Voccola v. Shilling

Decision Date19 October 1976
Citation388 N.Y.S.2d 71,88 Misc.2d 103
PartiesApplication of Harry W. VOCCOLA, as Acting Director of the Parking Violations Bureau of the City of New York, Petitioner, v. Norman H. SHILLING, as Judge of the Civil Court of the City of New York and Stephen F. Browne, Defendant in the action of the City of New York (Parking Violations Bureau), Respondents.
CourtNew York Supreme Court

Carl E. Person, New York City, for respondent, Stephen F. Browne.

Brown & Brown by Harry L. Brown, Brooklyn, for respondent Norman H. Shilling.


In this Article 78 proceeding for a writ of prohibition, petitioner seeks an order directing respondent, Norman H. Shilling, Judge of the Civil Court of the City of New York, to cease further proceedings in a matter now before him entitled The City of New York (PVB) against Stephen F. Browne.

A brief review of the facts is required in order to properly address the issues presented herein.

Six parking violation summonses were issued against respondent Browne's vehicle. When Browne failed to pay the tickets or otherwise answer or appear in response to the summonses, two default judgments were rendered by the Parking Violations Bureau (PVB) pursuant to Article 2--B of the Vehicle and Traffic Law, section 241--2, and 40 N.Y.C. Administrative Code, section 883a--7.0--b. (At this point, the court notes that chapter 40 of the N.Y.C. Administrative Code, which was enacted first, is substantially in conformance with Article 2--B of the Vehicle and Traffic Law.) Browne failed to pursue the remedies available to him for avoiding or vacating the default judgment as provided in the Vehicle and Traffic Law, section 241--2 and section 242, and Administrative Code, section 883a--7.0--b and section 883a--8.0. Instead, he moved in the Civil Court by order to show cause 'restraining the Parking Violations Bureau from enforcing their (default) judgment dated March 20, 1975 against the defendant (Browne) for parking violations, pending a review to be heard before said Parking Violations Bureau and to determine the legality and constitutionality of the procedures of the Parking Violations Bureau, and to determine the facts in this matter.'

The order to show cause came on to be heard before Judge Shilling, who denied the PVB's motion to have it dismissed on the grounds of lack of jurisdiction of the Civil Court. Judge Shilling signed the order and directed that a hearing be held on the matter commencing on September 23, 1976. On the second day of the hearing, September 24, the PVB brought on the instant order to show cause for a writ of prohibition, and Judge Shilling was stayed from proceeding further.

The issues involved are twofold: (1) Does Judge Shilling, as a Judge of the Civil Court, have jurisdiction over the matter before him; and (2) in the event it is found that he does not have jurisdiction, may and should this court issue a writ of prohibition restraining him from proceeding further?

To properly resolve the first of these questions, the court must initially determine the nature of the relief sought by Browne in his order to show cause. The answer is not readily discernible from the order itself and even Judge Shilling, at one point during the course of the hearing, stated: 'I haven't even gotten into anything in my own mind as to where we are going on this particular motion. I don't want to prejudice my thinking.' (Transcript of Proceedings, p. 177.) Nevertheless, other comments and statements for the record, made by Judge Shilling, along with the previously quoted language of the order to show cause, sufficiently reveal that the order partakes of three alternative types of relief: (a) vacating the default judgment; (b) judicially reviewing the default judgment; and (c) determining the constitutionality of the PVB and the procedures followed by them.

As to each of the relief, this court will now consider seriatim whether the Civil Court has jurisdiction.


Statutory authority for vacating a default judgment in general is found in CPLR 5015(a) (Levine v. Berlin, 46 A.D.2d 902, 362 N.Y.S.2d 186 (2d Dept.); Brenner v. Arterial Plaza, Inc., 29 A.D.2d 815, 287 N.Y.S.2d 308; 5 Weinstein-Korn-Miller 'Rule 5015. Relief from judgment or order

N.Y.Civ.Prac., 5015.04), which provides in part as follows:

(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

1. excusable default, * * *' (emphasis supplied).

In addition, a court has inherent power, not limited by the provisions of CPLR 5015, to set aside a default judgment in the interests of justice (Ladd v. Stevenson, 112 N.Y. 325, 332, 19 N.E. 842, 844; Michaud v. Loblaws, Ins., 36 A.D.2d 1013, 321 N.Y.S.2d 626; 5 Weinstein-Korn-Miller, N.Y.Civ.Prac., 5015.12).

But whether the court is exercising its inherent power or that pursuant to the statute, it is clear that it may do so only with respect to Its own judgments (Michaud v. Loblaws, Inc., supra). As was said in Michaud (p. 1014, 321 N.Y.S.2d p. 629) in describing a court's inherent power: 'Courts have control over their own proceedings, and in its exercise may open their own judgments for sufficient reason and in the furtherance of justice (citation omitted).' Likewise, CPLR 5015(a) expressly provides that only the court which rendered the judgment may relieve a party from a default (see underlined language quoted, Supra). (Levine v. Berlin, 46 A.D.2d 902, 362 N.Y.S.2d 186, Supra; Brenner v. Arterial Plaza, Inc., 29 A.D.2d 815, 816, 287 N.Y.S.2d 308, 309, Supra.)

Under these principles of law, therefore, Judge Shilling would have no authority to vacate a Parking Violations Bureau default judgment unless said judgment can be regarded as having been rendered or granted in the Civil Court. Is a Parking Violations Bureau judgment a Civil Court judgment?

The Parking Violations Bureau in the City of New York is an administrative agency created by legislative fiat in 1969 (L.1969, Ch. 1075, amending § 155 of Vehicle and Traffic Law and adding Title A--Parking Violations Bureau--to Ch. 40 of the N.Y.C. Admin.Code ( § 883a--1.0, et seq.)). The reasons for its enactment and that of the companion legislation relating to moving violations (L.1969, Ch. 1074, adding Art. 2--A to Vehicle & Traffic Law ( § 225, et seq.)) were to decriminalize most traffic infractions in New York City; remove them from the jurisdiction of the overcrowded Criminal Courts in the City, and transfer the adjudication of these violations to administrative agencies where only monetary penalties could be levied (Matter of Rosenthal v. Hartnett, 36 N.Y.2d 269, 367 N.Y.S.2d 247, 326 N.E.2d 811, which upheld the constitutionality of Art. 2--A, Vehicle & Traffic Law, transferring the cognizance of traffic infractions to an administrative agency; L.1969, Ch. 1074, § 1 (Statement of Findings and Purposes); Governor's Memoranda on approving L.1969, Chs. 1074 and 1075 (2 McKinney's 1969 Session Laws of New York 2578); Legislative Memorandum of City of New York re Ch. 1075 (2 McKinney's 1969 Session Laws of New York 2504)).

Nowhere in this legislative history or within the purview of the statute itself is there any indication that the Parking Violations Bureau was to become an arm of the Civil Court or under its jurisdiction. Rather, the agency's relationship to the courts was succinctly described in the Governor's Memoranda (supra) as follows:

'* * * The overwhelming majority of traffic cases, involving both moving and parking violations, will be removed from the courts.

'Under these bills, the rights of motorists will be fully safeguarded by appropriate administrative procedures. An administrative appeal will be provided for both parking and moving violations. Beyond that, an appeal to the Supreme Court under Article 78 of the Civil Practice Law and Rules also will be authorized.'

Notwithstanding this well-documented legislative background, respondents maintain that a judgment of the PVB is a Civil Court judgment. Their arguments are two fold: (1) The judgment is entered in the To respond to these claims in the context of the instant motion, the court must first turn back to the requirement of CPLR 5015, that only the court which Rendered a judgment may relieve a party from it. 'To render a judgment' is defined as:

Civil Court pursuant to section 241--2(3) of the Vehicle and Traffic Law; and (2) The judgment is enforced and executed upon as though it were a Civil Court judgment.

'To pronounce, state, declare or announce the judgment of the court in a given case * * * and (is) not synonymous with 'entering,' 'docketing' or 'recoding' the judgment' (Black's Law Dictionary, Revised Fourth Edition, p. 1460).

The rendition of a judgment is a judicial act of the court, while the entry of the judgment is simply the ministerial act of the clerk in recording it as evidence of the judgment (Vogel v. Edwards, 283 N.Y. 118, 121, 27 N.E.2d 806, 807; Dowling v. Stephan, 206 Misc. 518, 522, 133 N.Y.S.2d 667, 672 (Sup.Ct., Kings Co.)). The judicial functions of the court are completed when it has rendered its judgment (Vogel v. Edwards, supra).

Can it be said that the Civil Court Renders the judgment in parking violation cases? An affirmative answer would run contrary to the objectives of the legislative creation of the Parking Violations Bureau, giving it exclusive jurisdiction to adjudicate all parking violation cases. Moreover, the clear wording of the statutes leaves the adjudication, whether it be a default judgment or a determination on the charges, to the administrative agency or its personnel therein (N.Y.C.Admin.Code, §§ 883a--7.0 and 883a--8.0; Vehicle and Traffic Law, §§ 241 and 242). At no step of this...

To continue reading

Request your trial
22 cases
  • Neshewat v. Salem
    • United States
    • U.S. District Court — Southern District of New York
    • April 8, 2005
    ... ... See Brenner v. Arterial Plaza Inc., 29 A.D.2d 815, 287 N.Y.S.2d 308 (3d Dep't 1968); Voccola v. Shilling, 88 Misc.2d 103, 388 N.Y.S.2d 71 (N.Y.Sup.Ct.1976); Lintern v. Lintern, 58 Misc.2d 335, 296 N.Y.S.2d 5 (N.Y.Co.Ct.1968) ... ...
  • 93 Ralph, LLC v. N.Y.C. Housing Auth. Law Dep't
    • United States
    • New York Civil Court
    • September 3, 2013
    ... ... CPLR 7804(b); Mtr. of Sovocool v. David, 7 A.D.2d 262, 266, 182 N.Y.S.2d 553 (3d Dept.1959); Matter of Voccola v. Shilling, 88 Misc.2d 103, 109111, 388 N.Y.S.2d 71 (Sup.Ct., Kings Co.1976). The Civil Court lacks jurisdiction to hear appeals of government ... ...
  • Vanderbilt Museum v. American Ass'n of Museums
    • United States
    • New York Supreme Court
    • March 25, 1982
    ... ... Admin. v. Community Housing, 90 Misc.2d 813, 396 N.Y.S.2d 125, affd. 59 A.D.2d 773, 398 N.Y.S.2d 997; Voccola v. Shilling, 88 Misc.2d 103, 388 N.Y.S.2d 71, affd. 57 A.D.2d 931, 394 N.Y.S.2d 577; Mtr. of Sovocool v. David, 7 A.D.2d 262, 182 N.Y.S.2d 553) ... ...
  • CAUTION, LTD. v. City of New York
    • United States
    • U.S. District Court — Southern District of New York
    • September 15, 1995
    ... ... See Rosenthal v. Hartnett, 36 N.Y.2d 269, 272-73, 367 N.Y.S.2d 247, 249, 326 N.E.2d 811, 813 (1975); Voccola v. Shilling, 88 Misc. 2d 103, 106, 388 N.Y.S.2d 71, 74 (Sup.Ct.Kings Co.1976), aff'd, 57 A.D.2d 931, 394 N.Y.S.2d 577 (2d Dept.1977). The PVB is ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT