In the Matter of the Application of Marcia GOLDSON, Petitioner,
NYC DEPARTMENT OF FINANCE, Respondent. No. 400235/13.
This decision has been referenced in a table in the New York Supplement.
ALEXANDER W. HUNTER JR., J.
Petitioner's application for an order pursuant to CPLR § 7803(3), seeking reversal of a final determination of the Parking Violations Appeals Board dated October 10, 2012 and the dismissal of summons no. xxxxxx403-1, is granted. Respondent's cross-motion for remand is denied.
Petitioner Marcia Goldson brings the instant action against respondent NYC Department of Finance (" DOF" ) for failure to adhere to the Vehicle and Traffic Laws of New York (" VTL" ) and various other laws of New York with respect to administrative review.
On July 10, 2012, at 8:43 a.m., summons no. xxxxxx403-1 (the " summons" ) was issued to a Toyota with Pennsylvania license plate xxxx514 for violation of § 4-08(d) of the New York City Traffic Rules, which governs unlawful parking, stopping, or standing.
On July 13, 2012, respondent's Parking Violations Bureau (the " PVB" ) placed petitioner's penalty on hold pending a hearing. On August 21, 2012, Administrative Law Judge Garret Rubin (" ALJ Rubin" ) conducted a hearing, and found petitioner guilty of violating § 4-08(d). ALJ Rubin found petitioner's evidence unpersuasive and determined that petitioner " fail[ed] to establish that at the time the summons was issued the vehicle was outside the prohibited zone." In a letter to DOF dated August 29, 2012, petitioner requested a complete transcript of the ALJ hearing and a copy of the original notice of violation pursuant to VTL §§ 237(6), 237(8), and 242(3), and Title 19 Rules of the City of New York (" RCNY" ) § 39-08(g).
On September 12, 2012, petitioner appealed ALJ Rubin's decision to respondent's Parking Violations Appeals Board (" Appeals Board" ). In a second letter addressed to DOF dated September 27, 2012, petitioner renewed her request for the complete transcript of the ALJ hearing and a copy of the original notice of violation. DOF failed to provide petitioner with a copy of the transcript or the original notice of violation. (Affidavit of respondent at ¶ 18). On October 10, 2012, the Appeals Board, based upon review of the entire record, found no error of fact or law and upheld ALJ Rubin's decision.
On February 6, 2013, petitioner commenced the instant Article 78 proceeding seeking (1) reversal of respondent's October 10, 2012 decision; and (2) dismissal of the summons. Respondent moves for remand back to the Appeals Board so petitioner can (1) obtain a copy of the ALJ hearing transcript and notice of violation; and (2) make further arguments to the Appeals Board based upon the foregoing documents.
Petitioner opposes respondent's motion for remand on the grounds that respondent failed to (1) file a certified answer within the prescribed time; and (2) file a certified transcript of the record of the proceeding under consideration with the court pursuant to CPLR § 7804(e). Petitioner avers that the Appeals Board's determination is final and there are no further remedies to be obtained.
Respondent replies that it timely requested an adjournment from March 15, 2013 to April 18, 2013, but the affidavit was filed late due to a clerical error. Respondent filed its cross-motion for remand on April 1, 2013, and avers that the cross-motion to remand is timely submitted and properly before the court.
" The order of the appeals board shall be the final determination of the bureau (PVB). Judicial review may be sought pursuant to article seventy-eight of the civil practice law and rules." New York City Administrative Code (" AC" ) § 19-209; see also VTL § 243. The standard of review under the civil practice law and rules is " whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed." See CPLR § 7803(3); see also Matter of Bourne v. Department of Fin., 36 Misc.3d 1208(A), 1208A (N.Y.Sup.Ct.2012).
DOF acted in violation of lawful procedure, as it failed to provide petitioner with a transcript of the ALJ hearing and original notice of violation within forty-five days of petitioner's request. See VTL §§ 237(6), 237(8), 242(3), and Title 19 RCNY § 39-08(g). Accordingly, this results in an automatic dismissal of all charges under summons no. xxxxxx403-1. VTL § 237. Respondent's cross-motion for remand is denied. Petitioner is entitled to have returned an amount equal to any fine or penalty imposed and collected from the PVB within thirty days of the entry of this judgment. See VTL § 242(6).
Accordingly, it is hereby,
ADJUDGED that petitioner's application for an order pursuant to CPLR § 7803(3) is granted. The determination of the Parking Violations Appeals Board, dated October 10, 2012, affirming the August 21, 2012 decision of Administrative Law Judge Garret Rubin, is reversed; and summons ...