BLACK CAR ASSISTANCE CORPORATION, THE LIVERY ROUND TABLE, INC., DIAL 7 CAR & LIMOUSINE SERVICE, INC., DIAL CAR, INC., ELITE LIMOUSINE PLUS, INC., FAST OPERATING CORP., DBA CARMEL CAR AND LIMOUSINE SERVICE, INTA-BORO ACRES, INC., LOVE CORPORATE CAR INC., ROYAL DISPATCH SERVICES, INC., VITAL TRANSPORTATION, INC., ARTHUR HARRIS, and ALEXANDER REYF, Petitioners,
THE CITY OF NEW YORK; MICHAEL R. BLOOMBERG, in his official capacity as Mayor of New York City; the NEW YORK CITY TAXI & LIMOUSINE COMMISSION, a charter-mandated agency; and DAVID YASSKY, in his official capacity as Chairman and Commissioner of the New York City Taxi & Limousine Commission, Respondents. Index No. 100327/13
CAROL E. HUFF, J.
In this Article 78 proceeding, petitioners seek to enjoin implementation of a proposed "e-hail" pilot program for medallion taxis.
The twelve-month e-hail program (the "Program") would enable passengers who have an app on their smartphone to communicate with a medallion taxi to request a pickup. The taxi driver, who would have a corresponding device and app, would confirm the request, indicate that the taxi is "off-duty" and proceed to pick up the passenger.
As stated in the Resolution Approving a Pilot Program to Evaluate Electronic Hail Applications ("Program Resolution"), adopted by respondent New York City Taxi and Limousine Commission ("TLC") on December 13, 2012, the Program would last for twelve months, app providers would be subject to the approval of the TLC, and fares could be paid electronically through the e-hail app. The Program would be restricted in Manhattan south of 59th Street to a half-mile pickup range, and elsewhere to a mile and a half. Certain areas, such as airports and places with provisions for taxi lines, would be excepted; e-hail requests must not disclose the passenger's desired destination or other information about the passenger; and authorized apps must allow for "one-touch" acceptance of e-hails by the taxi driver. All licensed taxi drivers in the city are eligible to participate in the Program, but participation is optional.
Petitioners are, with one exception (Arthur Harris, an elderly person who does not own a smartphone), entities that represent or have financial interests in businesses that operate vehicles known as black cars or livery or for-hire cars (collectively, "black cars"). Black cars are distinguished from yellow medallion taxis in that, at least generally, they can be summoned by pre-arrangement through electronic communication devices (including phones, radios and, notably, apps for e-hailing), while taxis are procured by street hails. Petitioners contend that the Program will impermissibly blur the distinction between black cars and taxis deliberately set by legislative action.
Petitioners allege seven causes of action: First, that the Program violates New York City Administrative Code § 19-511(a), which requires licenses for communications systems used for arranging pickups; second, that the Program violates NYC Admin. Code § 19-507(a)(2), which prohibits drivers from refusing to pick up passengers without justifiable grounds; third, that the Program is not a permissible pilot program as provided for in NY City Charter § 2303; fourth, that respondents failed to follow procedures required for rules changes pursuant to the New York City Administrative Procedure Act; fifth, that the TLC failed to follow its own rules for implementing pilot programs; sixth, that the Program violates the State Environmental Quality Review Act (SEQRA, 6 NYCRR § 617) and the City Environmental Quality Review rules (CEQR, 62 RCNY § 5-01 et seq.), because the TLC failed to perform a review of the Program's potential environmental impacts; and seventh, that the Program violates New York City Human Rights Law § 8-107(4) because it will have a disparate, discriminatory impact on the elderly.
By order dated April 8, 2013, Metropolitan Taxicab Board of Trade was given leave to intervene as a respondent.
This proceeding, brought pursuant to CPLR 7801 and 7803(3), is in the nature of mandamus to review. See Scherbyn v Wavne-Finger Lakes Bd. of Co-op. Educ. Serv., 77 N.Y.2d 753, 757-78 (1991) (citations omitted):
In a proceeding in the nature of mandamus to review ... a court examines an administrative action involving the exercise of discretion.. .. [N]o quasi-judicial hearing is required; the petitioner need only be given an opportunity "to be heard" and to submit whatever evidence he or she chooses and the agency may consider whatever evidence is at hand, whether obtained through a hearing or otherwise. The standard of review in such a proceeding is whether the agency determination was arbitrary and capricious or affected by an error of law.
A threshold issue is petitioners' claim that the Program is merely a "faux" pilot program not authorized by the Charter. In their third cause of action petitioners contend that respondents acted beyond their powers in implementing the Program. The Charter provides: "The jurisdiction, powers and duties of the [TLC] shall include the regulation and supervision of the business and industry of transportation of persons by licensed vehicles for hire in the city, pursuant to provisions of this chapter." NY City Charter § 2303(a).
Such regulation and supervision shall extend to: . .. The development and effectuation of a broad public policy of transportation affected by this chapter as it relates to forms of public transportation in the city, including innovation and experimentation in relation to type and design of equipment, modes of service and manner of operation, which for limited purposes and limited periods of time may depart from the requirements otherwise established for licensed vehicles pursuant to this chapter.
NY City Charter § 2303(b)(9).
Title 35 of the Rules of the City of New York ("RCNY") contains rules applicable to the TLC. 35 RCNY § 52-21(a) affirms that "experimentation through pilot programs [authorized by the Charter] may, for limited purposes and limited periods of time, depart ...