Muladzhanov v. City of New York

2024 NY Slip Op 30832(U)

• Court: New York Supreme Court, New York County
• Decided: March 15, 2024
• Status: Unpublished

Opinion

Muladzhanov v City of New York 2024 NY Slip Op 30832(U) March 15, 2024 Supreme Court, New York County Docket Number: Index No. 157542/2020 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 157542/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/15/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ---------------------------------------------------------------------------------X INDEX NO. 157542/2020 ABRAM MULADZHANOV, BINYAMIN SCHWARTZ, GEORGE PRINGLE, JOHN SANTANA, individually, and on MOTION DATE 06/09/2023 behalf of all others similarly situated, MOTION SEQ. NO. 001 Petitioners,

-v- THE CITY OF NEW YORK, MAYOR BILL DE BLASIO, IN HIS OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, COMMISSIONER POLLY TROTTENBERG, IN HER OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, COMMISSIONER JACQUES JIHA, IN HIS OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, DEPUTY COMMISSIONER JEFFREY SHEAR, IN HIS OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, JOHN AND JANE DOE CITY OF NEW YORK EMPLOYEES, IN THEIR OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, JOHN AND JANE DOE NEW DECISION + ORDER ON YORK CITY DEPARTMENT OF TRANSPORTATION MOTION EMPLOYEES, IN THEIR OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, JOHN AND JANE DOE NEW YORK CITY DEPARTMENT OF FINANCE EMPLOYEES, IN THEIR OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, JOHN AND JANE DOE NEW YORK CITY PARKING VIOLATIONS BUREAU EMPLOYEES, IN THEIR OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES, JOHN AND JANE DOE NEW YORK CITY PARKING VIOLATIONS BUREAU ADMINISTRATIVE LAW JUDGES, IN THEIR OFFICIAL, INDIVIDUAL AND PERSONAL CAPACITIES,

Respondents. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .

ORDER

Upon the foregoing documents, it is

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ORDERED and ADJUDGED that the cross motion of respondents to

dismiss the proceeding pursuant to CPLR 3211(a)(7) is granted: and

it is further

ORDERED and ADJUDGED that the petition is denied, and the

proceeding is dismissed, with costs and disbursements to

respondents; and it is further

ADJUDGED that respondents, having address(es) at

____________________ , do recover from petitioners, having an

address at ____________________ , costs and disbursements in the

amount of $ __________ , as taxed by the Clerk, and that respondent

have execution therefor.

DECISION

Petitioners do not contend that their speeding

adjudications were not supported by substantial evidence

proffered at the hearings but claim that the speeding camera

signage was inadequate and camera operational tests insufficient

to set a legal speed limit or to establish that such speed limit

was exceeded, respectively, and that therefore the adjudications

were arbitrary and capricious. As respondents move to dismiss,

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as a matter of law, pursuant to CPLR 3211(a)(7)1, there is no

substantial evidence issue raised pursuant to CPLR § 78032.

As argued by respondents, none of petitioners’ claims

state a viable cause of action against the individual

defendants, personally, as same are challenges to official

actions, which actions involve the exercise of discretion. See

Tango v Tulevech, 61 NY2d 34, 40 (1983).

Petitioners do not deny that each were afforded an opportunity

to challenge the Notices of Violations at an evidentiary hearing

conducted by respondent administrative agency. Therefore, as a

matter of law, their constitutional rights to due process were not

violated. See Miller v Schwartz, 128 AD2d 783 (2d Dept 1987).

Nor do the challenges of petitioners to the verbiage on the

signs providing notice of speed cameras have any merit, as a

matter of law. As respondents contend, the National Manual on

Uniform Traffic Control Devices for Streets and Highways

1 To the extent that respondents rely upon documentary record evidence, the court deems the true nature of their application as pursuant to CPLR 3211(a)(1). 2 This court does not consider respondents’ arguments with respect to the 2017 speed camera Notices of Liability issued pursuant to Vehicle and Traffic Law (VTL) § 1108-b (prohibiting speeding near schools) that petitioners Muladzhanov and Schwartz are barred because such petitioners pled guilty to the speeding charges set forth in such Notices, as such would be part of any review by the Appellate Division, First Department, upon transfer pursuant to CPLR § 7804. See Jones v Fletcher, 279 AD 1118 (3d Dept 1952) and Serby v City of New York, 215 AD3d 438 (1st Dept 2023). 157542/2020 MULADZHANOV, ABRAM vs. CITY OF NEW YORK Page 3 of 5 Motion No. 001

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provides that New York State may vary such requirements, subject

to substantial compliance with such Manual. In addition, New

York State laws, specifically Vehicle and Traffic Law §§ 1680(c)

and 1682, permit respondent City to diverge from the state

specifications raised by petitioners to the extent respondent

City “in its discretion deems practicable”. As respondent New

York City did so, petitioners’ challenge thereon shall be

dismissed.

Given the “coding error” explanation set forth in the

letter dated June 11, 2018 that the signature of the technician

on the Certificate of Charging Liability in some instances is

not viewable from certain computer monitors, and the removal of

the verification requirement by VTL § 208 removal, petitioners

have no basis to assail the authenticity of the Technician’s

Certificates. See Street v City of New York, 202 AD3d 542, 543

(1st Dept 2022).

Petitioners’ challenge to the Daily Set-up Log likewise

likes merit as the record evidence, in the form of the Daily

Logs themselves (NYSCEF Documents Number 9), demonstrates that

respondent City’s implementation of such Set-up comports with

VTL § 1180-b(3) mandates, as a matter of fact and law. Further,

respondent City’s discretion therewith is entitled to deference

by this court. See Serby v City of New York, supra, at p. 439,

citing Street, supra.

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Finally, for the reasons asserted by respondents, this

court finds that petitioners’ other challenges lack merit.

Therefore dismissed are petitioners’ claims of or for (1)

deprivation of due process (see Halberstam v City of New York,

Index No. 654239/2012, [Order dated December 14, 2013, Kathryn

Freed, JSC, NYSCEF Document Number 63]; Nestle Waters N Am Inc v

City of New York, 689 Fed Appx 87, 88 [2d Cir 2017]; and

Muladzhanov v City of New York, 18 CV 930 [US Court, EDNY 2018]); (2) civil damages for violations of VTL §§ 1180-b(a)(2),

1180-b(d), 1180-b(g)(2) and 1180-b(a) (see Weinman v New York

State Department of Motor Vehicles Traffic Violations Bureau,

203 AD3d 1050 [2d Dept 2022]); and (3) fraudulent

concealment/fraudulent inducement, negligent misrepresentation,

unjust enrichment (see Michael R. Gianatasio, PE, PC v City of

New York, 53 Misc3d 757, 774-775 [Sup Ct NY Co 2016, Kornreich,

J); declaratory judgment (see Press v Monroe County, 50 NY2d 695

(1980).

3/15/2024 DATE DEBRA A. JAMES, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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