Motion-Secondary: Arabella Palma Individually, and on behalf of all others similarly situated, Shalom Katz Individually, and on behalf of all others similarly situated v. The City Of New York, Department Of Transportation Commissioner Ydanis Rodriguez, both individually and in his official capacity, Department Of Finance Commissioner Preston Niblack both individually and in his official capacity, Deputy Commissioner For Treasury And Payment Services Jeffrey Shear both individually and in his official capacity, John And Jane Doe New York City Department Of Transportation Employees both individually and in their official capacities, John And Jane Doe New York City Department Of Finance Employees both individually and in their official capacities, John And Jane Doe New York City Parking Violations Bureau Employees both individually and in their official capacities, John And Jane Doe Parking Violations Bureau Administrative Law Judges both individually and in their official capacities

On March 03, 2023 a Motion-Secondary was filed involving a dispute between Arabella Palma Individually, And On Behalf Of All Others Similarly Situated, Shalom Katz Individually, And On Behalf Of All Others Similarly Situated, and Department Of Finance Commissioner Preston Niblack Both Individually And In His Official Capacity, Department Of Transportation Commissioner Ydanis Rodriguez, Both Individually And In His Official Capacity, Deputy Commissioner For Treasury And Payment Services Jeffrey Shear Both Individually And In His Official Capacity, John And Jane Doe Parking Violations Bureau Administrative Law Judges Both Individually And In Their Official Capacities, The City Of New York, for Special Proceedings - CPLR Article 78 in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------------X

In the Matter of the Application of

ARABELLA PALMA, individually, and on behalf of all
others similarly situated, and

SHALOM KATZ, individually, and on behalf of all
others similarly situated,

Plaintiffs-Petitioners,

For a Judgment Under Article 78 of the Civil Practice Law Index No.: 152138/2023
and Rules,

-against-

THE CITY OF NEW YORK, DEPARTMENT OF
TRANSPORTATION COMMISSIONER YDANIS RODRIGUEZ
both individually and in his official capacity, DEPARTMENT OF
FINANCE COMMISSIONER PRESTON NIBLACK, both individually
and in his official capacity, DEPUTY COMMISSIONER FOR
TREASURY AND PAYMENT SERVICES JEFFREY SHEAR,
both individually and in his official capacity, JOHN and JANE DOE
CITY OF NEW YORK EMPLOYEES, both individually and in their
official capacities, JOHN and JANE DOE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION EMPLOYEES, both
individually and in their official capacities, JOHN and JANE DOE
NEW YORK CITY DEPARTMENT OF FINANCE EMPLOYEES,
both individually and in their official capacities, JOHN and JANE DOE
NEW YORK CITY PARKING VIOLATIONS BUREAU EMPLOYEES,
both individually and in their official capacities, and JOHN and JANE
DOE PARKING VIOLATIONS BUREAU ADMINISTRATIVE LAW
JUDGES, both individually and in their official capacities,

Defendants-Respondents.

----------------------------------------------------------------------------X

PETITIONERS’ MEMORANDUM OF LAW
IN OPPOSITION TO RESPONDENTS MOTION TO DISMISS

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Plaintiffs-Petitioners Arabella Palma and Shalom Katz (“Petitioners”) submit this

memorandum of law in opposition to Respondents’ motion to dismiss (the “Motion”) Petitioners’

Verified Article 78 Petition and Complaint (the “Petition”).

PRELIMIANARY STATEMENT

Respondents’ memorandum of law in support of the Motion does everything except

address the central issue in this case – the meaning of VTL § 1180-b(b) which states:

“. . . the owner of a vehicle shall be liable for a penalty imposed pursuant to this section
if . . . such vehicle was traveling at a speed of more than ten miles per hour above the
posted speed limit in effect within such school speed zone.”

Because a posted1 speed sign (and required “photo enforced” sign required to be attached to the

speed sign) is an element of the violation, a Notice of Liability must contain prima facie evidence

of the speed/photo enforced sign to be legally valid. Respondents implore the Court to look

everywhere in the statute other than VTL § 1180-b(b) to prove an NOL is not required to provide

prima facie evidence of a speed/photo enforced sign.2 Their effort fails.

Using similar “smoke and mirror” strategy, Respondents spend 2 pages of their memo (pp

14-16) trying to convince the Court that two PVB Appeals Board (“PVBAB”) decisions do not

have their obvious meaning. In each case, the PVBAB (made up of separate three judge panels)

unanimously reversed the decision of the ALJ (who held the NOL was valid) based on the sole

defense raised – that an NOL for a school speed zone camera violation is invalid without prima

facie evidence of a posted speed limit sign because such signage is an element of the violation set

forth in § 1180-b(b). Without citing any case law or distinguishing the cases directly on point,

1
As set forth in ¶¶ 24-26 in the Petition, in drafting VTL § 1180-b which provides for camera violations (as opposed
to citations issued by a police offer observing a speeding violation in real time under VTL § 1180), the legislature
used the word “posted” before “maximum speed limit” as an element of the violation.
2
Tellingly, Respondents failed even to cite § 1180-b(b) when describing the “Relevant Statutory Framework”
(Respondents memo of law, pages 3-6).
2

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Respondents claim that the construction of the statute by the PVBAB is not entitled to judicial

deference. The Court should reject Respondents’ request to ignore the PVBAB’s construction of

§ 1180-b(b) and give it the judicial deference required under applicable case law.

Respondents’ claim that the Petition must be dismissed because “Petitioners failed to

exhaust administrative remedies” must also be rejected. First, Petitioners have exhausted all

available3 administrative remedies for Respondents’ misconduct alleged in the Petition. Second,

Respondents failed to apprise this Court (and left out the pertinent language in the seminal case

they did cite) that under applicable law the exhaustion rule does not apply in an Article 78

proceeding which turns on the meaning of a statute or when an agency’s action is challenged as

being beyond its grant of power. These are the grounds on which Petitioners are challenging

Respondents’ actions in this case. See, e.g., Petition, ¶ 3, footnote 1.

With respect to the common law claims, Petitioners have more than adequately stated a

claim for fraudulent concealment/fraudulent inducement, negligent misrepresentation and unjust

enrichment.

Since Petitioners have properly and sufficiently plead an Article 78 violation along with

the common law claims, Petitioners respectfully request that the Court deny the Motion and order

Respondents to file an answer to the Petition.

PROCEDURAL POSTURE AND RELEVANT PROCEDURAL LAW

Petitioners commenced this hybrid Article 78 proceeding challenging the actions and

determinations of Respondents in knowingly issuing and enforcing legally deficient NOLs under

CPLR 7803 subsections (2) and (3), viz, whether such actions were in excess in excess of

jurisdiction; and whether such actions and determinations were made in violation of lawful

3
That Respondents’ left out the word “available” in describing the doctrine tacitly evidences their knowledge that
no administrative remedy was “available” to Petitioners.
3

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procedure, were affected by an error of law or were arbitrary and capricious or an abuse of

discretion.

Petitioners are not proceeding under CPLR 7803(4), which is an Article 78 proceeding

which questions “whether a determination made as a result of a hearing held, and at which evidence

was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence”.

As is clear from the Petition, Petitioners are not claiming their hearings were not supported by

“substantial evidence.” Petitioner Palma paid her fine and the ALJ entered a judgement based on

a guilty plea. Petitioner Katz did not raise a defense relating to signage at all (although as alleged

in the Petition, he along with Palma would have if the Petitioners had listed this defense as one of

the possible defenses on the website). The Article 78 portion of this case is about the legal

construction of VTL § 1180-b and the broader regulatory framework and is not a challenge to

Petitioners’ hearing findings. Therefore, this Court should dispose of the issues pursuant to CPLR

7804(g). See Matter of Save the Pine Bush v. Planning Bd. of the City of Albany, 83 AD 2d 741

(3rd Dep’t 1981)(Appellate Division sends proceeding back to Special Term holding transfer was

improper).

Respondents have improperly introduce documentary evidence in the motion to dismiss.

“What the Court of Appeals has consistently said is that evidence in an affidavit used by a

defendant to attack the sufficiency of a pleading "will seldom if ever warrant the relief [the

defendant] seeks unless [such evidence] establish[es] conclusively that plaintiff has no cause of

action". Basis Yield Alpha Fund v. Goldman Sachs, 115 A.D.3d 128, 135 (1st Dep’t 2014).

Respondents refer to alleged DOT records to prove “speed signs were nearby”. Even assuming

such “records” were unassailable and proved what Respondents claim, these records do not

conclusively establish that the NOLs were valid or that Petitioners have not sufficiently plead the

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common law claims. Respondents don’t even attempt to introduce the purported DOT records for

these legitimate purposes. See Respondent’s memo of law, page 13.

In any case, these “records” prove little. They purport to show that signs were to be

installed in 2019, but they don’t prove the signs were actually installed. The records don’t indicate

the person(s) who allegedly installed the signs. Even if a sign were installed in 2019, that does not

establish that the sign was still there almost three years later when the NOLs were issued.

Respondents’ claim that they were4 is not supported by the purported City records or any additional

evidence, testimony or facts. If Respondents believe the presence of the speed signs at the time

the NOLs were issued is required to have the Petition dismissed, there is a question of fact and the

motion to dismiss must be denied.

ARGUMENT

POINT I

THE PETITION SHOULD NOT BE DISMISSED
PURSUANT TO CPLR 7801(1)

Respondents claim that the Petition must be dismissed because “Petitioners failed to

exhaust [available] administrative remedies” must be rejected.

4
E.g., in the memo of law Respondents state “Plaintiff Palma received NOL 583 for speeding on Linden Boulevard
and East 94th Street, and there were speed limit signs closeby on Linden Boulevard and East 91st Street . . .” This
language claims the alleged signs “were” there when (i.e., at the time) Palma received her NOL but the purported
“DOT records” introduced on Exhibit B (ECF Doc 26) of the Katzen Aff. don’t prove this. The most that can be
said is that these DOT records indicate speed limit signs were installed in 2019. Respondents don’t allege these
signs gave notice to Petitioner Palma that she was approaching a speed camera. Nor could they since Petitioner
Palma could have entered Linden Blvd on a side street.

Moreover, DOTs own records cast doubt on the DOT records introduced by Respondents. E.g., the DOT records
referred to above (Exhibit B) purporting to show a speed limit sign of 25mph/photo enforced installed on Linden
Blvd and E91st Street in 2019 are contradicted by a screen shot of DOT images set forth on Exhibit A hereto taken
from the DOT website https://nycdotsigns.net. These DOT records show a speed sign with a speed limit of 30mph
(with no photo enforced sign) at Linden Blvd and E 91st Street.
5

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A. Petitioners Have Exhausted Available Administrative Remedies

Based on the facts of this case and applicable case law, Petitioners exhausted all available

administrative remedies prior to bringing this Article 78 proceeding. The Petition alleges inter

alia that Respondents knew that the PVBAB had two occasions dismissed a speed zone camera

violation based on the defense that an NOL is null and void if it fails to provide prima facie

evidence of the statutory required signage. Because Respondents knew of this absolute defense,

Petitioners allege Respondents should have included such defense as a “possible defense” on DOF

website. Instead, Respondents concealed such defense so recipients of NOLs would plead guilty

or, if contested, would not raise this proven absolute defense.5

RCNY Chapter 39 has no procedures for contesting a guilty plea or guilty verdict based on

fraud, misrepresentation or misconduct with respect to the issuance and enforcement of an NOL

similar to the procedures provided in CPLR 5015(a).6

The language from the Court of Appeals cited and emphasized by Respondents in their

memo of law provides:

Analysis of whether a determination is “final” consists of two requirements: “First, the
agency must have reached a definitive position on the issue that inflicts actual, concrete
injury, and second, the injury inflicted may not be prevented or significantly ameliorated by
further administrative action or by steps available to the complaining party.” Matter of Best
Payphones, Inc. v. Dep’t of Info. Tech. & Telecomms., 5 N.Y.3d 30, 34 (2005) (emphasis
added by Respondents).

As alleged, Respondents inflicted injury by improperly concealing a previously successful,

absolute defense from Petitioners, and such injury could “not be prevented or significantly

5
In their memo of law, Respondents argue that they do not publish (i.e., they intentionally conceal) Appeals Board
decisions that uphold successful defenses to NOLs. By not publishing, Respondents assure that future recipients of
NOLs will not raise the same successful defense.
6
Under RCNY § 39-09(j), Respondents generously gave themselves two years to reopen the dismissal of an NOL
obtained through misrepresentations or misconduct of the type alleged against Respondents in this case. If
Respondents gave Petitioners the same right to reopen a guilty plea or ALJ decision upholding an NOL that they
give themselves under RCNY § 39-09(j), Petitioners would have pursued that administrative remedy is this case.
6

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ameliorated by further administrative action or by steps available to the complaining party”

because Respondents failed to provide Petitioners an administrative remedy.7

Because Petitioners have exhausted all available administrative remedies, Respondents

motion to dismiss the Petition on these grounds should be denied.

B. The Present Case Falls Within the Exceptions to the Exhaustion Rule

Even assuming, arguendo, that Petitioners failed to exhaust their available administrative

remedies, under applicable law they did not have to. In quoting Watergate II Apts for general

hornbook law on the exhaustion rule, Respondents conveniently omitted the relevant law on

exceptions to the exhaustion rule applicable to this case:

The exhaustion rule, however, is not an inflexible one. It is subject to important
qualifications. It need not be followed, for example, when an agency's action is challenged as
either unconstitutional or wholly beyond its grant of power, or when resort to an
administrative remedy would be futile or when its pursuit would cause irreparable injury.

Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57 (1978).

“Exhaustion is also not required where only an issue of law is involved (see Apex Air Frgt.

V O'Cleireacain, 210 AD2d 7 [1994], lv denied 86 NY2d 712 [1995]), or where the issue involved

"is purely the construction of the relevant statutory and regulatory framework" (Matter of Herberg

v Perales, 180 AD2d 166, 169 [1992]; see also McKechnie v Ortiz, 132 AD2d 472, 473

[1987], affd 72 NY2d 969 [1988]).” Coleman v. Daines, 79 AD 3d 554, 560 (1’st Dept. 2010).

In Coleman v. Daines, the Appellate Division reversed the Supreme Court’s dismissal of

the petition based on petitioners failure to resort to a “fair hearing” prior to commencing the Article

7
The “First” part of the finality test is also satisfied in this case. Both Petitioners paid the fine to Respondents so
they suffered concrete injury. The payment of the fine was accepted and a guilty verdict was entered by the ALJ.
According to Respondents’ own rules, this was a “Final Determination.” See RCNY § 39-10.
.
7

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78 proceeding stating: “[Because this dispute turns on the construction of the relevant

constitutional, statutory and regulatory framework, rather than a substantive factual dispute

between the parties relating to the extent of personal care that petitioner requires or is entitled to,

the matter falls within the exceptions to the exhaustion of administrative remedies doctrine.”

In determining whether a case falls into the exceptions to the exhaustion rule, Courts should

look to the allegations in the Petition, not to whether those allegations would carry the day. See

Watergate II Apts at 58 (In reversing the Appellate Division which held that petitioner was not

entitled to judicial relief because it had not exhausted its administrative remedies, the court stated:

“Thus, if Watergate's contention is correct, the manner in which the authority has chosen to apply

the statute would be wholly beyond its power.”)

The present Article 78 petition turns solely on the construction of NYVTL § 1180-b, viz.,

whether an NOL for a camera school speed zone violation requires evidence of a posted speed

limit/photo enforced sign as part of the City’s prima facie case.8 Accordingly, Petitioners were

not required to exhaust administrative remedies in this case, even if further remedies were

available, because they are alleging the NOLs were issued and enforced in violation of law and in

excess of authority and the answer to those question involves only the construction of VTL § 1180-

b. Accordingly, since the Petition falls within the exceptions to the exhaustion rule, Respondents

motion to dismiss the Petition for failing to exhaust administrative remedies should be denied.

8
As explained below, Petitioners common law claims for fraudulent concealment/fraudulent inducement, negligent
misrepresentation and unjust enrichment do not turn on whether this Court holds that NOLs for photo school speed
zone violations are void ab initio.

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POINT II

THE PETITION STATES A CLAIM
BECAUSE VTL § 1180-b REQUIRES PRIMA FACIE EVIDENCE OF A
POSTED SPEED LIMIT FOR A VIOLATION

A. The Statute Requires Proof of a Posted Speed Limit
as Prima Facie Evidence of the Violation

Respondents claim that Petitioners argument that NOLs issued pursuant to VTL § 1180-b

for a photo school speed violation require prima facie evidence of a speed limit sign and photo

enforced sign to be valid is not “plausible”. An analysis of the statutory scheme shows that

Petitioners’ reading of the statute is correct and Respondents’ reading is without merit.

To state the obvious, a summons, traffic ticket or notice of liability for a traffic or parking

violation must establish by prima facie evidence that a vehicle was violating the statute in question.

An example will illustrate this. With respect to non-camera violations, a NYPD parking officer

affirms under penalty of perjury that he observed a car parked in a no parking zone at 6:59 PM on

a Tuesday in an area where he observed parking signs prohibiting parking Monday thru Friday

between 4pm and 7pm. In the summons, he would cite a violation of Section 4-08(d) of the NYC

Parking Rules which provides that “no person shall park any vehicle in violation of the restrictions

posted on such signs.”

In this example, an authorized official is in real time observing and citing facts which

establish by prima facie evidence the elements of the violation set forth in the relevant statute. In

the parking violation, the summons must contain the affirmation of the parking officer that he

observed a parking sign as prima facie evidence because the sign is part of the offense. Without

the sign, no offence.

For statutes involving cameras, including VTL § 1180-b (the present case) and VTL §

1111-A (“red light” cameras), the offense is captured by the “photographs, microphotographs,
9

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videotape or other recorded images produced by the [photo speed][traffic control signal] violation

monitoring system” rather than by the eyes and ears of an authorized official. As provided by

statute, a technician reviews the recorded images (at a later date and different place), and certifies

that they observed a violation of the statute in question based on the recorded images. Thus, in

Monroe Street (cited by Respondents), the Court says “the video images authenticated by the

technician show petitioner's car running a red light. This constitutes, as per the statute, "prima facie

evidence" of the traffic violation.”

“Under standard canons of statutory construction, the plain meaning of the statutory

phrasing must be honored by the agency, and by the courts . . . In analyzing the various parts of a

statute, ‘a statute or ordinance must be construed as a whole and * * * its various sections must be

considered together and with reference to each other"’” Vink v. State DHCR, 285 AD 2d 203 (1st

Dep’t 2001)(quoting People v. Mobil Oil Corp. 48 NY2d, 192, 199).

Against this backdrop, a comparison of Petitioners’ reading of VTL § 1180-b with

Respondents’ makes clear that an NOL charging a violation of VTL § 1180-b requires prima facie

evidence of a speed limit/photo enforced sign.

Petitioners’ analysis:

1. VTL § 1180-b(b) sets forth (1) the elements of a school speed camera violation
and (2) how the violation must be “evidenced”:

2. VTL § 1180-b(a)(2) provides that a “photo enforced” sign must be installed below
the speed limit signs required by § 1180-b(b):

Together, these are the sections of VTL § 1180-b that provide the substantive offense (or

“violation”).

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3. VTL § 1180-b(g)(2)9 requires that the notice of liability (NOL) contain certain
identification elements, plus “at least two date and time stamped images” which is part of
the evidence “obtained from the photo speed violation monitoring system” referenced in
VTL § 1180-b(b), plus a certificate charging liability.

4. VTL § 1180-b(d)10 provides that a technician certificate, which must be based on
the photographs and other recorded images “evidencing the violation” shall be prima
facie evidence of the facts contained therein.

Together, the NOL section (VTL § 1180-b(g)(2)) and the technician section (VTL § 1180-

b(d)) provide the requirements of how the school zone violation (described in VTL § 1180-b(b))

must be “evidenced” (i.e., proven). These sections require that the violation must be evidenced by

the photographic images produced by the photo speed violation monitoring system and the

violation must be certified by the technician based on such photographic images. These sections

do not specify what the violation is or what elements of the violation must be contained in the

NOL as prima facie evidence.

Respondents’ analysis of statutory scheme

Respondents claim that Petitioners’ analysis of the statutory scheme is “not plausible.”

Respondents claim: (1) because VTL § 1180-b(g)(2) and (3) (NOL Sections) do not

specifically require signage to be included the NOL, the NOL does not have to contain prima facie

evidence of signage; (2) VTL § 1180-b(d) (technician certificate section) is per se prima facie

evidence of a “violation” and (iii) VTL § 1180-b(b) “do[es] not set requirements for what

constitutes prima facie evidence of a violation.” See Respondents’ Memo, page 11. Respondents

have a fundamental misunderstanding of the statutory scheme and thus are categorically wrong

about what an NOL requires.

9
It should be noted that the NOL provisions of VTL § 1180-b(g) (the present case) and VTL § 1111-A(g) (“red
light” cameras) are substantially similar. Neither mention the violation or its elements.
10
Again, the language for the technician certificates in VTL § 1180-b(d) and VTL § 1111-A(d) (red light cameras)
is almost identical. Neither mention the violation or its elements.
11

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Respondents’ argument that § 1180-b(g)(2) and (3) do not specifically require the NOL to

contain evidence of a posted speed sign/photo enforced sign and therefore the NOL does not have

to include such information “proves too much” and leads to absurd results.11 This fallacy arises

because these sections do not list any prima facie evidence required to be included in the NOL.

Nor do they set forth the “violation” or the elements thereof (which are only set forth in § 1180-

b(b) -- “vehicle traveling more than 10 mph above the ‘posted’ speed/photo enforced sign”). VTL

§ 1180-b(g)(2) simply requires certain identification elements (name and address, registration

number of vehicle, location of violation, date and time, identification number of camera) plus “at

least two date and time stamped images.” This section does not specify what the “evidence” the

images are required to capture (other than the rear of the car with the same stationary object).

Respondents’ observation that this section doesn’t require the NOL to contain proof of a posted

speed limit sign and photo enforced sign is correct, but it also doesn’t require that an NOL contain

prima facie evidence of anything, including that the identified vehicle was traveling more than ten

miles per hour above the posted speed limit in a school zone.

Respondents’ claim that the technician certificate pursuant to VTL § 1180-b(d) is prima

facie evidence of a “violation” is equally misleading. VTL § 1180-b(d) doesn’t use the word

“violation” at all (as represented by Respondents), it says “facts”. Like VTL § 1180-b(g)(2) and

(3), VTL § 1180-b(d) doesn’t specify any facts or information that the technician certificate must

contain in order for the NOL to be valid. It doesn’t list the required prima evidence required in an

NOL or even set forth the “violation” or its elements – it only states that a technician certificate is

prima facie evidence of the “facts” contained therein and limits those “facts” to those “based on

11
Respondents go farther – Not only does signage not have to be included in the NOL, Respondents claim that
evidence of a posted speed sign/photo enforced sign doesn’t have to be proven to establish a violation but that lack
of signage is an affirmative defense. This misconception is addressed on page 14.
12

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an inspection of the photographs. . . or other recorded images produced by the photo speed

violation monitoring system.” In the NOLs issued to Petitioners, the technician does not certify

that there were speed/photo enforced signs posted in the school zone in question. Nor could they

without photographic evidence of the speed signs.12

It is clear that neither § 1180-b(g)(2) and (3), nor VTL § 1180-b(d), list any prima facie

evidence required to be included in an NOL (other than identifying elements and pictures) nor the

requirements for a VTL § 1180-b violation. Notwithstanding, Respondents claim that § 1180-

b(a)(1) and § 1180-b(b) are not plausibly related to what must be included in an NOL stating “these

provisions do not set requirements for what constitutes prima facie evidence of a violation.”

Contrary to Respondents’ unbelievable claim, § 1180-b(b) is obviously the only section

of § 1180-b that sets forth the violation (i.e., providing liability for an owner of a vehicle “traveling

at a speed of more than ten miles per hour above the posted speed limit in effect within such school

speed zone”).

The following will show the absurdity of Respondents’ reading. Example: an NOL

contains all the information required under VTL § 1180-b(g)(2) and (3), including ID elements

and the two pictures of the rear of the vehicle, but does not indicate the speed the vehicle was

traveling or contain photos of a speed limit sign/photo enforced sign. The technician certificate

states “the vehicle was traveling at a speed of more than 10 miles per hour above the posted speed

limit.” According to Respondents, because VTL § 1180-b(g)(2) and (3) do not by their terms

require an NOL contain any specific prima facie evidence, such as speed limit signs or the speed

the vehicle was traveling, the NOL would be valid for charging a violation of VTL § 1180-b. In

12
Also, there is no evidence that the Technician has personal knowledge of where the photo speed camera in
question was placed or if any speed sign or photo enforced sign was present or where they were located in relation to
the speed camera.
13

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contrast, according to Petitioners, § 1180-b(b) sets forth the elements of the offense that must be

proven, and the NOL in the example would be invalid because it doesn’t contain prima facie

evidence of the violation.

The cases cited by Respondents do not support their reading. In Monroe Street, the Court

held the NOL was valid because “the video images authenticated by the technician show

petitioner's car running a red light” which are the elements of the violation contained in subsection

(d) of VTL 1111. According to Respondents reading, if the video images showed petitioner’s car

going through an intersection but did not have a picture of the traffic lights, the NOL (and the

technician certificate charging the violation) would still be valid because the NOL provisions of

VTL 1111-A(g) don’t specifically require pictures of the traffic lights. The other cases cited by

Respondents, Serby and Matter of Kuza, did not address the question of whether evidence of a

“posted speed limit” is required in the NOL because it is an element of the offence set forth in §

1180-b(b).13

Based on the plain language of the statute and the statutory scheme, an NOL for a speed

camera violation must contain prima facie evidence of a speed/photo enforced sign or it is invalid.

B. Respondents Claim that the lack of a Posted Speed Sign
is an Affirmative Defense Has No Legal Basis

In an attempt to give some legal meaning to the speed/photo enforced signage elements in

the statute, Respondents allege that “[w]hile a vehicle owner who receives an NOL may raise the

defense that the speed limit was not posted, or that there was no proper signage notifying the driver

13
In Serby, petitioner denied he was traveling 10 mph over the speed limit. In Matter of Kuza, petitioner alleged the
NOL didn’t contain evidence of a sign giving written notice to approaching drivers under the prior version of §
1180-b(a)(2); he didn’t argue and the court didn’t address whether an NOL must contain prima facie evidence of a
speed /photo enforced sign because it is an element of the violation under § 1180-b(b).
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that the speed limits are photo enforced, this information is not required to be included on the NOL

and is not required to establish prima facie guilt for speeding in a school speed zone.”

Respondents explanation fails because that’s not what the statute says and this reading leads to

absurd results.

First, if the state legislature wanted to make lack of signage an affirmative defense, they

would have done so explicitly like they have done with other parts of the VTL law. E.g., VTL

§1229-C(5) explicitly sets forth two affirmative defenses to a violation of the child safety restraint

laws stating in each case:

“In any prosecution or proceeding alleging a violation of . . ., it shall be an affirmative
defense that . . . “

In other words, an affirmative defense can be raised by the defendant after the violation is properly

alleged by the City. The state legislature, not the City, determines the elements of a violation the

City must prove and what is an affirmative defense which the defendant must prove.

In the child restraint statute, the affirmative defense is not part of the violation. In the case

here, the requirement for signage is part of the language for the violation just like traveling over

10 miles over the posted speed limit is. Does the City get to choose what elements of the offence

are affirmative defenses? Can the City issue a camera school zone ticket with no prima facie

evidence of the speed the vehicle was traveling and claim that the vehicle owner has to prove that

the vehicle wasn’t going 10 miles on hour over the speed limit? Of course not because “[a]n

agency cannot graft additional requirements or assume additional powers not contained in the

enabling legislation.” 239 Elizabeth Realty LLC, 2022 NY Slip Op 30595(U)(Erika Edwards).

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C. The PVB Previous Appeals Board Decisions Clearly Held
that an NOL is invalid absent a Prima Facie Evidence of Posted Signage

The two PVBAB decisions cited in the Petition (pages 11-15) reversed the ALJ decision

for one possible reason -- on the grounds that an NOL for a § 1180-b violation is invalid if it

doesn’t provide prima facie evidence of the proper signage (the “NOL Deficiency”).

The undisputed facts:

1. Mayers contests his NOLs solely based on the NOL Deficiency. He doesn’t raise
any other defense, legal or factual, and he doesn’t introduce any evidence.

2. Each ALJ rejects Mayers’ NOL Deficiency argument and sustains the violation.

3. In each case, the PVBAB reverses the ALJ “based on a review of the record.” The
only item in the record apart from the NOL is the NOL Deficiency argument.

In response, Respondents claim that it is possible the PVBAB disagreed with Mayers and

believed that the NOLs were valid, but the PVBAB reversed on other grounds. This “possibility”

is not remotely plausible – would the PVBAB have reversed if the PVBAB disagreed with Mayers

and believed the NOLs were valid? In any case, on a motion to dismiss, Petitioners well plead

factual allegation about the holdings must be assumed to be true.

Respondents claim that the interpretation of the statute by the PVBAB “cannot be said to

represent the agency’s interpretation of the statute”, but they are wrong. Respondents own

regulation, RCNY § 39-12(f) provides that holdings of the PVBAB are the “final determination”

of the law, which would include the interpretation and construction of § 1180-b. Respondents

claim that the PVBAB heard 2,021 photo school speed zone appeals shows the PVBAB is very

familiar with interpreting the statute and makes deference more appropriate, not less. The PVBAB

decisions don’t contain substantive reasoning because they didn’t have to – Mayers explained the

statutory scheme in his not guilty letters and in his appeal application and the PVBAB reversed.

The language “[a]fter review of the record . . .” in the PVBAB decisions really means “after
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reviewing Mayers’ NOL Deficiency analysis we find the NOLs are invalid” because that is all that

is in the record other than the NOL itself.

Respondents further efforts to discredit its own PVBAB precedent is unavailing.

Respondents have cited no cases for the proposition that the interpretation of a statute by an agency

which is unpublished and not previously judicially reviewed is not entitled to deference. In fact,

Courts routinely cite to agency interpretation where the determination was not published or

previously subject to judicial review. See, e.g., Vink v. State DHCR, 285 AD 2d 203, 210 (1’st

Dep’t 2001).

Respondents claim that the two PVBAB decisions are not entitled to judicial deference in

“an entirely different matter” is just plain wrong. In effect, Respondents are arguing that PVBAB

decisions overturning the NOLs in the previous cases have no legal bearing on the PVB issuing

and enforcing identically flawed NOLs to Petitioners and the Class members in the present case.

Just the opposite is true. It is per se arbitrary and capricious for an agency to reach different results

on substantially similar facts and law without explaining on the record the reason for same. In re

Charles A Field Deliverv, 66 N.Y.2d 516, 520 (1985)("[W]hen an agency determines to alter its

prior stated course it must set forth its reasons for doing so .... Unless such an explanation is

furnished, a reviewing court will be unable to determine whether the agency has changed its prior

interpretation of the law for valid reasons, or has simply overlooked or ignored its prior decision.

Absent such an explanation, failure to conform to agency precedent will, therefore, require reversal

on the law as arbitrary.")

After its PRBAB determined on two separate occasions that an NOL is invalid without

prima facie evidence of the proper signage, Respondents cannot treat Petitioners and Class

members differently by issuing and enforcing NOLs which contained the same defect without

explanation. The ALJs enforcing the NOLs against Petitioners do not provide an explanation for
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not following the prior PVBAB decisions. Therefore, the ALJ determinations sustaining the NOLs

issued to Petitioners “require reversal on the law as arbitrary.”

POINT III

THE PETITION STATES A CLAIM FOR FRAUDULENT
CONCEALMENT/INDUCEMENT, NEGLIGENT REPRESENTATION
AND UNJUST ENRICHMENT

A. Fraudulent Concealment/Inducement

The Petition states a claim for fraudulent concealment/inducement notwithstanding

Respondents’ claims to the contrary. Respondent main argument is that “Petitioners entire

fraudulent inducement and fraudulent arguments depends on [Petitioners} erroneous claims that

the NOLs issued by DOF are null and void.” This is incorrect because the fraud claim is based

on Respondents (i) ignoring the PVBAB decisions upholding the NOL Deficiency defense and

issuing deficiency NOLs anyway and (ii) concealing the NOL Deficiency defense.

Petitioners allege that the Respondents knew (¶¶ 53, 55, 58, 64, 78) about the PVBAB

decisions described in ¶¶ 35-47 of the Petition where the PVBAB overturned the guilty verdict of

the ALJ based on the NOL Deficiency. Petitioners allege that Respondents issued NOLs to

Petitioners and the Class that they knew were null and void according to the PVBAB (¶¶ 55, 58,

66). Petitioners allege that Respondents knowingly hid those decisions (concealment) and

affirmatively mislead Petitioners and the Class by not listing the NOL Deficiency argument used

by Mayers on its website (¶¶ 49-51, 53, 55, 67). Petitioners alleged Respondents intended to

mislead Petitioners into pleading guilty or not raising the defense even though Respondents knew

the PVBAB would hold the NOLs issued to Petitioners and the Class invalid if they

Case Info

Judge

Erika M. Edwards Track Judge’s New Case

Case No.

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Document Filed Date

June 06, 2023

Case Filing Date

March 03, 2023

County

Parties

Arabella Palma Individually, and on behalf of all others similarly situated Plaintiff
DEPARTMENT OF FINANCE COMMISSIONER Preston Niblack both individually and in his official capacity Defendant
DEPARTMENT OF TRANSPORTATION COMMISSIONER Ydanis Rodriguez, both individually and in his official capacity Defendant
DEPUTY COMMISSIONER FOR TREASURY AND PAYMENT SERVICES Jeffrey Shear both individually and in his official capacity Defendant
JOHN and JANE DOE PARKING VIOLATIONS BUREAU ADMINISTRATIVE LAW JUDGES both individually and in their official capacities Defendant
KATZEN, JESSICA LYNN Attorney for the Defendant
Shalom Katz Individually, and on behalf of all others similarly situated Plaintiff
The City of New York Defendant
MATTHEW MAYERS Attorneys for Plaintiffs
JENNIFER SAFFER Attorneys for Plaintiffs

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