IN RE: Daniel RETTER (2025)

Judgment (denominated an order), Supreme Court, New York County (Lisa S. Headley, J.), entered on or about June 15, 2023, denying the petition to vacate guilty determinations by the New York City Department of Finance Parking Violations Bureau (PVB), which found petitioner liable for violations of Vehicle and Traffic Law § 1180–b, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously vacated, on the law, the proceeding treated as one transferred to this Court pursuant to CPLR 7804(g) for de novo review, and, upon such review, the determinations unanimously confirmed, the petition denied and the proceeding dismissed, without costs.

The petition, having raised issues of substantial evidence, should have been transferred to this Court pursuant to CPLR 7804(g).  Accordingly, this Court will “treat the substantial evidence issues de novo and decide all issues as if the proceeding had been properly transferred” (Matter of Jimenez v. Popolizio, 180 A.D.2d 590, 591, 580 N.Y.S.2d 302 [1st Dept. 1992]).

PVB's determination that petitioner exceeded the posted maximum speed limit in a school speed zone on 11 separate occasions, in violation of Vehicle and Traffic Law § 1180–b, is supported by substantial evidence (see CPLR 7803[4];  Matter of Serby v. City of New York, 215 A.D.3d 438, 439, 185 N.Y.S.3d 660 [1st Dept. 2023], lv denied 40 N.Y.3d 907, 2023 WL 8041308 [2023]).  As required by Vehicle and Traffic Law § 1180–b(2), the Notices of Liability issued by the Department of Transportation (DOT) for each violation include photographs of petitioner's vehicle, along with his name, address, the date, time and location of each alleged violation.  They also include a sworn certificate of the speed camera technician affirming that petitioner's vehicle was traveling at a speed of more than 10 miles per hour above the posted speed limit, which constituted prima facie evidence of the violation (Matter of Serby, 215 A.D.3d at 439, 185 N.Y.S.3d 660).

Petitioner failed to rebut the DOT's prima facie showing by presenting any countervailing evidence (see Matter of Serby, 215 A.D.3d at 439, 185 N.Y.S.3d 660;  see also Matter of Monroe St. v. City of N.Y., 202 A.D.3d 542, 543, 163 N.Y.S.3d 49 [1st Dept. 2022]).  He does not deny that he was driving 10 miles per hour over the posted speed limit or that the locations identified were within a school zone (see Matter of Kuza v. New York City Dept. of Fin., 211 A.D.3d 607, 607, 181 N.Y.S.3d 61 [1st Dept. 2022]).  His other contentions are unavailing, as the Notices of Liability contain all the information required under Vehicle and Traffic Law § 1180–b and specify the location of the violations.  The fact that he was found not guilty on a Notice of Liability issued in April 2022 has no bearing on the guilty determinations made with respect to the earlier Notices of Liability issued in January and February 2022 (cf.  Matter of Charles A. Field Delivery Serv., Inc. [Roberts], 66 N.Y.2d 516, 518–520, 498 N.Y.S.2d 111, 488 N.E.2d 1223 [1985]).

Petitioner's constitutional challenges are unpreserved for review and, in any event are unavailing (see Matter of Serby, 215 A.D.3d at 439, 185 N.Y.S.3d 660;  see also Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001]).