Awan v City of New York

Awan v City of New York 2012 NY Slip Op 00708 Decided on February 2, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 2, 2012
Gonzalez, P.J., Saxe, Moskowitz, Acosta, Freedman, JJ.
112688/09 6704A

[*1]6704-Rafiq Awan, Plaintiff-Appellant,

v

The City of New York, et al., Defendants-Respondents.




Thomas D. Wilson, P.C., Brooklyn (Thomas D. Wilson of
counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Susan B.
Eisner of counsel), for respondents.

Order, Supreme Court, New York County (Geoffrey Wright, J.), entered on or about February 14, 2011, which granted defendants' motion to convert the action to an article 78 proceeding pursuant to CPLR 103(c), and remanded "this matter to the Dept. of Finance for a live hearing before an Administrative Law Judge or such other procedure as agency procedure provides," and order, same court, Justice and entry date, which granted defendants' motion to vacate the note of issue, unanimously affirmed, without costs.

Both section 243 of the Vehicle and Traffic Law and section 19-209 of the New York City Administrative Code provide that judicial review of a decision by the appeals board of the Parking Violations Bureau "may be sought" via an article 78 proceeding. A plenary action to remedy purported violations of civil rights by the Parking Violations Bureau is "foreclosed by the availability of review in an article 78 proceeding in the state courts" (Liebers v Parking Violations Bur., 1994 US Dist LEXIS 3986 [1994]). Thus, plaintiff cannot pursue this matter as a plenary action, and Supreme Court providently exercised its discretion under CPLR 103(c) by converting the action to an article 78 proceeding.

Once converted to an article 78 proceeding, Supreme Court correctly ordered that the Parking Violations Bureau afford plaintiff a live hearing. In this regard, the Parking Violations Bureau Appeals Board abused its discretion in upholding the administrative law judge's decision, as plaintiff demonstrated that he had "inadvertently invoked the adjudication-by-mail procedure without intending to waive [his] right to a hearing . . . [and, thus, the hearing by mail was] in violation of lawful procedure [CPLR 7803(3)]" (Meadow v NYC Dept. of Fin., Motor Vehs., 61 AD3d 551, 551 [2009]. [*2]

Since the court correctly converted the action to an article 78 proceeding, the note of issue was properly vacated.

We have reviewed plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 2, 2012

CLERK