Matter of Marsala v The City of Long Beach
2012 NY Slip Op 30947(U)
April 3, 2012
Sup Ct, Nassau County
Docket Number: 14361/08
Judge: Thomas P. Phelan
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[* 1]
SHORT FORM ORDER
STATE OF NEW YORK
SUPREME COURT
Present:
HON. THOMAS P. PHELAN.
Justice.
TRIAL/IAS PART 2
NASSAU COUNTY
. IN THE MATTER OF THE APPLICATION OF
JOHN MARSALA , ADRI LEASING CORP.
BEACH & BAY LEASING CORP.
OCEAN BLACK CAR CORP.
Petitioners
ORlGINAL RETURN DATE: 1/19/12
SUBMISSION DATE: 02/21/12
Index No. 14361/08
For a Judgment Pursuant to Article 78 of the
CPLR and for a. declaratory judgment pursuant
to
3001 of the CPLR
-against -
MOTION SEQUENCE # 7 & 8
THE CITY OF LONG BEACH and CARMEN
. CIPPOLA d/b/a LONG BEACH CHECKER
and BEECH STREET TAXI
Respondents.
The following papers read on this motion:
Notice of Motion....... ...
Notice of Cross Motion..............................
Second Amended Verified Petition. .
Reply...... .... ....... .... ...... .... ... .................... ........... 4 , 5
Memorandum of Law. .
.. 7 , 8
Motion by petitioners for an order pursuant to CPLR 3212 granting them
partial summary judgment declaring that they are the owners of 22 certain City of
Long Beach taxi licenses in which they have a protected interest and cross-motion
by the City of Long Beach (" the City ) for an order pursuant to CPLR 3212
[* 2]
Marsala v The City of Long Beach , et al.
Page
granting it summary judgment dismissing the petition and any and all cross- claims
against it on the grounds that the petitioners do not have a protected property
interest in said taxi
licenses is determned as provided herein.
Petitioners challenge the City' s refusal to renew a total of 22 of petitioners ' taxi
licenses , eleven on March 3 2008 , and eleven on July 23 2008 , as well as the
City' s issuance of six taxi licenses to respondent Caren Cippola (" Cippola ) on
or about June 6 , 2008. The City maintains that the petitioners ' ability to renew the
aforementioned taxi licenses expired when the licenses themselves lapsed. The
City fuher maintains that under the circumstances , petitioners lack a protected
propert interest in the aforementioned taxi licenses
Petitioners have held a number of taxi licenses in the City of Long Beach for many
years. Recent applications to renew a number of those licenses were denied
without a hearing, as untimely, giving rise to this proceeding.
In the Second Amended Verified Petition petitioners allege that on or about
January 22 2008 , petitioners applied for renewal of 35 taxi licenses , twenty- four
of which were renewed by the City ort or about Februar 5 2008 , and eleven of
which , on or about March 3 2008 , were not renewed on the grounds that the
licenses were not in full force and effect at the time renewal was sought.
Petitioners further allege that in April 2008 petitioners applied for renewal of
eleven other taxi licenses. By letter dated July 23 2008 , the City Manager advised
petitioners that renewal of those licenses was also being denied since the licenses
had expired and were not in full force and effect.
Also in July 2008 the parial denial ofpetitioner s January 22 2008 application
was reconsidered , and the City adhered to its original decision denying the
renewal of eleven of the 35 licenses for which renewal had been sought on Januar
, 2008.
The City Manager explained that the City' Code clearly provides that taxi
licenses expire on the last day of February the year following their issuance and
that the eleven taxi licenses for which renewal was first sought in January 2008
had expired on February 28 2007 , and the other eleven for which renewal was
sought in April 2008 had expired on February 28 , 2008. He concluded that
[* 3]
Marsala v The City of Long Beach, et al.
(gJiven the facts and circumstances presented there is no
Page
justificatlon to reissue
these licenses to your various companies.
Petitioners allege that all of petitioners ' taxi licenses were purchased for good and
anual
valuable consideration , that heretofore petitioners have always been issued
renewals and that the City' s Code entitles taxi license holders to continue to hold
those licenses until the licenses are suspended or revoked.
Petitioners additionally allege that respondent Cippola applied for taxi licenses
which were held by petitioners on or about January 18, 2008 , and that Cippola in
fact had taxi cabs operating since December 8 , 2007. Petitioners allege that the
City issued to Cippola petitioners ' taxi licenses notwithstanding petitioners
ownership of them on or about June 6 , 2008 , and that the City' s issuance of
petitioners ' licenses to Cippola amounted to a revocation. Petitioners specifically
allege that their taxi licenses numbered l , 2 , 5 , 6 , 10 , 11 and 15 were applied for
and issued to Cippola.
In their Second Amended Verified Petition dated July 31 2009 , the petitioners
that-the
advance twelve causes of action. As and for their first claim, they allege
City failed to perform a duty enjoined upon it by law in violation of CPLR
7803(1). As and for their second claim, petitioners allege that the City' s denial of
petitioners renewal application was violative of lawful procedure and was
arbitrar and capricious and/or an abuse of discretion in violation of CPLR
7803(3). By their third claim, petitioners allege a failure to hold a hearing. As
and for their fourth and fifth claims , petitioners seek to recover damages of the
City and Cippola , respectively. Petitioners ' sixth claim seeks injunctive relief. By
petitioners ' seventh claim , petitioners allege that respondents conspired to deprive
petitioners of their taxi licenses. Petitioners ' eighth , ninth and tenth claims allege
violations of 42 USC 9 1983 , and by their eleventh claim, petitioners allege a
violation of Article 1 , Section 6 of the New York State Constitution. Finally,
petitioners ' twelfth claim alleges an unlawful taking of their property.
Section 24- 45 of the Long Beach City Code provides that " ( n Jo person shall use
any motor vehicle in the conduct of a taxicab business unless a license therefor is
first issued by the city clerk and is in full force and effect." As for renewals
Section 24- 51 of the Long Beach City Code provides " ( e Jach license. . . shall
expire on the last day of February next succeeding the date of issuance thereof'
[* 4]
Page
Marsala v The City of Long Beach , et al.
and that " (aJn application for renewal must be filed at least (14) days before its
expiration , and ifnot so filed , the renewal fee for such license shall be two
hundred dollars ($200. 00). " Ifa renewal application is filed at least 14 days
before it expires , the renewal fee is $100.
Prior to March 3 , 2008 , the day on which the Cityrefused to renew 22
petitioners ' taxi licenses , Section 24- 47 of the Long Beach City Code provided
no license for the operation of a taxicab in the city shall be issued by the city
license (emphasis added). " However
on March 3 , 2008 , the Long Beach City Code was amended and the restrction
limiting the issuance of taxi licenses to only renewals was rescinded , and the City
Code was amended to provide that "the total number of licenses issued by the City
Clerk. . . shall not exceed fifty (50) in number.
clerk other than the
renewal
of an
existing
Pursuant to Section 24- 52 of the Long Beach City Code , the transfer or sale of a
taxi license must be approved by the Police Commssioner. Once so approved , the
purchaser may apply for a license but , even if qualified , may only procure one if
the prior owner consents to the cancellation of its license. In that way, the total
number of licenses authorized under the Code is not exceeded. Needless to say,
the amendment to the City Code dispensed with the requirement that the former
license holder s consent to the cancellation of its license before a new application
for a taxi license could be approved.
Pursuant to Section 24- 58 of the Long Beach City Code , City driver s licenses are
required to drve taxis; such licenses are not transferrable pursuant to Section 2463 of the City Code.
Section 24- 38 of the City Code provides for suspension or revocation of taxi
licenses as follows: " The hack bureau or the city clerk may at any time revoke any
license issued pursuant to this article for reasonable cause after a hearing, at which
the drver or owner may present his proof and cross-examine witnesses. " It also
provides that " (iJf the holder of a taxicab license has discontinued operations for
more than sixty (60) days. . . it shall be deemed reasonable cause for the
revocation of the license.
The act of renewing or denying license renewal , as well as suspending or revoking
does not lie to compel a
them
, is discretionary. Accordingly,
mandamus
[* 5]
Marsala v The City of Long Beach , et al.
discretionary act
Page
New York State Dept. of Environmental
(Town of Riverhead
Conservation 50 AD3d 811
Cuomo
61 NY2d 525
Matter of Gimprich Board of Education of City of
New York 306 NY 401
Leonard 74 NY
443
see also
Passidomo 121 AD2d 540 (2d Dept 1986).
is dismissed.
, 813 (2d Dept 2008), citing
Klostermann
539 (1984);
406 (1954);
445 (1878);
People ex rei. Hammond
, Haydock
The first claim seeking a writ of
mandamus
(MS.B.
Markowitz 23 AJ3d 390
Matter of
Suffolk County Dept. of Consumer Affairs 144 AD2d 455 456 (2d Dept 1998);
County of Suffolk 251 AD2d 659 (2d Dept
1998); Matter
Ambach 90 AD2d 127 , 130 (3d Dept 1982),
aff'
cert den.
see
Board of Ed. of Union Free School Dist: No. 1 of Towns of Scardsale and
Mamaroneck
34 NY2d 222
Matter of Wallfor
Inc. v Eaton 127 AD2d 838 , 840 (2d Dept 1987)), a
s not required where
State Dept. of Health 90 NY2d 89 (1987),
cert den.
rearg den.
cert den , 523
While a hearing is required where a license is suspended or revoked
Corp.
(2d Dept 2005), citing
Benvenuto
Matter of Active Appliance Corp.
of Richard L Inc.
61 NY2d 784 (1984),
469
, Westchester County,
S. 822 (1984);
, Matter ofPell
, 231 (1974);
hearng
only renewal is at stake
(Daxor Corp.
533 US 1074 (1998),
90 NY2d 937 (1997),
S. 1074 (1998)).
In addition , while due process under the Fourteenth Amendment must be afforded
when a license is revoked or suspended , it is not required when a license has
expired. Issuance of renewal reverts to an exercise of discretion as "there is no
property interest in the renewal of an expired license and no constitutional due
process right to a hearing
New York City Department of Bldgs.!,
80 AD3d 266 274 (1st
Dept. of Heath , supra at p. 97see also Matter of MS.B.
Markowitz
The third claim whereby petitioners challenge the denial of a hearing is
dismissed.
(Testwell, Inc.
Dept. 2010), citing
Matter ofDaxor Corp.
State ofN
98;
A. Corp.
supra).
The denial of a renewal application by a municipality is upheld if it is neither
(See
City of Syracuse 244 AD2d 873 (4 Dept
1997), Iv den.
see also, MS.B.
Markowitz
Hastings 70 AD2d 1052 (4th Dept 1979).
arbitrary nor capricious.
, Gluck
92 NY2d 802 (1998);
A. Corp.
supra; Hirsch
The issue accordingly becomes whether the City' s determnation was supported by
a rational basis and was not arbitrary and capricious
(Testwell, Inc.
New York
,"
[* 6]
Marsala v The City of Long Beach , et al.
Page
City Department of Bldgs.
Matter of M.
at 275- 276
A. Corp.
Markowitz, 23AD3d at 391. "An action is arbitrary and capricious when it is
8AD3d
, citing
taken without sound basis in reason or regard to the facts.
York City Department ofBldgs.
275- 276
, 8AD3d at
(Testwell, Inc.
v
New
Board
citingMatterofPell
of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck
Westchester County, supra;
Matter of Arrocha v Board ofEduc. of City of New
York 93 NY2d 361 363- 364 (1999).
Indeed
, in
Hirsch v Hastings, supra the Appellate Division explained " (i)n
considering the merits of (an) applicant for renewal of a license or permt , (that)
application for a renewal is to be regarded in exactly the same manner as an
(Hirsch v Hastings, supra
application for a new license (quotations omitted)"
Application of Restaurants Longchamps 271 App. Div. 684 , 686 (1 Dept
1947), aff'
Patisseries Longchamps v O' Connell , 296
Y. 888 (l947).
quoting
d sub. nom. Restaurants
Moreover (i)n such cases the ' inquiry (of the court) is limited to a determnation
whether the record discloses circumstances which leave no possible scope for the
reasonable exercise of that discretion. (Hirsch v Hastings, supra
Matter
ofStracquadanio v Department of Health of City of New York 285 NY 93
(1941).
quoting
The City' s interpretation of its Code to the effect that petitioners ' licenses expired
on the last dayofFebruary is eminently reasonable. Indeed , that fact is clearly set
forth in the City Code. Similarly, the City' s position that once a license expires
its "renewal" is no longer possible is also reasonable. That the anual renewal fee
increases from $100 to $200 when application therefor is not made at least 14 days
prior to a license s expiration hardly means that licenses do not expire on the last
day ofPebruary as is clearly set forth in the City Code.
Prior to the amendment to the City Code , petitioners may have had a property
interest in their licenses. However, while Section 24- 47 of the Code formerly
provided that only renewal licenses could be issued , the Code no longer so
provides nor did it on March 3 , 2008 , when the City rejected the petitioners
renewal applications or when it issued Cippola his licenses.
(T)he City has plenary authority to enact ordinances that define the scope of any
entitlement and the concomitant authority to enact new ordinances that eliminate
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Marsala v The City of Long Beach , et al.
(Gluck
that entitlement."
Page
City of Syracuse 244 AD2d 873 (4th Dept 1977),
Iv
den. , 92 NY2d 802 (1998).
This is paricularly so where , like here , it can be argued that petitioners were
utilizing their ownership of the licenses in an attempt to effect how many taxis
could operate in the City of Long Beach. By not renewing all of their taxi licenses
for over a year , petitioners significantly reduced the number of taxis in service
from the 50 the City sought to have.
In sum, in view of the fact that petitioners ' taxi licenses had expired , the propriety
of the City' s denial of petitioners ' renewal applications was not arbitrar or
capricious. As for Cippola s procurement of licenses, they were newly issued;
approval by the Police Commssioner and petitioners was not required.
This decision constitutes the order of the cour.
Dated:
fl
3.
Ci
Attornevs of Record
DavidoffMalito & Hutcher LLP
Attention: Michael G. Zapson, Esq.
Attorneys for Petitioners
200 Garden City Plaza, Suite 315
Garden City, New York 11530
Corey E. Klein, Esq.
Attorney for Respondent , The City of Long Beach
Corporation Counsel
One West Chester Street
Long Beach, New York 11561
Peknc Peknic & Schaffer , Esqs.
Attention: Charles Peknic , Esq.
Attorney for Respondents , Caren Cippola and Beach Street Taxi
1009 West Beech Street
Long Beach , New York 11561
ENT" ERED'
AP 05 202
