Owner Operator Ind. Drivers Assn., Inc. v Calhoun

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[*1] Owner Operator Ind. Drivers Assn., Inc. v Calhoun 2018 NY Slip Op 28421 Decided on December 31, 2018 Supreme Court, Albany County Platkin, J. 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 Official Reports.

Decided on December 31, 2018
Supreme Court, Albany County

Owner Operator Independent Drivers Association, Inc., DOUGLAS J. HASNER, ROBERT B. SPOON, d/b/a SPOON TRUCKING, DAVID D. WINN, d/b/a DAVE-LIN ENTERPRISES and GARY L. O'BRIEN, d/b/a BLUE EAGLE EXPRESS, Plaintiffs,

against

Cathy Calhoun, ACTING NEW YORK STATE COMMISSIONER OF TRANSPORTATION, GEORGE P. BEACH, II, SUPERINTENDENT OF THE NEW YORK STATE DIVISION OF STATE POLICE, and THERESA L. EGAN, EXECUTIVE DEPUTY COMMISSIONER FOR THE NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Defendants.



900445-18



Barbara D. Underwood, Attorney General

Attorney for Defendants

(Helena Lynch, of counsel)

The Capitol

Albany, New York 12224-0341

Tabner, Ryan & Keniry, LLP

Local Attorneys for Plaintiffs

(Thomas R. Fallati, of counsel)

18 Corporate Woods Boulevard, Suite 8 Albany, New York 12211

The Cullen Law Firm, PLLC

Lead Attorneys for Plaintiffs

(Paul D. Cullen, Daniel E. Cohen and

Katherine L. Quiniola, of counsel)

1101 30th Street, NW, Suite 300

Washington, D.C. 20007
Richard M. Platkin, J.

Plaintiffs Owner Operator Independent Drivers Association, Inc., Douglas J. Hasner, Robert B. Spoon d/b/a Spoon Trucking, David D. Winn d/b/a Dave-Lin Enterprises and Gary L. O'Brien d/b/a Blue Eagle Express commenced this action seeking to restrain New York State ("State") officials from enforcing a new federal rule that requires commercial truckers to use an electronic logging device to record their hours of service.

Defendants Cathy Calhoun, sued as Acting Commissioner of the New York State Department of Transportation, George P. Beach, II, the Superintendent of the New York State Police, and Theresa L. Egan, the Executive Deputy Commissioner for the New York State Department of Motor Vehicles, moved, pre-answer, for the dismissal of plaintiffs' complaint under CPLR 3211 (a) (2) and (7).[FN1] Following final submission of the motion, the Court gave notice of its intention to treat the motion as one for summary judgment (see NY St Cts Elec Filing [NYSCEF] Doc No. 42; CPLR 3211 [c]).

The parties thereafter engaged in paper discovery pursuant to stipulation. Defendants then filed a supplemental submission in support of the motion, and plaintiffs cross-moved for summary judgment on their complaint (see NYSCEF Doc No. 18, ¶ 2 ["Complaint"]). This Decision, Order & Judgment follows.



BACKGROUND

Plaintiff Owner Operator Independent Drivers Association, Inc. ("OOIDA") is a not-for-profit corporation whose membership includes the owners and operators of commercial motor vehicles ("CMVs") and commercial trucking businesses operating as federally-regulated motor carriers. The four individual plaintiffs are owner-operators who conduct at least a portion of their business activities in the State.

The United States Department of Transportation, Federal Motor Carrier Safety Administration ("FMCSA") establishes and enforces federal safety standards for CMVs and their operators (see 49 CFR parts 350-399). "In order to supplement scarce enforcement assets at the federal level, FMCSA provides grants to individual states who agree both to incorporate . . . the [*2]Federal Motor Carrier Safety Regulations ('FMCSR') into state law and to enforce those regulations against CMVs and their drivers under state law" (Complaint, ¶ 1; see id., ¶ 16). This grant program is known as the Motor Carrier Safety Assistance Program ("MCSAP") (see 49 USC § 31102; 49 CFR 350.211 [a], [b]).

Plaintiffs allege that "New York is a participant in MCSAP but has not adopted into state law recent amendments and additions to the FMCSRs that require installation and use of Electronic Logging Devices ('ELDs') to track driver compliance with hours-of-service ('HOS') requirements" (Complaint, ¶ 2; see 49 CFR 395.8 ["ELD Rule"]).[FN2] Pursuant to the ELD Rule, which presently is in effect and enforced by the federal government, carriers must install ELDs and require each driver to record his or her duty status using the ELD for purposes of ensuring compliance with HOS rules (Complaint, ¶¶ 29-32). Prior to the adoption of the ELD Rule, drivers were permitted to use either paper logs or automated on-board recording devices ("AOBRDs") to record HOS (see former 49 CFR 395.8 [a]; NYSCEF Doc No. 54).

Despite the lack of incorporation of the ELD Rule into State law, plaintiffs allege that "[d]efendants are nevertheless prepared to take enforcement action against motor carriers and drivers for putative violations of the ELD mandate" (Complaint, ¶ 2). Plaintiffs further allege that "even if New York were to incorporate recent additions and amendments to the FMCSRs into state law, enforcement of those provisions violates Article I, § 12 of the New York State Constitution related to warrantless searches and seizures" (id.).

In alleging that defendants began enforcement of the ELD Rule on December 18, 2017 — the same date on which the federal government began enforcement (see id., ¶¶ 30, 39) — the Complaint cites statements allegedly made to FMCSA by the Commercial Vehicle Safety Alliance ("CVSA"), a non-profit organization comprised of local, state and federal CMV enforcement officials and organizations, including the New York State Department of Transportation ("DOT") and the New York State Police ("NYSP") (see id., ¶¶ 37-38). According to plaintiffs, CVSA's statements to FMCSA "mean[] that [d]efendants are implementing a policy of enforcing the FMCSRs without respect to whether the equivalent to those federal regulations ha[s] been incorporated into New York law" (id., ¶ 38).

Plaintiffs, on behalf of themselves and as representatives of a putative class of others similarly situated, seek an order and judgment: (1) restraining defendants from enforcing the ELD Rule until the rule has been properly incorporated into State law; (2) restraining defendants from conducting warrantless inspections of ELD data; (3) declaring that defendants' planned enforcement activities "would" violate (i) Article IV, § 8 of the New York Constitution (requiring rules and regulations to be filed with the Department of State), (ii) Article I, § 6 (due process) and (iii) Article I, § 12 (protection from unreasonable search and seizure).

While acknowledging that DOT was proceeding with rulemaking to incorporate the October 1, 2016 edition of the FMCSA regulations, including the ELD Rule, into State law, defendants asserted in their motion to dismiss that (1) the incorporation rule had not yet been adopted and filed with the Department of State and (2) until such a rule was adopted and filed, [*3]defendants were not, and would not, enforce the ELD Rule under State law. On this basis, defendants argued that plaintiffs' claims were not ripe for judicial review. Defendants further argued that plaintiffs' causes of action under Article I, §§ 6 and 12 fail to state a claim upon which relief can be granted.

In opposing the motion, plaintiffs argued that their challenge to defendants' enforcement of the ELD Rule is ripe for judicial review inasmuch as defendants are enforcing the ELD Rule by executing searches and seizures of drivers and reporting purported violations to federal authorities. Plaintiffs further argued that defendants' alleged enforcement activities constitute unreasonable searches and seizures and violations of due process under the State Constitution.

Following the submission of defendants' motion, plaintiffs notified the Court on June 15, 2018 that DOT had withdrawn the proposed rulemaking.

Upon the conversion of defendants' motion into one for summary judgment, the parties entered into stipulations providing for the exchange of paper discovery and supplemental briefing (see NYSCEF Docs. 47, 58). As part of that process, plaintiffs cross-moved for summary judgment on its second and third causes of action.



ANALYSIS

A. Article IV, § 8

Plaintiffs' first cause of action alleges that DOT has not incorporated the October 1, 2016 edition of the FMCSA regulations into State law, and, therefore, any action taken to enforce the ELD Rule would run afoul of Article IV, § 8 of the New York Constitution, which provides that "[n]o rule or regulation made by any state department . . . shall be effective until it is filed in the office of the department of state." Petitioners seek, among other things, a judgment declaring that defendants lack authority to enforce the ELD Rule pending its incorporation into State law.

Defendants acknowledge that the ELD Rule has not been incorporated into State law, and they do not dispute plaintiffs' contention that "'any action taken to enforce [the ELD Rule] would be ultra vires and a violation of NY Const. art. IV, § 8'" (NYSCEF Doc No. 12 ["MOL"], p. 14, quoting Complaint, ¶ 92). Rather, in seeking dismissal of the first cause of action, defendants argue that plaintiffs "do not allege that any enforcement action has occurred," and, in fact, "[p]laintiffs expressly admit that no enforcement action has occurred" (id.). Thus, defendants dismiss as unripe plaintiffs' attempt to challenge "hypothetical, possible future enforcement" of the ELD Rule (id., p. 13).

As defendants observe, the Complaint is directed largely at defendants' anticipated enforcement of the ELD Rule. Thus, plaintiffs allege that defendants are "prepared to take enforcement action" with respect to the ELD Rule (Complaint, ¶ 2), and they seek to challenge defendants' "planned enforcement activity" and "impending enforcement" (id., ¶¶ 4, 23). Nonetheless, the Complaint does include one allegation, made solely upon information and belief, that defendants began enforcing the ELD Rule on December 18, 2017 (id., ¶¶ 37-38).



1. The Parties' Evidence and Arguments

In seeking to demonstrate that the State is not enforcing the ELD Rule, defendants submit affidavits from officials with DOT, NYSP and the Department of Motor Vehicles ("DMV").

Marc Berger serves as the chief motor-carrier investigator for DOT, which is the State's lead MCSAP agency (see NYSCEF Doc No. 13, ¶ 7 ["Berger Aff."]). According to Berger, a [*4]memorandum was issued on December 15, 2017 to all State inspection personnel "direct[ing] that no enforcement was to be taken on carriers until the updated [FMCSA] Regulations were incorporated by reference" into State law (id., ¶¶ 23, 24). "In the interim, . . . any violations of the [ELD Rule] that are discovered can only be documented on the Driver Vehicle Examination Report" (id., ¶ 24), which "serves only to inform carriers that they are currently in violation of [the new rule]" (id., ¶ 25). "There are no [n]otices of [v]iolation or uniform traffic tickets being issued citing ELD provisions, and no enforcement occurs in conjunction with notations related to ELD compliance" (id.). The affidavits submitted on behalf of the NYSP and DMV are to similar effect (see NYSCEF Doc Nos. 15-16).

In opposition, plaintiffs argue principally that defendants currently are enforcing the ELD Rule by performing roadside inspections and reporting non-compliance to FMCSA. In this regard, plaintiffs cite the federal enabling statute for MCSAP, which includes the "conduct[ of] investigations" within the "duties and powers related to [MCSAP] enforcement" (49 USC § 31133 [c]). Plaintiffs also identify a variety of harms that are said to flow from defendants' alleged reporting of ELD Rule violations to FMCSA and the federal agency's online publication of such information (see NYSCEF Doc Nos. 24-26), including adverse consequences with respect to driver hiring decisions, carrier safety scores, insurance coverage, and enforcement activities (see NYSCEF Doc No. 23, ¶¶ 6-13 ["Spencer Aff."]). Thus, plaintiffs argue that the State's inspections for compliance with the ELD Rule and its reporting of violations to FMCSA "compel compliance with the ELD Rule and constitute enforcement of that rule" (NYSCEF Doc No. 21 ["Opp Mem"], p. 7).

In reply, defendants insist that no vehicle stops are being conducted pursuant to the ELD Rule, and they are not enforcing the ELD Rule through the MCSAP program. Rather, defendants assert that their broad authority under State law and regulation to regulate the commercial trucking industry allows them to make highway stops of CMVs and enforce preexisting HOS requirements incorporated into State law, whether by examination of drivers' paper log books or electronic logging devices.

In that connection, the director of DOT's Office of Modal Safety and Security, William Leonard, submits a reply affidavit explaining that roadside safety inspections of commercial vehicles and drivers in New York are conducted pursuant to existing provisions of State law and regulations that are independent of the ELD Rule (see NYSCEF Doc. 34, ¶¶ 6-7 ["Leonard Aff."]). In particular, Leonard cites Transportation Law § 140 (2) (b), which grants DOT the authority to "examine vehicles, facilities and records . . . , at any time and place where they are found, to ascertain whether [DOT] rules and regulations are being obeyed." Leonard also cites 17 NYCRR 820.12, which authorizes DOT inspectors and police officers "to enter upon and perform inspections of motor vehicles and review drivers' credentials in operation and to stop such vehicles for the purposes of inspection."

As to the State's HOS requirement, Leonard explains that this safety regulation exists independently of the particular logging method used to demonstrate compliance (see Leonard Aff., ¶ 10). Leonard further avers that inspectors will accept "either log books or ELD data" to establish compliance with HOS requirements (id., ¶ 12; see also former 49 CFR 395.8 [a] [earlier version of rule allowed drivers to comply with HOS requirements through either paper log books or automated recording devices]). Finally, Leonard avers that "no vehicle stops have been or are [*5]being conducted [by DOT] pursuant to the [ELD Rule]," and that "[s]uch enforcement will occur only when the ELD [R]ule is adopted in New York" (Leonard Aff., ¶ 11; see also NYSCEF Doc. 35 [similar affidavit from NYSP]).

In supplemental briefing following conversion of the motion, defendants submit two memoranda from DOT demonstrating the evolution of the State's policies with respect to the ELD Rule. The first memorandum — issued on December 15, 2017, prior to the commencement of this action — states that "no tickets can be issued" pending incorporation of the ELD Rule into State law, but enforcement personnel will "be able to enter violations in [the] Aspen [computer system] for interstate carriers" (NYSCEF Doc No. 50 ["Initial Memorandum"]). The Initial Memorandum also establishes a procedure for recording the results of a roadside inspection for a driver "who is on a paper log . . . [where] an ELD is required" (id.).

The Initial Memorandum was, however, superseded by a memorandum dated March 19, 2018 (see NYSCEF Doc No. 51 ["DOT Memorandum"]). Pursuant to DOT's revised policy, roadside inspectors were directed to cease reviewing the driver's electronic record of duty status ("eRODS") and discontinue transferring local data from the ELD. However, "[i]nspectors may utilize the ELD screen to determine any HOS violations in the same fashion they would have with an AOBRD or other electronic device that was in use prior to the ELD rule." If the inspector finds a violation that he or she "would normally have found on a paper log," the inspector shall "reference the violation as [he or she] would have with a paper log." The memorandum further confirms that drivers will not be cited or placed out of service for violations of the ELD Rule, but they will be subject to enforcement actions "for HOS violations found after reviewing the ELD screen treating it the same way [the inspector] would an . . . electronic version of a log book."

In their supplemental opposition to defendants' motion and in support of their cross motion, plaintiffs submit affidavits/affirmations that purport to "quantify the number of ELD violations and HOS violations based upon drivers' record of duty status obtained from ELD devices since December 2017" (NYSCEF Doc No. 60, ¶ 45; see also NYSCEF Doc Nos. 73-82).

Defendants' opposition to the cross motion includes a supplemental affidavit from Marc Berger (see NYSCEF Doc No. 90 ["Berger Suppl. Aff."]), which explains that the policy articulated in the Initial Memorandum was superseded by the March 19, 2018 DOT Memorandum. Under the agency's new policy, which took effect on April 1, 2018, when full federal enforcement of the ELD Rule began (see NYSCEF Doc. 52), inspectors are not to cite ELD Rule violations on inspection reports (see Berger Suppl. Aff., ¶ 6).

Thus, it is defendants' current policy that "no tickets or [n]otices of [v]iolation are to be issued citing the federal ELD regulations, and no violations of ELD rules are to be cited on the inspection report" (id., ¶ 8). Nonetheless, "hours of service requirements continue to be enforced" (id.) pursuant to roadside safety inspections conducted under the authority of existing State laws, rules and regulations (see id., ¶¶ 10-11).



2. Analysis

The Court concludes that the proof adduced by defendants demonstrates as a matter of law that defendants are not enforcing the ELD Rule.

Under New York law, CMV operators are required to comply with HOS requirements [*6](see 17 NYCRR 820.6), and these HOS requirements are independent of the particular logging method used to demonstrate compliance. The October 1, 2013 version of the FMCSR incorporated into State law does not mandate the use of ELDs, but it does permit drivers to use either paper logs or AOBRDs to establish compliance with HOS requirements (see former 49 CFR 395.8 [a]; see also Matter of Scott [CR England Inc.—Commissioner of Labor], 133 AD3d 935, 939 [3d Dept 2015] ["The regulations do not mandate the use of (electronic logging) devices but, instead, provide alternative means of compliance."]). Further, defendants possess broad authority under State law and regulation "to examine [commercial motor] vehicles, facilities and records . . . at any time and place where they are found, to ascertain whether [safety rules] are being obeyed" (Transportation Law § 140 [2] [b]; see 17 NYCRR 820.12 [a]).

The affidavits and documentary evidence submitted by defendants also establish that the roadside inspections complained of by plaintiffs were conducted pursuant to the State's preexisting legal authority to enforce HOS requirements. In accordance with the express terms of the DOT Memorandum, inspectors merely are "utiliz[ing] the ELD screen to determine any HOS violations in the same fashion they would have with [any] other electronic [logging] device that was in use prior to the ELD [R]ule." Thus, while "[d]rivers will not be placed out of service for a violation of the ELD rule," they are subject to being placed out of service for HOS violations found using the ELD screen as an "electronic version of a log book" (DOT Memorandum).

In the Court's view, the roadside examinations of ELDs in essentially the same manner as paper logs for the limited purpose of ensuring compliance with HOS requirements does not constitute State enforcement of the ELD Rule. Drivers are not being stopped, cited or placed out of service pursuant to the ELD Rule. And while 49 USC § 31133 (c) may allow the State to spend MCSAP funds on investigative activities, this federal spending authorization cannot operate to convert the State's legitimate efforts to enforce HOS requirements pursuant to preexisting, independent provisions of State law into enforcement of the federal ELD mandate. Further, plaintiffs offer no basis in law or logic to conclude that the federal government's adoption of an ELD mandate somehow exempted commercial drivers in New York State from having to demonstrate their compliance with HOS requirements during roadside inspections through logs created and maintained in accordance with a method allowed by law.

Nor is there merit to plaintiffs' contention that defendants are enforcing an unpromulgated rule under State law by reporting purported ELD Rule violations to FMCSA. Even assuming that defendants' initial policy of documenting violations of the ELD Rule on driver examination reports (see Berger Aff., ¶¶ 24-25; Initial Memorandum) and disseminating such reports to FMCSA constituted enforcement of the ELD Rule under State law, defendants have shown that the policy reflected in the Initial Memorandum was superseded by the DOT Memorandum of March 19, 2018. Under defendants' current policy, "no violations of ELD rules are to be cited on the inspection report" (Berger Suppl. Aff., ¶ 8).

In light of the State's decision to discontinue citing ELD Rule violations on inspection reports, the injuries that are said to arise from such reports are obviated. This includes the issues cited by plaintiffs with respect to pre-employment screening (see Spencer Aff., ¶ 8), safety scores (see id., ¶ 9), the prospect of additional monitoring by regulators (see id.), loss of customers (see id., ¶ 11) and difficulties in obtaining liability insurance (see id.).

Moreover, under the revised policy established in the DOT Memorandum, there is to be no use of "eRODS, Web Services and local transfer of data from ELDs during roadside inspections." Inasmuch as the examination of ELDs is limited to determining compliance with HOS requirements by using the devices as electronic substitutes for paper log books, the "significant privacy concerns" cited by plaintiffs no longer are implicated (Spencer Aff., ¶ 5; see also NYSCEF Doc No. 22, ¶ 5 [b]).

Contrary to plaintiffs' contention, there is nothing in the documentary evidence they submit that serves to "quantify the number of ELD violations and HOS violations based upon drivers' record of duty status obtained from ELD devices" at pertinent times (NYSCEF Doc No. 60, ¶ 45). While the New York Road Inspection calendar and report of driver violations annexed to the moving affidavit of Karina De Souza does show that defendants reported certain violations of the ELD Rule to FMCSA (see NYSCEF Doc No. 26), these documents are based on data collected as of March 30, 2018, which is prior to the April 1, 2018 effective date of the DOT Memorandum (see id.; see also NYSCEF Doc No. 25). Thus, these reports are not probative evidence of the State's current policy.

The MCMIS data and Safety Measurement System ("SMS") reports annexed to the supplemental affidavit of Karina De Souza similarly fail to establish that defendants have reported any ELD violations to FMCSA subsequent to effectiveness of the DOT Memorandum. The MCMIS data report shows the cumulative total number of violations reported from January 1, 2018 through July 11, 2018, but nothing therein indicates that any of these violations were reported on or after April 1, 2018 (see NYSCEF Doc No. 75). The SMS reports, which show ELD Rule violations reported to the federal government by the State between January 3, 2018 and February 23, 2018, similarly are non-probative of the State's current policy (see NYSCEF Doc Nos. 76-82).

The remaining documents submitted by plaintiffs in opposition to defendants' motion and in support of the cross motion merit little discussion. The statement from the CVSA relied upon by plaintiffs (see NYSCEF Doc No. 32) was published sometime prior to December 18, 2017, and to the extent that a CVSA statement can be attributed to its State members, the statement has been superseded by the DOT Memorandum. The remaining documents are either similarly stale (see e.g. NYSCEF Doc Nos. 64, 66, 68) or otherwise fail to raise a triable issue of fact concerning defendants' alleged enforcement of the ELD Rule.

Finally, while one of the plaintiffs alleges that he was informed during a roadside inspection that he would have been cited "if he had not had an ELD" (Complaint, ¶ 65), the Complaint is verified only by counsel and, therefore, devoid of probative value. Moreover, it is apparent that this incident occurred no later than January 16, 2018 (the date of the Complaint), which is prior to the effectiveness of the DOT Memorandum. The Court further notes that this allegation is not proof of a policy; rather, it is merely one statement allegedly made by one unnamed inspector at some unspecified time and place.

In the absence of any proof that defendants presently are enforcing the ELD Rule or that defendants intend to enforce the ELD Rule prior to the incorporation of the October 1, 2016 edition of the FMCSA regulations into State law, the Court concludes that plaintiffs' first cause of action, which seeks a declaration that defendants are enforcing an unpromulgated rule in violation of Article IV, § 8 of the New York Constitution, must be dismissed.



[*7]B. Article I, § 12

Plaintiffs third cause of action alleges that the State's examination of ELDs during roadside inspections for the purpose of enforcing HOS requirements constitutes an unreasonable search and seizure. Pursuant to Article I, § 12 of the State Constitution, "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." In seeking dismissal of the claim, defendants argue that any examination of ELDs falls within the exception for administrative searches undertaken with respect to a "pervasively regulated industry" (MOL, p. 20; see People v Keta [People v Scott], 79 NY2d 474, 499 [1992]).

In Owner-Operator Indep. Drivers Assn. v United States Dept. of Transp. (840 F3d 879 [7th Cir 2016] ["OOIDA v DOT"], cert denied ___ US ___, 137 S Ct 2246 [2017]), a federal appeals court rejected OOIDA's facial challenge to the ELD Rule, including the claim that the ELD mandate constitutes an unreasonable search and seizure. In finding OOIDA's Fourth Amendment challenge to be without merit, the Seventh Circuit held that commercial trucking is a pervasively regulated industry and that the ELD Rule is reasonable.

The Seventh Circuit first concluded that it was appropriate to treat commercial trucking as a pervasively regulated industry based on: the long history of close regulation of the industry, including HOS requirements that date back to 1935; the comprehensive nature of the government's regulatory regime; and the dangers inherent in commercial trucking (see id. at 893-895). The Seventh Circuit therefore joined at least six other circuit courts of appeal in concluding that the commercial trucking industry is pervasively regulated (see id. at 893).

The Seventh Circuit then concluded that the ELD Rule passed a tripartite test of reasonableness. First, the Court determined that the ELD Rule was informed by a substantial government interest: "[t]he public safety concerns inherent in commercial trucking" (OOIDA v DOT, 840 F3d at 895). The second element of the test, which looks to whether the warrantless inspections are necessary to further the regulatory scheme, was met based upon the "widespread problem" of falsifications and errors in paper logs (id.).[FN3] Finally, the Seventh Circuit reasoned that the ELD Rule provided a constitutionally adequate substitute for a warrant, relying upon: federal regulations advising drivers and motor carriers that safety officials may examine ELD data pursuant to law; the fact that the ELD Rule does not permit searches beyond the examination of ELD data; and policies restricting the use of ELD data to enforcement of HOS requirements (see id. at 895-896). "Taken together, these protections create a constitutionally adequate substitute for a warrant in the commercial trucking industry" (id. at 896).

Plaintiffs here sue pursuant to Article I, § 12 of the State Constitution, rather than under the Fourth Amendment of the U.S. Constitution. Nonetheless, New York constitutional law has long recognized an "administrative search" exception to the warrant requirement, so long as the search is not undertaken solely to uncover evidence of criminality (see Keta, 79 NY2d at 799; see [*8]also Collateral Loanbrokers Assn. of NY, Inc. v City of New York, 148 AD3d 133, 138-140 [1st Dept 2017], appeal dismissed 29 NY3d 974 [2017]; Matter of Carniol v New York City Taxi & Limousine Commn., 126 AD3d 409, 410 [1st Dept 2015]; Matter of Murtaugh v New York State Dept. of Envtl. Conservation, 42 AD3d 986, 988-989 [4th Dept 2007], lv dismissed 9 NY3d 971 [2007]).

Further, unlike OOIDA v DOT, in which the Seventh Circuit examined the full sweep of the ELD Rule, the issues raised in this action are narrower. Pursuant to the DOT Memorandum, roadside inspectors merely are "utiliz[ing] the ELD screen to determine any HOS violations in the same fashion they would have with [any] other electronic [logging] device that was in use prior to the ELD rule." Thus, defendants' policy raises no issue with respect to the use of "eRODS, Web Services [or] local transfer of data from ELDs during roadside inspections."

The Court is satisfied that the limited examination of ELDs undertaken during roadside inspections pursuant to the policy established by defendants is reasonable and wholly consistent with Article I, § 12 of the State Constitution. The examination of driver logs to ensure compliance with HOS requirements is part of the State's pervasive regulation of the commercial trucking industry (see 17 NYCRR part 820 [incorporating into State law the 2013 edition of FMCSR]), and the examination of ELDs is limited to ascertaining compliance with HOS requirements by examining the face of the ELD in a manner analogous to the inspection of paper logs. ELDs are not being examined for any purpose other than to ensure compliance with HOS requirements, which exist independently of the particular methods used to demonstrate compliance. And given that the DOT Memorandum directs inspectors not to examine eRODS or transfer any local data from the ELDs during roadside inspections, plaintiffs offer no evidentiary basis to conclude that the alleged searches and seizures disclose driver information of an "indisputably private nature" (People v Weaver, 12 NY3d 433, 441 [2009] [GPS tracking of private vehicles by law enforcement officers]).

Nor is this a situation like Keta, where the challenged administrative searches were undertaken solely to discover evidence of criminality (see 79 NY2d at 498). Regardless of the potential availability of criminal sanctions against operators who violate HOS rules, the principal and manifest purpose of the roadside examination of ELDs (and other types of driver logs) is to enforce regulatory requirements concerning HOS, which are predicated upon the safety concerns associated with the operation of CMVs on the State's public roads and highways.

Nor have plaintiffs come forward with any persuasive basis for affording CMV operators greater protection under Article I, § 12 of the State Constitution than they receive under the Fourth Amendment. OOIDA v DOT and the precedents relied upon therein rest on the application of settled principles of the Fourth Amendment jurisprudence, and there has been no showing that these longstanding principles of federal constitutional law are inadequate to protect the fundamental rights of New Yorkers (cf. Keta, 79 NY2d at 498-499).

For all of the foregoing reasons, the third cause of action is dismissed.



C. Article I, § 6

Plaintiff's second cause of action alleges that the State's enforcement of the ELD Rule violates Article I, § 6 of the State Constitution, which prohibits any person from being "deprived of life, liberty or property without due process of law." In their cross motion, plaintiffs argue [*9]that, "[b]ecause state law does not require drivers to use ELDs to record HOS, ordinary citizens cannot have notice that New York requires the use of ELDs. . . . Without valid authority, New York officials act arbitrarily and without notice when they enforce the ELD mandate" (NYSCEF Doc Nos. 83, p. 18).

For the reasons stated above, the Court rejects plaintiffs' contention that the State presently is enforcing the ELD mandate. Further, inasmuch as State law does incorporate the federal requirement that a CMV operator demonstrate compliance with HOS requirements by reference to paper logs or an automated on-board recording device (see former 49 CFR 395.8 [a]), a commercial vehicle operator of ordinary intelligence plainly is on notice that roadside inspectors will require proof of compliance with HOS requirements, whether in the form of paper logs, ELDs or other type of automated recording device.

Accordingly, the second cause of action is dismissed.



CONCLUSION

Based on the foregoing, it is

ORDERED that, upon conversion of defendants' motion into one for summary judgment, the motion is granted in all respects; and it is further

ORDERED and ADJUDGED that plaintiffs' complaint is dismissed; and finally it is

ORDERED, ADJUDGED and DECLARED that defendants are not enforcing the federal ELD Rule in violation of Article IV, § 8, Article I, § 6 or Article I, § 12 of the New York State Constitution.

This constitutes the Decision, Order & Judgment of the Court, the original of which is being transmitted to the Albany County Clerk for electronic filing and entry. Upon such entry, counsel for defendants shall promptly serve notice of entry on plaintiffs (see Uniform Rules for Trial Cts [22 NYCRR] § 202.5-b [h] [1], [2]).



Dated: December 31, 2018

Albany, New York

RICHARD M. PLATKIN

A.J.S.C.

Papers Considered:

NYSCEF Doc Nos. 11-35, 47-56, 59-83, 85-91. Footnotes

Footnote 1:Defendants also request the removal of Cathy Calhoun from the caption on the ground that she no longer is Acting Commissioner of the New York State Department of Transportation. Given that Calhoun is sued solely in her official capacity and there is no opposition to this request, the current Acting Commissioner, Paul A. Karas, is hereby deemed to be substituted in her place and stead.

Footnote 2:More specifically, the Complaint alleges that the State "had not incorporated into state law FMCSRs adopted or amended by FMCSA subsequent to October 1, 2013" (id., ¶ 22), including the new ELD Rule, which "did not exist on October 1, 2013" (id., ¶ 34).

Footnote 3:"Since 1935, federal law has regulated the hours of service of truck drivers operating in interstate commerce. The regulations are intended to reduce fatigue-related accidents, and they require drivers to keep paper records showing their driving time and other on-duty time. Compliance has long been an issue, though, because it is easy to insert an error in paper records, whether intentionally or not" (id. at 883).