§ 80 — Jurisdiction of commissioner

New York § 80

• Jurisdiction: New York
• Law TRA: Transportation
• Art. 3: Jurisdiction of Commissioner; Proceedings Before Commissioner; Recovery of Penalties; Court Preferences; Fees

Text

§ 80. Jurisdiction of commissioner. 1. The jurisdiction, supervision,\npowers and duties of the commissioner under this chapter shall extend to\ncommon carriers, common and contract carriers of passengers by motor\nvehicle, and common and contract carriers of property by motor vehicle,\nand to the persons owning, leasing or operating the same. Such\njurisdiction does not extend however to any public authority or any\nsubsidiary thereof exercising any power granted under the public\nauthorities law.\n 2. A person or persons owning or holding a majority of the stock of\nany common carrier specified in subdivision one of this section and\nsubject to the jurisdiction of the commissioner shall be subject to the\nsupervision of the commissioner in respect of the relations between such\ncommon carrier and such owners or holders of a majority of the stock\nthereof insofar as such relations arise from or by reason of such\nownership or holding of stock thereof or the receipt or holding of any\nmoney or property thereof or from or by reason of any contract between\nthem; and in respect of such relations shall in like manner and to the\nsame extent as such common carrier be subject to examination of\naccounts, records and memoranda and shall furnish such reports and\ninformation as the commissioner shall from time to time direct and\nrequire and shall be subject to like penalties for default therein.\n 3. Corporations formed to acquire property or to transact business\nwhich would be subject to the provisions of this chapter, and\ncorporations and other persons possessing franchises for any of the\npurposes contemplated by this chapter, shall be deemed to be subject to\nthe provisions of this chapter although no property may have been\nacquired, business transacted or franchises exercised.\n 4. Notwithstanding any other provision of law, the commissioner shall\nnot have jurisdiction over the regulation of any bus line operations\nthat are wholly within the boundaries of any city when such city has\nadopted an ordinance, local law or charter to regulate or franchise bus\nline operations, except that the commissioner shall have jurisdiction\nwith respect to safety of operation of motor vehicles and self-insurance\nrequirements of such bus lines. The commissioner shall, however, have\nexclusive jurisdiction over the regulation of common carriers of\npassengers by motor vehicle that provide operations on a prearranged\nbasis over non-specified or irregular routes within a city, except as\nprovided in subdivision five of this section or as otherwise provided in\nthis chapter. It is further provided, however, that once the\ncommissioner issues a certificate to a motor carrier to operate as a\ncommon carrier of passengers by motor vehicle, such motor carrier shall\nbe under the exclusive jurisdiction of the commissioner with respect to\nthe service performed under such certificate, except as provided in\nsubdivision five of this section.\n 5. a. (1) Notwithstanding any other provision of law, in any city with\na population of over one million, the commissioner shall not have\njurisdiction over the regulation of any van service or other common\ncarrier of passengers by motor vehicle covered under article seven of\nthis chapter when such van service or other such common carrier is\noperated wholly within the boundaries of such city or is operated partly\nwithin such city if the partial operation consists of the pick up and\ndischarge of passengers wholly within such city, when such city has\nadopted an ordinance, local law or charter to regulate or franchise such\noperations; provided, however, that the commissioner shall have\nexclusive jurisdiction with respect to the safety of operation of motor\nvehicles operated as van services or other such common carriers of\npassengers, except that concurrent jurisdiction with respect to\nenforcement of such safety standards may be transferred pursuant to\nagreement between the department and such city; and provided further\nthat the commissioner shall have exclusive jurisdiction with respect to\nvan services and other such common carriers that are designed for the\ntransport of transportation disabled persons as defined in section\nfifteen-b of this chapter, except that such city shall continue to have\njurisdiction over the licensure of wheelchair accessible vans and\ndrivers of such vans as provided in chapter five of title nineteen of\nthe administrative code of the city of New York; and provided further\nthat the commissioner shall have exclusive jurisdiction with respect to\nthe operations of motor vehicles as van services or other such common\ncarriers of passengers covered under article seven of this chapter to or\nfrom an airport in such city when such van services or other such common\ncarriers of passengers have been issued a permit by the port authority\nof New York and New Jersey to operate at an airport in such city or\napply for such permit and within a reasonable period of time are issued\nsuch permit by such authority. Such local law or ordinance shall: (i)\ndesignate a city agency which will assume the regulatory responsibility,\n(ii) contain regulations for the issuance of operating authority in\naccordance with criteria to be established pursuant to such local law or\nordinance, which criteria shall include but not be limited to the\nfitness, willingness and ability of the applicant to provide the\ntransportation to be authorized by the certificate and to comply with\nthe local law or ordinance, and consideration of the present or future\npublic convenience and necessity, and prohibit the operation of any\nvehicle as a van service or other such common carrier of passengers\nwithout such operating authority or without complying with regulations\npromulgated by the commissioner regarding safety of operations, (iii)\nmake provisions for the continuation of operating authority for van\nservices and other such common carriers of passengers previously\napproved by the department which are in compliance with such operating\nauthority through the conversion of such operating authority to\noperating authority issued by the city agency designated by the local\nlaw or ordinance adopted pursuant to this subdivision, pursuant to\nagreement between the department and such city, provided that all such\nvan services and common carriers shall comply with such local law or\nordinance within one year of the effective date of such local law or\nordinance, (iv) contain adequate regulatory and enforcement mechanisms,\n(v) provide that such city agency shall, after consultation with the\ndepartment, render a final administrative determination on any\napplication for the issuance of a permit, certificate or other operating\nauthority within one hundred eighty days after a completed application\nis filed, provided that the failure to approve or disapprove any\ncompleted application by such agency within one hundred eighty days\nshall be deemed a disapproval of said application, and (vi) provide for\nthe imposition of a fee for such operating authority not to exceed the\namount of the license fee for for-hire vehicles established by the\ncommissioner of the agency having jurisdiction over the licensing of\nfor-hire vehicles in accordance with subdivision b of section 19-504 of\nthe administrative code of the city of New York, as amended.\n (2) Such local law or ordinance shall prohibit a van service or other\nsuch common carrier of passengers, other than van services and other\nsuch common carriers that are designed for the transport of\ntransportation disabled persons as defined in section fifteen-b of this\nchapter and may lawfully engage in such transportation or under the\nexclusive jurisdiction of the commissioner, from soliciting, picking up\nor discharging passengers at stops of, or along a route which is\ntraveled upon by, a bus line which is operated by a transit authority or\nsuch city or a private bus company approved by such city to operate\npursuant to a local law, ordinance or charter provision enacted in\naccordance with subdivision four of this section; provided, however,\nthat such local law or ordinance shall provide that this prohibition\nshall not apply to the pick up or discharge of passengers in the borough\nof Manhattan south of Chambers Street by van services or other such\ncommon carriers of passengers with authority from the department as of\nthe first day of July, nineteen hundred ninety-two to pick up or\ndischarge passengers along bus routes in such area, provided further\nthat the scope of operations by such van services or other common\ncarriers of passengers along bus routes in such area shall not exceed\nthe scope of such operations prior to the first day of July, nineteen\nhundred ninety-two.\n (3) Notwithstanding any provision of law to the contrary, such local\nlaw or ordinance may provide for the administrative adjudication of a\nviolation of such local law or ordinance by an agency or an\nadministrative tribunal of an agency heretofore authorized pursuant to\nthe charter of such city to adjudicate violations of local law, rules\nand regulations pertaining to for-hire vehicles as if it were a\nviolation relating to for-hire vehicles and in accordance with the\nprovisions of such charter pertaining to the adjudication of violations\nrelating to for-hire vehicles. Such local law or ordinance may provide\nthat notices of violation of such local law or ordinance may be served\nby any police officer, officer or employee designated by the city agency\nwith regulatory responsibility, or authorized officers or employees of\nthe transit authority of such city, and shall be returnable to such\nagency or administrative tribunal. Such local law or ordinance shall\nprovide that the civil penalty imposed by such agency or administrative\ntribunal for a first violation relating to a van service or other such\ncommon carrier of passengers shall not be more than one thousand\ndollars, and for a second or subsequent violation within two years of\nthe first violation shall not be more than twenty-five hundred dollars.\nJudgments based on such adjudications may be entered and enforced\nwithout court proceedings in accordance with the provisions of such\ncharter pertaining to the enforcement of judgments relating to for-hire\nvehicles.\n (4) Such local law or ordinance shall provide that where such agency\nor administrative tribunal finds an owner liable for operating a vehicle\nas a van service or other such common carrier without the operating\nauthority required by such local law or ordinance, such agency or\nadministrative tribunal may notify the commissioner of motor vehicles of\nsuch finding and the commissioner shall thereupon suspend the\nregistration of such vehicle and shall deny any application for the\nregistration of such vehicle or any application for the renewal thereof\npursuant to subdivision five-a of section four hundred one of the\nvehicle and traffic law until such time as such agency or administrative\ntribunal may give notice that the violation has been corrected to its\nsatisfaction. The procedure on any such suspension shall be the same as\nin the case of a suspension under the vehicle and traffic law. Operation\nof any motor vehicle for which the registration has been suspended as\nherein provided shall constitute a class A misdemeanor.\n (5) Such local law or ordinance may provide for the seizure and\nforfeiture of vehicles that have been operated as a van service or other\nsuch common carrier of passengers without the operating authority\nrequired by such local law or ordinance, in accordance with the\nprovisions of paragraphs b and c of this subdivision.\n b. (1) A local law or ordinance adopted pursuant to paragraph a of\nthis subdivision may provide that any police officer or officer or\nemployee designated by the city agency with regulatory responsibility\nmay, upon service of a notice of violation upon the owner or operator of\na vehicle, seize a vehicle which such police officer or authorized\nofficer or employee has reasonable cause to believe is being operated as\na van service or other such common carrier of passengers by or on behalf\nof an individual or entity which is not the holder of operating\nauthority to operate a van service or other such common carrier of\npassengers. All passengers in any seized vehicle shall be left in or\ntransported to a location which is readily accessible to other means of\npublic transportation. Any vehicle seized pursuant to this paragraph\nshall be delivered into the custody of the city agency with regulatory\nresponsibility or other appropriate agency of the city. Within one\nbusiness day after the seizure, notice of such seizure and a copy of the\nnotice of violation shall be mailed to the owner of such vehicle at the\naddress for such owner set forth in the records maintained by the\ndepartment of motor vehicles, or for vehicles not registered in New York\nstate, such equivalent record in such state of registration.\n (2) A hearing to adjudicate the violation underlying the seizure shall\nbe held before the agency or administrative tribunal designated by such\nlocal law or ordinance to adjudicate violations of such local law or\nordinance within five business days after the date of seizure. Such\nagency or administrative tribunal shall within one business day of the\nconclusion of the hearing render a determination as to whether the\nvehicle has been operated by or on behalf of an individual or entity\nwhich is not the holder of operating authority to operate a van service\nor other such common carrier of passengers. An owner shall be eligible\nto obtain release of such vehicle prior to such hearing if such owner\nhas not previously been found liable in an administrative or court\nproceeding for operating a vehicle as a van service or other such common\ncarrier in violation of a local law or ordinance adopted pursuant to\nparagraph a of this subdivision, which violation was committed within a\nfive-year period prior to the violation resulting in seizure. The\nvehicle shall be released to an eligible owner upon the posting of a\nbond in a form satisfactory to such agency or administrative tribunal in\nan amount that shall not exceed an amount sufficient to cover the\nmaximum fines or civil penalties which may be imposed for the violation\nunderlying the seizure and all reasonable costs for removal and storage\nof such vehicle.\n (3) Where such agency or administrative tribunal after adjudication of\nthe violation underlying the seizure finds that the vehicle has been\noperated by or on behalf of an individual or entity which is not the\nholder of operating authority to operate a van service or other such\ncommon carrier of passengers, (i) if the vehicle is not subject to\nforfeiture pursuant to paragraph c of this subdivision, such agency or\nadministrative tribunal shall release such vehicle to an owner upon\npayment of the applicable fines and civil penalties and all reasonable\nremoval and storage costs, or (ii) if the vehicle is subject to\nforfeiture pursuant to paragraph c of this subdivision, such agency or\nadministrative tribunal may release such vehicle to an owner upon\npayment of the applicable fines and civil penalties and all reasonable\nremoval and storage costs, or may commence a forfeiture action pursuant\nto paragraph c of this subdivision within ten days after the owner's\nwritten demand for such vehicle.\n (4) Where such agency or administrative tribunal after adjudication of\nthe violation underlying the seizure finds that the charge of operating\nwithout the required operating authority has not been sustained, the\nvehicle shall be released to the owner.\n (5) If an owner or representative of such owner has not sought to\nreclaim a seized vehicle within thirty days after the mailing of notice\nto such owner of the final adjudication by such city agency or\nadministrative tribunal of the violation underlying the seizure, such\nvehicle shall be deemed by such agency or administrative tribunal to be\nabandoned. Such vehicle shall be disposed of by the city agency with\nregulatory responsibility or other appropriate agency of the city\npursuant to section twelve hundred twenty-four of the vehicle and\ntraffic law; provided, however, that notwithstanding any inconsistent\nprovision of section twelve hundred twenty-four of such law, if an owner\nseeks to reclaim such vehicle pursuant to the provisions of section\ntwelve hundred twenty-four of such law, such owner shall be deemed to\nhave made a written demand for such vehicle and such agency or\nadministrative tribunal shall take such action as may be authorized by\nsubparagraph three or four of this paragraph.\n c. (1) In addition to the penalties, sanctions and remedies provided\nfor in paragraphs a and b of this subdivision or subdivisions six and\nseven of section one hundred forty-five of this chapter, a vehicle\nseized pursuant to paragraph b of this subdivision and all rights, title\nand interest therein shall be subject to forfeiture to the city in\naccordance with the procedures set forth in this paragraph upon judicial\ndetermination thereof if the owner of such vehicle has been found liable\nat least two times in an administrative or court proceeding for\nviolating a provision of a local law or ordinance adopted pursuant to\nparagraph a of this subdivision that prohibits the operation of a\nvehicle as a van service or other such common carrier of passengers\nwithout the operating authority required by such local law or ordinance,\nboth of which violations were committed within a five-year period.\n (2) A forfeiture action which is commenced pursuant to this paragraph\nshall be commenced by filing of a summons with notice or a summons and\ncomplaint pursuant to the civil practice law and rules, and such summons\nwith notice or summons and complaint shall be served pursuant to\nsubparagraph three of this paragraph. A vehicle which is the subject of\nsuch action shall remain in the custody of the city agency with\nregulatory responsibility or other appropriate agency of the city\npending the final determination of the forfeiture action.\n (3) Service of a summons with notice or a summons and complaint shall\nbe made: (i) by personal service pursuant to the civil practice law and\nrules upon all owners of the vehicle listed in the records maintained by\nthe department of motor vehicles, or for vehicles not registered in New\nYork state, in the records maintained by the state of registration; (ii)\nby first class mail upon all individuals who have notified such city\nagency or administrative tribunal that they are an owner of the vehicle;\nand (iii) by first class mail upon all persons holding a security\ninterest in such vehicle which security interest has been filed with the\ndepartment of motor vehicles pursuant to the provisions of title ten of\nthe vehicle and traffic law, at the address set forth in the records of\nsuch department, or for vehicles not registered in New York state, all\npersons holding a security interest in such vehicle which security\ninterest has been filed with such state of registration at the address\nprovided by such state of registration.\n (4) Any owner who receives notice of the institution of a forfeiture\naction who claims an interest in the vehicle subject to forfeiture shall\nassert a claim for the recovery of the vehicle or satisfaction of the\nowner's interest in such vehicle by intervening in the forfeiture action\nin accordance with the civil practice law and rules. Any person with a\nsecurity interest in such vehicle who receives notice of the institution\nof the forfeiture action who claims an interest in such vehicle subject\nto forfeiture shall assert a claim for satisfaction of such person's\nsecurity interest in such vehicle by intervening in the forfeiture\naction in accordance with the civil practice law and rules.\n (5) No vehicle shall be forfeited under this paragraph, to the extent\nof the interest of a person who claims an interest in the vehicle, where\nsuch person pleads and proves as an affirmative defense that: (i) the\nuse of the vehicle for the conduct that was the basis for a seizure\nauthorized by a local law or ordinance adopted pursuant to paragraph a\nof this subdivision occurred without the knowledge of such person, or if\nsuch person had knowledge of such use, without the consent of such\nperson, and that such person did not knowingly obtain such interest in\nthe vehicle in order to avoid the forfeiture of such vehicle; or (ii)\nthe conduct that was the basis for such seizure was committed by any\nperson other than such person claiming an interest in the vehicle, while\nsuch vehicle was unlawfully in the possession of a person who acquired\npossession thereof in violation of the criminal laws of the United\nStates or any state. For purposes of this subparagraph, where such\nperson claiming an interest in the vehicle had knowledge of the use of\nthe vehicle for the conduct that was the basis for such seizure, such\nperson shall be deemed to have consented to the unlawful conduct unless\nsuch person establishes that he or she did all that could reasonably\nhave been done to prevent the use of the vehicle for such unlawful\nconduct.\n (6) The agency of the city having custody of the forfeited vehicle,\nafter judicial determination of forfeiture, shall, at its discretion,\neither: (i) retain such vehicle for the official use of the city or,\n(ii) by public notice of at least twenty days, sell such forfeited\nvehicle at public sale. The net proceeds of any such sale shall be paid\ninto the general fund of such city.\n (7) At any time within six months after the forfeiture, any person\nclaiming an interest in a vehicle which has been forfeited pursuant to\nthis paragraph who was not sent notice of the commencement of the\nforfeiture action pursuant to subparagraph three of this paragraph or\nwho did not otherwise receive actual notice of the forfeiture action may\nassert in an action commenced before the justice of the supreme court\nbefore whom the forfeiture action was held such claim as could have been\nasserted in such forfeiture action pursuant to this paragraph. The court\nmay grant the relief sought upon such terms and conditions as it deems\nreasonable and just if such person claiming an interest in the vehicle\nestablishes that he or she was not sent notice of the commencement of\nthe forfeiture action and was without actual knowledge of the forfeiture\naction and establishes either of the affirmative defenses set forth in\nsubparagraph five of this paragraph.\n (8) In any action commenced pursuant to subparagraph two or seven of\nthis paragraph, where the court awards a sum of money to one or more\npersons in satisfaction of such person's or persons' interest or\ninterests in the forfeited vehicle, the total amount awarded to satisfy\nsuch interest or interests shall not exceed the amount of the net\nproceeds of the sale of the forfeited vehicle, after deduction of the\nlawful expenses incurred by the city, including the reasonable costs of\nremoval and storage of the vehicle between the time of seizure and the\ndate of sale.\n (9) For purposes of this paragraph, the term "security interest" shall\nmean a security interest as defined in subdivision k of section two\nthousand one hundred one of the vehicle and traffic law.\n d. For purposes of this subdivision, the term "owner" shall mean an\nowner as defined in section one hundred twenty-eight and in subdivision\nthree of section three hundred eighty-eight of the vehicle and traffic\nlaw.\n e. The provisions of this subdivision authorizing penalties, sanctions\nand remedies shall not be construed to supersede the provisions of\nsubdivisions six and seven of section one hundred forty-five of this\nchapter but shall be construed to provide penalties, sanctions and\nremedies in addition to those provided in such subdivisions.\n f. Any city with a population of over one million which adopts a local\nlaw or ordinance pursuant to this subdivision to regulate van service\nand other such common carrier operations shall, no later than two years\nfollowing the effective date of such local law or ordinance, submit a\nreport regarding the regulation of such van services and other such\ncommon carriers to the governor, the temporary president of the senate\nand the speaker of the assembly. Such report shall, to the extent such\ninformation is available, include but not be limited to: (i) the\nestimated number of individuals and entities with proper operating\nauthority to operate a van service and other such common carrier, both\nprior to the commencement of local regulation and after such two-year\nperiod, and the number of vehicles operated by such individuals or\nentities; (ii) the estimated number of vehicles operated without proper\noperating authority, both prior to the commencement of local regulation\nand after such two-year period; (iii) the number of individuals and\nentities which had applied for operating authority during such two-year\nperiod; (iv) the number of applications which had been denied and a\nbreakdown of the reasons for such denials; (v) the number of notices of\nviolations or summonses issued to vehicles pursuant to local law or\nordinance during such two-year period, and a breakdown of the\ndispositions of such violation notices or summonses; (vi) the number of\nvehicles seized pursuant to local law or ordinance during such two-year\nperiod, and a breakdown of the dispositions of such seizures; (vii) the\nnumber of vehicles forfeited pursuant to local law or ordinance during\nsuch two-year period; (viii) the total amount of fines collected\npursuant to such local law or ordinance; and (ix) a description of the\nmanner in which service is being provided to commuters who previously\nused van services and other such common carriers which had been\noperating without proper operating authority.\n