Constitution Rights Org Edu

Also see VTL: Service of Summonses (how to Dismiss)

Even if ALJ Gotsopolous had authority to act individually and enter the remand, the court finds that the decision was in "violation of lawful procedure" because it was entered either without a hearing, or after an ex parte hearing for which no record was made.

ALJ Pine's order contains a certification that the dismissal was entered after a hearing was conducted, but this statement is not supported by the official record.

A judicial determination of a significant issue.

... never given a meaningful opportunity to oppose the ...

The PVB Lacked Personal Jurisdiction Over ...

the summons was not properly served on him pursuant to Vehicle and Traffic Law § 238 (2) [*3]and therefore must be dismissed. Vehicle and Traffic Law § 238 (2) states,

"[a] notice of violation shall be served personally upon the operator of a motor vehicle who is present at the time of service . . .
[or] if the operator is not present, by affixing such notice to said vehicle in a conspicuous place."

No provision is made in the Vehicle and Traffic Law for service of a summons by mail.


Moreover, no exception is included in Vehicle and Traffic Law § 238 (2) for vehicle operators who "drive off" before a summons may be completed and properly served.

The statute clearly provides that service may be completed only by one of two means by personal delivery or by affixing the summons to the car.

The Court of Appeals has required strict compliance with the requirements of the Vehicle and Traffic Law.

For example, in Matter of Ryder Truck Rental v Parking Violations Bur. of Transp. Admin. of City of N.Y. (62 NY2d 667 [1984]), the Court of Appeals reversed the Appellate Division and reinstated the Supreme Court's decision annulling a PVB appeals board decision which upheld notices of violation that failed to include the expiration date for the vehicle's registration, as required by the statute. The Court said: "The provisions explicitly prescribed by the Legislature in the statute are mandatory . . . . To hold all these elements directory only would evidently be to eviscerate the legislative enactment." (Id. at 669-670.)

Similarly here, the court is bound by the plain language of Vehicle and Traffic Law § 238 (2) to conclude that service by mail is not permitted, even in "drive off" cases.

Admittedly, this reading of the statute may make it more difficult for the PVB to{**28 Misc 3d at 609} enforce traffic and parking laws against motorists who leave the scene before service is accomplished. Nevertheless, the statute simply does not allow for service of a summons by mail, and the court is not permitted to effectively amend a statute to correct perceived errors or deficiencies.

That is a task for the Legislature, if it sees fit to do so. (See Matter of Green [Potter], 51 NY2d 627, 629 [1980], citing Meltzer v Koenigsberg, 302 NY 523, 525 [1951] [finding no specific statutory authority under Mental Hygiene Law article 77 to support petitioner's request for attorney's fees, the Court held it did not have the authority to award fees by presuming such an omission was a legislative oversight].)

The court further notes that the Vehicle and Traffic Law does allow, in other circumstances, that certain notices be mailed to motorists, rather than personally served or affixed to the subject vehicle. For example, Vehicle and Traffic Law § 235 (2) (a) (2) directs a municipality to give a motorist who has not responded to a first notice of violation a second notice through "regular first class mail." Vehicle and Traffic Law § 241 (2) likewise permits the city to notify a motorist by mail that a default judgment will shortly be entered against him for failure to enter a plea or contest a charge made in a summons, or for failure to appear at a designated hearing. However, these circumstances are distinct from the instant case in that the notices may be mailed only after service of process has been completed and the time period for responding to the summons has expired.
The type of notices which may be [*4]mailed are not summonses, which require proper service to acquire jurisdiction over the motorist.

As the Vehicle and Traffic Law does not allow service of a summons by mail, Mr. Ko's article 78 petition must be granted, his July 14, 2008 summons dismissed, and the $115 fine assessed by the PVB vacated and the monies repaid to petitioner, if not done so already. The court does not need to reach petitioner's arguments alleging the illegality of 19 RCNY 39-12, which requires that a motorist pay the PVB fine in full before filing an administrative appeal.

To sustain PVB Summons:

5 identification required elements
Place of occurrence where your chariot was parked
A parking rules reference to the correct citation of 4-08
I've listed all five cases with a brief explanation of why the case is important and a link to the case.


1. In the Matter of Ryder Truck Rental, Inc., et al., Appellants, v. Parking Violations Bureau of the Transportation Administration of the City of New York, Respondent
Why is this case important?

NY Court of Appeals ruled against the Parking Violation Bureau finding that the NY Legislature intended 5 identification elements in the statute to be mandatory, not directory
The 5 required elements are expiration date, the plate designation, the plate type, the make or model, and the body type of the vehicle
Link to the case.

2. Matter of Wheels, Inc. v. Parking Violations Bureau of the Dep't of Transp. of the City of New York
Why is this case important?

In Matter of Ryder Truck, the NY Court of Appeals declared that five identification elements, including plate type, on a parking ticket were mandatory, and the omission of one element required dismissal (Matter of Ryder Truck Rental v Parking Violations Bur., 62 N.Y.2d 667)
The Court amplified that decision and held that a misdescription of any of the five mandatory identification elements also mandates dismissal.
Link to Case.

3. Young v. The City of NY Dept. of Finance Parking Violations Adjudications
Why is this case important?

VTL sec. 240(b) and 19 RCNY sec. 39-08(e) provides that the Evil Empire must establish a parking violation upon proof by substantial evidence • VTL sec. 238(1) and 19 RCNY sec. 39-08(f)(4) establish a parking ticket acts as prima facie evidence of the facts contained therein
VTL sec. 238(1) and 19 RCNY sec. 39-08(f)(4) establish a parking ticket acts as prima facie evidence of the facts contained therein
A parking ticket does not create a presumption of guilt but merely shifts the burden of proof to the alleged violator
If the member of the driving public submits testimony refuting the charges that are "not patently incredible," then the parking ticket must be dismissed absent the submission of additional evidence by the respondent to meet its ultimate burden
Link to case

4. Crichlow v. NYC Dept. of Fin. Adjudication Div.
Why is this case important?

• It was not disputed that the vehicle was a two-door sedan and not a four-door sedan. Thus, the summons which described the body type as '4DSD' contained a misdescription of the vehicle. However, Respondent contends that "the identification of the two-door sedan as a four-door sedan on a parking ticket is not a fatal mistake because it does not reach the level of misdescription of the body type as required by VTL §238"

• The Court of Appeals clearly stated in Matter of Wheels, Inc., v Parking Violations Bureau, 80 NY2d 1014 [1992] that a misdescription of any of the five mandatory identification elements mandates dismissal

• Contrary to the respondent's contention, the Court of Appeals ruling in Matter of Wheels, Inc, supra., does not give levels of misdescription

And it does not give an exception for small errors.

• The Adjudication Bureau was mandated to dismiss the summons according to VTL§ 238(2-b)(a) because the body type of the car was clearly misdescribed,

• Violation No. 7324225871 must be annulled due to an error

Link to case

5. Matter of Nestle Waters N. Am., Inc. v City of New York
Why is this case important?

Respondents' policy of deeming "IRP" an accurate description of "Apportioned" license plates issued outside of New York State is violative of § 238 of the Vehicle and Traffic Law.

In other words, the City must enter the exact description that appears on a license plate when entering "Plate Type" on a parking ticket (This pertains to out-of-state plates).

To annul an administrative determination made after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination"

(Matter of Mannino v. Department of Motor Vehs. of State of N.Y. Traffic Violations Div., 101 A.D.3d 880, 956 N.Y.S.2d 120;  

see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321).  

Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact"

(300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183).

Under these circumstances, the record lacks substantial evidence to support the determination that the petitioner violated Vehicle and Traffic Law § 1141
(see generally Matter of Paolino v. Swarts, 105 A.D.3d 850, 851, 962 N.Y.S.2d 698;  
cf. Matter of Gerber v. New York State Dept. of Motor Vehs., 129 A.D.3d at 960–961, 11 N.Y.S.3d 648).

The petitioner's remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, the petition must be granted, the determination annulled, and the penalty imposed vacated.

Summary of Hearing Rules of Procedure
The New York Department of State's Rules of Procedure for Adjudicatory Proceedings are set forth in Part 400 of 19 NYCRR. The following is a summary of such rules:

All hearings will be conducted in accordance with the State Administrative Procedure Act. Pertinent provisions are as follows:
 
All hearings will be commenced on reasonable notice (generally 10 days under our statutes). The notice will apprise the respondent of matters asserted and of any statutes or rules involved. Parties may present written and/or oral argument on any issue.
 
The department will make a record of all hearing proceedings including a transcript of the hearing and shall furnish a copy of the record or any part thereof to the respondent at cost.

All parties have the usual rights of parties in civil proceedings, i.e., to examine and cross-examine witnesses, make objections, etc.
 
The Administrative Law Judge will preside over the hearing in a fair and impartial manner.

Generally, an Administrative Law Judge has the authority of any judge in a civil matter and may order discovery and depositions.

The judge rules on the admissibility of evidence and is not bound by strict rules of evidence.
 

The Administrative Law Judge or other person assigned to render a decision does so by including findings of fact and conclusions of law or reasons for his/her decision. The judge will not consult with any party about his/her decision except upon notice to all parties.

The rules require a decision to be made in the format of findings of fact and conclusions of law.

Parties may propose findings of fact and the decision will contain a ruling on such findings.
 

Social Security:

§ 416.1453. The decision of an administrative law judge.
(a) General. The administrative law judge shall issue a written decision which gives the findings of fact and the reasons for the decision. The administrative law judge must base the decision on the preponderance of the evidence offered at the hearing or otherwise included in the record. The administrative law judge shall mail a copy of the decision to all the parties at their last known address. The Appeals Council may also receive a copy of the decision.

(b) Fully favorable oral decision entered into the record at the hearing.

The administrative law judge may enter a fully favorable oral decision based on the preponderance of the evidence into the record of the hearing proceedings.

If the administrative law judge enters a fully favorable oral decision into the record of the hearing proceedings, the administrative law judge may issue a written decision that incorporates the oral decision by reference.

The administrative law judge may use this procedure only in those categories of cases that we identify in advance.

The administrative law judge may only use this procedure in those cases where the administrative law judge determines that no changes are required in the findings of fact or the reasons for the decision as stated at the hearing. If a fully favorable decision is entered into the record at the hearing, the administrative law judge will also include in the record, as an exhibit entered into the record at the hearing, a document that sets forth the key data, findings of fact, and narrative rationale for the decision.

If the decision incorporates by reference the findings and the reasons stated in an oral decision at the hearing, the parties shall also be provided, upon written request, a record of the oral decision.

(c) Time for the administrative law judge's decision. (1)

The administrative law judge must issue the hearing decision no later than 90 days after the request for hearing is filed, unless—

(i) The matter to be decided is whether you are disabled; or

(ii) There is good cause for extending the time period because of unavoidable circumstances.

(2) Good cause for extending the time period may be found under the following circumstances:

(i) Delay caused by you or by your representative's action.

The time period for decision in this instance may be extended by the total number of days of the delays. The delays include delays in submitting evidence, briefs, or other statements, postponements or adjournments made at your request, and any other delays caused by you or your representative.

(ii) Other delays.

The time period for decision may be extended where delays occur through no fault of the Commissioner. In this instance, the decision will be issued as soon as practicable.

(d) Recommended decision.

Although an administrative law judge will usually make a decision, the administrative law judge may send the case to the Appeals Council with a recommended decision based on a preponderance of the evidence when appropriate. The administrative law judge will mail a copy of the recommended decision to the parties at their last known addresses and send the recommended decision to the Appeals Council.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986; 54 FR 37793, Sept. 13, 1989; 62 FR 38455, July 18, 1997; 69 FR 61597, Oct. 20, 2004; 73 FR 76945, Dec. 18, 2008; 75 FR 33169, June 11, 2010]