Alltow, Inc. v Village of Wappingers Falls
Annotate this CaseDecided on September 24, 2018
Supreme Court, Dutchess County
Alltow, Inc. and ACTION AUTOMOTIVE, INC., Petitioners/Plaintiffs,
against
Village of Wappingers Falls and CARL CALABRESE, Respondents/Defendants.
1603/2010
MICHAEL H. SUSSMAN, ESQ.
Attorney for Plaintiffs
55 Main Street, No.6
Goshen, New York 10924
KENNETH HALDENSTEIN, ESQ.
O'CONNOR, MCGUINNESS, CONTE, DOYLE,
OLESON, WATSON & LOFTUS, LLP
Attorneys for Defendants
One Barker Avenue, Suite 675
White Plains, New York 10601
James D. Pagones, J.
Respondents/Defendants Village of Wappingers Falls and Carl Calabrese (hereinafter "defendants") move for an order: (1) pursuant to CPLR 3212, dismissing plaintiffs/petitioners' (hereinafter "plaintiffs") third, fifth and sixth causes of action; (2) pursuant to CPLR §3001, denying the judgment requested in the plaintiffs' fourth cause of action; and, (3) dismissing the Dutchess County Supreme Court litigation in its entirety and permanently enjoining further state litigation.
The following papers were read:
Notice of Motion-Exhibits 1-2-Exhibits A-H- 1-12
Affidavit of Service
Affirmation-Exhibits 1-7-Affidavit of Service 13-21
Affidavit 22
Memorandum of Law 23
Reply Affirmation-Affidavit of Service 24-25
Upon the foregoing papers, the motion is decided as follows:
By way of procedural background, this hybrid Article 78 petition/complaint was brought by the petitioners/plaintiffs seeking relief in the form of mandamus, a declaratory judgment and money damages/attorneys fees pursuant to 42 USC §1983 and 42 USC §1988. This action was previously dismissed by this Court by decision and order dated August 16, 2010. The Second Department, Appellate Division, by decision and order dated April 10, 2012, upheld dismissal of the action to the extent that it sought mandamus relief, i.e. the first and second causes of action. However, the Second Department reinstated and remitted to this Court for further proceedings the third through sixth causes of action. The third cause of action as filed herein, alleges that defendants, through the acts of the Police Commissioner and with the knowledge of the Village, deprived the plaintiffs of their right to participate in the Village tow rotation list without due process of law. The fourth cause of action requests judgment pursuant to CPLR §3001, declaring that the Village of Wappingers Falls and its department and agencies have no local law, order or other valid regulation limiting the regulating of tow truck activities with the Village. The fifth cause of action seeks monetary damages based upon defendants alleged disparate, discriminatory and retaliatory treatment in the creation of a local law concerning the imposition of parking restrictions in front of the plaintiffs' businesses. The sixth cause of action seeks an award of attorneys' fees pursuant to 42 USC §1988.
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The movants must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Once the movants set forth a prima facie case, the burden of going forward shifts to the opponents of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).
In support of their motion, defendants allege that the third cause of action alleging deprivation of due process of law must be dismissed as a matter of law since the plaintiff Alltow has no constitutionally protected right to remain on the Village's tow list. Specifically, defendants maintain that: (a) plaintiff [*2]Alltow cannot sustain a due process violation since it has no constitutionally protected property right to remain on the Village's tow list pursuant to the prior decision of the Appellate Division, Second Department; (b) Alltow cannot satisfy the additional requirements for successful claim of procedural due process of law violation; (c) Alltow cannot satisfy the additional requirements for a successful claim of substantive due process of law violation; and, (d) Alltow had no constitutionally protected property interest to remain on the Village's tow list, pursuant to 42 USCA §1983.
In order to sustain an action for deprivation of property without due process of law, plaintiffs must first identify a property right, second show that the governmental entity has deprived them of that right and third show that the deprivation was effected without due process (see 475 Ninth Ave. Associates LLC v. Bloomberg, 2 Misc 3d 597 [Sup Ct, New York County 2003]). This Court concurs with defendants' point (a), as the Second Department, Appellate Division held that "the Supreme Court properly concluded that, under the circumstances, Alltow did not have a property or liberty interest in its inclusion on a municipal rotation tow list... " (Alltow, Inc. v. Village of Wappingers Falls, 94 AD3d 879 [2nd Dept 2012]). Accordingly, defendants have established prima facie that plaintiffs have no identifiable property interest. Additionally, the aforementioned holding also establishes that the removal of Alltow from the Village's towing list was not in violation of due process. Specifically, the Court found that the Police Commissioner's determination following an investigation that Alltow failed to continue to meet the requirements for inclusion on the list was not arbitrary and capricious (id.). Further, Alltow made no showing that the Police Commissioner had a duty to maintain it on the list (id.). Accordingly, defendants have also established, prima facie, that plaintiffs were not deprived of due process of law. Defendants have established their prima facie entitlement to summary judgment as to the plaintiffs' third cause of action.
The fourth cause of action requests judgment pursuant to CPLR §3001, declaring that the Village and its department and agencies have no local law, order or other valid regulation limiting the regulating of tow truck activities with the Village.
Defendants allege that this cause of action is rendered academic by the embodiment of legally sufficient requirements in the Village's tow rotation list requirements and applications. Here, the Village tow list was approved by the Wappingers Falls Village Board and executed by the Village Police Department. The board delegated the authority to draft and implement such tow rotation list to the Police Commissioner in 2008. "While the Police Department had no formal administrative procedure in place for the removal of companies from the list, the removal policy at [*3]issue here was informally embodied in the requirements enumerated on the application for inclusion on the list" (Alltow, Inc. v. Village of Wappingers Falls, 94 AD3d 879 ][2nd Dept 2012] citing Prestige Towing & Recovery, Inc. v. State of New York, 74 AD3d 1606 [3rd Dept 2010]). The defendants establish their prima facie entitlement to judgment as a matter of law by establishing that there is no requirement that the maintenance of a tow list and the removal of companies therefrom needs to be governed by statute or regulation (see Prestige Towing & Recovery, Inc. v. State of New York, 74 AD3d 1606 [3rd Dept 2010]).
The fifth cause of action seeks monetary damages based upon defendants' alleged disparate, discriminatory and retaliatory treatment in the creation of a local law concerning the imposition of parking restrictions in front of the plaintiffs' business.
To succeed on a "class of one" disparate treatment claim under the Equal Protection clause of the 14th Amendment of the United States Constitution, there must be a showing that: (1) the law was not applied to others similarly situated; and, (2) there is no rational basis for the selective application of the law (see Ardmar Realty Co. v. Building Inspector of Village of Tuckahoe, 5 AD3d 517 [2nd Dept 2004] leave to appeal denied by 3 NY3d 601 [2004]).
Here, the defendants adduced testimony at the Federal trial that parking restrictions exist in the business area throughout the village, including the street where the plaintiffs' business is located. Mayor Matthew Alexander testified at the trial of this matter in Federal Court that the legislation for the erection of signs in area of Alltow on Market Street was to prevent accidents. The Mayor stated that the parking restrictions improved site lines as residents had complained about limited visibility when tractor trailers were coming up the hill and they were attempting to turn. The erection of no parking signs took the normal and standard course for the consideration of any legislation before the Village Board, including public hearings and notifications. Accordingly, the defendants have presented prima facie evidence that the law was not selectively applied to the plaintiffs in this instance. Moreover, the trial testimony establishes that there was a rational basis for the imposition of the law. Therefore, defendants have established their prima facie entitlement to judgment on plaintiffs' fifth cause of action.
The sixth cause of action seeks an award of attorneys' fees pursuant to 42 USC §1988. As defendants have established their entitlement to judgment on the plaintiffs' third, fourth and fifth causes of action, by operation of law, they also establish their entitlement to judgment on plaintiffs' sixth cause of action.
Since defendants have made a prima facie showing of entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 NY2d 557 [1980]), the plaintiffs must show that genuine triable issues of material fact exist in order to defeat defendants' motion (id.).
In opposition, plaintiffs maintain that the third cause of action should remain viable as defendants' action in removing Alltow from the towing list was illegal, pursuant to 49 USC §14501(c)(1) and actionable in this Court pursuant to 42 USC §1983. Specifically, counsel for the plaintiffs maintain that the defendants could not remove his client Alltow from the tow rotation list because it overcharged a complaining motorist. In a factually similar scenario, the Appellate Division, Fourth Department, in Henson v. City of Syracuse, citing Alltow, Inc., v. Village of Wappingers Falls, held that a towing company does not have a property interest in its inclusion on a municipal rotational list (see Henson v. City of Syracuse, 119 AD3d 1340 [4th Dept 2014] citing Alltow, Inc. v. Village of Wappingers Falls, 94 AD3d 879 [2nd Dept 2012]). Accordingly, the mere recitation of the applicability of 49 USC §14501(c)(1) to the facts at hand is insufficient to create a triable issue of fact as to the plaintiff' third cause of action. Notwithstanding the foregoing and that Alltow possesses no protected property interest in being included on the rotational tow list, counsel for the plaintiffs maintains that Alltow had the right not to be subject to arbitrary governmental action. As stated above the Appellate Division, Second Department found that the Police Commissioner's determination following an investigation that Alltow failed to continue to meet the requirements for inclusion on the list was not arbitrary and capricious (see Alltow, Inc. v. Village of Wappingers Falls, 94 AD3d 879 [2nd Dept 2012]).
In opposition to the defendants' motion concerning the viability of the plaintiffs' fourth cause of action, counsel for the plaintiffs maintains that the issue before this Court is not whether the Village had written requirements governing towing, the issue is whether or not these regulations are valid or invalid. Citing again to 49 USC §14501(c), counsel for the plaintiffs argues that the Village's requirements offend federal law and purport to regulate both rates and services provided by motor carriers and, therefore, must be struck. As stated by the Appellate Division, Second Department in Alltow, Inc. v. Village of Wappingers Falls, 94 AD3d 879 [2nd Dept 2012]:
"While the Police Department had no formal administrative procedure in place for the removal of companies from the list, the removal policy at issue here was informally embodied in the requirements enumerated on the application for inclusion on the list (see Matter of Prestige Towing & Recovery, Inc. v. State of New York, 74 AD3d 1606, 904 [*4]N.Y.S.2d 251). Indeed, the application for inclusion on the list specifically advised that '[i]f after being approved for the tow rotation list any applicant fails to meet the above requirements they may be removed from the tow rotation list.' Here, the Police Commissioner rationally determined, after an investigation, that Alltow failed to continue to meet the requirements for inclusion on the list."Here, the validity of the informal removal policy embodied in the requirements enumerated on the application for inclusion on the list have been found to be implicitly valid by the Appellate Court's consideration of the requirements and a finding that Alltow failed to meet said requirements. Morever, the court upheld the Police Commissioner's determination to remove Alltow from the list based upon the validity of the informal removal policy set forth before it. Accordingly, plaintiffs fail to raise an issue of fact as to their fourth cause of action.
In opposition to defendants' motion and in support of their fifth cause of action, plaintiffs' counsel maintains that a reasonable jury could reject defendants' explanation for their action and conclude that Alltow was victim of several adverse actions, and there was no justification for the discretionary action of the Village and that the same was arbitrary and capricious. Notably, the plaintiffs fail to rebut defendants' legally sufficient showing that the plaintiff Alltow cannot rebut defendants' showing that no equal protection claim is made out under the "class of one" analysis. Plaintiffs offer no other similarly situated business entity that was treated differently with regard to the local law prohibiting parking. Moreover, there is no evidence presented by the plaintiffs or in the record, absent conclusory and speculatory assertions by counsel and his clients, to establish that the erection of the "No Parking" signs in question was without rational basis. Accordingly, plaintiffs fail to rebut defendants' prima facie showing concerning their fifth cause of action.
Lastly, as plaintiffs fail to rebut defendants' prima facie showing as to their third, fourth and fifth causes of action, summary judgment is warranted on plaintiffs' sixth cause of action seeking attorneys fees pursuant to 42 USC §1988.
Based upon the foregoing, defendants' motion is granted to the extent that plaintiffs' complaint is dismissed. The defendants' request to permanently enjoin any further state litigation is denied as academic in light of the foregoing determination.
This constitutes the decision and order of the Court.
Dated: September 24, 2018
Poughkeepsie, New York
ENTER
________________________________
HON. James D. Pagones, A.J.S.C.
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