Desmangles v. Woodside Mgmt., Inc.

Decision Date20 June 2013
Citation2013 N.Y. Slip Op. 04692,968 N.Y.S.2d 454,107 A.D.3d 551
PartiesHenry DESMANGLES, etc., Plaintiff–Appellant, v. WOODSIDE MANAGEMENT, INC., Defendant–Respondent.
CourtNew York Supreme Court — Appellate Division

107 A.D.3d 551
968 N.Y.S.2d 454
2013 N.Y. Slip Op. 04692

Henry DESMANGLES, etc., Plaintiff–Appellant,
v.
WOODSIDE MANAGEMENT, INC., Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

June 20, 2013.



Law Office of Daniel L. Ackman, New York (Daniel L. Ackman of counsel), for appellant.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP, Lake Success (Keith J. Singer of counsel), for respondent.


TOM, J.P., ACOSTA, SAXE, FREEDMAN, JJ.

[107 A.D.3d 552]Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered August 17, 2012, which granted defendant's motion to dismiss the first cause of action without prejudice, and the second, third, fourth and fifth causes of action with prejudice, unanimously modified, on the law, to grant the motion as to the first cause of action with prejudice, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint.

Plaintiff is a taxi driver who leased a medallion from defendant. He alleges that defendant overcharged him on his weekly lease, which was subject to an $800 cap ( see Rules of City of New York Taxi

[968 N.Y.S.2d 455]

and Limousine Commission (TLC) [35 RCNY] § 58–21[c][4][ii] ). He alleges that defendant imposed, and collected weekly, certain additional charges that are not permitted ( see 35 RCNY 58–21[c][5] ), over and above the $800 medallion lease fee that defendant was already collecting from him.

Plaintiff's fourth and fifth causes of action allege that the overcharges violated the lease cap rule (35 RCNY 58–21[c][4] ) and a 5% credit card withholding surcharge rule (35 RCNY 58–21[f][3] ). Upon review of the TLC's legislative scheme and detailed self-enforcement provisions, we conclude that plaintiff has no private right of action and therefore cannot assert these causes of action ( see Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 633–634, 543 N.Y.S.2d 18, 541 N.E.2d 18 [1989] ).

Plaintiff's first and second causes of action allege breach of contract; however, it appears that plaintiff couched his claims of TLC violations in terms of breach of contract to circumvent the absence of a private right of action. In any event, it is clear from the allegations in the complaint and the lease that plaintiff's breach of contract (first and second) causes of action are founded not upon defendant's failure to comply with the terms of the lease as written but upon the unenforceability of the lease insofar...

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5 cases
  • Williams v. Graf
    • United States
    • New York Supreme Court
    • March 28, 2014
    ... ... Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 ... ...
  • Raach v. Slsjet Mgmt. Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • December 9, 2015
    ...555, 556, 967 N.Y.S.2d 380 ; De La Rosa v. All Taxi Mgt., Inc., 107 A.D.3d 553, 553, 967 N.Y.S.2d 715 ; Desmangles v. Woodside Mgt., Inc., 107 A.D.3d 551, 552, 968 N.Y.S.2d 454 ). The fact that the contractual provisions at issue may have been inserted in order to comply with TLC Rules does......
  • El Boutary v. City of N.Y.
    • United States
    • U.S. District Court — Eastern District of New York
    • December 26, 2018
    ...see nothing in the regulations that suggests that that would be consistent with the legislative scheme. Cf. Desmangles v. Woodside Mgmt., Inc., 968 N.Y.S.2d 454, 455 (App. Div. 2013) ("Upon review of the TLC's legislative scheme and detailed self-enforcement provisions, we conclude that pla......
  • Rivera v. Crotona Park E. Bristow Elsmere
    • United States
    • New York Supreme Court — Appellate Division
    • June 20, 2013
    ... ... Women's Outreach Network, Inc., 35 A.D.3d 104, 109, 824 N.Y.S.2d 3 [1st Dept. 2006] ).On the merits, ... ...
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