Metropolitan Taxicab Board of Trade; MIDTOWN CAR LEASING CORP; RONART LEASING CORP.; and LINDEN MAINTENANCE CORP., Petitioners,
The New York City Taxi & Limousine Commission ("TLC"); and MATTHEW W. DAUS, Commissioner, Chair, and Chief Executive Officer of the TLC, Respondents.
For Petitioners: Richard D. Emery Mathew D. Brinckerhoff Samuel Shapiro Emery Celli Brinckerhoff & Abady, LLP.
For Respondents: Michael A. Cardozo Corporation Counsel of the City of New York Of Counsel: Chris Reo Kathleen C. Schmid Carrie Noteboom.
MICHAEL D. STALLMAN, J.
On remand from the Court of Appeals, petitioners move for "incidental damages" in this Article 78 proceeding.
The background of this litigation was succinctly set forth in the decision of the Court of Appeals:
"Regulations of the New York City Taxi & Limousine Commission limit the rates that may be charged by owners of taxicabs who lease those cabs to drivers. In this case, owners challenge a Commission regulation that prohibits owners from collecting sales tax in addition to the maximum permitted lease rates. We hold that the regulation must be annulled, because the Commission has not shown any rational basis for it."
(Metropolitan Taxicab Bd. of Trade v New York City Taxi & Limousine Commn., 18 N.Y.3d 329, 331 .) The regulation at issue, Rules of NY City Taxi & Limousine Commn. [35 RCNY] § 1—78 (a) (4), was adopted in 2009.
Having successfully prevailed in this proceeding to annul 35 RCNY 1-78 (a) (4), petitioners now seek to recover the monies that they allegedly could not have collected from their taxicab lessees while the regulation was in force—from May 1, 2009 until December 15, 2011, the date of entry of the Court of Appeals's decision. Petitioners argue that they are entitled to recover these monies as incidental damages, pursuant to CPLR 7806.  Respondents oppose the motion.
As a threshold matter, respondents argue that petitioners abandoned their claim for incidental damages on appeal. Respondents reason that petitioners' claim for monetary relief was abandoned because they failed to preserve it for appeal. According to respondents, petitioners never raised their claim for monetary relief in their appellate papers either before the Appellate Division, First Department or in their appeal to the Court of Appeals.
However, respondents overlook the order of remittitur from the Court of Appeals to this Court, which was filed with the County Clerk. It states, in pertinent part: "The Court further orders that this record of the proceedings in this Court be remitted to Supreme Court, New York County, there to be proceeded upon according to law."
" [R]emittitur is the mandate of the Court of Appeals which must be strictly followed.' If the respondents herein (or petitioners) were uncertain as the effect to be given the language employed by the Court of Appeals, the remedy was an application to that court.'" (Natural Resources Defense Council, Inc. v New York City Dept. of Sanitation, 214 A.D.2d 41, 43 [1st Dept 1995].) "[T]he remittitur operates as a mandate requiring further action by such court in conformity with the decision." (Arthur Karger, Powers of the New York Court of Appeals § 19:12 at 659 [3d ed rev 2005].) Here, such further action would appear to be a determination of petitioners' claim for incidental damages. Had the Court of Appeals viewed that petitioners had abandoned their claim for incidental damages, it would not have remitted the matter to the Supreme Court for further proceedings. 
Turning to the merits, CPLR 7806 states, in pertinent part:
"Any restitution or damages granted to the petitioner must be incidental to the primary relief sought by the petitioner, and must be such as he might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against ...