by the registration plates of said vehicle and the expiration date; the make or model, and body type of said vehicle; a description of the charged violation . . . information as to the days and hours of the applicable rule or provision of this chapter is in effect. . . the meter number for a meter violation. . . and the date, time and particular place of occurrence of the charged violation.

 If a ticket fails to include or includes in an inaccurate or illegible manner one or more of the required elements of a parking ticket, the ticket can be dismissed upon application of the ticket recipient. See Vehicle and Traffic Law § 238 (2-a). Parking tickets do not explain that such omissions, inaccuracies, or illegible writings amount to technical defects which warrant vacation of the ticket upon application of the recipient, although they do set forth general procedures for appealing tickets. If a respondent wishes to raise a statutory defect after a default judgment has been entered against the respondent, he or she must first show an excuse for the default.

 Until 1995, parking tickets which contained a statutory defect were to be dismissed sua sponte by administrative law judges for the PVB. Since the 1995 amendment to the Vehicle and Traffic Law which added VTL § 238 (2-a), administrative law judges ("ALJs") have not been instructed to automatically dismiss defective parking tickets. However, tickets are vacated even without the recipient (respondent) raising noncompliance with the Vehicle and Traffic Law's statutory elements if the ALJ finds that the statutory defect in the summons would result in the denial of the respondent's due process rights. The Acting Chief Administrative Law Judge identified the due process issues that would need to arise, such as "in any manner where a defense concerns a question of whether the correct party has been identified as being liable for a parking violation, or where the absence of required information prevents a party from asserting an appropriate defense," in order for a ticket to be vacated sua sponte post 1995. Exh. F at 2.

 Jaouad and Vazquez allege that the City's practice of issuing parking tickets, also called summonses which omit to mention that tickets with statutory defects must be dismissed upon application violates due process of law. They allege that defendant City has instructed the ALJs of the PVB to refrain from dismissing summonses which are patently in violation of the VTL in order to increase the considerable revenues it derives from parking tickets. *fn1" They allege that the City's campaign to raise revenue disproportionately affects non-English speakers, among others. They also allege that they are deprived of their right to have defective tickets vacated when default judgment has already been entered against them because of the need to provide an excuse for the default.

 Jaouad and Vazquez seek the following: determination that this case is a properly maintainable class action; an order permanently enjoining defendants from pursuing the challenged policies, practices, and procedures and requiring the City to inform all recipients of jurisdictionally defective summonses of their right to have such summonses dismissed; refund from and damages against the City; and attorneys' fees.

 ANALYSIS

 A. Motion to Dismiss for Failure to State a Cause of Action

 A complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond a doubt that plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957). Moreover, when passing on a motion to dismiss, the court must accept the allegations in the complaint as true and construe them in favor of the pleader. See Scheuer v. ...


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