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

On November 28, 2023 a Motion-Secondary 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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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
-----------------------------------------------------------------------X
Sergey Kadinsky, on behalf of himself
and all other similarly situated, Index No: 619279/2023

Plaintiffs,

-against-

Town of Hempstead
Defendants.
-----------------------------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT TOWN OF
HEMPSTEAD’S PRE-ANSWER MOTION TO DISMISS PLAINTIFF’S
AMENDED COMPLAINT

HARRIS BEACH PLLC

Jack M. Martins, Esq.
Jared A. Kasschau, Esq.
Wayne L. Gladstone, Esq.
Attorneys for Defendant
TOWN OF HEMPSTEAD
The Omni
333 Earle Ovington Boulevard,
Suite 901
Uniondale, New York 11553
Telephone: (516) 880-8484

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF THE CLAIM .................................................................................................... 2
Conflation of Allegations Regarding VTL § 1174 and VTL § 1174-a....................................... 2
Absence of Credible Allegations Regarding the Ability to Contest NOL .................................. 5
LEGAL ARGUMENT .................................................................................................................... 6
I. The Standard Of Review For Dismissal ....................................................................... 6
II. The Town’s SAVP Complies With VTL § 1174-a and Entails No Unlawful
Delegation of the Town’s Executive or Prosecutorial Authority.................................. 8
III. Plaintiff’s Complaint Fails To State a Cause of Action Under Enrichment Let Alone
the Higher Pleading Standards Required For Fraudulent Inducement and Negligent
Misrepresentation .......................................................................................................... 9
A. The Complaint Fails to Plausibly Allege Any Misrepresentation Or Inequity
Regarding the Town’s Stop Arm Violation Program .......................................... 10
B. Plaintiff’s Fraudulent Concealment/Fraudulent Inducement and Negligent
Misrepresentation Claims Fails Both to Allege a Misrepresentation and Meet
the Heightened Pleading Standard ...................................................................... 10
C. GBL § 349 Does Not Apply to Municipal Corporations Such As Defendant
and Plaintiff’s Complaint Fails to Plausibly Allege a Requisite Deceptive
Act ....................................................................................................................... 13
IV. Plaintiff’s Conversion Claim Fails as There Are No Credible Allegations of the
Town’s “Unauthorized Dominion” Over Plaintiff’s Property and Plaintiff Failed to
Bring the Requisite Notice of Claim ........................................................................... 14
V. Plaintiff Fails to Allege a Procedural Due Process Claim Under Federal or State Law
as the Complaint is Devoid of Allegations of Being Deprived of a Constitutionally
Adequate Process ........................................................................................................ 15
VI. Plaintiff’s “Excessive Fines” Claim Is Merely Duplicative of Other Claims and As
Pleaded Would Require Notice to the Attorney General as Fines Are Set By
Statute ......................................................................................................................... 17
VII. Plaintiff’s Civil Rights Law § 11 Claim Reiterates the Same Failed Reasoning of
Earlier Claims and Fails to Plausibly Allege Fines Are Unreasonable ...................... 18
VIII. The Amended Complaint Provides No Support for An Equal Protection Claim
Beyond Counsel’s Own Baseless Rhetoric ................................................................. 19
IX. Plaintiff’s Declaratory Judgment Application Amounts to a Legal Nullity ............... 20
CONCLUSION ............................................................................................................................. 22

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TABLE OF AUTHORITIES

Cases Page(s)

A.R. v. City of New York,
206 A.D.3d 768 (2d Dep’t 2022) ........................................................................................................ 15

Abramowitz v. Guido,
61 A.D.2d 1045 (2d Dep’t 1978) ........................................................................................................ 14

Ahlers v. Rabinowitz,
684 F.3d 53 (2d Cir. 2012) .................................................................................................................. 15

Ambassador Factors v. Kandel & Co.,
215 A.D.2d 305, 307-308 (1st Dep’t 1995) ........................................................................................ 12

Boyle v. Kelly
42 N.Y.2d 88 (1977) ........................................................................................................................... 14

Breytman v. Olinville Realty, LLC,
54 A.D.3d 703, 703–704 (2d Dept. 2008) ............................................................................................. 7

Campaign for Fiscal Equity v. State
of New York, 86 N.Y.2d 307 (1995) .................................................................................................... 7

Campbell v. Whole Foods, Market Group, Inc.,
516 F. Supp. 3d 370 (S.D.N.Y. 2021) ................................................................................................. 13

Cerciello v. Admiral Ins. Brokerage Corp.,
90 A.D.3d 967 (2d Dept. 2011) ............................................................................................................. 7

Cohen v. JP Morgan Chase & Co.,
498 F.3d 111 (2d Cir. 2007) ................................................................................................................ 13

Corsello v. Verizon N.Y., Inc.,
18 N.Y.3d 777 (2012) ......................................................................................................................... 10

County of Suffolk v. Caldone,
45 Misc. 3d 1 ................................................................................................................................... 9, 16

Downing v New York City Hous. Auth.,
64 Misc. 3d 1218(A), 2019 NY Slip Op 51196(U), *5 (Sup. Ct., Kings County2019) (Sup. Ct., Kings
County, 2019) ...................................................................................................................................... 13

Fink v. Time Warner Cable,
714 F.3d 739 (2d Cir. 2013) ................................................................................................................ 13

Georgia Malone & Co., Inc. v Rieder,
19 N.Y.3d 511 (2012) ......................................................................................................................... 10

Giant Group v. Arthur Andersen, LLP,
2 AD3d 189 (1st Dept 2003) ............................................................................................................... 12

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Godfrey v. Spano,
13 N.Y.3d 358 (2009) ..................................................................................................................... 7, 19

Halberstam v City of New York,
2014 N.Y. Slip Op. 33270(U), *6, ...................................................................................................... 15

Halberstam,
2014 NY Slip Op. 33260 ..................................................................................................................... 19

Hydro Inv'rs, Inc. v. Trafalgar Power Inc.,
227 F.3d 8 (2d Cir 2000) ..................................................................................................................... 11

Icahn v. Lions Gate Entertainment Corp.,
31 Misc. 3d 1205(A), 2011 N.Y. Slip Op. 50502(U) *7 (Sup Ct. N.Y. County 2011) (Sup Ct. N.Y.
County 2011) ................................................................................................................................... 7, 20

J.S. v. T’Kach,
714 F.3d 99 (2d Cir. 2013) .................................................................................................................. 15

Jackson K. v. Parisa G.,
51 Misc.3d 1215(A), 2016 N.Y. Slip Op. 50660(U) (Sup. Ct. N.Y. County 2016) .............................. 7

Krantz v. Town of Tusten,
236 A.D.2d 672 (3d Dep’t 1997) ........................................................................................................ 14

Krieger v. City of Rochester,
42 Misc. 3d 753 (Sup. Ct. Monroe County 2013) ............................................................................... 21

Lama Holding Co. v. Smith Barney,
88 N.Y.2d 413 (1996) .................................................................................................................... 10-11

Lighthouse Shores v. Town of Islip,
41 N.Y.2d 7 (1976) ............................................................................................................................. 21

Maddick’s v. Big City Props, LLC,
34 N.Y.3d 116 ....................................................................................................................................... 6

Mandarin Trading Ltd. v Wildenstein,
16 N.Y.3d 173, (2011) ........................................................................................................................ 10

Mathews v Eldridge,
424 U.S. 319, (1976) ..................................................................................................................... 15, 16

MatlinPatterson ATA Holdings LLC v. Federal Express Corp.,
87 A.D.3d 836 (1st Dept. 2011) ............................................................................................................ 7

Mazzei v Kyriacou,
98 A.D.3d 1088 (2d Dept. 2012) ........................................................................................................... 7

Okie v. Village of Hamburg,
196 A.D.2d 228 (1994) ....................................................................................................................... 12

O’Donnell, Fox & Gartner. P.C. v. R-2000 Corp.,
198 A.D.2d 154 (1st Dep’t 1993) ............................................................................................... 7, 19-20

iii

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Parrott v Coopers & Lybrand,
95 N.Y.2d 479 (2000) ......................................................................................................................... 12
People v. Davidowitz, 51 Misc. 3d 59, 60 (App. Term, 2d Dept, 9th & 10th Jud. Dists. 2016) ................ 9

People v. Krutzrock,
81 Misc.3d 144(A) 2024 N.Y. Slip Op 50194-(U) (App. Tern, 2d Dept. 9th & 10th Jud. Dists 2024) 6

People v. Quiroga-Puma,
24 Misc.3d 29 (App. Term, 2009) ....................................................................................................... 18

People v. Schwartz,
81 Misc.3d 139(A) 2024 N.Y. Slip Op 50194-(U) (App. Tern, 2d Dept. 9th & 10th Jud. Dists 2023) 6

Rovello v. Orofino Realty Co.,
40 N.Y.2d 633 (1976) ........................................................................................................................... 7

Walton v New York State Dept. of Correctional Servs.,
25 A.D.3d 999, (3d Dept 2006) ........................................................................................................... 13

Statutes
42 U.S.C. § 1983 ......................................................................................................................................... 2
Civil Rights Law § 11 ......................................................................................................................... 18, 19
General Business Law § 349 ................................................................................................................. 2, 13
General Municipal Law § 50-i .................................................................................................................. 14
N.Y. Executive Law § 71 .......................................................................................................................... 18
Vehicle and Traffic Law § 1111–b [g] [1–4] ............................................................................................ 16
Vehicle and Traffic Law § 1174-a ..................................................................................................... passim

Rules
22 N.Y.C.R.R. § 500.9(b) ......................................................................................................................... 18
22 N.Y.C.R.R. § 1250.9(i). ....................................................................................................................... 18
22 N.Y.C.R.R. 202-8-b ............................................................................................................................. 23
N.Y.C.P.L.R. 3016 .............................................................................................................................. 11, 12
N.Y.C.P.L.R. 3211 .............................................................................................................................. 1, 6, 7
N.Y.C.P.L.R. 1012 .................................................................................................................................... 18

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PRELIMINARY STATEMENT

This Memorandum of Law is submitted in support of Defendant Town of Hempstead’s

(hereinafter “TOH,” the “Town,” and/or “Defendant”) pre-Answer motion to dismiss pursuant to

CPLR 3211(a)(7). Plaintiff’s sprawling Amended Complaint, styled as a putative class action

lawsuit, contests the Town’s lawful Stop Arm Violation Program (“SAVP”) duly enacted in

accordance with § 1174-a of the Vehicle and Traffic Law. VTL § 1174-a provides a civil

enforcement mechanism for imposing liability on the owner of vehicles where the operator fails

to comply with § 1174 of the VTL. VTL § 1174-a sets forth with specificity the information that

must be included in a Notice of Liability (“NOL”) issued to vehicle owners whose vehicle is

recorded failing to heed a stopped school bus. Despite the Amended Complaint’s numerous

causes of actions, all rest entirely on the flawed premise that a NOL must include all evidence

necessary to sustain a conviction under VTL § 1174. Such an absurd reading would undermine the

legislative intent of implementing a streamlined, purely civil enforcement program (where NOL

recipients may dispute liability) enacted by the State Legislature to protect schoolchildren1.

Aside from plaintiff’s plainly erroneous conflation of § 1174 (traffic violation) and § 1174-

a (civil liability), nowhere in the Complaint is there any claim of the proposed class being deprived

of the opportunity to contest Defendant’s evidence. Indeed, as indicated by plaintiff Kandinsky’s

NOL annexed as Exhibit “D” to the Amended Complaint, despite being instructed to “USE THIS

FORM TO DENY LIABILITY” (emphasis in original) plaintiff and the class he purports to

represent all failed to contest liability and hold the Town to its proofs at an administrative hearing.

Instead, plaintiff seeks to bring a purported class action for money damages under a tortured theory

1
“New York has long recognized the paramount importance of protecting school children transported on school buses
. . . . The use of school bus photo violation monitoring systems (cameras) is necessary to prevent further deaths and
injuries caused by dangerous motorists who ignore current law.” See New York Bill Jacket, 2019 A.B. 4950, Ch. 145.

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that it is somehow legally impermissible even to issue a notice of liability without proof of all

substantive requirements for a conviction. Accordingly, plaintiff’s Amended Complaint cannot

stand as a matter of law.

STATEMENT OF THE CLAIM

This proposed class action was originally commenced by the filing of a Summons and

Complaint on November 28, 2023 in Nassau County Supreme Court, alleging eight causes of

action: 1) Unjust Enrichment; 2) Fraudulent Concealment/Inducement; 3) Negligent

Misrepresentation; 4) Deprivation of Due Process; 5) Prohibition of Excessive Fines: 6)

Prohibition of Fines Without Reasonable Cause; 7) General Business Law (GBL) § 349; and 9)2

Declaratory Judgment. (See Complaint annexed as Exhibit “A” to the Affirmation in Support of

Jack M. Martins, Esq. (“Martins Aff.”). Subsequent to the Town’s Pre-Answer motion to

dismiss, plaintiff amended his Complaint, adding five additional causes of action: Unlawful

Delegation of Executive Authority; Unlawful Delegation of Prosecutorial Authority; Violation of

State Constitutional Right to Equal Protection; a Federal Due Process Claim Under 42 U.S.C. §

1983; and Conversion. (See Amended Complaint annexed as Exhibit “B” to Martins Aff.”). As

expressed below, all these claims fail as a matter of law even assuming arguendo plaintiff’s

factual allegations as accurate.

Conflation of Allegations Regarding VTL § 1174 and VTL § 1174-a

Plaintiff alleges repeatedly that Defendant’s NOLs are “legally insufficient,” but never

articulates how the Town fails to comply with the statutory requirements for issuing the NOL

that are specifically listed in § 1174-a. Instead, all of plaintiff’s allegations conflate, repeatedly,

2
Although the Complaint contains a Ninth cause of action for Declaratory Judgment, counsel had apparently
omitted an Eighth cause of action. The original Complaint contained only eight claims.

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the Town’s obligations under a SAVP civil enforcement program with the substantive law

regarding what must be proven to sustain a finding of guilt for a traffic violation under VTL §

1174.3

Notably, plaintiff’s Amended Complaint has excised all allegations contained in the

original Complaint regarding what a NOL must include under VTL § 1174-a presumably

because the Town’s NOL does adhere to these requirements as indicated by plaintiff

Kandinsky’s annexed NOL. (Exhibit “D,” Amended Complaint).

 Name and address of owner, (¶ 45 of Original Complaint, VTL 1174-a(g)(2));

 Registration number of vehicle, (¶ 45 of Original Complaint, VTL 1174-a(g)(2));

 Date, time and place of violation, (¶ 45 of Original Complaint, VTL 1174-a(g)(2));

 Identification of camera, (¶ 45 of Original Complaint, VTL 1174-a(g)(2));

 Information on how person charged can contest liability, (¶ 46 of Original Complaint,

VTL 1174-a(g)(3));

 Warning that failure to contest timely the NOL would be deemed an admission of

liability, (¶ 46 of Original Complaint, VTL 1174-a(g)(3));

 If NOL contains a sworn certificate of technician employed by town then the NOL

shall be considered “prima facie evidence of the facts contained therein.” (¶ 47 of the

Original Complaint, VTL 1174-a (d). Emphasis added.

Despite the Town’s NOL’s full compliance with VTL § 1174-a, plaintiff claims the

NOLs are still “not lawfully issued” by arguing they must include all evidence necessary to

sustain a find of liability under VTL § 1174 at a hearing. Presumably, this information would

3
Initially, despite counsel’s attempts to escalate his claim to a Constitutional challenge of criminal law via the
Complaint’s repeated use of the word “guilt,” the subject legislation is not criminal. Indeed, VTL 1174-a(f) states
liability under this section “shall not be deemed a conviction . . . .”

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include responses to potential defenses to VTL § 1174. Accordingly, plaintiff claims the NOLs

are defective because the video of recorded cars like plaintiff’s failing to heed school bus stop

signs, do not identify if “passengers [are] leaving or entering the bus while the stop sign is

employed,” or exhibit details of “the stop signs themselves” such as the “dimensions [or]

locations and nature of the specification of the lights on the sign.” (Exhibit “B,” ¶¶ 53 -55,

Amended Complaint). Plaintiff raises another possible defense: that liability does not attach

during the scenario where a school bus might be stopped because a “school bus in front of it has

stopped to discharge … passengers.” (Exhibit “B,” ¶ 27, Amended Complaint). Plaintiff then

argues that without such information, the technician’s sworn affidavit accompanying the NOL is

“false and fraudulent” even though pursuant to VTL 1174-a (d) the sworn certificate of technician

employed by the Town is evidence only of “the facts contained therein.” (emphasis added). (Ex.

B. ¶ 62, 68 Amended Complaint).

Plaintiff’s deliberate conflation of the legislative requirements for issuing a NOL and

obtaining a conviction under VTL § 1174 is proven false by any plain reading of VTL 1174-a

which acknowledges that the Notice of Liability is only an allegation and not a judgment.

Specifically, 1174-a(4)(g) states that a “notice of liability shall be sent by first class mail to each

person alleged to be liable as an owner for a violation of subdivision (a) of section eleven

hundred seventy-four of this article pursuant to this section.” (emphasis added). Unless, the

recipient waives their right for a hearing and opts to pay the civil fine, liability does not attach

unless there is a violation of VTL § 1174 (a) – the substantive law. See VTL § 1174-a(4)(e))(“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.” (emphasis added). Accordingly, in order “for an owner of a vehicle to be

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found liable under Vehicle and Traffic Law § 1174-a, the People must prove . . . that the operator

of the vehicle violated Vehicle and Traffic law § 1174….” People v. Croce, 81 Misc.3d 31, 33

(App. Term, 2d Dept 9th & 10th Jud. Dists. 2023).

Absence of Credible Allegations Regarding the Ability to Contest NOL

Despite the NOL’s proper inclusion of the statutorily required information regarding how

liability may be contested by vehicle owners, neither plaintiff nor any of the members of the

proposed class appear to have availed themselves of this opportunity. Furthermore, there can be

no claim the NOL misled plaintiff regarding the Town’s evidence of infractions because the NOL,

as required by statute, advises only that the NOL is “prima facie evidence of the facts contained

herein” and not proof controverting every potential speculated defense offered by counsel. (¶ 47 of

Complaint; VTL 1174-a (d).)(emphasis added). Indeed, the attestation states only that there is

“sufficient evidence that a violation of NY VTL 1174(a) did occur. . . .” (Exhibit “D”).

Accordingly, it is uncontested the Town’s NOL does exactly what is required under the

law, including providing all necessary information for the proper party to contest their liability.

Plaintiff’s speculation that there might exist other facts to be included does not make the NOL

somehow legally impermissible. Conversely, assuming, arguendo, there are additional facts

vehicle owners wish to argue in the face of the Town’s evidence, the NOL provides a mechanism

to do so.

Here, however, plaintiff and a proposed class of litigants supposedly similarly situated

opted not to contest liability, thereby depriving the Town of the opportunity to gather additional

evidence if any were even necessary, and now seek damages under a tortured theory that the

Town’s complete compliance with VTL § 1174-a somehow gives rise to a claim under multiple

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theories of liability. As expressed further below, this proposed class of plaintiffs – who admitted

their liability and never challenged the validity of the Town’s evidence – cannot be allowed to seek

monetary compensation in place of the due process protections they opted not to pursue.

Indeed, the string of recent cases reversing judgment and dismissing notices of liability

issued under VTL § 1174-[a], oddly cited in the Amended Complaint, emphasizes the point that all

NOL recipients maintain their due process protections and that there is a difference between §

1174-a (the legislature’s enacted mechanism for imposing civil liability) and § 1174 (traffic

violation). Unlike plaintiff, the Defendant in People v. Croce, supra, sought a hearing after receipt

of his NOL. The Appellate Term overturned the lower Court’s finding of liability, in part, because

the record failed to contain evidence that the subject school bus was “receiving or discharging any

passengers” when stopped. People v. Croce, 81 Misc.3d at 33. See also People v. Krutzrock, 81

Misc.3d 144(A) 2024 N.Y. Slip Op 50194-(U) (App. Tern, 2d Dept. 9th & 10th Jud. Dists 2024);

People v. Schwartz, 81 Misc.3d 139(A) 2024 N.Y. Slip Op 50194-(U) (App. Tern, 2d Dept. 9th &

10th Jud. Dists 2023). That plaintiff Kandinsky overtly rejected these due process protections

and voluntarily conceded liability via payment, speaks only to the sufficiency of the evidence

presented to plaintiff – not the absence of those due process protections he was informed of and

opted not to pursue. Accordingly, as pleaded, plaintiff’s Amended Compliant must be dismissed

for failing to state a cause of action.

LEGAL ARGUMENT

I. The Standard Of Review For Dismissal

Although stylized as a proposed class action, “[n]othing in the CPLR prevents a defendant

from moving to dismiss a class action claim pursuant to CPLR R. 3211.” Maddick’s v. Big City

Props, LLC, 34 N.Y.3d 116, 119 (2019). Specifically, CPLR R. 3211(a)(7) authorizes dismissal

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where “the pleading fails to state a cause of action.” In considering the sufficiency of a pleading,

the Court’s general task is to determine whether, “accepting as true the factual averments of the

complaint, plaintiff can succeed upon any reasonable view of the facts stated.” Campaign for

Fiscal Equity v. State of New York, 86 N.Y.2d 307, 318 (1995). Plaintiff’s Complaint is properly

dismissed under CPLR 3211(a)(7) where, drawing all reasonable inferences in a light most

favorable to the plaintiff, no cognizable cause of action exists. Mazzei v Kyriacou, 98 A.D.3d

1088, 1089 (2d Dept. 2012); Cerciello v. Admiral Ins. Brokerage Corp., 90 A.D.3d 967 (2d Dept.

2011); Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704 (2d Dept. 2008); see also

MatlinPatterson ATA Holdings LLC v. Federal Express Corp., 87 A.D.3d 836, 839 (1st Dept.

2011) (citing Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634 (1976). Moreover, the

Complaint must contain allegations concerning each of the material elements necessary to

sustain recovery under a viable legal theory. MatlinPatterson at 839; Jackson K. v. Parisa G., 51

Misc.3d 1215(A), 2016 N.Y. Slip Op. 50660(U) (Sup. Ct. N.Y. County 2016).

Nevertheless, although plaintiffs' allegations are accorded every favorable inference,

“conclusory allegations--claims consisting of bare legal conclusions with no factual specificity--

are insufficient to survive a motion to dismiss.” Godfrey v. Spano, 13 N.Y.3d 358, 373 (2009).

See also O’Donnell, Fox & Gartner. P.C. v. R-2000 Corp., 198 A.D.2d 154, 154 (1st Dep’t 1993)

(holding “it is well-settled that bare legal conclusions and factual claims” are “not presumed to

be true on a motion to dismiss for legal insufficiency.”); Icahn v. Lions Gate Entertainment

Corp., 31 Misc. 3d 1205(A), 2011 N.Y. Slip Op. 50502(U) *7 (Sup Ct. N.Y. County 2011).

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II. The Town’s SAVP Complies With VTL § 1174-a and Entails No Unlawful
Delegation of the Town’s Executive or Prosecutorial Authority

Among the five additional causes of action of Plaintiff’s amended complaint, the first two

contain the novel argument that the Town’s SAVP constitutes an “unlawful delegation” of both

Executive and Prosecutorial Authority. Plaintiff devotes a scant three paragraphs to articulate

each of these claims, presumably asking this Court to parse the rhetorical legal conclusions of

counsel’s Preliminary Statement to find a sufficient basis for the claim that the Town’s

adherence to the legislative requirements for issuing NOLs articulated in VTL § 1174-a

somehow violates its own executive authority and/or authority to prosecute4. Indeed, the

unlawful delegation causes of action are so deficiently drafted it is not clear if Plaintiff is

claiming that VTL § 1174-a is a constitutionally violative statute or merely that the Town has

somehow engaged in unconstitutional behavior by complying with the legislative program

despite not ceding any specifically articulated authority.

Nevertheless, despite all of Plaintiff’s allegations regarding claimed deficiencies

regarding the Vendor who assists in the collection of the recorded images which serve as a

foundation for the Town’s NOLs, the Complaint is devoid of even an allegation that the Town’s

Vendor has any actual authority to prosecute or any other ultimate authority aside from

information gathering. Indeed, plaintiff concedes that the Nassau Country Traffic and Parking

Violations agency (“TPVA”) “adjudicate[s] the issue of liability when a vehicle owner requests a

hearing.” (Exhibit B, ¶ 91, Amended Complaint).

4
Although the unlawful delegation of Executive Authority and Prosecutorial Authority are stylized as two separate
causes of action, the claims do not articulate what Executive Authority is allegedly being delegated other than the
prosecution of vehicle owners whose cars were recorded failing to heed stopped school buses. Only in the
Declaratory Judgment cause of action are these allegations parsed where it is alleged to be a “derogation of New
York Law” to have a Vendor “managing and controlling evidentiary materials.”

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Lastly, there can be no unlawful delegation of prosecutorial authority in the present

matter because plaintiff (and the class he purports to represent) failed to contest liability as

afforded to him as a right in his NOL. Plaintiff agreed to pay the legislatively set fine, foregoing

prosecution and the due process protections of a hearing. Regardless of the intent of plaintiff’s

ambiguous argument, it is well settled that the legislature can and has enacted traffic camera

programs to impose civil liability without any constitutional violation. People v. Davidowitz, 51

Misc. 3d 59, 60 (App. Term, 2d Dept, 9th & 10th Jud. Dists. 2016)(upholding a red light camera

conviction and holding an “action to impose liability represents a new remedy and class of action

which the legislature is empowered to enact . . . .)(interna citation omitted); County of Suffolk v.

Caldone, 45 Misc. 3d 1, 3 (App. Term, 2d Dept., 9th & 10th Jud. Dists. 2014).

III. Plaintiff’s Complaint Fails To State a Cause of Action Under Enrichment Let Alone
the Higher Pleading Standards Required For Fraudulent Inducement and Negligent
Misrepresentation

Plaintiff attempts to assert claims under the related theories of Unjust Enrichment,

Fraudulent Inducement, and Negligent Misrepresentation. As expressed above, the allegations

supporting these claims are all identical: that the Town’s NOL is somehow improper because while

they admittedly adhere to the legislative requirements of 1174-a, they purportedly do not contain

all evidence necessary to disprove any potential defense which could be raised at a hearing based

on the full verbiage of VTL § 1174 and all related regulations. Nevertheless, as expressed above,

and uncontested by plaintiff’s Amended Complaint, each NOL purports only to be prima facie

evidence of the “facts contained herein” and provides a means for vehicle owners to contest

liability. Accordingly, there is no basis for asserting the NOLs are deficient, fraudulent, or

misleading.

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A. The Complaint Fails to Plausibly Allege Any Misrepresentation Or Inequity
Regarding the Town’s Stop Arm Violation Program

An unjust enrichment claim is rooted in "the equitable principle that a person shall not be

allowed to enrich himself unjustly at the expense of another." Georgia Malone & Co., Inc. v

Rieder, 19 N.Y.3d 511, 516 (2012)(citations omitted). To adequately plead such a claim, the

plaintiff must allege "that (1) the other party was enriched, (2) at that party's expense, and (3)

that ‘it is against equity and good conscience to permit [the other party] to retain what is sought

to be recovered.’" Mandarin Trading Ltd. v Wildenstein, 16 N.Y.3d 173, 182, (2011) (citations

omitted). Here, as pleaded, plaintiff’s Amended Complaint fails to meet this standard. Plaintiff

and the proposed class all chose not to contest the violations alleged in the NOL. There are no

claims Plaintiff was not warned that a failure to contest the NOL would be deemed an admission

of liability or was not advised how to contest the NOL. Instead, plaintiff merely asserts an

unsupported claim that it is against good conscience to allow the Town to collect a fine for the

uncontested failure to heed a stopped school bus. Furthermore, an unjust enrichment claim is not

available “where it simply duplicates, or replaces, a conventional . . . tort claim." Corsello v.

Verizon N.Y., Inc., 18 N.Y.3d 777, 790 (2012). Here, Plaintiff’s unjust enrichment claim is based

on the same alleged deceptive conduct and suffers the same pleading deficiencies claimed in

causes of action for fraud and negligent misrepresentation.

B. Plaintiff’s Fraudulent Concealment/Fraudulent Inducement and Negligent
Misrepresentation Claims Fails Both to Allege a Misrepresentation and Meet the
Heightened Pleading Standard

To state a cause of action for fraudulent inducement, a plaintiff must allege a

"misrepresentation or a material omission of fact which was false and known to be false by

defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of

the other party on the misrepresentation or material omission, and injury." Lama Holding Co. v.

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Smith Barney, 88 N.Y.2d 413, 421 (1996). Similarly, asserting a claim for Negligent

Misrepresentation requires a plaintiff to allege that:

(1) the defendant had a duty, as a result of a special relationship, to
give correct information; (2) the defendant made a false
representation that he or she should have known was incorrect; (3)
the information was known by the defendant to be desired by the
plaintiff for a serious purpose; (4) the plaintiff intended to rely and
act upon it; and (5) the plaintiff reasonably relied on it to his or her
detriment

Hydro Inv'rs, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir 2000)

Accordingly, plaintiff’s fraud and negligent misrepresentation claims suffer from the

same deficiency as the unjust enrichment cause of action: no plausible allegations of a

misrepresentation, let alone a known falsity. The photographic evidence in each NOL speaks for

itself and it is uncontested that the Town’s NOLs contain all the information required by VTL §

1174-a. Nevertheless, plaintiff would have this court hold the NOL unlawful, and the attesting

certification knowingly false, because the Town did not have “sufficient evidence.” (Exhibit “B,”

¶ 68). As expressed above, counsel has supplanted the legislative requirements for issuing an

NOL under a Stop Arm Violation Program with the unfounded belief that NOLs must contain all

possible evidence to sustain a finding of guilt to a traffic violation issued under VTL § 1174,

including evidence controverting potential speculated defenses that could be raised at a hearing.

Instead, the NOL, on its face, attests only to be “prima facie evidence of the facts contained

therein” as specifically directed by to by VTL § 1174-a (d)). (Emphasis added). If contested,

which plaintiff and purported class members opted not to do, only then would the Town be

tasked with establishing prima facie guilt at a hearing.

Furthermore, plaintiff’s fraud claim fails to contain “factual allegations sufficient to

satisfy [the heightened pleading standard] of CPLR 3016 (b), which requires … the

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circumstances constituting the wrong shall be stated in detail.” Ambassador Factors v. Kandel &

Co., 215 A.D.2d 305, 307-308 (1st Dep’t 1995)(citations omitted). “A fraud claim is not stated

where a plaintiff makes only a conclusory allegation . . . [failing] to set forth factual allegations

from which it may be inferred that the purported misrepresentations were known to be false at

the time when they were made.” Dominick v. Green, Sept. 30, 2004 at Pg. 29 (col. 4) 2004

NYLJ LEXIS 4315, *5 (Sup. Ct., N.Y. County, 2004). See also Giant Group v. Arthur Andersen,

LLP, 2 AD3d 189, 190 (1st Dept 2003); Ambassador Factors, 215 AD2d at 308. Furthermore, “a

negligent misrepresentation claim is also subject to the heightened pleading requirements of

CPLR 3016 (b).” Dominick, 2004 NYLJ LEXIS 4315, *16.

Here, specific allegations of fraud and negligent misrepresentation are supported only by

counsel’s rhetorical opinion that all NOL are knowingly legally in

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Philippe Solages Track Judge’s New Case

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Motion-Secondary: Sergey Kadinsky, On Behalf Of Himself And All Other Similarly Situated v. Town Of Hempstead

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