IN RE: the Application of AGGREGATE & CEMENT TRUCKING LLC (2026)

The following e-filed papers numbered EF 1-24, 29-32 and 36-41 were submitted and considered on motion sequence #1 by Petitioner Aggregate & Cement Trucking LLC (“Petitioner” or “Aggregate”), seeking, inter alia, an order annulling the issuance by the New York City Department of Environmental Protection (“DEP”) of notices of violation (“NOVs”) for alleged idling violations involving vehicles in Petitioner's fleet bearing DEP-issued processing-device decals; declaring that Petitioner's vehicles are exempt from the City's idling restrictions pursuant to New York City Administrative Code § 24-163 when their engines are being used to operate qualifying loading, unloading, or processing devices; and granting prospective relief concerning DEP's processing of citizen complaints involving such vehicles.

Petitioner further seeks relief directing DEP to dismiss pending NOVs involving Petitioner's vehicles, implement an internal flag or other mechanism identifying vehicles participating in DEP's processing-device decal program, provide notice to citizen complainants concerning vehicles bearing such decals, and refrain from commencing or continuing certain proceedings before the New York City Office of Administrative Trials and Hearings (“OATH”). Petitioner also seeks costs and attorneys' fees and such other and further relief as the Court deems just and proper.

The papers numbered EF 25-28, 33-34 and 42-50 were submitted and considered on motion sequence #2, brought by order to show cause, seeking leave for the New York Metropolitan Trucking Association (“NYMTA”) to submit a proposed amicus curiae brief in support of Petitioner's opposition to Respondents' cross-motion to dismiss, together with such other and further relief as the Court deems just and proper.

Papers Numbered

Motion Sequence #1

NOP-Aff.-Stip. EF 1-6, 8-14 Cross-Motion-Aff.-MOL EF 15-18 Aff. in Opp. to Cross-Motion-MOL EF 19-24 Aff. in Opp. to Cross-Motion-Exhibits-MOL EF 29-32 MOL-Exhibits EF 36-41

Motion Sequence #2

OSC-Aff. in Supp.-MOL EF 25-28 MOL (Amicus Brief) EF 33-34 MOL-Exhibits EF 42-50

Background

Petitioner operates a fleet of vehicles that deliver refined material through the use of processing equipment. New York City regulates the idling of motor vehicles pursuant to Administrative Code § 24-163. As relevant here, the statute prohibits a motor vehicle from idling for longer than three minutes while parking, standing, or stopping, but provides an exception where “the engine is used to operate a loading, unloading or processing device.”

The vehicles at issue bear decals issued by DEP stating: “PROCESSING DEVICE — Vehicle Idling Permitted While Device is in Use.” The decals reflect that DEP has inspected the vehicles and determined that they are equipped with qualifying processing devices.

DEP also administers a citizen complaint program through which members of the public may submit complaints and supporting evidence concerning alleged violations of the City's idling restrictions. Based upon materials submitted through that program, an NOV may be issued and the alleged violation thereafter adjudicated at OATH.

Petitioner alleges that, notwithstanding its participation in the processing-device decal program, its vehicles repeatedly receive NOVs generated through citizen complaints and that each NOV must be individually contested. Petitioner contends that this process is burdensome, time-consuming and costly.

In support of the Petition, Petitioner submits the affirmation of Joseph J. Ferrara, Aggregate's majority owner and president. Ferrara states that, after payment of unionized drivers' wages and benefits, fuel and insurance expenses, Aggregate earns approximately $50 to $100 per stop, while fines for idling violations may range from $350 to $2,000 and legal costs associated with an individual violation begin at approximately $500. Ferrara further identifies expenses associated with determining which driver made the delivery, locating the relevant bill of lading, requesting a hearing, preparing for the hearing with counsel, and attending the OATH proceeding.

Petitioner further alleges that approximately 100 NOVs were pending at the time of its motion, with hearing dates extending over the ensuing six to nine months. Petitioner also points to an NOV received in April 2026 concerning an alleged violation occurring on February 19, 2025, more than one year earlier.

The Petition asserts three causes of action. The first, pursuant to CPLR Article 78, alleges that Respondents' failure to account for DEP's own processing-device determinations when administering the citizen complaint program is arbitrary and capricious and constitutes an abuse of discretion. The second seeks declaratory and injunctive relief pursuant to CPLR 3001, including relief concerning pending OATH matters and DEP's future treatment of complaints involving Petitioner's decal-bearing vehicles. The third seeks attorneys' fees and costs pursuant to CPLR 8601.

Respondents' Cross-Motion

In support of their cross-motion to dismiss and in opposition to the Petition, Respondents rely upon Administrative Code § 24-163(a), which provides, in relevant part:

(a) No person shall cause or permit the engine of a motor vehicle, other than a legally authorized emergency motor vehicle, to idle for longer than three minutes, except as provided in subdivision (f) of this section, while parking as defined in section one hundred twenty-nine of the vehicle and traffic law, standing as defined in section one hundred forty-five of the vehicle and traffic law, or stopping as defined in section one hundred forty-seven of the vehicle and traffic law, unless the engine is used to operate a loading, unloading or processing device.

Respondents contend that participation in the processing-device decal program establishes that a vehicle possesses a qualifying processing device, but does not establish that the device was actually in use at the time of a particular alleged idling violation. Therefore, according to Respondents, the existence of a decal does not automatically exempt a vehicle from enforcement of § 24-163.

With respect to the citizen complaint program, Administrative Code § 24-182(a) permits a natural person to serve a complaint upon DEP alleging that a bus or truck has violated § 24-163 by idling for more than three minutes, together with evidence of the alleged violation. Upon receipt of such a complaint, DEP may elect to prosecute the alleged violation or advise the citizen complainant that the complaint is frivolous or duplicative. Under circumstances provided by the statute, the citizen complainant may thereafter serve the violation upon the person alleged to have violated the idling restriction, and the matter may proceed to adjudication before OATH.

Respondents argue that the relief Petitioner seeks is, in substance, mandamus relief unavailable under these circumstances. Mandamus to compel is an extraordinary remedy available to require the performance of a ministerial duty, but it does not lie to compel an act involving the exercise of judgment or discretion. Moreover, mandamus may compel an administrative officer to perform a legal duty but may not dictate the manner in which that discretionary duty must be performed. A petitioner seeking mandamus must therefore establish a clear legal right to the relief requested (Matter of Hene v Egan, 206 AD3d 734, 736 [2d Dept 2022]).

Respondents contend that no such clear legal right exists because the presence of a processing-device decal does not establish that the statutory exemption applied at the time of any particular alleged violation. According to Respondents, nothing in the governing law categorically prohibits DEP from issuing an NOV involving a decal-bearing vehicle, and DEP necessarily exercises judgment in determining whether a particular citizen complaint warrants prosecution.

The parties therefore do not dispute that the presence of a processing-device decal, standing alone, establishes neither that the processing device was operating nor that the vehicle was exempt from the idling restriction at the time of a particular incident. The decal does, however, reflect DEP's prior determination that the vehicle is equipped with a qualifying processing device capable of bringing the vehicle within the statutory exemption when that device is in use. The significance, if any, that DEP must afford its prior determination when evaluating citizen complaints involving such vehicles lies at the center of the present dispute.

Respondents additionally contend that Petitioner failed to exhaust its administrative remedies. Respondents represent that 62 violations remained open, and that none had proceeded through an initial OATH hearing. Thus, according to Respondents, Petitioner's contention that the individual NOVs should not have issued has not yet been determined through the administrative process.

Finally, Respondents argue that the declaratory and injunctive relief sought by Petitioner falls outside the scope of a proceeding brought solely pursuant to CPLR Article 78 and that the proceeding was not properly commenced as a hybrid Article 78 proceeding and declaratory judgment action because Petitioner did not serve a summons and combined petition/complaint. Respondents further contend that Petitioner is not entitled to attorneys' fees under the circumstances presented.

Petitioner's Opposition

In opposition to Respondents' cross-motion, Petitioner argues that Respondents mischaracterize the nature of the proceeding. According to Petitioner, it does not merely challenge the validity of individual NOVs. Rather, Petitioner challenges DEP's alleged failure to incorporate information already within its possession into the process by which citizen complaints are reviewed and NOVs are issued.

Petitioner emphasizes that DEP has inspected the vehicles at issue, determined that they contain qualifying processing devices, issued decals reflecting those determinations, and maintains records concerning the vehicles' participation in the processing-device decal program. Petitioner contends that, notwithstanding that information, DEP's citizen complaint process contains no mechanism for identifying a complaint involving a decal-bearing vehicle or otherwise subjecting such a complaint to additional review before an NOV is issued.

Petitioner argues that this disconnect requires it repeatedly to establish, in individual OATH proceedings, facts concerning vehicles that DEP has previously inspected and determined to contain qualifying processing devices. Petitioner maintains that DEP's failure to consider its own previously verified information in administering the citizen complaint program lacks a rational basis and therefore constitutes arbitrary and capricious agency action reviewable pursuant to CPLR 7803(3).

Petitioner further contends that the challenged conduct implicates principles of fundamental fairness because it subjects Petitioner to repeated enforcement proceedings and the attendant costs of investigating and defending individual NOVs, notwithstanding the existence of relevant information already maintained by DEP.

Petitioner also challenges what it characterizes as the financial incentives associated with the citizen complaint program and argues that citizen complainants lack the training necessary to determine whether a vehicle's engine is operating for the purpose of powering a qualifying processing device. According to Petitioner, those circumstances make DEP's consideration of information obtained through its own processing-device decal program particularly important when evaluating citizen complaints.

With respect to exhaustion, Petitioner argues that resort to the OATH process would be futile because the relief sought extends beyond adjudication of the merits of any individual NOV. Petitioner contends that OATH may determine whether a particular violation occurred but cannot direct DEP to modify its procedures for reviewing citizen complaints, require DEP to incorporate information concerning processing-device decals into its enforcement system, or otherwise provide the prospective relief Petitioner seeks. Accordingly, Petitioner argues that resolution of the pending individual NOVs would not resolve its challenge to DEP's allegedly systemic practices.

As to Respondents' contention that declaratory relief is not properly before the Court, Petitioner argues that dismissal is not warranted merely because the proceeding was commenced pursuant to CPLR Article 78. Petitioner maintains that the declaratory and injunctive relief requested arises from the same challenged conduct underlying its Article 78 claim and asks the Court, pursuant to CPLR 103, to address the controversy in the appropriate procedural form.

Finally, Petitioner opposes dismissal of its claim for attorneys' fees, arguing that determination of its entitlement to such fees is premature before the merits of the proceeding have been resolved.

Motion Sequence #2 — Application for Leave to Submit Amicus Curiae Brief

Motion sequence #2 concerns the application of nonparty New York Metropolitan Trucking Association (“NYMTA”) for leave to submit an amicus curiae brief.

NYMTA describes itself as a membership-based trade association representing interests of the trucking industry in the New York metropolitan area. Aggregate is a member of NYMTA. NYMTA asserts that the issues presented in this proceeding extend beyond Aggregate because other commercial trucking companies operating in New York City participate in DEP's processing-device decal program and may encounter similar citizen complaints.

NYMTA states that it does not seek to assert additional claims, add parties, or conduct discovery. Rather, it seeks to address the broader operation of the processing-device decal and citizen complaint programs and to offer an industry perspective concerning the issues already presented by the Petition.

Respondents oppose the application. They argue that the proposed amicus submission improperly expands the proceeding beyond Petitioner's challenge concerning its own fleet and introduces facts and theories not pleaded in the Petition. In particular, Respondents contend that NYMTA seeks to mount a broader challenge to DEP's discretionary enforcement authority and to assert additional theories concerning the financial incentives available to citizen complainants.

The Court finds that consideration of the proposed amicus submission is appropriate.

The Petition itself challenges more than the disposition of particular NOVs. Petitioner's first cause of action, denominated “Article 78 — Arbitrary and Capricious Agency Action,” expressly alleges that “DEP's refusal to implement an exemption flag or take administrative action to prevent continued NOVs against Petitioner's exempt vehicles is arbitrary and capricious, an abuse of discretion, and not in accordance with law.” The Petition further seeks a judgment “annulling the DEP's ongoing practice of issuing or permitting the issuance of NOVs for idling to Petitioner's clearly exempt vehicle[s].”

Thus, although Petitioner seeks relief with respect to its own vehicles, the Petition places at issue DEP's alleged practices in administering the citizen complaint program as it relates to vehicles participating in the processing-device decal program. NYMTA's proposed submission addresses that issue from the perspective of an industry association whose members may be affected by the same administrative practices. That perspective may assist the Court in considering the issues presented without enlarging the claims upon which relief may ultimately be granted.

The Court is likewise unpersuaded that the proposed brief impermissibly introduces a materially different factual theory. The record already reflects the parties' agreement that the critical statutory question in any particular case is not merely whether a vehicle possesses a qualifying processing device, but whether its engine was being used to operate that device at the time of the alleged idling violation. Aggregate's submission further states that the blower equipment mounted on its tractors is powered by the vehicle engine and requires the engine to be running during the delivery process. NYMTA's discussion of that circumstance therefore does not materially alter the factual controversy presented by the parties.

Nor does NYMTA's discussion of the financial incentives associated with the citizen complaint program introduce an independent cause of action. Petitioner itself alleges that the structure of the citizen complaint program encourages complaints involving its vehicles without adequate consideration of their participation in the processing-device decal program. Ferrara similarly asserts that Aggregate's trucks have become targets of citizen complaints generated by the financial incentives associated with the program. NYMTA's discussion of that subject therefore provides additional context concerning an issue already raised by Petitioner rather than asserting a separate claim upon which relief is sought.

Most importantly, permitting the submission does not alter the scope of this proceeding or the relief available to Petitioner. The Court's determination remains confined to the claims pleaded by Aggregate and the record properly before the Court. The amicus submission is considered only to the extent that it assists the Court in addressing those claims.

Accordingly, motion sequence #2 is granted to the extent that NYMTA is granted leave to submit its proposed amicus curiae brief, and the Court has considered that submission. NYMTA also submitted reply papers. Because leave of Court to submit those additional papers was neither sought nor granted, the reply papers have not been considered.

NYMTA's Amicus Submission

In its proposed brief, NYMTA states that it does not dispute the City's legitimate interest in reducing unnecessary vehicle idling and improving air quality, nor does it challenge the existence of the citizen complaint program as a policy matter. Rather, NYMTA argues that the manner in which the citizen complaint program interacts with DEP's processing-device decal program lacks a rational mechanism for accounting for information DEP has itself previously verified.

According to NYMTA, citizen complaints are not flagged when they involve vehicles bearing DEP-issued processing-device decals, and complainants are not required to address whether the vehicle possesses such a decal or whether a processing device appears to be operating. NYMTA argues that a complaint involving a decal-bearing vehicle should, at minimum, be identified for further review before an NOV is issued.

NYMTA further argues that the financial incentives associated with the citizen complaint program encourage a substantial volume of complaints without a corresponding screening mechanism capable of identifying circumstances in which an engine may have been operating a qualifying processing device. In NYMTA's view, the absence of such a mechanism increases the likelihood that operators of qualifying vehicles will be required repeatedly to defend NOVs notwithstanding DEP's possession of information relevant to determining whether the statutory exemption may apply.

NYMTA additionally points to the delay between certain alleged violations and the issuance of NOVs. As reflected in Petitioner's submissions, one NOV received in April 2026 concerned an alleged violation occurring on February 19, 2025. NYMTA argues that delays of that magnitude may impair a vehicle operator's ability to identify the driver involved, locate pertinent records, and reconstruct the circumstances surrounding the alleged violation.

NYMTA also raises concerns regarding the availability of identifying information concerning citizen complainants during OATH proceedings and refers to legislative proposals concerning modifications to the citizen complaint program. Those matters are presented by NYMTA as additional context for its contention that the operation of the program has consequences extending beyond the particular NOVs issued to Aggregate.

The Court considers these arguments only insofar as they bear upon the claims actually asserted in the Petition. The question before the Court is not whether the citizen complaint program represents sound public policy, nor whether a different enforcement system would be preferable. The relevant question under CPLR Article 78 is whether the administrative conduct challenged by Petitioner is affected by an error of law, arbitrary and capricious, or an abuse of discretion.

Law and Application

CPLR 7803(3) authorizes judicial review of whether an administrative determination “was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.”

Respondents contend, among other things, that Petitioner has failed to exhaust its administrative remedies and that certain declaratory and injunctive relief requested in the Petition is not cognizable in a proceeding brought solely pursuant to CPLR Article 78. The Court addresses these threshold issues before considering Petitioner's challenge to DEP's administration of the citizen complaint program.

Form of the Proceeding

Respondents argue that Petitioner's request for declaratory relief pursuant to CPLR 3001 is not properly before the Court because Petitioner commenced this matter as an Article 78 proceeding rather than as a hybrid proceeding and declaratory judgment action.

CPLR 103(c), however, provides that where a proceeding has not been brought in the proper form, the court “shall make whatever order is required for its proper prosecution” and, if jurisdiction has been obtained over the parties, “the court shall not dismiss the action solely because it is not brought in the proper form.”

In Matter of Kovarsky v Housing & Dev. Admin. of City of NY (31 NY2d 184, 191-192 [1972]), the Court of Appeals recognized that although certain claims may not properly be determined in the procedural form of an Article 78 proceeding, dismissal does not necessarily follow where the controversy is otherwise properly before the court and jurisdiction has been obtained over the necessary parties. Rather, CPLR 103(c) permits the court, where appropriate, to treat the matter in the procedural form necessary to resolve the controversy.

Here, Petitioner's Article 78 claim and its request for declaratory relief arise from the same alleged course of administrative conduct: DEP's treatment of citizen complaints involving vehicles participating in its processing-device decal program. Respondents are before the Court, have fully addressed the substance of Petitioner's claims, and identify no prejudice arising from the procedural form in which the proceeding was commenced.

Accordingly, the Court declines to dismiss Petitioner's claims solely on the ground that the proceeding was not denominated a hybrid proceeding. This determination does not expand the substantive relief available to Petitioner. Each form of relief sought remains subject to its own governing legal standard.

Exhaustion of Administrative Remedies

As a general rule, a party challenging the conduct of an administrative agency must exhaust available administrative remedies before seeking judicial intervention (see 10 St. NY, LLC v New York City Dept. of Bldgs., 2025 NY Slip Op 03321 [2d Dept 2025]; Lehigh Portland Cement Co. v New York State Dept. of Envtl. Conservation, 87 NY2d 136, 140 [1995]; World Motors, Inc. v Dugan, 226 AD3d 1037, 1037 [2d Dept 2024]).

The exhaustion requirement serves important purposes. It permits the administrative agency to develop the factual record, apply its expertise, correct its own errors, and, where possible, resolve the controversy without judicial intervention.

The rule, however, is not absolute. Exhaustion is not required where an agency's action is challenged as unconstitutional or beyond its grant of power, where resort to the administrative remedy would be futile, or where pursuit of the administrative remedy would cause irreparable injury (see Lehigh Portland Cement Co., 87 NY2d at 140; Matter of Stallone v Fischer, 67 AD3d 125, 128 [2d Dept 2009]; Matter of Laureiro v New York City Dept. of Consumer Affairs, 41 AD3d 717, 719 [2d Dept 2007]).

Respondents contend that Petitioner must first litigate the outstanding NOVs through OATH. According to Respondents, the question whether Petitioner's engines were operating qualifying processing devices at the time of the alleged violations can be determined in those proceedings, and Petitioner therefore has not exhausted the administrative process.

That argument is persuasive insofar as Petitioner challenges the merits of any particular NOV. OATH is capable of determining, upon the evidence presented in an individual proceeding, whether a particular vehicle violated the applicable idling restriction or whether the statutory processing-device exception applied.

Petitioner's first cause of action, however, presents a different question. Petitioner does not merely contend that the outstanding NOVs will ultimately prove unsuccessful. It challenges DEP's process preceding their adjudication—specifically, DEP's alleged failure to account for its own prior determination that particular vehicles possess qualifying processing devices when evaluating citizen complaints and determining whether enforcement should proceed.

An OATH determination dismissing an individual NOV could afford Petitioner relief from that particular violation. It would not, however, determine whether DEP must give any consideration to its processing-device records when reviewing future citizen complaints, nor would adjudication of the pending NOVs itself alter the administrative process Petitioner challenges. Petitioner could therefore prevail repeatedly before OATH while the challenged practice—and the resulting need to defend subsequent NOVs—continued unchanged.

Under these circumstances, requiring Petitioner to adjudicate each outstanding NOV before obtaining judicial review of the separate administrative practice challenged in its first cause of action would not provide an administrative determination of that claim. The Court therefore finds that exhaustion would be futile to the extent Petitioner challenges DEP's alleged systemic failure to consider information generated through its own processing-device decal program when administering citizen complaints.

The Court does not, by application of the futility exception, assume jurisdiction to determine the merits of individual NOVs that remain subject to administrative adjudication. The distinction is material: the Court considers the challenged administrative practice; OATH remains the appropriate forum for determining whether the statutory idling exception applied to the circumstances underlying any particular violation.

Accordingly, the branch of Respondents' cross-motion seeking dismissal of Petitioner's first cause of action for failure to exhaust administrative remedies is denied.

Arbitrary and Capricious Review

Judicial review pursuant to CPLR 7803(3) is limited. An administrative action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]).

The Appellate Division, Second Department recently applied that standard to DEP's administration of the citizen complaint program established pursuant to Administrative Code § 24-182 (Matter of Streeter v New York City Dept. of Envtl. Protection, 248 AD3d 933 [2d Dept 2026]). In Streeter, DEP declined to pursue a second citizen complaint concerning the same vehicle at the same address shortly after an earlier complaint, determining, in effect, that the second complaint was frivolous. The Second Department upheld DEP's determination, concluding that, under the circumstances presented, DEP had a rational basis for declining to pursue the second complaint (id.).

Streeter thus recognizes both DEP's administrative discretion in determining whether a citizen complaint warrants further enforcement and the requirement that the exercise of that discretion have a rational basis in the circumstances presented.

The question before this Court is materially different from that presented in Streeter. Petitioner does not contend that DEP lacks authority to review, investigate, or prosecute citizen complaints involving its vehicles. Rather, Petitioner challenges the manner in which that discretion is exercised where DEP possesses information, generated through its own inspection program, establishing that the complained-of vehicle contains a qualifying processing device, yet the process by which the complaint is reviewed affords that information no consideration before enforcement proceeds.

The question before the Court is not whether another administrative procedure might be preferable or more efficient. Nor may the Court substitute its judgment for that of DEP. If the challenged administrative action has a rational basis, it must be sustained even where the Court might have reached a different conclusion (see Matter of Peckham, 12 NY3d at 431).

The narrower question presented here is whether DEP acts rationally in administering the citizen complaint program without giving any consideration, before an NOV is issued, to DEP's own prior determination that the vehicle identified in the complaint possesses a qualifying processing device.

The distinction between possession of a qualifying processing device and operation of that device at the time of the alleged violation is central to the analysis.

A DEP-issued processing-device decal does not establish that the vehicle was lawfully idling on a particular occasion. The statutory exception applies only where the engine is actually being used to operate a qualifying loading, unloading, or processing device. Accordingly, DEP is not required to treat a decal-bearing vehicle as categorically exempt from § 24-163, and the mere presence of a decal does not preclude investigation or enforcement.

At the same time, the decal is not without significance. It reflects DEP's own prior determination, following inspection, that the particular vehicle possesses equipment capable of bringing it within the statutory exception when that equipment is in use.

The record before the Court indicates that the citizen complaint process contains no mechanism for identifying complaints involving vehicles participating in the processing-device decal program before an NOV is issued. A citizen complainant is not required to address the presence of a processing-device decal or whether a processing device appears to be operating. Nor, according to the record presented, does DEP's review process flag the vehicle's participation in the decal program for consideration before enforcement proceeds.

Thus, the issue is not whether DEP must accept the decal as conclusive proof of an exemption. It plainly need not. The issue is whether DEP may rationally give no consideration at all to relevant information that DEP itself generated and maintains concerning the vehicle when determining whether a citizen complaint warrants further enforcement.

Petitioner has demonstrated the practical consequences of that disconnect. Its submissions reflect repeated NOVs involving vehicles DEP has previously determined to possess qualifying processing devices, requiring Petitioner to identify the relevant driver, retrieve delivery and operational records, prepare a defense, and appear in individual OATH proceedings to establish whether the device was operating at the particular time alleged.

The Court is mindful that administrative inefficiency, inconvenience, or expense does not, standing alone, render agency action arbitrary and capricious. The relevant consideration is whether the challenged administrative process bears a rational relationship to the governing statutory scheme and the facts known to the agency.

Administrative Code § 24-163 itself makes operation of a qualifying processing device material to whether otherwise prohibited idling is lawful. DEP has created a program through which it identifies vehicles possessing such devices. Having generated and maintained that information, DEP must have a rational basis for the manner in which that relevant information is treated when it subsequently administers complaints alleging violations by those same vehicles.

It is against that standard that Petitioner's challenge must be determined.

Arbitrary and Capricious Review — Application

Applying these principles to the record presented, the Court concludes that Petitioner has established that DEP's administration of the citizen complaint program, insofar as it affords no consideration to relevant information maintained through DEP's processing-device decal program before enforcement proceeds against a participating vehicle, lacks a rational basis.

This conclusion does not rest upon a determination that a processing-device decal establishes an exemption from the idling restrictions. It does not. Administrative Code § 24-163 makes the exemption dependent upon the use of the vehicle's engine to operate a qualifying loading, unloading, or processing device at the time of the alleged idling. The presence of a decal establishes only that DEP has previously inspected the vehicle and determined that it possesses equipment capable of qualifying for that exemption.

That limitation, however, does not render the information reflected by the decal irrelevant.

DEP has established a process through which it inspects vehicles, determines whether they possess qualifying processing devices, issues decals reflecting those determinations, and maintains information concerning participating vehicles. Yet, on the record presented, when DEP subsequently receives a citizen complaint alleging unlawful idling by one of those vehicles, its review process contains no mechanism for identifying or considering that previously verified information before an NOV is issued.

Respondents have not identified on this record a rational basis for treating DEP's own processing-device determination as irrelevant at that stage of the enforcement process. Nor have Respondents demonstrated that information concerning a vehicle's participation in the decal program is considered through some other mechanism before an NOV is issued.

The Court does not hold that DEP must decline to issue an NOV whenever a complaint concerns a decal-bearing vehicle. Such a requirement would improperly transform the decal into conclusive proof of an exemption that the statute does not provide. A decal-bearing vehicle remains subject to the idling restrictions whenever its engine is not being used to operate a qualifying device, and DEP retains its authority to investigate and prosecute alleged violations under those circumstances.

The defect established on this record is narrower. DEP possesses relevant information, generated through its own inspection program, bearing directly upon whether a statutory exception may apply to the conduct alleged in a citizen complaint, yet its existing process provides no mechanism for that information to receive any consideration before enforcement proceeds.

Judicial review under CPLR 7803(3) does not authorize the Court to design DEP's enforcement system, prescribe a particular technological solution, or substitute its judgment concerning the most efficient manner in which citizen complaints should be reviewed. Those matters remain within the administrative discretion of DEP. The Court determines only that, on this record, a process that gives no consideration to DEP's own relevant and previously verified information concerning a vehicle's qualifying processing device lacks a rational basis.

Accordingly, Petitioner's first cause of action is granted to the extent that the Court finds DEP's administration of the citizen complaint program arbitrary and capricious insofar as it fails to provide any consideration to relevant information maintained by DEP concerning Petitioner's participation in the processing-device decal program before enforcement proceeds.

Declaratory, Injunctive and Mandamus Relief

Petitioner additionally seeks relief directing DEP to cease accepting or processing citizen complaints involving its decal-bearing vehicles; dismiss pending OATH proceedings concerning those vehicles; implement an exemption flag or other identifier in its enforcement system; prevent the issuance of future NOVs involving such vehicles; and issue a directive to registered citizen complainants advising them that vehicles bearing Petitioner's processing-device decals are not subject to idling enforcement.

To the extent this relief seeks to compel DEP to take specified administrative actions, the applicable principles governing mandamus are well settled. Mandamus to compel is available to require a governmental entity or officer to perform a ministerial duty required by law, but does not lie to compel an act involving the exercise of judgment or discretion. A petitioner seeking mandamus must establish a clear legal right to the particular relief sought, and the duty to be compelled must be mandatory rather than discretionary (Matter of Brusco v Braun, 84 NY2d 674, 679 [1994]). Petitioner has not established such a clear legal right here.

As discussed herein, neither Administrative Code § 24-163 nor the existence of a DEP-issued processing-device decal renders a participating vehicle categorically exempt from the City's idling restrictions. The statutory exception turns upon whether the vehicle's engine was being used to operate the qualifying device at the relevant time. Accordingly, the Court cannot direct DEP to cease accepting complaints involving Petitioner's vehicles, prohibit DEP from issuing future NOVs involving those vehicles, or direct citizen complainants to treat decal-bearing vehicles as categorically exempt.

Nor has Petitioner identified a nondiscretionary legal duty requiring DEP to adopt the particular administrative mechanism Petitioner proposes. Although the Court has determined that DEP may not rationally disregard relevant processing-device information already within its possession, the manner in which DEP gives appropriate consideration to that information remains, in the first instance, a matter committed to the agency's administrative judgment.

DEP might determine that an electronic flag, additional screening, review of existing records, modification of complaint procedures, or some other mechanism appropriately addresses the issue. The Court does not prescribe which method DEP must employ. Article 78 permits review of whether the agency has acted within the bounds of rationality; it does not authorize the Court, on this record, to administer DEP's enforcement program in its stead.

Similarly, Petitioner has not established a basis upon which this Court may direct wholesale dismissal of the pending NOVs. Whether Petitioner's engines were being used to operate qualifying processing devices at the time of the individual alleged violations presents factual questions properly determined in the applicable administrative proceedings.

Accordingly, Petitioner's requests for the specific declaratory, injunctive, and mandamus relief described above are denied.

Attorneys' Fees

Petitioner seeks attorneys' fees and costs pursuant to CPLR article 86.

Under CPLR 8601(a), a court shall award fees and other expenses to a prevailing party in certain civil actions brought against the State, unless the Court finds that the State's position was substantially justified or that special circumstances make an award unjust. For purposes of CPLR article 86, however, the statutory definition of “State” does not include a municipality or its agencies.

This proceeding is brought against the City of New York and DEP, a municipal agency. Accordingly, Petitioner has not established a statutory basis for an award of attorneys' fees pursuant to CPLR article 86, and that branch of the Petition is denied.

Accordingly, it is

ORDERED, that motion sequence #1 is granted to the extent that Petitioner's first cause of action pursuant to CPLR Article 78 is granted, and the Court finds that DEP's administration of the citizen complaint program is arbitrary and capricious insofar as, on the record presented, it fails to provide any consideration to relevant information maintained by DEP concerning Petitioner's vehicles' participation in the processing-device decal program before enforcement proceeds; and the branch of Respondents' cross-motion seeking dismissal of that cause of action is denied; and it is further

ORDERED, that nothing in this Decision and Order shall be construed as determining that the presence of a DEP-issued processing-device decal, standing alone, establishes an exemption from Administrative Code § 24-163, or as prohibiting DEP from investigating or prosecuting an alleged idling violation involving a decal-bearing vehicle where otherwise authorized by law; and it is further

ORDERED, that the remaining branches of motion sequence #1, including Petitioner's requests for the specific declaratory, injunctive and mandamus relief described herein and for attorneys' fees and costs pursuant to CPLR article 86, are denied, and the remaining branches of Respondents' cross-motion are granted; and it is further

ORDERED, that motion sequence #2 is granted to the extent that the New York Metropolitan Trucking Association is granted leave to submit its proposed amicus curiae brief, which the Court has considered as set forth herein; and it is further

ORDERED, that the reply papers submitted by the New York Metropolitan Trucking Association have not been considered.

The foregoing constitutes the Decision and Order of the Court.

Chereé A. Buggs, J.