People v Confino (Esther)

[*1] People v Confino (Esther) 2017 NY Slip Op 27354 Decided on October 26, 2017 Appellate Term, Second 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 printed Miscellaneous Reports.

Decided on October 26, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., BRUCE E. TOLBERT, TERRY JANE RUDERMAN, JJ
NO. 2015-2250 N C

The People of the State of New York, Respondent,

against

Esther Confino, Appellant. Lower Court # 4351404325055/2014

Bertram E. Hirsch, Esq., for appellant. Nassau County Attorney (Christi M. Kunzig, Esq.), for respondent.

Appeals from six judgments of the District Court of Nassau County, Nassau County Traffic and Parking Violations Bureau (Anthony D. Perri, J.H.O.), entered August 20, 2015, and six orders of the same court entered September 1, 2015. The judgments, respectively, after a joint nonjury trial of six actions to impose a civil liability upon defendant as the owner of a vehicle which had failed to comply with posted maximum speed limits in a school speed zone, as recorded by a photo speed violation monitoring system device, imposed a $50 civil liability, plus a $30 administrative fee, in each action. The postjudgment orders denied, as moot, defendant's pretrial motions to dismiss each action.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the judgments are reversed, without costs, the notices of liability are dismissed, and the fines and administrative fees, if paid, are remitted; and it is further,

ORDERED that the appeals from the orders are dismissed as moot.

These six actions were commenced to impose civil liability upon defendant as the owner of a vehicle which had failed to comply with posted maximum speed limits in a school speed zone, as recorded by a "photo speed violation monitoring system" device, in violation of Local Law No. 9-2014 of the County of Nassau, which established title 72-B of the Miscellaneous Laws of Nassau County, a demonstration program for "Vehicle Owner Liability For Failure Of Operator To Comply With Certain Posted Maximum Speed Limits" (see also Vehicle and Traffic Law §§ 1180, 1180—c). In the first action, a notice of liability, dated November 17, 2014, alleged that, on November 6, 2014, at 12:49 p.m., defendant's vehicle had been traveling 31 miles per hour (mph) in a school speed zone with a posted speed limit of 20 mph. The notice advised defendant, among other things, that she is liable for this fine because, at the above-mentioned time and date, the driver of her vehicle had been traveling at a speed of more than 10 mph above [*2]the posted speed limit in effect within the school speed zone.

In each of the other five actions, a notice of liability indicated that defendant's vehicle had been traveling more than 10 mph above the posted speed limit of 20 mph in a school speed zone. Each notice also contained the same advisory as noted above. The second and third notices of liability indicated that the violations had occurred on November 18, 2014, at 11:41 a.m. and 12:02 p.m., respectively. The fourth, fifth and sixth notices of liability indicated that the violations had occurred on November 19, 2014, at 10:05 a.m., 11:06 a.m. and 11:34 a.m. respectively. Nonjury trials of all six actions were scheduled for August 20, 2015. Prior to the trials, defendant moved to dismiss each action on the ground that the Nassau County Traffic and Parking Violations Bureau lacked subject matter jurisdiction because Local Law No. 9-2014 had been repealed, "effective immediately,"on December 18, 2014, without a clause saving the pending proceedings for future adjudication (see Local Law 19-2014; Local Law 1-2015). On August 20, 2015, without deciding the motions, the court consolidated the actions for trial, and, after trial, awarded a judgment imposing civil liability upon defendant in each of the six actions. Thereafter, by six orders entered September 1, 2015, the court denied, as moot, each of defendant's motions to dismiss. Defendant appeals in each action from the judgment and order entered therein, which appeals we consolidate for purposes of disposition.

Local Law 9-2014, which was enacted on June 26, 2014 pursuant to Vehicle and Traffic Law § 1180-c, amended title 72-B of the Miscellaneous Laws of Nassau County and provided, in part:

"§ 1. Program Established. The County of Nassau, pursuant to state statute, hereby establishes a demonstration program imposing monetary liability on the owner of a vehicle for failure of an operator thereof to comply with posted maximum speed limits in a school speed zone. Such program shall continue for as long as authority to conduct such program shall continue. (emphasis added). . .§ 4 (5). Adjudication of the liability imposed upon owners shall be by the Nassau County Traffic and Parking Violations Bureau."

Pursuant to Local Law 19-2014 and Local Law 1-2015, Local Law 9-2014 was repealed on December 18, 2014, "effective immediately."

The sole question on this appeal is whether General Construction Law § 94 preserved Nassau County's right to conduct the consolidated trial and impose civil liabilities upon defendant, where the actions had been commenced prior to the repeal of Local Law 9-2014, but the trial had been conducted after the local law had been repealed.

General Construction Law § 94 provides:

"Unless otherwise specially provided by law, all actions and proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed, and pending immediately prior to the taking effect of such repeal, may be prosecuted and defended to final effect in the same manner as they might if such provisions were not so repealed."

Thus, generally when a statute is repealed without a saving clause contained therein, pending actions and proceedings are saved, and the abatement of actions is prevented by the [*3]saving provision of General Construction Law § 94 (see People v Oliver, 1 NY2d 152 [1956]; Matter of Pomerantz v Board of Regents of Univ. of State of NY, 65 AD2d 900 [1978] [applying General Construction Law § 94 to administrative rules and regulations of the Commissioner of Education]). However, the Court of Appeals has indicated that General Construction Law § 94 should "not . . . be applied when the general object' of the statute, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended' " (Oliver, 1 NY2d at 159, quoting General Construction Law § 110).

Here, the general object of Local Law 9-2014 was to create and continue its demonstration program "for as long as authority to conduct such program shall continue" (Local Law 9-2014 § 1). The repeal of Local Law 9-2014 went beyond repealing the cause of action to impose civil liability upon an owner of a vehicle for failure of an operator thereof to comply with posted maximum speed limits in a school speed zone. The repeal of Local Law 9-2014 also abolished the jurisdiction of Nassau County to continue the demonstration program and of the Nassau County Traffic Violations Bureau to adjudicate the imposition of liability (see Leake v Hartman, 137 App Div 451 [1910], affd 202 NY 605 [1911]; Webster v Town of White Plains, 93 App Div 398 [1904]; Palmer v Hickory Grove Cemetery, 84 App Div 600 [1903]). Consequently, the saving provision of § 94 is inapplicable and these six actions abated at the time Local Law 9-2014 was repealed.

Accordingly, the judgments are reversed and the notices of liability are dismissed. In view of our determination, the appeals from the six orders have been rendered moot and, thus, are dismissed.

GARGUILO, J.P., TOLBERT and RUDERMAN, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 26, 2017