Great Court Case for
Parking Ticket Fighters
Here's the text of a Supreme Court case that shows what
ought to happen when you present evidence to a judge that is quite believable -
and they don't believe you.
June 13, 2007
SANFORD F. YOUNG, PETITIONER,
CITY OF NEW YORK DEPARTMENT OF FINANCE PARKING VIOLATIONS ADJUDICATIONS,
The opinion of the court was delivered by: Emily Jane Goodman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law §
This opinion is uncorrected and will not be published in the printed Official
This is the unusual case of a parking violation summons reaching the Supreme
Petitioner Sanford F. Young brings this Article 78 proceeding to annul the
determination of respondent New York Department of Finance ("DOF") Parking
Violations Bureau ("PVB") Appeals Board dated May 22, 2006, which upheld a
finding of guilt for parking during restricted hours.
On November 29, 2005, a Notice of Parking Violation (the "summons") was issued
to petitioner's vehicle as it sat parked across from 1330 First Avenue in
Manhattan. The summons charged petitioner with violating the weekday prohibition
against parking in that area between the hours 4 and 7 p.m. The summons noted
the time of the offense as 6:59 p.m. On December 9, 2005, petitioner entered a
plea of not guilty through respondent's website and requested an online hearing.
In the field provided to explain the asserted defense, petitioner made the
"A New York Minute" The ticket, which says I was parked at 6:59 PM in a "No
Parking... 4P-7P" area is absurd and wrong! Knowing full well - as a life long
New Yorker and lawyer - that it is not legal to park on the Avenues until
7:00PM, and that some officers write tickets in the last few, I did not park my
car until a couple of mins past 7:00. I am certain it was past 7:00 because I
was watching my car clock - which is in the instrument panel. I also know that
the clock is accurate because I synchronize it with my cell phone which time is
set by Verizon and my watch. Therefore, I respectfully ask that the summons be
dismissed. Thank you.
By letter dated December 21, 2005, DOF's Adjudication Bureau acknowledged
receipt of petitioner's request for a hearing and offered to settle for a fine
reduced from $65 to $43. Petitioner did not accept the offer. On March 10, 2006,
Administrative Law Judge John F. MacKay, Jr. issued a Decision and Order finding
petitioner guilty. The ALJ stated, in pertinent part:
The respondent has been charged with violating Traffic Rule 4-08(d) which
prohibits parking a vehicle in a violation of the restriction posted on signs,
markings or traffic control devices. Respondent is not persuasive that he did
not park until after the restriction ended.
Petitioner appealed the Decision and Order by letter dated March 28, 2006.
Petitioner argued, inter alia, that the respondent failed to establish the
charge by substantial credible evidence or to overcome the burden which arose
from his denial of the allegations of the summons. On May 22, 2006, the Appeals
Board upheld the ALJ's decision, finding that there was "no error of fact or
law." This Article 78 proceeding followed.
The petition is granted and the summons is dismissed. Pursuant to Vehicle and
Traffic Law ("VTL") § 240(b) and 19 Rules of the City of New York ("RCNY") §
39-08(e), "[n]o charge may be established except upon proof by substantial
evidence." Although under VTL § 238(1) and 19 RCNY §39-08(f)(4) the summons acts
as prima facie evidence of the facts contained therein (see, Wheels, Inc. v PVB,
185 AD 110, 112-13 [1st Dept 1992]), it does not create a presumption of guilt
but merely shifts the burden of proof to the alleged violator (see, Gruen v PVB,
58 AD2d 48, 49 [1st Dept 1977]; Matter of Heisler v Atlas, 69 Misc 2d 911 [Sup
Ct NY Co 1972]). If the petitioner submits testimony refuting the charges
that is "not patently incredible," then the summons must be dismissed absent the
submission of additional evidence by the respondent to meet its ultimate burden
(see, Gruen, supra, Heisler, supra). [emphasis added - HN]
In this case, petitioner's online statement disputing the allegation of parking
during prohibited hours overcame the prima facie case established by the
summons. Petitioner's testimony regarding how he checked the time before parking
was sufficiently detailed and cannot be characterized as "patently not
credible." At a minimum, it created a question of fact which shifted the burden
to respondent. Insofar as respondent failed to counter petitioner's showing, the
ALJ and the Appeals Board erred in upholding the summons.
Respondent attempts to distinguish Gruen and Heisler by asserting that the
petitioners in those cases submitted "sworn detailed testimony." As noted above,
the issue is whether petitioner's account was "not credible." There is nothing
about his statement that he parked "a couple min[utes] past 7:00" (as opposed to
60 seconds earlier, i.e., 6:59) that defies belief. Respondent's speculative
challenge to the accuracy of the car clock merely raises an additional question
of fact, a question that respondent did not raise on the record below.
Finally, respondent's suggestion that the sworn summons must prevail over
petitioner's unsworn online statement is without merit. First, no objection was
raised in the proceedings below. The ALJ did not reject petitioner's statement
as unsworn but merely found, incorrectly, that it was not sufficiently
"persuasive" to shift the burden of proof. Second, respondent affirmatively
invited written testimony to be submitted through its website. All such
statements are of necessity unsworn, and under the standard respondent proposes
the sworn summons would always prevail. Under this standard, compliance with
respondent's online procedures would be rendered an exercise in futility, a
result which would constitute a gross violation of the driving public's due
process rights and would be an illusory alternative to a paper or in-person
The Court need not comment on the policy and/or practice of issuing a summons
seconds before the permissible time, even if that had been what occurred.
Accordingly, it is
ORDERED and ADJUDGED, that the petition is granted to the extent that the
decisions dated March 10, 2006 and May 22, 2006 are vacated, and the summons is
dismissed; it is further
ORDERED and ADJUDGED, that Petitioner, having an address at 225 Broadway, Suite
2008 New York New York 10007, do recover from respondent the amount of $65.00
(the fine paid by Petitioner), plus interest from the date of this decision,
plus costs and disbursements as taxed by the Clerk of the Court.
This Constitutes the Decision, Order and Judgment of the Court.