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FILED: NEW YORK COUNTY CLERK 08/09/2019 02:32 PM INDEX NO. 100622/2019
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/09/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------- ---------------------------------------------------- x
In the Matter of the Application of
AFFIRMATION IN
CHRISTIAN V. SUPPORT OF CROSS-
PUSSILANO,
MOTION TO DISMISS
Petitioner(s),
Index No. 100622/2019
-against-
CITY OF NEW YORK DEPARTMENT OF FINANCE,
Respondent(s).
-------------------- __------------------------..----- __----------- X
Aviva Y. Horowitz, an attorney admitted to practice law before the Courts of the
State of New York, affirmsunder the penalties of perjury, pursuant to Rule 2106 of the CPLR, as
follows:
1. I am an Assistant Corporation Counsel in the office of ZACHARY W.
CARTER, Corporation Counsel of the City of New York, attorney for respondent THE CITY OF
("DOF")¹
NEW YORK Department of Finance herein. I am familiar with the facts and
circumstances of this matter based upon the relevant documents attached hereto, my review of
the records and files maintained by the City of New York, and my conversations with
employees, officers and agents ofthe City of New York.
2. I submit this affirmation in support of DOF's cross-motion for an order
dismissing the Verified Petition ("petition") pursuant to Rules 3211(a)(2) and 3211(A)(7) of the
CPLR, on the grounds that the Court lacks subject matter jurisdiction because petitioner failed to
¹· The New York Departreent of Finance Violations Bureau is the proper name for
City Parking ("PVB")
Respondent.
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timely pursue and exhaust his available administrative remedies prior to commencing this
judicial proceeding..
RELEVANT STATUTORY PROVISIONS
The Parking Violations Bureau ("PVB")
3. The New York State Vehicle and Traffic Law ("VTL") authorizes a city to
establish an administrative tribunal to hear and determine complaints of traffic infractions
constituting parking, standing or stopping violations. See VTL §§ 235, 236(1). The
administrative tribunal may prepare and issue notices of parking violation, accept pleas, hear and
determine charges, provide for penalties, and enter and enforce judgments in the same manner as
the enforcement of money judgments in civil proceedings. lee VTL § 237.
("PVB"
4. The Parking Violations Bureau or "Bureau") is a tribunal within
DOF that was established pursuant to the VTL, Section 1504(4) of the New York City Charter
("City Charter") and Section 19-201 of the New York City Administrative Code ("Admin.
Code"). The Bureau has jurisdiction to hear and determine complaints pertaining to "violation[s]
of any local law, rule or regulation provided for or regulating the parking, stopping or standing of
vehicle."
a motor See Admin. Code § 19-201.
5. Admin. Code § 19-203, provides, in pertinent part, as follows:
The parking violations bureau shall have the
following functions, powers and duties:
a. To accept pleas to, and to hear and
determine, charges of parking violations;
b. To provide for penalties other than
imprisonment for parking violations in accordance
with a schedule of monetary fines and penalties . ..;
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c. To adopt rules and regulations . . .to carry
out the purposes of this chapter, including but not
limited to rules and regulations prescribing the
internal procedures and organization of the bureau,
the manner and time of entering pleas, the conduct
of hearings, and the amount and manner of payment
of penalties;
* * *
PVB Hearings
6. Title 19 of the Rules of the City of New York ("RCNY") sets forth the
rules concerning the adjudication of parking violations. Title 19 RCNY § 39-02(a) states, in
relevant part, as follows:
§ 39-02: Notice of Violation (Summons).
(a) Contents.
(1) The notice of violation (summons) shall be in
such form as may be prescribed by the Director and
shall contain the registration plate number, the type
of registration, the state of registration, the date of
expiration, a description of the vehicle, a general
statement of the violation alleged, including a
reference to § 4-08 of title 34 of the official
compilation of the Rules of the City of New York or
applicable provision of the Vehicle and Traffic Law
or of the Administrative Code of the City of New
York or any other law or rule, information as to the
days and hours the applicable rule or provision is in
effect, unless always in effect pursuant to the rule or
"all"
provision and where appropriate the word
when the days and/or hours in effect are every day
and/or twenty-four hours a day, the date, time and
particular place of occurrence, and, if a meter
violation, the meter number. ...
* * *
(3) Ifany information that is required to be inserted
in a notice of violation is omitted from the notice of
violation, misdescribed, or illegible, the violation
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shall be dismissed upon application of the person
charged with the violation.
* * *
7. Title 19 RCNY § 39-08 sets forth the procedure for hearings at PVB. It
states, in relevant part, as follows:
§ 39-08: Hearings.
* * *
(c) Hearing examiner to preside. Every hearing
shall be held before an Administrative Law Judge,
Senior Administrative Law Judge, or Supervising
Administrative Law Judge. All hearings shall be
public.
* * *
(e) Substantial evidence required. No charge may
be established except upon proof by substantial
credible evidence.
(f)Rules of evidence.
(1) The administrative law judge shall not be bound
by the rules of evidence in the conduct of the
hearing, except rules relating to privileged
communications.
(2) Evidence may be presented in any form. All
testimony shall be given on oath or affirmation.
(3) The respondent shall have the right to present
witnesses, to conduct examination and to introduce
documentary evidence.
(4) The summons shall constitute prima facie
evidence of the statements contained therein. A
reproduction of the summons or the original thereof
filed with the Bureau may be used at the hearing in
lieu of the copy from which itwas made. . ..
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8. Pursuant to VTL § 241, Admin. Code § 19-207, and 19 RCNY § 39-10,
the hearing officer is empowered to make a determination of the charges set forth in a parking
summons, either sustaining or dismissing them.
9. Pursuant to Title 19 RCNY § 39-10(j)(6), a respondent on a summons
"shall have the right to appeal from any adverse decision in accordance with the appeal
39-12."
procedure set forth in § Pursuant to VTL § 242 and Administrative Code § 19-208, the
determination of a hearing examiner may be reviewed by the Parking Violations Appeals Board
("Appeals Board"). Administrative Code § 19-208 provides, in pertinent part, as follows:
Administrative Code § 19-208 Appeals within
the bureau.
a. There shall be an appeals board within the bureau
which shall consist of three or more senior hearing
examiners, as the director shall determine.
b. An appeal from a judgment of any hearing officer
shall be submitted to the appeals board, which shall
have the power to review the facts and the law, but
shall not consider any evidence which was not
presented to the hearing officer and shall have
power to reverse or modify any judgment appealed
from for error of fact or law.
10. Title 19 RCNY § 39-12 sets forth the rules regarding administrative
appeals at the Parking Violations Appeals Board. The rules provide, in pertinent part:
§39-12 Appeals.
(a) Appeals Board-powers.
(1) There shall be an Appeals Board within the
Bureau . ..
(2) The Appeals Board may review the facts and the
law in any matter and, except in the interests of
justice and upon consent of the respondent, shall not
consider any evidence which was not presented to
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the administrative law judge. A concurring vote by
two members of the Appeals Board panel will be
required to make a determination on an appeal.
(3) Appeals shall be from final determinations or
from decisions denying applications to open
defaults, or from decisions to vacate dismissals,
only. No intermediate appeals shall be allowed but
all claimed errors shall be deemed to be
incorporated in the decision appealed from.
(b)(1) A respondent aggrieved by the decision of an
administrative law judge upon a plea of denying
liability, may obtain a review thereof by serving
upon the Bureau, within thirty days of the entry of
such decision, a notice of appeal setting forth the
reason why the decision should be reversed or
modified. The notice of appeal shall be in such
form and filed at such place as may be prescribed
by the Director. No plea may be had from a plea of
guilty, which has been entered at the hearing.
* * *
11. Pursuant to VTL § 243 and Administrative Code § 19-209, the order of the
Appeals Board is the final determination of PVB, and judicial review may be sought pursuant to
Article 78 of the Civil Practice Law and Rules ("CPLR"). Administrative Code § 19-209
provides, in pertinent part, as follows:
§ 19-209 Judicial Review.
The order of the appeals board shall be the final
determination of the bureau. Judicial review may
be sought pursuant to article seventy-eight of the
civil practice law and rules.
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STATEMENT OF RELEVANT FACTS
The Summans
12. According to DOF's Summons, Tracking, and Accounts Receivables
System ("STARS") petitioner is the owner of a 2016 Fiat bearing license plate HZN2873 (the
vehicle").2
"subject
13. February 14, 2019, petitioner was issued Summons No. 86233252305 (the
"Summons") for parking in violation of Title 34 RCNY § 4-08(d)(1). A copy of the Summons is
"B."
attached hereto as Exhibit
The Administrative Determination
14. On February 20, 2019, petitioner requested an online hearing for the
Summons and submitted a statement of his defense through PVB's online hearing webpage. A
"C."
copy of petitioner's online hearing statement submission is annexed hereto as Exhibit
15. On February 22, 2019, following a review of the Summons and the online
hearing statement submission. Administrative Law Judge Steven Gaynor ("ALJ Gaynor") issued
a decision finding petitioner guilty of the violation set forth in the Summons (the "Decision and
Order") and ordered a $45.00 fine. In the Decision and Order, ALJ Gaynor found as follows:
respondent3
The has been charged with violating
Traffic Rule 4-08(d)(1) by parking a vehicle in
violation of officially posted street cleaning rules.
Respondent claims, "Scaffolding from construction
work obscured the signs stating that the stretch of
99"'
Street was scheduled for maintenance at that
2
As petitioneris not challenging being the owner of the subject vehicle and DOF records indicate that he is the
STARS'
owner, respondent will refer to the summonses at issue herein as issued to petitioner.A copy of the
"A."
Summons Status Inquiry record for challenged summons is annexed hereto as Exhibit
3
The respondent at PVB isthe petitioner in theinstantArticle 78 proceeding.
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time. It looked like an empty legal parking spot
(non-metered) surrounded by other passenger
vehicles parked on that side of the street. I have no
history of parking tickets in New York City in any
borough, and I don't think it's fair that I should be
infraction."
held liable for this The defense is not
persuasive. It is noted that respondent's written
testimony does not persuasively establish that no
part of the sign was visible to respondent when the
respondent parked the vehicle. Guilty.
"D."
A copy of the Decision and Order is attached hereto as Exhibit
16. The Decision and Order provided petitioner with information about how to
proceed with an appeal. It stated in relevant part:
You have thirty days to appeal a guilty
determination.
If you would like to request an appeal of your
hearing decision, please complete a Parking/Camera
Violations Appeal application at one of our five
business centers...or visit nyc.gov/finance to
download an application....
"D"
See Exhibit (emphasis in original).
17. As set forth more fully in the Affirmation of Daisy Alverio ("Alverio
Affirmation"), dated May 29, 2019 at ¶ 12, in accordance with the standard procedure, thereafter,
ALJ Gaynor's Decision and Order was recorded in STARS and NYCServ and the electronic case
folder was flagged by the NYCServ system and forwarded back to Vanguard Inc. ("Vanguard")
at the end of the business day for processing.
18. After Vanguard processed the.Decision and Order, on February 25, 2019,
Vanguard e-mailed a of the Decision and. Order to petitioner at the e-mail address
copy
"E."
designated by petitioner for that purpose. S_ee Alverio Affirmation at ¶ 13 and Exhibit
The Late Appeal
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19. On March 28, 2019, petitioner submitted an administrative appeal of the
Decision and Order. See Alverio Affirmation at ¶ 14. A copy of the administrative appeal
"F."4
which was attached to the Verified Petition is attached hereto as Exhibit
20. By notice dated March 28, 2019, the Appeals Board informed petitioner
that it was unable to process the administrative appeal application as the application was not
submitted within thirty days of the guilty decision. See Alverio Affirmation at ¶ 15. A copy of
"G."
the notice which was attached to the Verified Petition is attached hereto as Exhibit
The Instant Proceeding
21. By Notice of Petition and Verified Petition, sworn to on April 23, 2019,
petitioner commenced the instant proceeding seeking for this Court to "reverse the Appeals
board's decision to deny my petition and overturn my parking ticket. See Verified Petition at ¶
3.
POINT I
THE PETITION SHOULD BE DISMISSED
BECAUSE PETITIONER FAILED TO
TIMELY EXHAUST HIS ADMINISTRATIVE
REMEDIES FOR THE SUMMONS.
22. Petitioner commenced this proceeding essentially challenging the
Summons which was issued to him and upheld by an administrative hearing. However,
petitioner failed to timely appeal the Summons to the Appeals Board. As petitioner did not
exhaust the administrative remedies available for the relief sought herein and can no longer do
4
The Appeals Board does not retain copies of late appeal submissions or the letters issued in
response. However, for convenience of the Court, copies of these documents which were
attached to the Verified Petition are reproduced herein as exhibits as set forth above.
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so, this proceeding is not ripe for judicial review and petitioner is barred from seeking judicial
remedies against PVB.
23. A litigant cannot obtain judicial review of an administrative determination
without first exhausting all available administrative remedies. In addition, a controversy cannot
be ripe for judicial review ifthe claimed harm could be prevented or significantly ameliorated by
further administrative action or steps available to the aggrieved party. The administrative
remedy provides an effective method for correction of governmental error before seeking judicial
review. This conserves the resources of the courts and the parties. The legislative plan would be
rendered a nullity if statutorily created administrative retnedies could be bypassed at the
unilateral whim of the party. Thus, a party who has waived an available administrative remedy
by not pursuing that remedy in a timely fashion is barred from seeking judicial relief on the same
matter.
24. Such a statutory administrative remedy exists in this case. Pursuant to
Title 19 RCNY § 39-10(j)(6), VTL § 242 and Administrative Code § 19-208, a respondent to a
parking violation summons has the right to appeal from any adverse decision in accordance with
the appeal procedure set forth in Title 19 RCNY § 39-12. Title 19 RCNY § 39-12 provides, that
a respondent aggrieved by the decision of an administrative law judge upon a plea of denying
liability,may obtain a review thereof by serving upon the Bureau, within thirty days of the entry
of such decision, a notice of appeal setting forth the reason why the decision should be reversed
or modified. See 19 RCNY § 39
25. Here, Petitioner did not timely appeal the Decision and Order. As set
forth more fully in the Alverio Affirmation, the Decision and Order was issued on February 22,
2019 and emailed to petitioner on February 25, 2019. The administrative appeal was not
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received by the Appeals Board until March 28, 2019 more than 30 days
"B."
Affirmation at
¶ 14 and Exhibit Because petitioner failed to timely ex
administrative remedies, petitioner's claims regarding the Summons will ne
forever be premature.
CONCLUSION
26. For the reasons set forth above, respondent respectfully
Court grant its cross-motion to dismiss the instant
proceeding in its
entirety an
and further relief as the Court deems just and proper. In the event that t
denied, the undersigned respectfully
requests the right to serve and file an
(60) days of service of notice of entry of such order.
Dated: New York, New York
May 29, 2019
By:
A i a . orowitz
Assistant Corporati n Cou
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FILED: NEW YORK COUNTY CLERK 08/09/2019 02:32 PM INDEX NO. 100622/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/09/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------- ---------------------------------------------------- x In the Matter of the Application of AFFIRMATION IN CHRISTIAN V. SUPPORT OF CROSS- PUSSILANO, MOTION TO DISMISS Petitioner(s), Index No. 100622/2019 -against- CITY OF NEW YORK DEPARTMENT OF FINANCE, Respondent(s). -------------------- __------------------------..----- __----------- X Aviva Y. Horowitz, an attorney admitted to practice law before the Courts of the State of New York, affirmsunder the penalties of perjury, pursuant to Rule 2106 of the CPLR, as follows: 1. I am an Assistant Corporation Counsel in the office of ZACHARY W. CARTER, Corporation Counsel of the City of New York, attorney for respondent THE CITY OF ("DOF")¹ NEW YORK Department of Finance herein. I am familiar with the facts and circumstances of this matter based upon the relevant documents attached hereto, my review of the records and files maintained by the City of New York, and my conversations with employees, officers and agents ofthe City of New York. 2. I submit this affirmation in support of DOF's cross-motion for an order dismissing the Verified Petition ("petition") pursuant to Rules 3211(a)(2) and 3211(A)(7) of the CPLR, on the grounds that the Court lacks subject matter jurisdiction because petitioner failed to ¹· The New York Departreent of Finance Violations Bureau is the proper name for City Parking ("PVB") Respondent. -3- 1 of 11 FILED: NEW YORK COUNTY CLERK 08/09/2019 02:32 PM INDEX NO. 100622/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/09/2019 timely pursue and exhaust his available administrative remedies prior to commencing this judicial proceeding.. RELEVANT STATUTORY PROVISIONS The Parking Violations Bureau ("PVB") 3. The New York State Vehicle and Traffic Law ("VTL") authorizes a city to establish an administrative tribunal to hear and determine complaints of traffic infractions constituting parking, standing or stopping violations. See VTL §§ 235, 236(1). The administrative tribunal may prepare and issue notices of parking violation, accept pleas, hear and determine charges, provide for penalties, and enter and enforce judgments in the same manner as the enforcement of money judgments in civil proceedings. lee VTL § 237. ("PVB" 4. The Parking Violations Bureau or "Bureau") is a tribunal within DOF that was established pursuant to the VTL, Section 1504(4) of the New York City Charter ("City Charter") and Section 19-201 of the New York City Administrative Code ("Admin. Code"). The Bureau has jurisdiction to hear and determine complaints pertaining to "violation[s] of any local law, rule or regulation provided for or regulating the parking, stopping or standing of vehicle." a motor See Admin. Code § 19-201. 5. Admin. Code § 19-203, provides, in pertinent part, as follows: The parking violations bureau shall have the following functions, powers and duties: a. To accept pleas to, and to hear and determine, charges of parking violations; b. To provide for penalties other than imprisonment for parking violations in accordance with a schedule of monetary fines and penalties . ..; -4- 2 of 11 FILED: NEW YORK COUNTY CLERK 08/09/2019 02:32 PM INDEX NO. 100622/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/09/2019 c. To adopt rules and regulations . . .to carry out the purposes of this chapter, including but not limited to rules and regulations prescribing the internal procedures and organization of the bureau, the manner and time of entering pleas, the conduct of hearings, and the amount and manner of payment of penalties; * * * PVB Hearings 6. Title 19 of the Rules of the City of New York ("RCNY") sets forth the rules concerning the adjudication of parking violations. Title 19 RCNY § 39-02(a) states, in relevant part, as follows: § 39-02: Notice of Violation (Summons). (a) Contents. (1) The notice of violation (summons) shall be in such form as may be prescribed by the Director and shall contain the registration plate number, the type of registration, the state of registration, the date of expiration, a description of the vehicle, a general statement of the violation alleged, including a reference to § 4-08 of title 34 of the official compilation of the Rules of the City of New York or applicable provision of the Vehicle and Traffic Law or of the Administrative Code of the City of New York or any other law or rule, information as to the days and hours the applicable rule or provision is in effect, unless always in effect pursuant to the rule or "all" provision and where appropriate the word when the days and/or hours in effect are every day and/or twenty-four hours a day, the date, time and particular place of occurrence, and, if a meter violation, the meter number. ... * * * (3) Ifany information that is required to be inserted in a notice of violation is omitted from the notice of violation, misdescribed, or illegible, the violation -5- 3 of 11 FILED: NEW YORK COUNTY CLERK 08/09/2019 02:32 PM INDEX NO. 100622/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/09/2019 shall be dismissed upon application of the person charged with the violation. * * * 7. Title 19 RCNY § 39-08 sets forth the procedure for hearings at PVB. It states, in relevant part, as follows: § 39-08: Hearings. * * * (c) Hearing examiner to preside. Every hearing shall be held before an Administrative Law Judge, Senior Administrative Law Judge, or Supervising Administrative Law Judge. All hearings shall be public. * * * (e) Substantial evidence required. No charge may be established except upon proof by substantial credible evidence. (f)Rules of evidence. (1) The administrative law judge shall not be bound by the rules of evidence in the conduct of the hearing, except rules relating to privileged communications. (2) Evidence may be presented in any form. All testimony shall be given on oath or affirmation. (3) The respondent shall have the right to present witnesses, to conduct examination and to introduce documentary evidence. (4) The summons shall constitute prima facie evidence of the statements contained therein. A reproduction of the summons or the original thereof filed with the Bureau may be used at the hearing in lieu of the copy from which itwas made. . .. -6- 4 of 11 FILED: NEW YORK COUNTY CLERK 08/09/2019 02:32 PM INDEX NO. 100622/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/09/2019 8. Pursuant to VTL § 241, Admin. Code § 19-207, and 19 RCNY § 39-10, the hearing officer is empowered to make a determination of the charges set forth in a parking summons, either sustaining or dismissing them. 9. Pursuant to Title 19 RCNY § 39-10(j)(6), a respondent on a summons "shall have the right to appeal from any adverse decision in accordance with the appeal 39-12." procedure set forth in § Pursuant to VTL § 242 and Administrative Code § 19-208, the determination of a hearing examiner may be reviewed by the Parking Violations Appeals Board ("Appeals Board"). Administrative Code § 19-208 provides, in pertinent part, as follows: Administrative Code § 19-208 Appeals within the bureau. a. There shall be an appeals board within the bureau which shall consist of three or more senior hearing examiners, as the director shall determine. b. An appeal from a judgment of any hearing officer shall be submitted to the appeals board, which shall have the power to review the facts and the law, but shall not consider any evidence which was not presented to the hearing officer and shall have power to reverse or modify any judgment appealed from for error of fact or law. 10. Title 19 RCNY § 39-12 sets forth the rules regarding administrative appeals at the Parking Violations Appeals Board. The rules provide, in pertinent part: §39-12 Appeals. (a) Appeals Board-powers. (1) There shall be an Appeals Board within the Bureau . .. (2) The Appeals Board may review the facts and the law in any matter and, except in the interests of justice and upon consent of the respondent, shall not consider any evidence which was not presented to -7- 5 of 11 FILED: NEW YORK COUNTY CLERK 08/09/2019 02:32 PM INDEX NO. 100622/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/09/2019 the administrative law judge. A concurring vote by two members of the Appeals Board panel will be required to make a determination on an appeal. (3) Appeals shall be from final determinations or from decisions denying applications to open defaults, or from decisions to vacate dismissals, only. No intermediate appeals shall be allowed but all claimed errors shall be deemed to be incorporated in the decision appealed from. (b)(1) A respondent aggrieved by the decision of an administrative law judge upon a plea of denying liability, may obtain a review thereof by serving upon the Bureau, within thirty days of the entry of such decision, a notice of appeal setting forth the reason why the decision should be reversed or modified. The notice of appeal shall be in such form and filed at such place as may be prescribed by the Director. No plea may be had from a plea of guilty, which has been entered at the hearing. * * * 11. Pursuant to VTL § 243 and Administrative Code § 19-209, the order of the Appeals Board is the final determination of PVB, and judicial review may be sought pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR"). Administrative Code § 19-209 provides, in pertinent part, as follows: § 19-209 Judicial Review. The order of the appeals board shall be the final determination of the bureau. Judicial review may be sought pursuant to article seventy-eight of the civil practice law and rules. -8- 6 of 11 FILED: NEW YORK COUNTY CLERK 08/09/2019 02:32 PM INDEX NO. 100622/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/09/2019 STATEMENT OF RELEVANT FACTS The Summans 12. According to DOF's Summons, Tracking, and Accounts Receivables System ("STARS") petitioner is the owner of a 2016 Fiat bearing license plate HZN2873 (the vehicle").2 "subject 13. February 14, 2019, petitioner was issued Summons No. 86233252305 (the "Summons") for parking in violation of Title 34 RCNY § 4-08(d)(1). A copy of the Summons is "B." attached hereto as Exhibit The Administrative Determination 14. On February 20, 2019, petitioner requested an online hearing for the Summons and submitted a statement of his defense through PVB's online hearing webpage. A "C." copy of petitioner's online hearing statement submission is annexed hereto as Exhibit 15. On February 22, 2019, following a review of the Summons and the online hearing statement submission. Administrative Law Judge Steven Gaynor ("ALJ Gaynor") issued a decision finding petitioner guilty of the violation set forth in the Summons (the "Decision and Order") and ordered a $45.00 fine. In the Decision and Order, ALJ Gaynor found as follows: respondent3 The has been charged with violating Traffic Rule 4-08(d)(1) by parking a vehicle in violation of officially posted street cleaning rules. Respondent claims, "Scaffolding from construction work obscured the signs stating that the stretch of 99"' Street was scheduled for maintenance at that 2 As petitioneris not challenging being the owner of the subject vehicle and DOF records indicate that he is the STARS' owner, respondent will refer to the summonses at issue herein as issued to petitioner.A copy of the "A." Summons Status Inquiry record for challenged summons is annexed hereto as Exhibit 3 The respondent at PVB isthe petitioner in theinstantArticle 78 proceeding. -9- 7 of 11 FILED: NEW YORK COUNTY CLERK 08/09/2019 02:32 PM INDEX NO. 100622/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/09/2019 time. It looked like an empty legal parking spot (non-metered) surrounded by other passenger vehicles parked on that side of the street. I have no history of parking tickets in New York City in any borough, and I don't think it's fair that I should be infraction." held liable for this The defense is not persuasive. It is noted that respondent's written testimony does not persuasively establish that no part of the sign was visible to respondent when the respondent parked the vehicle. Guilty. "D." A copy of the Decision and Order is attached hereto as Exhibit 16. The Decision and Order provided petitioner with information about how to proceed with an appeal. It stated in relevant part: You have thirty days to appeal a guilty determination. If you would like to request an appeal of your hearing decision, please complete a Parking/Camera Violations Appeal application at one of our five business centers...or visit nyc.gov/finance to download an application.... "D" See Exhibit (emphasis in original). 17. As set forth more fully in the Affirmation of Daisy Alverio ("Alverio Affirmation"), dated May 29, 2019 at ¶ 12, in accordance with the standard procedure, thereafter, ALJ Gaynor's Decision and Order was recorded in STARS and NYCServ and the electronic case folder was flagged by the NYCServ system and forwarded back to Vanguard Inc. ("Vanguard") at the end of the business day for processing. 18. After Vanguard processed the.Decision and Order, on February 25, 2019, Vanguard e-mailed a of the Decision and. Order to petitioner at the e-mail address copy "E." designated by petitioner for that purpose. S_ee Alverio Affirmation at ¶ 13 and Exhibit The Late Appeal -10- 8 of 11 FILED: NEW YORK COUNTY CLERK 08/09/2019 02:32 PM INDEX NO. 100622/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/09/2019 19. On March 28, 2019, petitioner submitted an administrative appeal of the Decision and Order. See Alverio Affirmation at ¶ 14. A copy of the administrative appeal "F."4 which was attached to the Verified Petition is attached hereto as Exhibit 20. By notice dated March 28, 2019, the Appeals Board informed petitioner that it was unable to process the administrative appeal application as the application was not submitted within thirty days of the guilty decision. See Alverio Affirmation at ¶ 15. A copy of "G." the notice which was attached to the Verified Petition is attached hereto as Exhibit The Instant Proceeding 21. By Notice of Petition and Verified Petition, sworn to on April 23, 2019, petitioner commenced the instant proceeding seeking for this Court to "reverse the Appeals board's decision to deny my petition and overturn my parking ticket. See Verified Petition at ¶ 3. POINT I THE PETITION SHOULD BE DISMISSED BECAUSE PETITIONER FAILED TO TIMELY EXHAUST HIS ADMINISTRATIVE REMEDIES FOR THE SUMMONS. 22. Petitioner commenced this proceeding essentially challenging the Summons which was issued to him and upheld by an administrative hearing. However, petitioner failed to timely appeal the Summons to the Appeals Board. As petitioner did not exhaust the administrative remedies available for the relief sought herein and can no longer do 4 The Appeals Board does not retain copies of late appeal submissions or the letters issued in response. However, for convenience of the Court, copies of these documents which were attached to the Verified Petition are reproduced herein as exhibits as set forth above. -11- 9 of 11 FILED: NEW YORK COUNTY CLERK 08/09/2019 02:32 PM INDEX NO. 100622/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/09/2019 so, this proceeding is not ripe for judicial review and petitioner is barred from seeking judicial remedies against PVB. 23. A litigant cannot obtain judicial review of an administrative determination without first exhausting all available administrative remedies. In addition, a controversy cannot be ripe for judicial review ifthe claimed harm could be prevented or significantly ameliorated by further administrative action or steps available to the aggrieved party. The administrative remedy provides an effective method for correction of governmental error before seeking judicial review. This conserves the resources of the courts and the parties. The legislative plan would be rendered a nullity if statutorily created administrative retnedies could be bypassed at the unilateral whim of the party. Thus, a party who has waived an available administrative remedy by not pursuing that remedy in a timely fashion is barred from seeking judicial relief on the same matter. 24. Such a statutory administrative remedy exists in this case. Pursuant to Title 19 RCNY § 39-10(j)(6), VTL § 242 and Administrative Code § 19-208, a respondent to a parking violation summons has the right to appeal from any adverse decision in accordance with the appeal procedure set forth in Title 19 RCNY § 39-12. Title 19 RCNY § 39-12 provides, that a respondent aggrieved by the decision of an administrative law judge upon a plea of denying liability,may obtain a review thereof by serving upon the Bureau, within thirty days of the entry of such decision, a notice of appeal setting forth the reason why the decision should be reversed or modified. See 19 RCNY § 39 25. Here, Petitioner did not timely appeal the Decision and Order. As set forth more fully in the Alverio Affirmation, the Decision and Order was issued on February 22, 2019 and emailed to petitioner on February 25, 2019. The administrative appeal was not -12- 10 of 11 FILED: NEW YORK COUNTY CLERK 08/09/2019 02:32 PM INDEX NO. 100622/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/09/2019 received by the Appeals Board until March 28, 2019 more than 30 days "B." Affirmation at ¶ 14 and Exhibit Because petitioner failed to timely ex administrative remedies, petitioner's claims regarding the Summons will ne forever be premature. CONCLUSION 26. For the reasons set forth above, respondent respectfully Court grant its cross-motion to dismiss the instant proceeding in its entirety an and further relief as the Court deems just and proper. In the event that t denied, the undersigned respectfully requests the right to serve and file an (60) days of service of notice of entry of such order. Dated: New York, New York May 29, 2019 By: A i a . orowitz Assistant Corporati n Cou 11 of 11