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Levine v Traffic & Parking Violation Agency for Nassau County

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[*1] Levine v Traffic & Parking Violation Agency for Nassau County 2010 NY Slip Op 51702(U) [29 Misc 3d 1205(A)] Decided on September 27, 2010 Supreme Court, Nassau County Parga, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2010
Supreme Court, Nassau County

Samuel M. Levine, Petitioner,

against

The Traffic and Parking Violation Agency for Nassau County, and JOHN G. MARKS, EXECUTIVE DIRECTOR, Respondents.



13706/10



Appearance of Counsel:

Andrew Cuomo

Attorney General of New York State

200 Old Country Road

Mineola, NY 11501

Samuel M. Levine, Esq.

711 Shore Road (2E)

Long Beach, NY 11560

Anthony L. Parga, J.

The petition pursuant to Article 78 of the CPLR for, inter alia, a judgment declaring the statutory scheme underlying the Nassau County "Traffic Control Signal Photo Violation Monitoring System" ("the Red Light Camera Program") unconstitutional and the Notices of Liability issued pursuant thereto as well as the respondent John G. Marks' actions taken as Executive Director of the Nassau County Traffic and Parking Violation Agency ("TPVA") pursuant thereto illegal, or in the alternative, a judgment enjoining the Judicial Hearing Officers at the TPVA from continuing to act as such and an order staying the hearings on two Notices of Liability issued to the petitioner pursuant to the County's Red Light Camera program and dismissing those notices is denied .

The application by the respondents TPVA and John G. Marks, its Executive Director, for an order pursuant to CPLR 7804(f), 3211(a)(1), (4), (5), (7) dismissing this petition is granted. [*2]

This proceeding is the result of the petitioner's receipt of two Notices of Liability which were issued by the respondent Nassau County TPVA charging him with red light violations pursuant to New York State Vehicle and Traffic Law § 1111-b and Nassau County Local Law § 12-2009. These notices were issued to him as the registered owner of a vehicle which was filmed on October 19, 2009 and October 29, 2009 failing to stop at a red light on Long Beach Road and Daly Boulevard.

In his petition, the petitioner Levine alleges that the establishment of the Red Light Camera Violations Program via the enactment of Vehicle and Traffic Law §1111-b and Nassau County Local Law § 12-2009 is unconstitutional. He challenges the County Executive's legal authority to authorize the District Court Clerk's Office's issuance of Notices of Liability and the right of out-of-state cities' to receive the agency's mail-in fines payable to Nassau County. He also alleges that his rights to a fair hearing and due process of law will be violated because he "will not be able to examine a live person who installed and tested the Red Light Camera Systems" at the intersection; that the Notices of Liability are illegal because the timing of the amber light at the intersection was improper and because no sign warning that it was a "Photo Enforced Red Light" was posted at the intersection; and, he protests that a written certification by a technician was not sent to him following his request for a hearing. In addition, he also challenges the TPVA's Judicial Hearing Officers' (JHOs) authority to act as JHOs because they have been appointed by the County Executive and not pursuant to Article 22 of the Judiciary Law and Part 122 of 22 NYCRR and in conformance with the definition of a JHO set forth at Section § 105(n) of the CPLR. Finally, the petitioner challenges the compilation of the TPVA and Red Light Camera Program: More specifically, he maintains that in violation of the separation of powers doctrine, the County Executive has appointed the JHOs and employees of the TPVA as well as the Executive Director, who has appointed the prosecutors pursuant to General Municipal Law §§ 370, 374.

The respondents TPVA and its Executive Director John G. Marks seek dismissal of the petition pursuant to CPLR 7804(f) and 3211 (a)(1), (5), (7).

In view of the petitioner's challenge to the constitutionality of the Red Light Camera Program, the petitioner is not required to exhaust his administrative remedies. See, Watergate II Apartments v Buffalo Sewer Authority, 46 NY2d 52 (1978).

In Levine v Suozzi (Supreme Court, Nassau County Index No. 26555/09), this court held the County Executive's designation of JHOs at the TPVA did not violate this State's statutory scheme. Levine v Suozzi, NYLJ, April 22, 2010,

p. 37, col.3. It explained:

"The TPVA is distinct from the procedure set forth at Article 22 of the Judiciary Law and Part 122 of NYCRR. Again, pursuant to General Municipal Law § 370(2), the TPVA operate[s] under the direction and control of the County Executive,' who at all pertinent times was the [County Executive]. This delegation of authority included the right to designate the TPVA JHOs, which are then subject to assignment by the Administrative Judge of Nassau County pursuant to Vehicle and Traffic Law §1690. In fact, both the qualifications of and limitations of Judiciary Law JHOs and the General Municipal Law and Vehicle and Traffic Law JHOs differ. [Compare, Judiciary Law § 850(1) and Vehicle and Traffic Law. 1690(1); and 22 NYCRR 122.10 and Vehicle and Traffic Law § 1690(4)]."

[*3]See also, Levine v McCabe, 2007 WL 4441226 (EDNY 2007), aff'd, 327 Fed. Appx. 315 (2nd Cir. NY) cert den., 130 S Ct. 639 (2009). Indeed, a new class of JHOs was created via the enactment of Vehicle and Traffic Law § 1690. Those JHOs "operate under the direction and control of the County Executive" (General Municipal Law § 370[2]) but must be assigned by the Chief Administrative Judge (Vehicle and Traffic Law § 1690). The petitioner's claim that the designation of JHOs at the TPVA is violative of state statutory scheme fails and is dismissed.

The petitioner's challenge to the propriety of the relationships between the Executive Director and the County Executive has already been rejected. County of Nassau v Levine, 2010 WL 3001865 (1st District Court Nassau County).

Intersection warnings of Red Light cameras are not required nor does the defendant have a right to a certificate "sworn to or affirmed" by a technician employed by Nassau County upon his request for a hearing. County of Nassau v Levine, supra . Similarly, the timing of the amber light or other malfunctioning of the light can be reviewed at the hearing. Levine v County, supra , citing Vehicle and Traffic Law § 1111-b(o). And, the petitioner's inability to examine a witness does not render the statute unconstitutional because he does not face a criminal conviction or a conviction for a violation of the Vehicle and Traffic Law. Levine v County, citing Matter of A.J. & Taylor Restaurant, Inc., 214 AD2d 727 (2nd Dept. 1995); Crawford v Washington, 541 U.S. 36 (2004).

The mailing of Notices of Liability as well as the receipt of fines by out-of-state agencies also fails to state a claim. Vehicle and Traffic Law § 1111-b provides that the Notices of Liability should be prepared and mailed by the County or any other entity so authorized, as does Section 5 of Nassau County Local Law § 12-2009. See, County of Nassau v Levine, supra .

As for the petitioner's challenge to the constitutionality of Vehicle and Traffic Law § 1111-b, et seq. and Local Law § 12-2009, while notice has been given to the Attorney General in accordance with CPLR 1012(b)(1), the petitioner's failure to provide notice of that challenge to County of Nassau as is required by CPLR 1012(b)(2) renders that portion of his application jurisdictionally defective and is dismissed. See, Levine v County, supra . That County agencies are parties here is no substitute for compliance with the statutory requirement that notice be given to the County.

The petition is denied. The temporary stay of the hearing on the Notices of Liability granted on August 10, 2010 is hereby vacated. The petitioner is directed to appear for a hearing on the subject Notices of Liability at the Nassau County Traffic and Parking Violation Agency on November 10, 2010 at 9am.

Dated: September 27, 2010.

_________________________

Anthony L. Parga, J. S. C.

cc: Andrew Cuomo

Attorney General of New York State

200 Old Country Road

Mineola, NY 11501 [*4]

Samuel M. Levine, Esq.

711 Shore Road (2E)

Long Beach, NY 11560

John G. Marks, Executive Director

Traffic & Parking Violation Agency

16 Cooper Street

Hempstead, NY 11561