| Awan v City of New York |
| 2012 NY Slip Op 00708 [92 AD3d 406] |
| February 2, 2012 |
| Appellate Division, First Department |
| Rafiq Awan, Appellant, v City of New York, RespondentAppellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Susan B. Eisner of counsel), forrespondents.
Order, Supreme Court, New York County (Geoffrey Wright, J.), entered on or aboutFebruary 14, 2011, which granted defendants' motion to convert the action to an article 78proceeding pursuant to CPLR 103 (c), and remanded "this matter to the Dept. of Finance for alive hearing before an Administrative Law Judge or such other procedure as agency procedureprovides," and order, same court, Justice and entry date, which granted defendants' motion tovacate the note of issue, unanimously affirmed, without costs.
Both section 243 of the Vehicle and Traffic Law and section 19-209 of the New York CityAdministrative Code provide that judicial review of a decision by the appeals board of theParking Violations Bureau "may be sought" via an article 78 proceeding. A plenary action toremedy purported violations of civil rights by the Parking Violations Bureau is "foreclosed by theavailability of review in an Article 78 proceeding in the state courts" (Liebers v ParkingViolations Bur., 1994 WL 119186, *3, 1994 US Dist LEXIS 3986, *7 [1994]). Thus,plaintiff cannot pursue this matter as a plenary action, and Supreme Court providently exercisedits discretion under CPLR 103 (c) by converting the action to an article 78 proceeding.
Once converted to an article 78 proceeding, Supreme Court correctly ordered that the ParkingViolations Bureau afford plaintiff a live hearing. In this regard, the Parking Violations BureauAppeals Board abused its discretion in upholding the administrative law judge's decision, asplaintiff demonstrated that he had "inadvertently invoked the adjudication-by-mail procedurewithout intending to waive [his] right to a hearing . . . [and, thus, the hearing bymail was] in violation of lawful procedure [CPLR 7803 (3)]" (Meadow v NYC Dept. of Fin., MotorVehs., 61 AD3d 551, 551 [2009]).[*2]
Since the court correctly converted the action to an article78 proceeding, the note of issue was properly vacated.
We have reviewed plaintiff's remaining contentions and find them unavailing.Concur—Gonzalez, P.J., Saxe, Moskowitz, Acosta and Freedman, JJ.