Absolute Trucking Inc. v City of New York
2012 NY Slip Op 31039(U)
April 12, 2012
Sup Ct, NY County
Docket Number: 103233/11
Judge: Doris Ling-Cohan
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SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
PRESENT: Hon. Doris Ling-Cohan, Justice
ABSOLUTE TRUCKTNG INC.,
and PAVEL KOGAN,
INDEX NO. 103233/11
MOTION SEQ. NO. 002
THE CITY OF NEW YORK BUSINESS INTEGRITY
COMMISSION and MICHAEL J. MANSFIELD
The following papers, numbered
for an extension of time to serve:
C9UNTY CLERKS OFFICE
were considered on this m c l e 78 and g-08s-motiom to digmieg and
a &m m
Y l F
Notice of MotiodOrder to Show Cause, -Affidavits - Notice of Petition
Answering Affidavits -Exhibits
[ XI Yes
[ ] No
Upon the foregoing papers, it is ordered that this Article 78 proceeding and the cross-motions are
decided as indicated below.
Petitioners first sought relief in this proceeding by order to show cause ( O X ) dated March 16,
201 1, which was not signed. Petitioners filed a second OSC,dated June 23, 201 1. In a decision dated
June 23,201 1, this Court declined to sign Petitionersâ€™ OSC. Petitioners Absolute Trucking Inc.
(Absolute Trucking), Leonid Brenman, and Pave1 Kogan (collectively the â€śPetitionersâ€ť), now move by
notice of petition seeking an order pursuant to Article 78 of the CPLR: (i) compelling respondents the
City of New York Business Integrity Commission P I C ) and Michael Mansfield CommissionedChair
(collectively the â€śRespondents), to accept Petitionersâ€™ withdrawal of its application for relicensing to
remove, collect or dispose of trade waste andor removal of waste materials resulting from building,
demolition, construction, alteration, or excavation; and (ii) permanently enjoining Respondents from
takidg any action regarding relicensing of Absolute Trucking, to seal Respondentsâ€™ investigation
regarding the relicensing of Absolute Trucking, to forbid respondent BIC to disseminate any information
obtained by its investigation, and to enjoin Respondents from using any and all authorizations obtained
f o Petitioners in seeking their relicensing.
The facts of this case are not in dispute. Petitioner Absolute Trucking applied for a registration
as a business solely engaged in the removal of waste materials resulting from building, demolition,
construction, alteration, or excavation for a period of two years, which was granted by Respondents.
Absolute Trucking had to periodically renew its license through petitioner Leonid Brenman,President
and 50% shareholder of Absolute Trucking, and petitioner Pave1 Kogan, Vice President and 50%
shareholder of Absolute Trucking. Respondent BIC is a law enforcement and regulatory agency
responsible for the licensing, registration and regulation of the businesses that remove, collect or dispose
of trade waste, including construction and demolition debris in New York City. BIC conducts an
extensive investigation into an applicant and its principals and employees to determine whether to grant
In 2009, Petitioners filed a renewal application with BIC which permitted Absolute Trucking to
lawfully operate. As part of the renewal application, Petitioners provided releases to BIC waiving
confidentiality and authorizing the release of private information to facilitate BICâ€™s investigation into the
applicants. On February 16,20 11, petitioner Leonid Brenman, on behalf of Absolute Trucking,
surrendered Petitionersâ€™ trade waste license plates and registration permit and informed BIC that
Petitioners were withdrawing their application for relicensing. BIC, by letter dated February 22,201 1
(BIG Determination), acknowledged receipt of Petitionersâ€™ license plates and registration permit but
rejected Petitionersâ€™ withdrawal of its application for relicensing. Petitioners commenced this
proceeding to challenge the BIC Determination. Thereafter, Respondents cross-moved to dismiss and
Petitioners cross-moved for an extension of time to serve Respondents.
In seeking dismissal of this proceeding, Respondents maintain that this court lacks personal
jurisdiction and that Petitioners failed to state a cause of action. Specifically, Respondents argue that
Petitioners lack standing to bring this action as Petitioners have not suffered an injury in fact. â€śTOhave
standing to challenge a governmental action, a party m s show injury in fact, such that he will actually
be harmed by the challenged administrative action. ...[T]he injury must be more than conjectural.â€ť
McAllan v NYS Dep â€™t o Health, 60 w d 464,464 (15t Depâ€™t 2009). See also Matter o Bradfird
Central School Dist. v Ambach, 56 NY2d 158, 164 (1982), Citizens Emergency Committee to Preserve
Preservation v Tierney, 70 AD3d 576,576 (1â€ť Depâ€™t 2010). The injury must have already happened or
be imminent rather than speculative. Rent Stabilization Assoc. of NYC, Inc. v Miller, 15 AD3d 194, 194
(latDepâ€™t 2005). As explained further below, Petitioners have failed to establish an injury resulting from
the BIC Determination.
Petitioners, in their cross-motion, claim an injury based on an alleged violation of their
constitutional rights under the New York Constitution, Article 1, Section 12, and the 4* Amendment of
the US Constitution; both granting people the right to be secure in their persons and free from searches
and seizures. The 4* Amendment of the US Constitution serves to â€śsafeguard the privacy and security
of individuals against arbitrary invasions by government officials.â€ť Camara v Municipal Court o the
Cily and County of Sun Francisco, 387 US 523,528 (1967). Here, Petitioners have not been subject to
an unreasonable search and seizure within the meaning of the New York or US constitutions. Petitioners
voluntarily submitted an application for the renewal of their license and now seek withdrawal of such
application. Even assuming that the review of such application, and the resulting investigation of the
applicant, constitutes a search, it is clear that Petitioners consented to the alleged search and seizure, by
submission of the application.
Further, Respondents correctly argue that the BIC investigation is ongoing, and no adverse
decision has been rendered against Petitioners. The BIC maintains broad authority to investigate matters
related to the trade waste industry. See Sindone v C&v oflvew York, 2 AD3d 125, 126 (1â€ś Depâ€™t 2003).
Respondents allege that, during the course of its investigation, evidence emerged that Petitioners are
associated w t organized crime, and Petitionersâ€™ request to withdraw their application was merely an
attempt to stop the ongoing investigation and avoid a potential adverse finding which has not been
rendered. Thus, Petitioners have suffered no injury in fact from the BIC Determination, and therefore,
lack standing to bring this proceeding.
Moreover, this Court, in its decision dated June 23,201 1, declined to sign Petitioners OSC on
several grounds, including â€śthat [Pletitioners seek to enjoin a law enforcement agencyâ€™s investigation
and prevent the law enforcement agency from disseminating the findings of its investigation without
citing to any law.â€ť DecisiodOrder, dated June 23,201 1. The Court notes that Petitioners have again
failed to cite to any legal authority in support of their claim that, under such facts, a law enforcement
agency may be enjoined from further investigation and prevented from disseminating the findings of
such investigation. As such, Respondentsâ€™ cross-motion to dismiss is granted and Petitionersâ€™ petition
As this Court has already determined that Petitioners lack standing to bring this Article 78
proceeding, it need not address Petitionerâ€™s cross-motion for an extension of time to serve Respondents,
as it is moot.
Accordingly, it is
ORDERED that Respondents' cross-motion to dismiss is granted; and it is M e r
ORDERED that the petition is dismissed; and it is further
ORDERED that within 30 days of entry of this order Respondents shall serve a copy upon all
Petitioners wt notice of entry.
This constitutes the decision of this Cowt.
DORIS LING-COHAN, J.S.C.
[ X ] FINAL DISPOSITION
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[ ] NON-FINAL DISPOSITION
J:Micle 78L4bsolutc Trucking v NYC Buslncss Integrity Comlssion standing, pcrsonal]urlsdlctlon.wpd
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