Silverstein v. Appeals Board of Parking Violations Bureau

100 A.D.2d 778, 474 N.Y.S.2d 60, 1984 N.Y. App. Div. LEXIS 17879

Opinion

Order and judgment (one paper), Supreme Court, New York County (Blyn, J.), entered August 5, 1983, which, inter alia, dismissed the petition as moot, unanimously affirmed, without costs or disbursements. Uln this CPLR article 78 proceeding, petitioner sought to challenge not only the guilty finding and fine imposed upon him by the Parking Violations Bureau, but also the Bureau’s adjudicating procedures. After the commencement of the proceeding, however, the Department of Transportation dismissed the summons “in the interest of justice” and refunded the $35 fine paid by petitioner. We agree with Special Term that the issues raised by the petition have been rendered moot and, accordingly, affirm the judgment. 11 We take this occasion, however, to note that in Matter of Gruen v Parking Violations Bur. (58 AD2d 48), this court, relying on section 883a-6.0 (subd b, par 2) of the Administrative Code of the City of New York and overlooking section 240 (subd 2, par b) of the Vehicle and Traffic Law, which provides that a parking violation charge be established by “substantial evidence”, held that the Bureau’s manual for adjudication was incorrect and improperly shifted the burden of proof. Since section 235 of the Vehicle and Traffic Law provides that the standard set forth in section 240 supersedes any Administrative Code provision to the contrary, the manual was not incorrect. Moreover, the substantial evidence standard does not improperly shift the burden, since the onus is still on the People to establish a prima facie case. We assume that this requires that the charge be established by a fair preponderance of the credible evidence. Concur — Sandler, J. P., Sullivan, Asch, Silver-man and Kassal, JJ.