I ndex Evgeny “Gene” Freidman, etc., Plaintiff–Appellant, v. <<

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Supreme Court, Appellate Division, First Department.

I ndex Evgeny “Gene” Freidman, etc., Plaintiff–Appellant, v.

The New York City Taxi and Limousine Commission, et al., Defendants–Respondents.  IN RE: Greater New York Taxi Association, Petitioner–Appellant, v. The New York City Taxi and Limousine Commission, etc., Respondent–Respondent.

1010– 1011

Decided: May 03, 2016

Tom, J.P., Renwick, Richter, Kapnick, Webber, JJ. Fox Rothschild LLP, New York (Matthew S. Olesh of counsel), for appellants.

Zachary W. Carter, Corporation Counsel, New York (Max McCann [653966/13] and Scott Shorr [100519/14] of counsel), for municipal respondents.

Murtha Cullina LLP, White Plains (David P. Friedman of counsel), for Transportation General, Inc., respondent.


Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered July 1, 2014, which denied the CPLR article 78 petition seeking to, among other things, annul the determination of respondent New York City Taxi and Limousine Commission (TLC), dated March 31, 2014, requiring all medallion owners to pay a Taxi Accessibility Fee of $260 per medallion for the third year of the Accessible Dispatch program;  and order, same court (Melvin L. Schweitzer, J.), entered August 11, 2014, which denied plaintiff's motion for class certification, and granted the cross motion of the TLC defendants and the cross motion of defendant Transportation General, Inc. d/b/a Metro Taxi Inc. (Metro) for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In the article 78 proceeding, TLC's determination to set the Accessibility Fee for the third year of a wheelchair-accessible program at $260 was not arbitrary and capricious (see generally Flacke v. Onondaga Landfill Sys., 69 N.Y.2d 355, 363 [1987] ).  While that fee was a dramatic increase from the previous year's fee of $54, it was based on reasonable projections of the program's third-year costs.  TLC reasonably disregarded a prospective 30–cent surcharge, and its response to a Freedom of Information Law request did not reveal that it had breached any contractual obligations to audit or maintain information provided by Metro, its contractor.

Plaintiff lacks standing to enforce a contract between defendants TLC and Metro (TLC–Metro contract), because the contract expressly and unequivocally “negates any intent to permit enforcement by third parties” such as plaintiff (Specialists Entertainment, Inc. v Moore, 115 AD3d 424, 425 [1st Dept 2014];  see Mendel v Henry Phipps Plaza W., Inc., 6 NY3d 783, 786–787 [2006] ).  Unlike the contracts in the cases cited by plaintiff (see Diamond Castle Partners IV PRC, L.P. v IAC/InterActiveCorp, 82 AD3d 421 [1st Dept 2011];  Board of Mgrs. of Alfred Condominium v Carol Mgt., 214 A.D.2d 380, 382 [1st Dept 1995], lv dismissed 87 N.Y.2d 942 [1996] ), the TLC–Metro contract does not contain conflicting clauses regarding third-party beneficiaries.  Given the foregoing determination, plaintiff's motion for class certification is academic (Matter of Cannalonga v. Doar, 51 AD3d 552, 553 [1st Dept 2008], lv dismissed in part and denied in part 11 NY3d 861 [2008] ).

We have considered the appealing parties' remaining contentions and find them unavailing.