Parrish v. City of N.Y.

• Decision Date: 13 July 2015
• Docket Number: No. SCK–836–14/KI.,SCK–836–14/KI.
• Citation: 20 N.Y.S.3d 293 (Table)
• Parties: Walter C. PARRISH, III, Plaintiff, v. CITY OF NEW YORK, Defendant.
• Court: New York Civil Court

20 N.Y.S.3d 293 (Table)

Walter C. PARRISH, III, Plaintiff,

v.CITY OF NEW YORK, Defendant.

No. SCK–836–14/KI.

Civil Court, City of New York, Kings County.

July 13, 2015.

Claimant Walter C. Parrish, III, Pro–Se.

City of New York Taxi and Limousine Commission, General Counsel by Daniel H. Hoddin, esq., New York, Attorneys for Defendant.

DEVIN P. COHEN, J.

Upon review of the foregoing papers, defendant's motion to dismiss on collateral estoppel grounds and pursuant to CPLR 3211(a)(7) on the grounds that the "claim is without merit" is decided as follows:

Claimant, Walter C. Parrish III, commenced this small claims action against defendant, the Taxi and Limousine Commission (TLC), on or about March 5, 2014, seeking to recover $3,500 for "loss of use of property" (Small Claims Notice of Claim, index No. SCK–836–14). This claim stems from defendant's seizure of claimant's vehicle based on his alleged unlicensed use of that vehicle to transport a passenger for hire in violation of Section 19–506(b)(1) of the Administrative Code of the City of New York. After a hearing before the Taxi and Limousine Tribunal Mr. Parrish was found "not guilty" by decision of Administrative Law Judge (ALJ) Igor Vaysberg, on the grounds that the TLC lacked jurisdiction over the matter because the passenger was picked up outside of New York City limits (Taxi & Limousine Commission v. Walter Parrish, Lic. No. 5506087 [October 15, 2013] ). Defendant now moves to dismiss this action on collateral estoppel grounds, based upon a prior small claims decision of Hon. Pamela L. Fisher. Defendant also moves to dismiss pursuant to CPLR 3211(a)(7), contending that the "claim is without merit" because the TLC's officer is immune from civil liability for actions taken in the exercise of quasi-judicial functions. Mr. Parrish opposes the motion citing the decision of ALJ Vaysberg that the TLC lacked jurisdiction over Mr. Parrish's alleged offense and reiterating his request for damages for the loss of his property.

The branch of defendant's motion seeking dismissal on collateral estoppel grounds is denied as small claims judgments are specifically divested of collateral estoppel effect (see CCA 1808 [small claims judgments "shall not be deemed an adjudication of any fact at issue or found therein in any other action or court"]; and see Tsafatinos v. Stavropoulos, 979 N.Y.S.2d 216, 218 [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2013] ). Defendant does not assert that this is the same claim as was previously decided but only that the case dealt with the same issues (see Gerstman v. Fountain Terrace Owners Corp., 31 Misc.3d 148[A] [App Term, 2d 11th & 13th Jud Dists 2011] [small claims judgments divested of issue preclusive effect but not claim preclusive effect] ). Accordingly, any determinations made on issues in the prior small claims actions by Justice Fisher do not have preclusive effect in this case.

Defendant also moves to dismiss pursuant to CPLR 3211(a)(7) on the grounds that the "claim has no merit." However, defendant both misstates and misunderstands the standard for dismissal under CPLR 3211(a)(7). The applicable test under CPLR 3211(a)(7) is "whether the pleading states a cause of action, not whether the proponent of the pleading, in fact, has a meritorious cause of action" (VIT Acupuncture P.C. v. State Farm Auto. Ins. Co., 28 Misc. 1230[A] [Civ Ct, Kings County] [Cohen, J.] [CPLR 3211(a) motions "should not be used as pre-answer alternatives to what is more properly a request for summary judgment"]; see Sokol v. Leader, 74 AD3d 1180 [2d Dept 2010] ). Contrary to defendant's assertion, "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus" (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11 [2005] ). The question is whether "accepting as true the factual averments of the complaint and according the plaintiff the benefits of all favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any reasonable view of the facts stated" (Board of Educ. of City School Dist. of City of New Rochelle v. County of Westchester, 282 A.D.2d 561, 562 [2d Dept 2001] ). The threshold for dismissal is even higher here as, "given the informal and simplified procedure' (CCA 1804 ) governing small claims matters [dismissal for failure to state a cause of action] is rarely, if ever, available" (Sarver v. Pace University, 5 Misc.3d 70 [App Term, 1st Dept 2004] ).

The proper inquiry here then becomes, in part, whether under the exceedingly liberal pleading standard of the Small Claims Court, the "facts as alleged fit within any cognizable legal theory" (Leon v. Martinez, 84 N.Y.2d 83 [1994] ). Defendant argues that this claim is barred by absolute governmental immunity. Defendant cites to Tango v. Tulevech, 61 N.Y.2d 34, 40 [1983] for the proposition that "when official action involves the exercise of discretion, the [public] officer [or municipality] is not liable for the injurious consequences of that action even if resulting from negligence or malice." Defendant contends that the TLC has absolute immunity from liability for seizing claimant's vehicle and that, therefore, the action must be dismissed.

However, governmental immunity does not attach to every action of an official with any discretionary duties (Mon v. New York, 574 N.Y.S.2d 529, 532 [1991] ). Absolute immunity for official discretionary actions is limited to judicial, quasi-judicial, legislative and executive branch activities (see Siegel, 15 N.Y. Prac–Torts § 17:54 ; see also Arteaga v. State, 532 N.Y.S.2d 57 [1988] ; and see Tango, 61 N.Y.2d 34 ). Other official discretionary acts are typically subject to qualified immunity, and the immunity is negated by evidence of bad faith or the lack of any reasonable basis for the action (see Siegel, 15 N.Y. Prac–Torts § 17:54 ; and see McCormack v. City of New York, 80 N.Y.2d 808 [1992] [qualified immunity applied for police judgment in giving "no-shoot" order and choice in bullet proof vests, at least where choice not irrational] ). In contrast, ministerial acts by public officers or employees, which do not involve the exercise of discretion based on policy and are not capable of producing different acceptable results are not immune from civil liability (id.; and see Arteaga, 532 N.Y.S.2d 57 [1988] [emphasis added] ). "When the action is exclusively ministerial, the officer will be liable if it is otherwise tortious and not justifiable pursuant to statutory command" (Rodriguez v. City of New York, 189 A.D.2d 166 [1st Dept 1993] ).

New York Courts "take a functional approach when analyzing claims of immunity" (Rodrigues v. City of New York, 193 A.D.2d 79 [1st Dept 1993] ; and see Arteaga, 532 N.Y.S.2d 57 ). Whether an action receives qualified or absolute immunity "requires an analysis of the functions and duties of the particular government official or employee whose conduct is in issue" (Arteaga, 532 N.Y.S.2d at 59 ).

"If a functional analysis of the actor's position shows that it is sufficiently discretionary in nature to warrant immunity, it must then be determined whether the conduct giving rise to the claim is related to an exercise of that discretion. Obviously, governmental immunity does not attach to every action of an official having discretionary duties, but only to those involving an exercise of that discretion"

(Mon, 574 N.Y.S.2d at 532 ).

In New York, courts have determined that many enforcement actions taken by police officers fall into the categories of either non-immune ministerial "day-by-day" acts or are subject to a qualified immunity (compare Broughton v. State, 37 N.Y.2d 451 [1975]and Colao v. Mills, 39 AD3d 1048 [3d Dept 2007] [police officers have qualified immunity or privilege to make arrest if arrest is based upon warrant or probable cause because actions involve exercise of discretion] with Rodriguez, 189 A.D.2d 166 [1st Dept 1993] [qualified immunity for police officer's errors in judgment in discretionary functions but no immunity attaches where "immutable procedures" or clearly defined standards of conduct govern functions and officer acts clearly outside realm of acceptable police practice] ).

New York General Municipal Law § 50 —j(1) provides that local governmental entities are "liable for ... any negligent act or tort [committed by a police officer], provided such police officer, at the time of the negligent act ... was acting in the performance of his duties and within the scope of his employment." Police officers performing law enforcement activities requiring the exercise of discretion are afforded qualified immunity from liability for negligence claims provided that the officers' actions are not inconsistent with acceptable police practice (see ...