Motion for Writ in Sergey Kadinsky, On Behalf Of Himself And All Other Similarly Situated v. Town Of Hempstead| Trellis.Law

On November 28, 2023 a Complaint,Petition was filed involving a dispute between On Behalf Of Himself And All Other Similarly Situated, Sergey Kadinsky, and Town Of Hempstead, for Commercial - Other (Class Action) in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 03/01/2024 02:42 PM INDEX NO. 619279/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/07/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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SERGEY KADINSKY, on behalf of himself
and all other similarly situated, Index No: 619279/2023
Plaintiff

FIRST AMENDED VERIFIED
CLASS ACTION COMPLAINT
-against-

TOWN OF HEMPSTEAD,
Defendant.

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NOW COMES Plaintiff, Sergey Kadinsky, by and through his attorneys, ARON LAW

PLLC and BIENSTOCK PLLC and hereby brings this putative class action on behalf of himself

and all other similarly situated persons against Town of Hempstead (the “Town” or “Defendant”),

and alleges, with personal knowledge as to his own actions and upon information and belief as to

those of others, as follows:

PRELIMINARY STATEMENT

1. New York Vehicle & Traffic Law (“VTL”) § 1174, enacted in 1954, imposes a

penalty on drivers when they overtake and pass a stopped school bus, provided inter alia that the

bus (1) activates a stop-arm, (2) has stopped in relation to receiving or discharging school bus

passengers, and (3) has appropriate markings and equipment, such as flashing lights necessary to

warn drivers of a stopped bus. These requirements are affirmative elements necessary to establish

a prima facie violation of VTL § 1174.

2. VTL § 1174-a, enacted in 2019, authorizes localities such as the Town of

Hempstead to rely on cameras to issue Notices of Liability (“NOLs”) for violations of VTL § 1174.

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3. By its plain terms, the issuance and enforcement of a Notice of Liability under VTL

§ 1174-a requires proof of the same affirmative elements as those required under VTL § 1174.

See People v. Croce, No. 2023-310 S C, 2023 WL 8827849, at *1 (N.Y. App. Term, Nov. 30,

2023) (dismissing NOL issued under VTL § 1174-a for lack of evidence that passengers were

being received or discharged and that bus had appropriate markings and equipment).

4. The Town has entered into a turnkey contract with a private, for-profit vendor (the

“Vendor”) pursuant to which the Vendor inter alia identifies violations, issues notices, compiles

evidence packets, and collects and disburses penalties. In return, the Vendor receives forty-five

percent (45%) of the Town’s revenues from the NOLs, plus a technology fee of $185 per bus, per

month. The Town receives only fifty-five percent (55%), less the technology fee and adjudicatory

fees.

5. The Town performs only a perfunctory role in issuing, collecting and enforcing

VTL § 1174-a. Its personnel perform only a single, routine task assigned to it by the Vendor, in a

manner directed by the Vendor. The Vendor assumes all other duties and responsibilities.

6. When the Vendor issues NOLs on behalf of the Town, it systematically fails to

compile and evaluate the statutorily required evidence that a violation has occurred. It does not

compile the necessary, prima facie, affirmative evidence that a bus had stopped for the purpose of

receiving or discharging passengers, and that it had appropriate markings and appropriate

equipment.

7. The Town’s technicians are given access to videos, through a portal controlled by

the Vendor. They are trained by the Vendor to review the video only for one of the three prima

facie elements of a legal violation, and then to check an on-screen button marked “approve” if the

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video meets the limited criteria identified by the Vendor.

8. The Vendor then converts the narrow review and conclusion reached by a

technician into a Notice of Liability that is issued without sufficient evidence that a violation had

occurred, and which falsely claims that liability has been established.

9. The Notice of Liability also contains on its face a false, sworn statement issued by

a Town Specialist (the “NOL Certification”) swearing (or affirming) as follows:

Based on my review and inspection of evidence, including recorded
images, I swear or affirm under penalty of perjury that there is sufficient
evidence that a violation of NY VTL 1174 subpart a did occur, as more
fully described herein, for which the above named vehicle owner is liable
pursuant to Chapter 186 of the Code of the Town of Hempstead and NY
VTL 1174-a.

10. The sworn, form NOL Certification issued by The Town through the Vendor is

knowingly false and misleading, on a systematic basis.

11. The NOL Certification is false because no such sworn statement had ever been

made. The technician over whose photocopied signature the statement appears had not sworn or

affirmed anything under penalty of perjury, but had merely clicked a button marked “accept.” The

Vendor then converted the click into a sworn, signed statement.

12. In addition, the content of the NOL Certification is false. The Town technician did

not “review and inspect[]” sufficient evidence to conclude “that a violation of NYVTL 1174

subpart a did occur,” because the Vendor had not compiled and provided her with such evidence.

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13. The falsely issued, and false-in-fact NOL Certification is designed for maximum in

terrorem effect. Citizens have no basis on which to challenge a sworn assertion that the Town had

compiled photographic evidence of a violation. The effect is magnified because NOLs are issued

against vehicle owners, not drivers, and vehicle owners may have no first-hand knowledge of the

circumstances of the alleged violation. The false and fraudulent NOL Certification is designed

and has the effect of preventing vehicle owners from challenging their assessed liability.

14. Few vehicle owners do challenge the liability assessed through the NOLs. When

they do, they face prosecutors who have been trained by the Vendor; who rely on evidence packets

prepared by the Vendor; and who falsely advise the Court, and enter into evidence a false, sworn

affirmation, that the elements of a violation have been met. In violation of VTL § 1174-a, the

photographic evidence of a violation is not made available at the hearing for review and inspection.

It is not entered into evidence, or available to the Judge at her discretion, but instead remains

always in the custody of the Vendor.

15. In apparent recognition that the Vendor had adopted a process that failed to meet

the necessary legal standards, the Town has taken measures to ensure that the Vendor would

comply with the law in the future. Specifically, on December 22, 2023, the Town entered an

agreement with the Vendor designated “Amendment No. 1 to the Master Agreement.” Under this

amendment, the Town and the Vendor were required inter alia to agree upon and enforce in good

faith new processing guidelines for the Vendor to use when creating evidence packages, and that

such new guidelines were to be “consistent with the requirements of New York State law.” The

amendment does not appear to address deficiencies in the issuance of NOLs without evidence that

a violation of VTL § 1174 had occurred.

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16. The discretionary authority to devise, apply and supervise the process of issuing

penalties to citizens may not permissibly be delegated to a for-profit private entity. The power to

penalize private citizens is a governmental function, and when placed in the hands of private

enterprise, driven by a motive for profit, it is subject to the corner-cutting and abuse displayed by

the Vendor on behalf of the Town.

17. Plaintiff therefore files this putative class action against the Town of Hempstead,

seeking declaratory and injunctive relief, and damages.

PARTIES

18. Plaintiff Sergey Kadinsky is a citizen of the State of New York, a resident of

Nassau County, and the owner of a motor vehicle.

19. He received an NOL from the Town of Hempstead. Based on the representations

contained therein, he paid a $250 fine as directed in the NOL.

20. Defendant Town of Hempstead is a municipal corporation duly existing under and

by virtue of the laws of the State of New York, with its principal office located at 1 Washington

Street, Hempstead, New York

JURISDICTION AND VENUE

21. Venue is proper in this Court under CPLR §503(a) as Nassau County is the county

in which a substantial part of the events or omissions fiving rise to the claim occurred.

22. Venue is proper in this Court under CPLR §504(2) as Nassau County is the County

in which the Town of Hempstead is situated in.

23. Venue is also proper under CPLR §505(a) as the Town of Hempstead has its

principal office in Nassau County.

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24. The actions of Defendant that form the basis of this Complaint are final in nature

and cannot adequately be reviewed by another court, entity or officer.

25. Pursuant to CPLR §301, this Court has jurisdiction to grant Plaintiff’s and Class

members’ requests for relief and any further relief this Court deems just and proper.

STATEMENT OF FACTS

I. Violations of Section 1174-a Require Establishing a Number of Affirmative Elements.

A. Under Long-Established Precedent, Establishing a Prima Facie Violation of VTL § 1174
Requires Evidence of Multiple Elements.

26. In 1956, the State of New York enacted VTL § 1174 which prohibits the driver of

a vehicle from passing a stopped school bus in certain circumstances. Under the statute, a violation

consists of a number of elements. One such element is that the bus has extended its stop-arm.

27. By its terms, a driver does not violate VTL § 1174 unless the school bus was marked

and equipped in accordance with State law; had stopped for the purpose of receiving or discharging

any passengers, or which has stopped because a school bus in front of it has stopped to receive or

discharge any passengers; and had flashing red lights.

28. New York courts universally have held that these requirements are prima facie,

affirmative, elements of a violation of VTL § 1174. See, e.g., People v. Robinson, 39 Misc. 3d

128(A) (App. Term 2013) (testimony that driver had passed a school bus with red warning lights

illuminated and which had stopped to pick up passengers insufficient absent evidence that the

vehicle was a school bus within the meaning of the statute, and that the vehicle bore the required

identifying markings, lights, and signs); People v. Brooks, 38 Misc. 3d 946, 948 (Just. Ct. 2013)

(accusatory instrument dismissed because it did not contain information sufficient to show inter

alia that bus stopped to pick up or discharge passengers).

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B. New York State Enacted VTL 1174-a Allowing for Camera-Based Notices of Violation to
Be Issued for Violations of VTL 1174.

29. In 2019, New York State enacted VTL §1174-a. This section authorizes local

governments such as the Town to pass Local Laws allowing them to rely on photographic evidence

to assess liability on the owner of a vehicle that was operated in violation of VTL § 1174.

30. Under section 1174-a, local governments are authorized to contract with school

districts to equip school buses to operate “school bus photo violation monitoring systems” to

produce evidence of a violation of VTL § 1174.

31. Section 1174-a specifically requires that in order for liability to attach to a vehicle

owner, there must as a predicate be a violation of Section 1174. See, e.g., Section 1174-a (“An

owner liable for a violation of subdivision (a) of section eleven hundred seventy-four of this article

pursuant to a local law or ordinance adopted pursuant to this section shall be liable for monetary

penalties”).1

32. Similarly, the General Municipal Law in granting jurisdiction to Nassau County

Traffic and Parking Violations Agency (“TPVA”) over VTL § 1174-a describes liability under

this section as arising from violation of section 1174. N.Y. Gen. Mun. Law § 371-a (authorizing

jurisdiction over “the liability of owners for violations of section eleven hundred seventy-four of

the vehicle and traffic law in accordance with section eleven hundred seventy-four-a of such

law.”).

33. VTL § 1174-a also imposes street sign requirements in addition to the requirements

of VTL § 1174.

1
The elements of a violation for passing a stopped school bus are described by subdivision (a) of section 1174. The
section allowing for liability to be imposed on vehicle owners based on photographic evidence is numbered section
1174-a. To avoid confusion between 1174(a) and 1174-a, we refer to the former simply as 1174 when possible in
the body of this Complaint.

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34. Section 1174-a also introduces an evidentiary rule. Under this rule, a technician

employed by the local government may issue a sworn or affirmed certificate based on her review

of recorded images, and the certificate is deemed “prima facie evidence of the facts contained

therein.” VTL § 1174(e). This evidentiary rule is limited to facts, not legal conclusions, and

extends only to review of recorded images, but not other data. Id.

35. Violations of VTL 1174-a are subject to fines of $250 for a first violation and up to

$300 for each subsequent violation in an 18-month period. VTL § 1174(c).

C. A Local Government that Issues an NOL must have Sufficient Evidence that a Violation
has Occurred.

36. Violations of Section 1174-a are different from violations of Section 1174 in

important respects. Violations of Section 1174 are assessed against a vehicle driver, who is

observed violating the prohibition of that section.

37. In contrast, violations of Section 1174-a are assessed against a vehicle owner, who

may not have been driving the vehicle at the time of the alleged violation. Vehicle owners who

face liability under section 1174-a therefore may lack any personal knowledge regarding the

circumstances surrounding the alleged violation.

38. Under State law, the process for imposing liability against vehicle owners pursuant

to VTL § 1174-a is different from the process for imposing liability against Vehicle operators

under VTL § 1174, or other non-camera-based traffic and parking violations.

39. In the case of traditional parking and traffic violations, alleged violators receive a

Notice of Violation that informs them of the charges against them and allows for a plea of Guilty

or Not Guilty to the violation. See VTL, § 238.

40. In contrast, section 1174-a provides for a Notice of Liability, instead of a Notice of

Violation.

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41. A Notice of Liability reflects a determination by the issuing government that the

elements of a violation had been met and that a violation has occurred. A Notice of Liability which

includes a certification is sufficient to establish liability without further plea or agreement by the

penalized party.

II. The Town Entered a Turnkey Contract with the Vendor Which Gave the Vendor
Discretionary Authority over Imposing Penalties on Citizens.

A. The Town Adopted a Local Law Allowing for Camera-Based Liability of Vehicle
Owners for Violation of Section 1174-a.

42. In accordance with VTL 1174-a, the Town of Hempstead adopted Chapter 186 of

the Code of Town of Hempstead, entitled “Failure to Stop for School Buses. See Town of

Hempstead § 186-2(A).

43. Under this new program, the Town was authorized to enter a contract with school

districts to install and operate school bus photo violation monitoring systems. See Town of

Hempstead § 186-2(B).

44. Chapter 186 specifically required that fines and penalties could only be issued for

violations of section 1174. See id, § 186-3 (An owner liable for a violation of Subdivision (a) of

§ 1174 of the New York Vehicle and Traffic Law pursuant to this chapter shall be liable for

monetary penalties in accordance with the following schedule of fines and penalties . . .”).

B. The Town Entered a Turnkey Agreement with the Vendor.

45. Bus Patrol is a national company that is in the business of monetizing violations of

stop-arm laws such as § 1174-a.

46. Bus Patrol provides turnkey or “end to end” services to government entities through

which it effectively issues, enforces and collects NOLs under VTL § 1174-a.

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47. Bus Patrol entered into such a contract, designated as a Master Agreement, with

Duchess County, a copy of which is attached hereto as Exhibit “A.” Under agreement with Bus

Patrol, the Town adopted the terms of the Duchess County Master Agreement, as modified, a copy

of which is attached hereto as Exhibit “B.” The agreement in effect between the Town and Bus

Patrol will be referred to herein as the “Master Agreement.”

48. Under the Master Agreement, the Vendor is responsible to install and maintain

cameras and other equipment on school buses; use Artificial Intelligence to identify violations;

confirm visually through photographic evidence that a violation has occurred; design the NOL

forms that get issued to vehicle owners; issue NOLs to purported violators; collect and disburse

fines; produce evidence packages for use in court; train local prosecutors and court personnel on

the law and enforcement of 1174-a; track court proceedings; and arrange for positive press

coverage.

III. The Town Issued NOLs without an Evidentiary Basis and that Contained Forged, False,
and Fraudulent Sworn Certifications.

A. The Vendor Trained the Town’s Technicians to Issue Notices of Liability Without Evidence
that a Violation of Section 1174 had Occurred.

49. Under the Master Agreement, the Vendor is responsible to train technicians and to

provide them with photographic evidence sufficient to determine that a violation of VTL § 1174

had occurred.

50. Thus, the Contract establishes a duty to:

Provide personnel to train appropriate personnel from the County,
and/or Participating School Districts on the proper use of the
Equipment, including training necessary for authorized County
personnel to access and review Violation Data; [and]

Provide designated County Enforcement Technician with access to
Violation Data to identify and issue Notices of Violations for

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School Bus Stop- Arm in accordance with applicable provisions of
the Law[.] (emphasis added).

51. The Vendor assigns processors to the contract. According to the Master

Agreement, the Vendor’s “Processors are assigned to specific states and are trained on the state

law and associated city or county ordinances. . . . [Vendor] uses only trained reviewers and

processors familiar with the local requirements for evaluation of photographic evidence to pre-

screen all SAEs and violations.”

52. According to training materials used by the Vendor in the Town of Hempstead

and elsewhere in New York, the Vendor does not train technicians to determine that the elements

of a violation of section 1174 had occurred, and does not provide them with the photographic

evidence necessary to determine that a violation had occurred.

B. The Town’s NOLs Were Not Lawfully Issued Because they Were Issued Without Evidence
that a Violation of Section 1174 Had Occurred.

53. The video cameras on the school buses used by the Vendor and reviewed by the

technician to determine whether an NOL should be issued do not identify whether there are any

passengers leaving or entering the bus while the stop sign is deployed.

54. The video cameras do not capture any details of the stop signs themselves,

including information about their dimensions, locations, and nature of the specifications of the

lights on the signs.

55. The video cameras also do not capture whether the school buses feature the lights,

signage, or other features per the specifications of the law, or whether street signs meet the

requirements of VTL § 1174-a.

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C. The Town Issued NOLs Containing False and Fraudulently Procured Sworn
Certifications that a Violation Had Occurred.

56. According to the Master Agreement, “If the County enforcement technician decides

a violation has occurred, the County enforcement technician click on the "approve citation" button.

57. That is not how the process actually works. Under the process established and

implemented by the Vendor, the Town technicians’ reviews of video evidence is entirely

constrained by what is provided by the Vendor, and is addressed solely to the single issue identified

by the Vendor. They see only what the Vendor provides, and determine only those issues that the

Vendor presents.

58. In practice, the Town technicians never review sufficient evidence to determine

whether a violation has occurred. The technicians review only evidence relating to the vehicle and

the stop-arm elements of the violation. The technician does not review whether a bus is loading

or unloading passengers (or whether the bus had stopped for another bus that is loading or

unloading passengers). The technician also does not review whether the bus and street had the

necessary equipment, markings and signs.

59. Then, after reviewing the materials, the technician is not asked to click a button

marked “approve citation,” as the contract requires. He is merely asked to click a button marked

“approve” -- which in the circumstances means only that he agrees that the photographic evidence

shows the vehicle passing a stop-arm. See Exhibit C, at p. 8.

60. Clicking the “accept” button does not mean that the technician approves of the

conclusion that the bus had stopped in relation to picking up or discharging passengers, or that the

bus and street contained the necessary markings and signs, because that is not part of the evidence

she is reviewing.

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61. Under its protocols, Bus Stop then converts the technician’s click of the “approve”

button into a sworn certification that there is sufficient evidence that a violation of VTL §

1174 has occurred. See Exhibit D, at p. 1.

62. The issuance of a sworn or affirmed certification in the technician’s name when the

technician did not herself assert such oath or affirmation is false and fraudulent.

63. The Vendor, the Town and the technician were under a duty to know the elements

of a violation of VTL § 1174-a before issuing an NOL, and before issuing a sworn or affirmed

statement that a violation had occurred.

64. The statement that the technician had found that evidence supporting a violation of

VTL § 1174-a is false and fraudulent.

65. As a result of these protocols, the Vendor issued NOLs on behalf of the Town that

were not based on sufficient evidence that a violation of section 1174 had occurred to give rise to

liability under section 1174-a.

66. The Vendor has a significant financial interest in having vehicle owners pay

penalties imposed through NOLs. The Vendor also has a financial interest in avoiding challenges

to NOLs, since it pays fees to the Town for each hearing.

67. On information and belief, the Vendor, acting as agent for the Town, includes the

signed affirmation on the Notices of Liability to deceive recipients into believing that there is

sufficient evidence that a violation of section 1174 has occurred, and that it has sufficient evidence

to prevail at trial, and to induce payment thereby.

68. NOLs issued by the Town were unsupported, ineffective and unlawful when issued

because the Town did not have sufficient evidence to conclude a violation occurred at the time it

issued them.

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D. The Town Issued NOLs on County Roads Without Jurisdiction.

69. The Town issues NOLs on roads that are owned and maintained by the County of

Nassau.

70. Such NOLS are issued without appropriate authorization or jurisdiction.

IV. Plaintiff and Others Were Defrauded Into Paying the Purported Liability Based on the
Fraudulent and Mistaken Factual Assertion that Technicians Had Determined that All
Elements of VTL § 1104 had Been Met and had Sworn an Oath Certifying to that
Conclusion.

71. Plaintiff and the putative class members identified below received NOLs assessing

liability even though the Town had not determined that the elements of a violation had been made.

72. The NOLs also contained the false, sworn NOL Certification falsely stating under

oath that a violation had occurred.

73. The sworn statements were false in, among other things, the following respects: (1)

the technician did not conclude that a violation had occurred, only that the visual evidence

demonstrated that a single element had been satisfied; (2) the technician merely clicked “accept,”

which was an insufficient basis on which to issue a signed certificate under oath that a violation

had occurred; (3) there was not sufficient evidence to conclude that a violation had occurred.

74. The NOL forms designed by the Vendor also provide that the fine “is not subject

to discretionary reduction. You cannot plead to a lesser offense, and the fine cannot be reduced.”

This assertion is false, as under New York common law, courts are authorized to accept a plea to

a lesser, non-included offense.

75. On information and belief, the forms contained the false statement that a lesser plea

could not be accepted in order to induce vehicle owners to pay the penalties and not to request a

hearing.

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76. Plaintiffs and others paid Notices of Liability based on a material mistake of fact,

and were defrauded into paying Notices of Liability by the false, sworn statements included in the

NOLs.

77. Plaintiffs and others had no basis on which to challenge the NOLs because they

were without knowledge that the Town’s assertions were false.

78. The payments received by the Town in response to the NOLs were windfalls to the

Town.

V. The Vendor Prepared Fraudulent Evidence Packets for Use at Trial and Trained
Prosecutors to Fraudulently Obtain Guilty Verdicts.

A. The Evidence Packets Prepared by the Vendor Has Technicians Falsely Certify that the
Evidence Reviewed Establishing a Violation of VTL § 1174.

79. Under the General Municipal Law, liability under Section 1174-a is adjudicated

by the TPVA. GML § 371-a.

80. As part of its responsibilities under the Master Agreement, the Vendor is required

to produce evidence packets for use by TPVA prosecutors at trial. On information and belief,

those evidence packets are the only materials used to find liability and impose penalties under VTL

§ 1174-a.

81. On information and belief, those evidence packets include the NOLs and their

forged, false and fraudulent sworn-or-affirmed certifications.

82. The evidence packets also include a signed and sworn certification from a county

technician, referred to herein as the “Technician’s Certificate.” The Technician’s Certificate is

separate and distinct from the sworn statement that appears on the face of the NOL, which is

referenced herein as NOL Certification. A sample Technician’s Certificate is attached hereto as

Exhibit E.

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83. Under VTL § 1174-a, such a certification is prima facie evidence of the facts

contained therein.

84. The form Technician’s Certificate is utilized by TPVA prosecutors and relied upon

by the TPVA judges as the basis for establishing liability under VTL § 1174-a.

85. The form Technician’s Certificate includes a paragraph that provides:

That your affirmation [sic] hereby certifies that the attached
recorded images are true and accurate copies of the recorded
images are true and accurate copies [sic] of the recoded [sic]
images reviewed by me on __ (date) at _(time) __ depicting a
motor vehicle bearing registration number (plate#)_ _ being used
in violation of New York State Vehicle and Traffic Law Section
1174-A at ____ (location) ____ on __ (date) at __ (time) ______.

86. The form Technician’s Certificate is false and misleading because the photographic

evidence reviewed by the technicians supports only the conclusion that one of the elements

necessary to establish liability under VTL § 1174-a was met, but not all such elements.

87. The form Technician’s Certificate used by the Town as the evidentiary basis for

finding liability exceeds the authority for use of sworn certifications that was granted by Section

1174-a. Section 1174-a authorizes technicians to certify only to facts that are based on their review

of recorded images, but not facts based on other data, and not to legal conclusions such as that the

vehicle was operated in violation of law.

B. The Vendor Trains TPVA Prosecutors Including by Providing it with “Confidential”
Training Manuals for Prosecutor’s Use.

88. The Vendor also trains TPVA prosecutors on how to prosecute violations of 1174-

a. Under the Master Agreement, the Vendor is responsible to “Provide information and other

reasonable assistance to Participating Municipalities as necessary for Participating Municipalities

to adjudicate contested Violations or collect revenue from Violations.”

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89. The Vendor provides TPVA with training materials, which the TPVA treats as

confidential. In response to a FOIL request seeking “[t]raining directives issued to agency

prosecutors by [the Vendor],” TPVA advised that it was withholding such documents pursuant to

Public Officers Law § 87(2)(d), which exempts from disclosure “all records that are submitted to

an agency by a commercial enterprise or derived from information obtained from a commercial

enterprise and which if disclosed would cause substantial injury to the competitive position of the

subject enterprise.”

90. By email dated February 28, 2023, Assistant Executive Director of TPVA asked a

Bus Patrol representative “Who do I contact about setting up training so we can hit the ground

running when we’re ready to adjudicate?” The Assistant Executive Director of TPVA supervises

the prosecution and adjudication functions of TPVA.

91. The TPVA website had a pull-down link for VTL § 1174-a. It describes a procedure

that vests authority in the Town in a manner that is entirely different from the procedure in place

for all other Traffic and Parking violations. In the case of liability under VTL § 1174-a, it provides

that TPVA’s only involvement is the performing of its obligation under New York State statute to

adjudicate the issue of liability when a vehicle owner requests a hearing. It also directs those

receiving NOLS to address their questions concerning the program to the Town itself, which, under

the terms of the Agreement, means that hearing-related concerns are directed to the Vendor.

92. The Town routinely prosecutes violations of § 1174-a without evidence that the

elements of such a violation did exist.

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C. The Vendor Controls the Adjudicatory Process Which Does Not Comply with the VTL.

93. Even for those who are not dissuaded by the false and misleading NOL

Certifications, the adjudicatory process as implemented by the TPVA fails to provide sufficient

process to protect their rights.

94. As previously alleged, TPVA prosecutors supply a false Technician’s Certificate to

the Court to support liability.

95. The TPVA court has an incentive to maintain liability since it receives a fee for

every NOL issued and paid, in addition to receiving a fee for every NOL prosecuted.

96. In its most recent lobbying report, the Vendor reported that it had spent $149,750

lobbying New York government officials from July to December of 2023, long after the Master

Agreement had been entered. Among those it lobbied were the Assistant Executive Director of the

TPVA, whose only relationship with the Vendor is in prosecuting and adjudicating liability of

NOLs.

97. The Vendor controls the presentation of evidence to the TPVA in a manner

inconsistent with the rules of evidence and VTL 1174-a. On information and belief, including

materials obtained through FOIL and the records of an appeal, the only evidence presented to the

court and entered into the court file is the Technician’s Certificate and NOL.

98. Under VTL § 1174-a, “[a]ny photographs, microphotographs, videotape or other

recorded images evidencing . . . a violation shall be available for inspection in any proceeding to

adjudicate the liability for such violation pursuant to a local law or ordinance adopted pursuant to

this section.”

99. The video and pictures referenced in the Technician’s Certificate are not presented

to the Court or marked into evidence. They are not “available for inspection in [the] proceeding.”

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VTL § 1174-a. Instead, the Vendor makes available the video and pictures available to the Judicial

Hearing Officer through a computer feed. The videos are not made part of the record of

proceedings, are not entered into evidence, and are not available on appeal. If the Court wishes to

access the videos, it must request access from the Vendor.

100. As a result of the misinformation provided by prosecutors and the Vendor, vehicle

owners are routinely found liable for violations of VTL § 1174-a for which there is not substantial

evidence that a violation had occurred.

101. Upon information and belief, the Vendor trains court personnel on the elements of

a violation of VTL § 1174-a.

D. The Vendor Assumed the Town’s Duties to Implement the Stop-Arm Program in Violation
of the Town’s Contract with Nassau County.

102. By contract dated March 31, 2023, the Town entered into a contract with the County

of Nassau (the “Town-County Agreement”). A copy of the Town-County Agreement is attached

hereto as Exhibit G.

103. The Town-County Agreement requires the Town to undertake a variety of

obligations, including issuing Notices of Liability; issuing notices to schedule hearings; producing

evidence packages; producing evidence at trial; communicating with the vehicle owner; training

prosecutors and courtroom clerks (including in the “introduction, significance, and interpretation

of . . . images . . . documents and things.”); and collecting and receiving payment of fines.

104. Under the Town-County Agreement, the duties assumed by the Town may not be

assigned, transferred, disposed of, or subcontracted without the express written consent of the

County Executive.

105. The Town has not sought or received consent from the Nassau County Executive

for the assignment of its contractual duties to the Vendor.

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106. The Vendor nevertheless has assumed de facto all of the Town’s obligations under

the Town-County Agreement, in violation of the terms thereof.

E. Monetizing Stop-Arm Violations Reduces Public Safety

107. Under the Master Agreement, the Vendor is authorized to conduct media

campaigns with or on behalf of the Town. Master Agreement, at 40-41.

108. While the Vendor and the Town portray enforcement of Section 1174-a as

beneficial to public health and safety, the conversion of the program into a profit-center for inter

alia private contractors presents a threat to public health.

109. There are various methods available to protect students who are getting on and off

school buses. For example, school bus stops can be established in lightly trafficked areas. This

tactic would protect student safety, but would conflict with the private, revenue maximizing goal

established under the Master Agreement.

110. In contrast, the current system incentivizes the new and continued use of bus stops

on highways and other highly trafficked areas. In addition to endangering child safety, this system

undermine

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Philippe Solages Track Judge’s New Case

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Document Filed Date

March 01, 2024

Case Filing Date

November 28, 2023

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Complaint,Petition: Sergey Kadinsky, On Behalf Of Himself And All Other Similarly Situated v. Town Of Hempstead

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