Carniol v.

• Decision Date: 26 September 2013
• Citation: 2013 N.Y. Slip Op. 23358,42 Misc.3d 199,975 N.Y.S.2d 842
• Parties: In the Matter of the Application of Robert CARNIOL, Individually and on behalf of all others similarly situated, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. The NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, David Yassky and the City of New York, Respondents.
• Court: New York Supreme Court

42 Misc.3d 199

975 N.Y.S.2d 842

2013 N.Y. Slip Op. 23358

In the Matter of the Application of Robert CARNIOL, Individually and on behalf of all others similarly situated, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

v.The NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, David Yassky and the City of New York, Respondents.

Supreme Court, New York County, New York.

Sept. 26, 2013.

Daniel L. Ackman, Esq., New York, for petitioner.

Corporation Counsel by Diana Murray, Esq., New York, for respondents.

KATHRYN E. FREED, J.

In this article 78 proceeding, petitioner, Robert Carniol (Carniol) moves, via order to show cause, for: 1) a declaration that the use of Global Positioning System (GPS) ¹ technology to track taxi drivers is a search under New York law; 2) a declaration that a search using this GPS system violates of the New York Constitution; ² 3) an order barring the NYC Taxi and Limousine Commission (TLC) from using the fruits of GPS searches to prosecute individual taxi drivers; 4) an order that respondents, TLC, David Yassky (Yassky or the Chairperson) and the City of New York (City) (collectively the City respondents) restore Carniol's taxi driver's license; 5) damages, including punitive damages; and 6) certification of this action as a class action.

The City respondents cross-move, pursuant to CPLR § 3211(a)(2) and (7), to dismiss the amended petition.

Factual background:

The amended petition states that in 2007, the TLC mandated that all New York City medallion cabs be equipped with a Taxi Technology System (TTS) which includes, inter alia, a GPS, text messaging capabilities and a monitor displaying certain rate and fare information for the passenger (amended petition, ¶ 9). TLC Rule 3–06(b) (35 RCNY 3–06[b] ) states that the TTS must be capable of transmitting to the TLC “at predetermined intervals established by the Chairperson”:

“[T]he taxicab license number; the taxicab driver's license number; the location of trip initiation the time of trip initiation; the number of passengers; the location of trip termination; the time of trip termination; the metered fare for the trip; and the distance of the trip.”

(Amended petition, ¶ 14).

Before the rules regarding TTS took effect, a group of drivers and the New York Taxi Workers Alliance filed a federal lawsuit challenging the rules (Alexandre v. New York City Taxi & Limousine Commn., 2007 WL 2826952 [S.D.N.Y. Sept. 28, 2007] ). The Alexandre plaintiffs advanced federal privacy claims which the Federal Court rejected, finding that GPS tracking, as it was configured under TTS, was not a “search or seizure within the ambit of the Fourth Amendment” ( id. at *9 [internal quotation marks and citation omitted] ) (amended petition, ¶ 21). According to the TLC, the purported benefits of TTS include: 1) the collection of a body of information for the TLC's regulatory analysis, including analysis of pick-up points, drop-off points, trip time and distance and passenger counts; 2) assistance in locating a passenger's lost property; 3) eliminating the requirement that drivers complete handwritten trip sheets; and 4) permitting a passenger to pay by credit card (amended petition, ¶ 22). The TLC never stated that it would use the information it gathered to track drivers for investigatory purposes (amended petition, ¶¶ 23, 26).

Thereafter, in 2008 or 2009, the TLC received complaints from passengers regarding alleged overcharges by a certain taxi driver. The complaints alleged that the taxi driver had charged the higher out of town rate (Rate 4) for trips that were entirely within New York City (Rate 1). Following the investigation of the TTS generated records for this particular taxi driver, the TLC expanded its review of the computer records generated by the TTS system to include substantially all of the city's 42,000 cab drivers (amended petition, ¶¶ 29–43).

In May 2010, the TLC issued a press release stating that, based on its review of the records, more than 21,000 taxi drivers had overcharged passengers, using Rate 4 rather than Rate 1, for more than $1 million. Among the drivers who allegedly engaged in the overcharging was petitioner Carniol who had, according to the TLC, overcharged passengers 91 times (amended petition, ¶ 61).

By letter dated May 13, 2010, the TLC directed Carniol to appear for a settlement conference “in reference to allegations that, ... you deliberately and intentionally overcharged passengers on 91 separate occasions by illegally using Rate 4 code. Our records indicate that you overcharged passengers approximately $358.80 during this time period” (amended petition, exhibit 13). The letter stated that the purpose of the conference was to see whether the matter could be resolved without “proceeding with a discretionary revocation hearing before The Office of Administrative Trials and Hearings (OATH)” ( id.). Carniol rejected the TLC's settlement offers and insisted on a trial.

By letter dated February 11, 2011, the TLC notified Carniol that it had commenced a proceeding against him which “seeks to revoke your TLC license. In addition or in lieu thereof, your TLC license may be suspended or substantial fines may be imposed against you” (amended petition, exhibit 16). The petition charges Carniol with 90 counts of violating Rule 2–34(a) of the Taxicab Drivers Rules (35 RCNY 2–34[a] ), “[i]n that between April 12, 2009 and February 27, 2010, ... (Carniol) deliberately and intentionally overcharged passengers ... by illegally using the Rate 4 code.” Five of the alleged violations were specifically listed in the petition. The petition also states that “TLC seeks the revocation of (Carniol's) license and the maximum fine for these rule violations pursuant to 35 RCNY 8–03(b)(ii) and 2–87” ( id.).

Following the trial, the Administrative Law Judge (ALJ) issued a report and recommendation finding that the TLC proved the charge against Carniol and, pursuant to 35 RCNY 8–03(b)(ii) and 2–87, recommended revocation of respondent's license and the imposition of an $850 fine. In that report and recommendation, the ALJ specifically found that: 1) Carniol received adequate notice of the charges; 2) the TLC lawfully obtained evidence against the respondent in that the TLC properly search the automated records that it lawfully possessed; 3) Carniol had no reasonable expectation of privacy in the trip information gathered by TLC; and 4) that the printout listing 90 Rate 4 violations was admissible (amended petition, exhibit 18).

On August 15, 2011, the Chairperson accepted the ALJ's report and recommendation and revoked Carniol's taxi driver's license and imposed an $850 fine against him (amended petition, exhibit 19).

Positions of the parties:

Carniol argues that the revocation of his taxi driver's license should be invalidated in that OATH had no jurisdiction to this action because section 2303(a) of the City Charter mandates that violations of the administrative code and rules pertaining to the TLC shall be adjudicated by the TLC's own tribunal; that the exception to section 2303(a) which states that OATH shall conduct hearings when the commission seeks discretionary, rather than mandatory, license revocation (Section 19–506 of the NYC Code) is inapplicable; TLC's tracking of Carniol was a warrantless search in violation of his rights under article I, § 12 of the State Constitution and the Fourth Amendment of the Federal Constitution; the TLC cannot invoke the administrative search exception to the warrant requirement and; the TLC's TTS has not been shown to be sufficiently reliable for its data to be admissible in court. Carniol also takes the position that because his license revocation was mandatory, not discretionary, he had no right to appeal the Chairperson's final order.

In opposition to the relief demanded in the amended petition, and in support of their cross motion to dismiss, the City respondents contend this court lacks jurisdiction to entertain this petition because Carniol failed to exhaust his administrative remedies. It is the City respondents' position that Carniol's taxi license revocation was discretionary and that he had the right to appeal the Chairperson's final order to the full Commission, which he failed to do, and now his time to do so has expired.

In addition, the City respondents argue that the use of the GPS data does not violate Carniol's privacy rights under the State or Federal Constitutions; that the revocation was based on admissible evidence; that the hearing was properly before OATH; and that the collection of the TTS data was duly authorized.

Conclusions of law:

Under TLC Rule 2–87(a)(1) (35 RCNY 2–87[a][1] ), the TLC “shall” fine, and it may exercise its discretion to revoke a taxicab driver's license, if the driver is found guilty of violating TLC Rule 2–34(a) (35 RCNY 2–34[a] ) once or twice within 24 months. However, a taxicab driver's license shall be revoked, as a mandatory revocation, if the driver is found guilty of violating TLC Rule 2–34(a) (35 RCNY 2–34[a] ) three times within a 36–month period.

TLC Rule 2–87 (35 RCNY 2–87) states in pertinent part:

“Any driver who has been found to have violated a provision of §§ 2–34(a), ..., shall be fined not less than $200.00 nor more than $350.00. Any driver who has been found in violation of any of the provisions of such rules ..., for a second time within a twenty-four month period, shall be fined not less than $350.00 nor more than $500.00, and the Commission may suspend the driver's license of such driver for a period not to exceed thirty days. The Commission shall revoke the driver's license of any driver who has been found to have violated any of the provisions of §§ 2–34(a) ..., three times with a thirty-six month period.

Nothing contained herein shall limit or restrict any other authority the Commission may have to suspend or revoke a driver's license.”

TLC Rule 8–03(b)(ii) (35 RCNY 8–03[b][ii] ) states, in...