Rogers v. New York City Transit Authority

• Decision Date: 28 May 1996
• Parties: In the Matter of James L. ROGERS, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 601

643 N.Y.S.2d 601

227 A.D.2d 629

In the Matter of James L. ROGERS, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 28, 1996.

Martin B. Schnabel, Brooklyn (Ira J. Lipton, of counsel), for appellant.

White & Case, New York City (Andrew M. Dansicker, Brian V. Ellner, and Katherine T. Ward, of counsel), and Arthur N. Eisenberg, New York City, for respondent (one brief filed).

Before RITTER, J.P., and THOMPSON, HART and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Appeals Board of the Transit Adjudication Bureau dated February 22, 1994, which, after a hearing, sustained the issuance of a notice of violation and the imposition of a $50 fine against the petitioner, the appeal is from a judgment of the Supreme Court, Kings County (Yoswein, J.), dated April 5, 1994, which (1) vacated the determination of the Appeals Board of the Transit Adjudication Bureau, (2) dismissed the notice of violation, and (3) directed the appellant to refund the $50 fine.

ORDERED that the judgment is reversed, on the law, with costs, the determination of the Appeals Board of the Transit Adjudication Bureau is confirmed, and the proceeding is dismissed on the merits.

The petitioner is a member of a political organization known as the Socialist Worker's Party (hereinafter SWP). On October 30, 1993, two days before the New York City elections, the petitioner and his associates, two SWP volunteers, set up a card table on the mezzanine level of the subway station in Jamaica, Queens, for the purpose of engaging passersby in conversation with regard to the SWP's political candidates. During the course of campaigning, the petitioner sold several copies of the SWP newspaper, The Militant. The petitioner conceded that he was warned by a New York City Transit Authority (hereinafter Transit Authority) police officer that his sales activity was in contravention of Transit Authority rules and, indeed, he and his associates removed themselves from the subway station. However, due to inclement weather, the petitioner and his associates moved back down into the subway station where they restationed themselves by the escalator and resumed their sales activity. The petitioner was issued a notice of violation charging him with violating a regulation against selling books in the subway.

After a hearing, the Transit Adjudication Bureau determined that the petitioner violated 21 NYCRR 1050.6(b) by engaging in "unauthorized commercial activity". This finding was affirmed by the Appeals Board of the Transit Adjudication Bureau (hereinafter the Appeals Board).

The petitioner subsequently brought the instant proceeding pursuant to CPLR article 78 seeking a judgment vacating the determination and dismissing the notice of violation. The petitioner asserted, inter alia, that the determination violated his constitutional right to free speech.

The Supreme Court, Kings County, thereafter vacated the final determination of the Appeals Board, dismissed the Notice of Violation and directed the Transit Authority to refund the fine paid by the petitioner. This was error.

An administrative agency's determination is supported by substantial evidence when there is a rational basis for the finding of fact supporting the agency's decision (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321). The Transit Authority's ...