NEW YORK STATE PUBLIC EMPLOYEES FEDERATION AFL CIO v. (And Another Related Action.) (2000)

Appeal from an order of the Supreme Court (Hughes, J.), entered February 25, 1999 in Albany County, which, inter alia, granted plaintiff's motion for a preliminary injunction restraining the implementation of a prepaid residential parking permit plan.

Defendant Common Council of the City of Albany enacted City Ordinance 25.41.98 which provides for a prepaid permit parking plan in residential areas of the City of Albany.   Under the ordinance, permits are available for an annual fee of $15 for residents and $785 for nonresidents.   Plaintiffs, two State employee unions and several of their members, commenced these actions seeking, inter alia, to enjoin enforcement of the ordinance and to have it declared ultra vires and void.   Following joinder of issue, plaintiffs moved for a preliminary injunction restraining implementation of the parking permit plan.   Supreme Court granted the motion and this appeal ensued.

 We affirm.   The Court of Appeals has made clear that the right to use public highways rests “with the whole people of the State” (New York State Pub. Empls. Fedn., AFL-CIO v. City of Albany, 72 N.Y.2d 96, 101, 531 N.Y.S.2d 770, 527 N.E.2d 253), and municipalities cannot grant proprietary rights to the use thereof to their residents in priority to the general public (see, id.;   see also, People v. Speakerkits Inc., 83 N.Y.2d 814, 611 N.Y.S.2d 488, 633 N.E.2d 1092;  People v. Grant, 306 N.Y. 258, 117 N.E.2d 542).   It cannot be gainsaid that the ordinance at issue discriminates against nonresidents, inasmuch as they are required to pay an annual fee more than 50 times that charged to residents.   The fact that there may be a reasonable basis for such disparate treatment, as claimed by defendants, is of no moment, because the Legislature simply has not conferred upon the City the authority to discriminate in such a manner (compare, People v. Randazzo, 60 N.Y.2d 952, 471 N.Y.S.2d 52, 459 N.E.2d 161).   Accordingly, plaintiffs have established a likelihood of success on the merits justifying Supreme Court's grant of preliminary relief.

ORDERED that the order is affirmed, with costs.

CREW III, J.

CARDONA, P.J., SPAIN, CARPINELLO and GRAFFEO, JJ., concur.