| Meadow v NYC Dept. of Fin., Motor Vehs. |
| 2009 NY Slip Op 03048 [61 AD3d 551] |
| April 21, 2009 |
| Appellate Division, First Department |
| Claire Meadow, Appellant, v NYC Department ofFinance, Motor Vehicles, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), forrespondent.
Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered March 28,2008, denying the petition and dismissing this proceeding to challenge a parking violationdetermination and a $115 fine, unanimously reversed, on the law, without costs, the petitiongranted, and the matter remanded for a hearing.
After receiving a notice of violation for illegally parking within five feet of a fire hydrant,petitioner timely mailed the ticket back to the Parking Violations Bureau (PVB), entering a pleaof not guilty in the manner prescribed by applicable regulations (see 19 RCNY 39-04[b]). Expecting to receive a hearing date (see Vehicle and Traffic Law § 240 [1];Administrative Code of City of NY § 19-206 [a]), petitioner instead received adetermination by an administrative law judge finding her guilty of the charged violation.Petitioner's husband promptly wrote to the PVB, explaining that they had expected anopportunity to present evidence at a hearing and requesting that the determination be vacated andeither set down for a hearing or, alternatively, dismissed upon consideration of theaccompanying factual statement detailing their defense. The PVB denied the request by letter,stating that "only one hearing is granted per summons," and the PVB Appeals Boardsubsequently denied petitioner's appeal, finding no error of fact or law.
The PVB abused its discretion in denying the request to vacate. Since petitioner showed shehad inadvertently invoked the adjudication-by-mail procedure without intending to waive herright to a hearing, the determination was reached in violation of lawful procedure (seeCPLR 7803 [3]; Matter of Pollock vKiryas Joel Union Free School Dist., 52 AD3d 722, 724 [2008]). The notice on the backof the ticket indicates three ways "TO PLEAD 'NOT GUILTY' AND REQUEST A HEARING":adjudication by mail, on-line adjudication, or an in-person hearing at any hearing center withoutan appointment. This notice does not clearly state that by mailing the ticket back with anot-guilty plea, the person charged thereby consents to adjudication solely on the basis of thesummons and any documents submitted by mail, without the "hearing" provided for inAdministrative Code § 19-206 and 19 RCNY 39-08. Given the credible assertion thatpetitioner misunderstood the procedure for entering a not-guilty plea as described on the [*2]ticket, and was thus deprived of an opportunity to be heard, sheshould have been granted a hearing. Concur—Friedman, J.P., Sweeny, Catterson, Renwickand Freedman, JJ.