United States District Court, Southern District of New York
March 13, 1999
REDOUANE A. JAOUAD AND JOSE A. VAZQUEZ, PLAINTIFFS,
CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF TRANSPORTATION; NEW YORK CITY DEPARTMENT OF FINANCE; AND, NEW YORK CITY PARKING VIOLATIONS BUREAU, DEFENDANTS.
The opinion of the court was delivered by: Motley, District Judge.
Plaintiffs, Redouane A. Jaouad ("Jaouad") and Jose A. Vazquez
("Vazquez"), brought a class action suit against defendants, the City of
New York, the New York City Department of Transportation ("DOT"), the New
York City Department of Finance ("DOF"), and the New York City Parking
Violations Bureau ("PVB") (collectively: "the City"), alleging that
defendants violated 42 U.S.C. § 1983 by enforcing statutorily
defective parking tickets ("Tickets") against plaintiffs. Before the
court is defendant's Fed.R.Civ.P. 12(b)(6) motion to dismiss the amended
complaint. For the reasons discussed below, defendants' motion to dismiss
Plaintiffs filed a class action against defendants on June 16, 1997,
alleging violations of constitutional due process in the administrative
enforcement of Tickets. In the original complaint, plaintiffs alleged
that they were unconstitutionally deprived their federal due process
rights because: (1) Tickets could only be dismissed upon application by
the Ticket recipient, and not sua sponte, as had been the practice before
1995; (2) Ticket recipients were not informed of their right to have the
Tickets dismissed for being statutorily defective; (3) Ticket recipients
who had a default judgment entered against them could not get the Tickets
dismissed without first providing a good excuse for the default; and (4)
the PVB administrative law judges ("ALJs") in charge of the enforcement
of the Tickets were allegedly biased due to their appointment and
connection with the
DOF, which derives a substantial source of City revenue through the
enforcement of Tickets. See Compl. at ¶¶ 1, 11, 16, 17. Plaintiffs
further alleged that defendants' practices also violated New York state
law. See Compl. at ¶ 14.
The statutory authority governing this dispute is the New York State
Vehicle and Traffic Law ("VTL"), § 238(2), which requires certain
information to be on the face of all parking tickets. Specifically, VTL
§ 238(2) requires the following:
A notice of violation shall be served upon the operator of a
motor vehicle . . . and his name, together with the plate
designation and the plate type . . . the make or model, and
body type of said vehicle; a description of the charged
violation . . . information as to the days and hours the
applicable rule or provision of this chapter is in effect
. . . and the date, time, and particular place of occurrence
of the charged violation, shall be inserted therein.
Prior to 1995, ALJs dismissed Tickets containing statutory defects sua
sponte. However, the VTL was amended in 1995 to include Section
238(2-a)(b), which provides that "if any information which is required to
be inserted on a notice of violation is omitted . . ., misdescribed, or
illegible, then the violation shall be dismissed upon application of the
person charged with the violation." (emphasis added).
On September 12, 1995, Acting Chief ALJ Rabinowitz wrote a memorandum
to all the PVB ALJs regarding the new amendment to VTL § 238. The
ALJs were instructed not to sua sponte dismiss all Tickets but instead to
assess whether the statutory defect impinged on due process, such as "in
a 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" Ex. F to Williams Dec.Supp.Defs.' Mot. to Dismiss
("Williams Dec.") at 2. If the ALJ determines that the defect did impinge
on the Ticket recipient's due process rights, then the ALJ must vacate
the Ticket sua sponte, regardless of whether the Ticket recipient made an
application as called for by VTL § 238(2-a)(b). See Id.
The crux of this lawsuit is over the policy enacted by the Acting Chief
ALJ regarding the sua sponte dismissals of Tickets post-1995. While
plaintiffs allege that all statutory defects amount to jurisdictional
defects that must be dismissed sua sponte, see Pls.' Mem.Opp.Summ.J.
(hereafter "Pls.' Br.") at 9, defendants claim that the ALJs have the
discretion not to dismiss all Tickets sua sponte, but rather to require
the Ticket recipient to request dismissal pursuant to Section 238(2-a)(b)
and reserve sua sponte dismissals for misdescriptions or omissions that
impinge on due process as outlined in Acting Chief ALJ Rabinowitz's
memorandum. See Defs.' Mem.Supp.Summ.J. ("Defs.' Br.") at 3-4.
On May 11, 1998, the court dismissed this case, without prejudice, for
failure to state a claim for relief under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. See Jaonad and Vazquez v. City of New York, et
al., 4 F. Supp.2d 311 (S.D.N.Y. 1998) (Motley, J.). The court held that
the requirements of constitutional due process, i.e. notice and a
meaningful opportunity to be heard, were adequately met. The court found
that the City provided each Ticket recipient with a summons describing
the parking violation and the mechanism for contesting the violation. The
court opined that the PVB provided sufficient safeguards by sending
Ticket recipients three additional notices advising them of outstanding
summonses and reiterating the appeals procedure. Ticket recipients were
also informed of the availability of a 24-hour helpline and numerous
walk-in centers should they require further assistance. The court held
that these safeguards satisfied the notice requirement. See Id. at 313.
The court also explained that due process did not require the further
safeguard that Ticket recipients be
informed of their right to have their Tickets vacated since not all
defects deprived plaintiffs of due process. The court held that the ALJs'
post-1995 sua sponte dismissal policy also served to protect against any
violation of plaintiffs' due process rights. See Id.
As for the second prong of federal due process analysis, i.e.,
meaningful opportunity to be heard, the court held that no
unconstitutional limitations were placed on plaintiffs' right to be
heard. The court determined that Article 78 proceedings, the mechanism
for reviewing individual ALJ determinations, served as an adequate remedy
for plaintiffs who wanted to challenge an adverse decision by an ALJ.
Moreover, the court held that plaintiffs who wished to vacate their
Tickets after a default judgment had been entered against them equally
had a meaningful opportunity to be heard prior to the entering of the
default judgment. The court held that plaintiffs' failure to provide a
good excuse for the default was not an unlawful limitation on their
opportunity to be heard. See Id. at 314.
The court gave plaintiffs sixty (60) days leave to file an amended
complaint. Plaintiffs filed an amended complaint on June 16, 1998, and
the City again moved to dismiss. See Id. at 315.
A. Standard for Motion to Dismiss Under
A motion to dismiss for "failure to state a claim upon which relief can
be granted" pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure should be granted only if it "appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957). See also Mills v. Polar Molecular Corp.,
12 F.3d 1170, 1174 (2d Cir. 1993); Goldman v. Belden, 754 F.2d 1059, 1065
(2d Civ. 1985); Seagoing Uniform Corp. v. Texaco, Inc., 705 F. Supp. 918,
927 (S.D.N.Y. 1989). Therefore, on a motion to dismiss, all factual
allegations of the complaint must be accepted as true. See Hishon v. King
& Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984);
Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991).
Additionally, all reasonable inferences must be made in plaintiffs'
favor. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996); Meilke v.
Constellation Bancorp, 90 Civ. 3915 (LMM), 1992 WL 47342 at *1 (S.D.N.Y.
March 4, 1992). As the Second Circuit has noted, "[t]he court's function
on a Rule 12(b)(6) motion is not to weigh the evidence that might be
presented at a trial but merely to determine whether the complaint itself
is legally sufficient." Goldman, 754 F.2d at 1067.
B. Plaintiffs' Amended Complaint
Plaintiffs' amended complaint re-alleges that the City, through its
biased enforcement of Tickets, has violated plaintiffs' constitutional
due process rights of notice and meaningful opportunity to be heard. See
Am.Compl. at ¶ 15. Plaintiffs contend that the adjudicative process
at the PVB is fundamentally unfair. Calling it a "tainted process,"
plaintiffs believe that the City's quest to increase revenue "ensure[s]
that the recipients of [Tickets] will be found guilty by the ALJs, whose
employment is by and who must follow the directives of DOF wh[ose] goal
is to increase revenues for the City" Am.Compl. at ¶ 18. Plaintiffs
claim that defendants' failure to dismiss the Tickets sua sponte results
in the deprivation of constitutional due process rights of the
recipients, in particular, those who do not speak English. See Id.
Plaintiffs assert that none of the Ticket recipients were informed of
their right to bring an Article 78 proceeding to review an adverse
determination by an ALJ nor were plaintiffs informed that the cost of
retaining counsel is disproportionate to the fines being imposed. See
Am.Compl. at ¶ 18. Plaintiffs also allege that the ALJs' post-1995
policy for dismissing Tickets sua
sponte is not enforced and violates state law. See Am.Compl. at ¶
C. The Legal Sufficiency of Plaintiffs'
Plaintiffs' renewed constitutional claims in their amended complaint
arise under 42 U.S.C. § 1983. Section 1983 provides that "[e]very
person who, under color [of law] . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution and
laws., shall be liable . . . ." Plaintiffs allege that their Fourteenth
Amendment rights of procedural due process are being infringed upon
through defendants' enforcement of Tickets. Under the Fourteenth
Amendment, procedural due process requires notice of the pendency of an
action and a meaningful opportunity to be heard before a neutral
decision-maker. See Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47
L.Ed.2d 18 (1976); Mullane v. Central Hanover Bank & Trust, 339 U.S. 306,
70 S.Ct. 652, 94 L.Ed. 865 (1950).
The City contends that the amended complaint merely rehashes the same
allegations as pleaded in the original complaint. The court agrees. The
amended complaint contains virtually the same allegations as made in the
original complaint. The only material difference is plaintiffs' expanded
version of their conspiracy theory relating to allegations of bias on the
part of ALJs that plaintiffs allege is attributable to the PVB's
connection to the DOF, which functions to raise City revenue.
As for plaintiffs' original allegations concerning inadequate notice,
the court fully addressed those matters in its May 11th opinion and will
not repeat its reasoning here. The only new issue that plaintiffs raised
in their amended complaint concerning the notice requirement deals with
the availability of Article 78 review. Plaintiffs contend that Ticket
recipients do not receive notice on the Ticket that Article 78 review is
available nor are they informed that the cost of retaining an attorney to
represent them is disproportionate to the fines imposed. Plaintiffs claim
that this lack of notice results in a denial of due process. See
Am.Compl. at ¶ 18.
However, the court finds plaintiffs' renewed claims of inadequate
notice must fail. Ticket recipients are given notice of the procedure
used to challenge the Tickets, namely appearance before an ALJ. Notice of
the right to Article 78 review of an adverse ALJ determination is given
to anyone who appeals their decision to the Appeals Board of the PVB.
This information is printed on all Appeals Board decisions. See Ex. D. to
Williams Dec.Supp. Defs.' Mot. to Dismiss Am.Compl. at 2. Any adverse
determination by an ALJ must be appealed to the Appeals Board prior to
bringing an Article 78 action in state court. See N.Y. City Admin. Code
§§ 19-208, 19-209. Thus, the court finds that due process is not
infringed by failing to notify Ticket recipients of their right to
Article 78 on the face of the Ticket itself. Moreover, the notice
requirement does not mandate that plaintiffs be informed of the economic
consequences of retaining counsel for Article 78 purposes. Therefore, the
court holds that plaintiffs' claim of lack of notice is legally
Plaintiffs' amended complaint also contains new claims regarding the
lack of a meaningful opportunity to be heard. In the amended complaint,
plaintiffs attack the adjudicatory process more directly, challenging that
plaintiffs have been deprived of a meaningful opportunity to be heard
because: (1) the ALJs have disregarded their post-1995 sua sponte policy
regarding dismissal of Tickets; and (2) the ALJs are biased in favor of
enforcing Tickets for the purposes of increasing City revenue. See
Am.Compl. at ¶¶ 16-18.
However, the fundamental question, which plaintiffs leave unanswered in
their amended complaint, is whether there is any factual basis for the
claims that the ALJs do not honor their post-1995 sua
sponte dismissal policy and are biased in enforcing Tickets. The amended
complaint includes a mere one sentence reference that "the defendants
have a policy where even [the post-1995 sua sponte policy] is not
followed," Am.Compl. at ¶ 16, but it is devoid of any factual support
for this claim. Even if the complaint did allege antidotal evidence that
some ALJs did not follow the post-1995 sua sponte policy, the complaint
may still fail to state a claim for relief since plaintiffs would be
entitled to seek Article 78 review to correct such unauthorized and
random errors in individual cases. See Campo v. N.Y. City Employees'
Retirement System, 843 F.2d 96, 100-03 (2d Cir.), cert. denied,
488 U.S. 889, 109 S.Ct. 220, 102 L.Ed.2d 211 (1988) (dismissing
procedural due process claim based on the availability of Article 78
review of administrative determination).
Similarly, plaintiffs support their bias claim solely by pointing to
the institutional structure of the PVB, which is supervised and
controlled by the DOF, an agency in charge of the collection of City
revenue. Plaintiffs rely exclusively on this connection to infer that the
ALJs are being pressured to unlawfully enforce Tickets in violation of
recipients' due process rights. See Am.Compl. at ¶ 9. This fact alone
is insufficient on which to base a procedural due process claim. It is
well-settled law that Fed.R.Civ.P.Rule 8 requires that a complaint be
pleaded with sufficient particularity "to give the defendant fair notice
of what plaintiffs claim is and the grounds upon which it rests"
C.A.U.T.I.O.N., Ltd., et al. v. City of New York, et al.,
898 F. Supp. 1065, 1070 (S.D.N.Y. 1995) (quoting Conley v. Gibson,
355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Plaintiffs have
failed to allege sufficient facts to show that the PVB's connection with
the DOF results in biased enforcement of Tickets by ALJs. Since
plaintiffs have failed to provide such support, the amended complaint must
Plaintiffs cite C.A.U.T.I.O.N., 898 F. Supp. 1065, as support for their
argument that DOF pressure on the ALJs to increase City revenues is
sufficient factual support to withstand a challenge for dismissal.
However, the court finds that plaintiffs' reliance on C.A.U.T.I.O.N. is
misplaced. In C.A.U.T.I.O.N., an association of vehicle owners brought a
due process challenge against the City of New York and the PVB, alleging
that "the [ALJs] are said routinely to sustain [parking] tickets in the
face of overwhelming evidence favoring the respondent, systematically to
refuse requests to subpoena the enforcement officers who issued tickets
in question, and to ignore the requirement of substantial credible
evidence in order to convict" 898 F. Supp. at 1074. Denying defendants'
motion to dismiss, the C.A.U.T.I.O.N. court held that plaintiffs plead
their due process claim with sufficient particularity, alleging
"extensive improprieties" including baseless ticketing and towing of
vehicles, misuse of power by the ALJs, unlawful restrictions on the
appeals process, and failure of the PVB to keep accurate records as
required by municipal law. See Id. at 1070. The court also held that
institutional structure of the PVB lent "some circumstantial support to
plaintiffs' allegation by suggesting that the hearing examiners may have
reason to be receptive to pressures of the sort plaintiffs allege that
defendants have brought to bear" Id. at 1075.
This court finds that the C.A.U.T.I.O.N. case is distinguishable from
the present case. The factual allegations supporting the C.A.U.T.I.O.N.
plaintiffs' claim that the ALJs were misusing their power are not present
in this case. Here, plaintiffs allege that the ALJs are biased solely
based on their connection to the DOF. As noted above, this claim of bias
is too broad-based and vague on which to base a procedural due process
claim. Unlike in C.A.U.T.I.O.N., plaintiffs' amended complaint fails to
plead its due process claims with sufficient particularity. Any
broad-based allegations of bias on the part of
government officials requires a certain level of specificity and
substantiation that must be articulated in the complaint. See N.Y. State
Inspection, Security and Law Enforcement Employees, et al. v. N.Y. State
Public Employment Relations Board, et al., 629 F. Supp. 33, 39-40
(N.D.N.Y. 1984) ("a bare allegation of bias . . . does not suffice to
state a claim that due process has been violated . . . the complaint must
contain some specific factual allegations indicating bias . . . and not
rely only upon conclusions"); see also, Fariello v. Rodriguez, 148
F.R.D. 670, 683 (E.D.N.Y.), aff'd, 22 F.3d 1090 (2d Cir. 1994)
(dismissing Fourteenth Amendment due process claim that was based solely
on conclusory allegations). The court cannot treat such claims as legally
sufficient when they do not purport to provide a proper factual basis.
Thus, based on the facts alleged in plaintiffs' amended complaint,
plaintiffs' claim of deprivation of procedural due process cannot stand.
D. State Law Claim
Plaintiffs re-allege in their amended complaint that the City is
violating state law through the enforcement of Tickets. See Am.Compl. at
¶ 18. Plaintiffs contend that the City misinterprets the meaning and
legislative intent behind VTL § 238(2-a)(b) by enforcing Tickets.
According to plaintiffs, this amendment was enacted to be an additional
safeguard to increase the number of Tickets vacated for being
jurisdictionally defective. See Id. Plaintiffs contend that under New
York law, any statutory defect on the face of a Ticket is the equivalent
to a jurisdictional defect, which deprives the PVB ALJ of subject matter
jurisdiction necessary to enforce the Tickets. Plaintiffs' claim that any
misdescription or omission on the face of a Ticket is grounds for
automatic dismissal as a matter of state law.
However, in dismissing the federal cause of action, this court has
decided not to consider the state law claim at this time. Therefore, the
state law claim is dismissed, without prejudice, to allow plaintiffs the
option of re-filing the state law claim in state court, if they so
Thus, accepting all factual allegations of the complaint as true, and
making all reasonable inferences in plaintiffs' favor, this court finds
and concludes that plaintiff's amended complaint is legally insufficient
and unable to withstand a challenge for dismissal. For the foregoing
reasons, defendant's motion to dismiss the amended complaint is granted.
The amended complaint in the matter is hereby dismissed, with prejudice.
However, the state law claim is dismissed, without prejudice, to allow
plaintiffs to re-file in state court if they so choose.
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