Matter of Posner v New York State Dept. of Motor Vehicles

[*1] Matter of Posner v New York State Dept. of Motor Vehs. 2004 NY Slip Op 51011(U) Decided on July 16, 2004 Supreme Court, New York County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 16, 2004
Supreme Court, New York County

In the Matter of the Application of STACY POSNER and CHRISTINE LACZYNSKI, Petitioners, - against - THE

against

NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Respondent.



107463/04



Daniel J. Corley, Esq., the Law Office of Daniel J. Corley, New York City, for petitioners and Eliot Spitzer, New York State Attorney General, by Martha A. Lees, Assistant Attorney General, for the respondent

Kibbie F. Payne, J.

Petitioners move pursuant to CPLR Article 78 for an order and judgment directing respondent the New York State Department of Motor Vehicles, to reinstate petitioner's privilege to use interpreters and law office staff on the premises of the Manhattan South Traffic Violations Bureau, located at 19 Rector Street, New York, in order to assist petitioners in the preparation of cases for trial and further, to enjoin respondent from preventing such use by petitioners and their support staff.

Petitioners are two attorneys who practice before the Manhattan South Traffic Violations Bureau. In this capacity, they challenge a recently issued directive of the Senior Administrative Law Judge of the Department of Motor Vehicles, Manhattan South Traffic Violations Bureau (TVB), later approved by the Deputy Commissioner and Counsel of the Department of Motor Vehicles, Jill A. Dunn, on April 27, 2004, prohibiting attorneys from using the "attorney room" at 19 Rector Street for the "business of practicing law", or "use by law firm support staff" in the preparation of clients' cases for hearing. As a result of this directive, petitioners claim they have been unable to adequately represent and protect their clients' right to a fair hearing before the TVB.

In answer to the petition, the affirmation of Senior Administrative Law Judge Turiel, explains that the attorney room was set aside as a courtesy, to provide attorneys a place to wait for their cases to be called for hearing. In addition, Judge Turiel explains that the attorney room was never intended as a place to solicit clients, to prepare cases for hearing, to accommodate law office staff, or to "practice" law. According to the Judge Turiel, several law firms have sent non-attorney support staff, such interpreters and office assistants to the premises, who use the "attorney room" to among other things, solicit clients and give out business cards. It is the Judge's opinion that the situation had become "circus-like", thus, requiring that a stop be put to the use of the room for these purposes. Indeed, even petitioner Laczynski admits to having at least five support staff at the TVB facility and that the attorney room is "very small with limited resources."

This court concludes that respondent's decision to limit the use of the attorney room to its originally intended purpose, i.e., that of a waiting room for attorneys, has a sound basis in reason [*2]and, therefore, cannot be considered arbitrary, capricious or an abuse of discretion. The proceeding here is in the nature of "mandamus to review, which differs from mandamus to compel, in that, a petitioner seeking the latter must have a clear right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant the relief" (Scherbyn v Wayne-Finger Lakes Board of Cooperative Educational Services, 77 NY2d 753, 757). Mandamus to review, however, requires the court to examine an administrative action involving the exercise of discretion to determine whether the agency determination was arbitrary and capricious or affected by an error of law (id. at p. 758; CPLR 7803 [3]). Therefore, since petitioners' papers are devoid of any claim of a legal right to use the attorney room in the manner which they seek and because they fail to demonstrate that the agency has any specific duty to allow their use in such manner, this court concludes that respondent's stated reason for terminating petitioners' use of the room for the "practice of law" is a reasonable exercise of the agency's discretion and based on the agency's assessment of the relevant facts.

Moreover, "[i]t is beyond dispute that a citizen does not have the right to use public property under *** [governmental] control at his will or on his own terms. Nor, does a citizen have a constitutional or inalienable right to use the *** [governmental] facility irrespective of the *** [agency's right] to regulate such facility for the best interests of the public" (see e.g., Application of Rupp v Lindsay, 57 Misc 2d 946, 948). Accordingly, it is

ORDERED AND ADJUDGED that petitioners' application is denied in all respects and the petition is dismissed; and it is further

ORDERED AND ADJUDGED that respondent the New York State Department of Motor Vehicles is awarded the costs of this motion in the amount of $100 (CPLR 8106 and 8202), [$50.00 each] to be paid by petitioners Posner and Laczynski within ten days of the date of service of a copy of this order upon them. The foregoing constitutes the decision and judgment of the court.

DATED: July 16, 2004ENTER:

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J.S.C.