Smilow v New York City Dept. of Fin. Parking Violations Adjudications Div.

Smilow v New York City Dept. of Fin. Parking Violations Adjudications Div. 2009 NY Slip Op 08873 [68 AD3d 413] December 1, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Devorah Smilow, on Behalf of Herself and All Others Similarly Situated, Appellant,
v
New York City Department of Finance Parking Violations Adjudications Division et al., Respondents.

—[*1] Weiss & Lurie, New York (Mark D. Smilow of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for respondents.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered January 9, 2009, which granted respondents' motion to dismiss a CPLR article 78 proceeding challenging a parking ticket, unanimously affirmed, without costs.

Petitioner alleges that the ticket was personally served on her by respondent police officer, who falsely stated on the ticket that the vehicle's operator refused to provide identification; she pleaded not guilty through the Web site of respondent Department of Finance Parking Violations Bureau (PVB), arguing that the ticket was jurisdictionally defective because, among other reasons, it did not identify the operator of the vehicle; an administrative law judge (ALJ) rejected her arguments and upheld the $115 fine; her "representative," who is the registered owner of the vehicle, paid the fine and filed an administrative appeal; and PVB, after a hearing, upheld the ALJ's decision. Petitioner does not allege, and it does not otherwise appear, that she was present at the hearing. Having failed to pursue the administrative appeal herself, and as no legal support is cited for her underlying premise that a vehicle operator can be "vicariously represented" at a PVB hearing by the vehicle's owner, petitioner failed to exhaust her administrative remedies, and therefore may not challenge PVB's determination. Concur—Tom, J.P., Sweeny, Moskowitz, Acosta and Abdus-Salaam, JJ.