STREET v. CITY OF NEW YORK (2022)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 13, 2020, which denied respondents’ (the City) CPLR 3211(a)(7) motion to dismiss the hybrid complaint/CPLR article 78 petition, denied petitioner's motion for class certification, and granted the petition to the extent of vacating a notice of liability issued to petitioner on March 18, 2019, unanimously modified, on the law, to grant the motion to dismiss, deny the petition, and dismiss the proceeding, and otherwise affirmed, without costs.

In this putative class action, Supreme Court denied respondents’ motion to dismiss on the ground that photographs demonstrating that petitioner's car ran a red light were not accompanied by a notarized statement from a Department of Transportation employee.  For over half a century, the legislature has consistently provided for prima facie liability for minor traffic offenses to be established by a simple, nonnotarized affirmation under penalty of perjury, using the same “sworn to or affirmed” language.  Legislative history establishes the plain intent and meaning of the “sworn to or affirmed” language of Vehicle and Traffic Law § 1111–a(d):  that the reviewing technician merely affirm, under penalty of perjury, the veracity of his statement.  No notarization is necessary.

In the instant administrative proceeding, the notice of liability was supported by the requisite affirmation.  The video images authenticated by the technician show petitioner's car running a red light.  This constitutes, as per the statute, “prima facie evidence” of the traffic violation (Vehicle and Traffic Law § 1111–a[d]).  Petitioner does not contest this evidence;  instead, he contests only the validity of the technician's certificate.  Petitioner has thus failed to overcome the City's prima facie establishment of liability.

Petitioner's reliance on CPLR 2106 and 2309, which provide that only the professionals designated in CPLR 2106 can execute a sworn statement without notarization, is unavailing.  The CPLR applies only in “civil judicial proceedings” (CPLR 101).  A “civil judicial proceeding” is “a prosecution, other than a criminal action, of an independent application to a court for relief” (CPLR 105[d]).  Hence, absent some other statutory directive, CPLR 2106 and 2309 will not apply in administrative proceedings (see Matter of Sori–Goalya Realty v. New York City Loft Bd., 284 A.D.2d 137, 137–138, 726 N.Y.S.2d 93 [1st Dept], lv denied, 97 N.Y.2d 601, 735 N.Y.S.2d 490, 760 N.E.2d 1286 [2001];  Matter of United States Power Squadrons v. State Human Rights Appeal Bd., 84 A.D.2d 318, 325, 445 N.Y.S.2d 565 [2d Dept. 1981], affd 59 N.Y.2d 401, 465 N.Y.S.2d 871, 452 N.E.2d 1199 [1983]).  We decline to follow the decision of the Appellate Term, Second Department, in People v. Eisenstadt, 48 Misc.3d 56, 58, 15 N.Y.S.3d 542 (App. Term, 2d Dept, 9th & 10th Jud. Dists. 2015).

Since petitioner's substantive claims are without merit, there is no basis for certification of a class (see Kudinov v. Kel–Tech Constr. Inc., 65 A.D.3d 481, 482, 884 N.Y.S.2d 413 [1st Dept. 2009];  Brandon v. Chefetz, 106 A.D.2d 162, 168, 485 N.Y.S.2d 55 [1st Dept. 1985]).