City of New York v. Long Island Airports Limousine Service Corp.

• Decision Date: 17 December 1979
• Parties: , 399 N.E.2d 538 CITY OF NEW YORK, Respondent, v. LONG ISLAND AIRPORTS LIMOUSINE SERVICE CORP., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 651

423 N.Y.S.2d 651

48 N.Y.2d 469, 399 N.E.2d 538

CITY OF NEW YORK, Respondent, v. LONG ISLAND AIRPORTS LIMOUSINE SERVICE CORP., Appellant.

Court of Appeals of New York.

Dec. 17, 1979.

J. Irwin Shapiro, Robert M. Calica and Charles J. McEvily, Mineola, for appellant.

Allen G. Schwartz, Corp. Counsel, New York City (Nancy Stassinopoulos, L. Kevin Sheridan and Joseph F. Bruno, New York City, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

The City of New York commenced this action to enjoin the defendant, Long Island Airports Limousine Service Corp. (LIALS) from carrying passengers into the city without the city's consent. The Supreme Court denied the city's motion for summary judgment, but the Appellate Division, 68 A.D.2d 37, 416 N.Y.S.2d 20, reversed and granted the injunction. The defendant appeals.

The defendant's limousine service transports passengers from Nassau and Suffolk Counties to two airports, La Guardia and Kennedy, located in the City of New York. At the present time it transports approximately 5,000 passengers a week. It has been operating at least since 1961 when the State Commissioner of Transportation issued to the defendant a permanent certificate of necessity and convenience (Transportation Law, § 149) to provide public transportation between Nassau and Suffolk Counties and the city airports. In 1968 the defendant also obtained a franchise from the City of New York to use the city streets en route to the airports. In 1977, however, the Board of Estimate of the City of New York adopted a resolution which canceled the franchise and refused to grant a renewal.

The defendant commenced an article 78 proceeding claiming that the city's action violated due process, was arbitrary and capricious and was not supported by substantial evidence. The Supreme Court dismissed the petition on the ground that the Board of Estimate's action was legislative in nature, and since the board had not exceeded its jurisdiction or acted illegally, its resolution was not subject to court review. The Appellate Division affirmed that judgment (60 A.D.2d 1005, 401 N.Y.S.2d 363) and we dismissed the defendant's appeal purportedly taken as of right (43 N.Y.2d 949, 403 N.Y.S.2d 1030) and denied leave to appeal (44 N.Y.2d 647, 407 N.Y.S.2d 1025).

After canceling the franchise the city also requested the State Commissioner of Transportation to revoke the certificate of public convenience and necessity which had been granted to the defendant. The commissioner ordered that a hearing be held.

While that proceeding was pending, the city commenced this action to enjoin the defendant from continuing to transport passengers to the city airports without the city's consent claiming that this action violated section 362-1.0 of the Administrative Code, section 66 of the Transportation Corporations Law and constituted a trespass. The city also sought to recover unpaid franchise fees. The defendant did not deny the city's claim for the franchise fees, nor did it dispute the facts alleged in the complaint. However it opposed the injunction on the ground, among others, that its operations in the City of New York "do not even require a local consent and this is one of the issues that presently confronts the Commissioner of Transportation."

The city's motion for summary judgment was granted in part. The court directed summary judgment on the fourth cause of action, seeking to recover the franchise fees. With respect to the other causes of action the court stated: "The issues presented by the City's motion for injunctive relief which concern the legality of Long Island's current operations under a state certificate of public convenience and necessity after the local consent has been revoked, are currently the subject of a proceeding previously instituted by the Commissioner. A hearing was held on April 12, 1978 at which the city, the Board of Estimate and Long Island were represented. A decision has not yet been rendered. In the court's opinion the underlying action, to the extent that it requests injunctive relief, is duplicative and premature." Thus this branch of the motion was denied "without prejudice to renewal should such renewal be appropriate after a decision is rendered by the Commissioner."

The city appealed to the Appellate Division. While that appeal was pending the Commissioner of Transportation determined that the defendant's certificate should not be revoked. He noted that the Transportation Law "is silent with regard to (the commissioner's) power to revoke that permanent certificate once a local consent has been granted and is thereafter terminated by a city." He also noted that there "is no evidence revealing that LIALS is not rendering an adequate service to the public or that it is not in a position to continue to render such a service. Testimony received at the hearing indicates that LIALS transports approximately 5,000 passengers a week to and from the airports on its bus line operation. The Commissioner has an obligation to see that these Long Island residents continue to be provided a safe and reliable transportation system. The concern for the public interest is paramount." The city petitioned for a rehearing but the application is still pending before the commissioner. ^*

The Appellate Division recognized in its...