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Shocking News about Serving NYC Parking Tickets by Mail

Posted by Larry Berezin on Tue, Jun 15, 2010 @ 04:52 PM
  
 

A real, old fashion, man of principal, NYC parking ticket heroparking rules

The NYC PVB picked a fight with the wrong member of the NYC driving public. Mr. Ko received a letter in the mail from our friendly NYC DOF stating that on such and such a date, and such and such a locale, Mr. Ko committed the parking ticket crime of double parking.

I gather from reading the court's decision, by the time Mr. Ko received this epistle in the mail from the DOF, his NYC parking ticket had lapsed into judgment. The base fine of $115 and penalties in the sum of $60 were assessed, bringing the bill to $175.00. Please pay at the window on your right...Wrong.

Mr. Ko's reaction was, no way DOF. It is not permissible under any of the myriad parking ticket laws to serve a parking ticket by mail. A parking ticket warrior is required to either, hand the parking ticket to the operator (English translation=driver) of the vehicle; or place it under the windshield wiper.

parking lawsWhen your're right-FIGHT!

Mr. Ko filed a Request for a Hearing after Judgment with the DOF, requesting the default judgment be vacated, and his parking ticket dismissed. The judge agreed there was excusable neglect, vacated the default judgment, and vacated the $60.00 in penalties. The big but is, the judge found Mr. Ko guilty, and ordered him to pay the original base fine of $115.

Mr. Ko said No, and filed an appeal. The Appeals Panel affirmed the decision of the original judge. Game, set, match? Nope.

Article 78 Petition for Hearing

If you disagree with the final decision of an administrative agency, the next, very time consuming, expensive step is to file an Article 78 Petition with the NY State Supreme Court. Mr. Ko argued the PVB lacked personal jurisdiction to enforce the parking ticket because he was not personally served pursuant to the parking rules. In other words, there is no provision in any of the parking rules for service by mail. 

The PVB wisely decided, under the theory of "know when to fold 'em" to offer Mr. Ko a settlement. The PVB in a rare kumbala moment said, hey, we're just kidding about all of this, we'll dismiss your ticket.  Mr. Ko said no. This issue is very important to the driving public. I want a trial so the court can render a decision on the merits.

The PVB doesn't take no for an answer. So, the attorney for the PVB by her lonesome appeared before one administrative law, instead of the usual three (3) judge appeals panel, and made an application to dismiss the parking ticket (against the express wishes of Mr. Ko). The application was granted by the single judge, and Mr. Ko's parking ticket was "officially dismissed." End of story, right?...Wrong.

It ain't over until the NY Supreme Court Judge sings

...And sing she did. But, not a happy tune for the DOF. Judge Schlesinger ruled in favor of Mr. Ko. The court held:

  • If an application to dismiss a NYC parking ticket falls in the forest and Mr. Ko isn't present at the hearing, the ticket is NOT "officially" dismissed;
  • The DOF cannot serve a parking ticket by mail. Judge Schlesinger affirmed the only two ways the parking rules permit personal service of a parking ticket is by handing the ticket to the operator; or sticking it under the windshield of the car.

An aha moment

This is one of those rare moments when bright light is shined on the bad behavior of the PVB and DOF. Let's tip our hat to Mr. Ko, who put his valuable time and money where his principals are!

Commentary:

This is an amazing moment in NYC parking ticket history. The big but is, there is no way the PVB is going to appeal this wonderful decision. Since it is a Supreme Court decision, and not an Appellate Division decision, it does not carry the weight of "precedent." 

Notwithstanding the absence of stare decisis, it is a day of triumph for the driving public. The PVB and DOF behaved badly. It is a major no no for a lawyer to make an ex parte application to any hearing tribunal without the presence of the other party. What arrogance! 

I am not recommending your ever intentionally drive off when you think you're about to receive a parking ticket. But, I'm hoping this decision has a chilling effect on the evil warriors who issue parking tickets without a car because they think they can get away with this bad behavior.

The driving public is required to play by the parking rules. So does the PVB. Please share your thoughts about the impact of this decision. How will you handle a letter in the mail from the DOF? We owe our great friend Thomas H a hearty round of applause for giving me a "heads up" about this recent decision.

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Koe v. City of New York

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Comments

Larry, this is excellent news! I understand the difference between Supreme vs Appellate court, but what does this decision practically mean? I have gotten tickets in the mail from the DOF without ever receiving them in hand or under the wiper blade. Does this mean I now have an affirmative defense and can claim lack of personal jurisdiction?
Posted @ Tuesday, June 15, 2010 7:49 PM by Baruch Stone
Baruch, 
Always great to hear from you! 
Great question. If you are served with a parking ticket by mail, and have a basis to contest your parking ticket on other grounds, I definitely recommend raising lack of personal service as an additional affirmative defense. 
 
If no other defenses, then you have to weigh your options of applying for a fine reduction, or fighting your parking ticket based upon lack of personal service. 
 
If a fine reduction is not available, and you have no other affirmative defenses to assert, I definitely recommend fighting your parking ticket. 
 
It will be interesting to see how this plays out with the DOF. Technically, they are not bound by this Supreme Court decision. The big but is, can they really ignore the law? The court's rationale is very solid. There is simply no provision in the Rules for service by mail.  
 
I'm not sure the DOF can get away with blatantly disregarding the Rules, now that their cover is blown. 
 
Will the DOF print a new Rule permitting personal service by mail? 
 
My strategy will be to add this bullet to our arsenal of affirmative defenses. I will raise it every opportunity I get. I will appeal every Guilty finding.  
 
When you're right-FIGHT...Goes for me, too!
Posted @ Tuesday, June 15, 2010 8:01 PM by Larry Berezin
I loudly applaud Mr. Ko's effort and victory, but it must be known that he is not a lone, vigilant fighter. Many people(including myself)dispute the criminal ticketing procedures of this city, but the system is designed to fatigue you before you can ever receive justice. The entire complex needs overhaul so that we, who choose to drive in this city, must not be subject to greedy and punitive fees.
Posted @ Tuesday, June 15, 2010 9:56 PM by Granger Greenbaum
People such as Mahatma Gandhi, Martin Luther King Jr, Nelson Mandela and many others who’s recognized self sacrifice for the sake of others made a difference to human rights and humanity as a whole.  
 
Changing attitudes of society to be fair and play by the rules on both sides is not always a popular course. Mr Ko deserves his place in the precedence for not only taking on establishment to teach then some simple good manners but also that is important to fight injustice. 
 
I don’t know this man at all but I would trust his integrity implicitly and would be happy to support him. I hope others with influence see it that way too so he is rewarded for his resolve so he can lead on much bigger things. (As if there is anything more important than good manners.) 
 
My hat is off to both Mr KO and to Erle Stanley Gardner for ghost writing this great court room drama for Larry. It is just a great read (as always.) well done and congratulations to you both 
 
cheers  
 
Gordon Wood
Posted @ Tuesday, June 15, 2010 11:00 PM by Gordon H Wood
Granger 
Thanks for visiting our website and joining the conversation. You raise a very important point. It takes a village to fight the good fight against injustice, wherever it occurs. We are a community of the NYC driving public, and we must help each other by sharing experiences, advice and information.  
 
What I love about Mr. Ko's story is it demonstrates the "power of one." It is the best response to, why should I cast my ballot, it's only one vote. One vote, one action, one person standing up for his/her rights and the rights of the community. 
 
Please don't be a stranger. Your thoughts and opinions matter to us.
Posted @ Wednesday, June 16, 2010 7:03 AM by Larry Berezin
Gordan 
I love writing blog articles because I get a chance to read your amazing comments. I really enjoyed thinking about the connections you make. 
 
Mr. Ko is a living, breathing call to action. I'm thinking of making Mr. Ko a verb. Did you Ko today? 
 
I hope things are well. I'll see you at "your place" very soon. 
 
Best to you, Gordon.
Posted @ Wednesday, June 16, 2010 7:09 AM by Larry Berezin
Larry, 
 
 
 
thanks for this very interesting piece of news. Now, one question: how do you demonstrate that the ticket was not placed under the windshield wiper in the first place? I see it can be easy for DOF to argue that it was placed there and that you just trashed it, no?? Since they have not the least moral issue with acting in total bad faith, why would they not do that?
Posted @ Wednesday, June 16, 2010 8:13 AM by David
David, 
 
Thanks for taking your valuable time to visit our website and post a very thought provoking comment.  
 
This case deals factually with a member of the driving public who drove off before he was served with a parking ticket. The DOF concedes Mr. Ko was never served by a warrior at the scene of the parking crime. 
 
The DOF mailed the parking summons to Mr. Ko, thereby asserting that it was proper, legal and legitimate to effectuate service of a parking ticket by mailing it to a member of the driving public.  
 
Fortunately, Her Honor DISAGREED. Judge Schlesinger ruled there was absolutely no provision in the VTL permitting the DOF to serve a parking summons by mail.  
 
The VTL stands for Vehicle and Traffic Law, and is promulgated by the State of New York. The Rules of the City of NY contain rules promulgated by the commissioners of the DOT & DOF pursuant to their rule making power granted by the VTL. The rules are supposed to effectively implement the State Laws contained in the VTL. Wherever possible, the DOT and DOF ignore the VTL and follow their own rules; until a member of the driving public calls the question by filing an expensive Article 78 application. 
 
I think your question is aimed at a different factual situation. What happens when the DOF maintains you were served personally with the summons? That's a different ball game. In that situation, you will NOT be sent a parking summons by mail. You'll be sent a notice at some point in time advising you ignored a summons that was properly served. You would have to prove you were not at the scene of the crime when the summons was issued.  
 
In summary, our wonderful case deals with the situation where the DOF serves you by mail because you "drove off." Your question applies to a situation where the DOF claims you were properly served with the summons at the scene of a crime. Your proof would have to establish you were not at the scene of the parking crime when this phantom parking ticket was issue. 
 
I hope Larry's top kill cleared the case spill and didn't make it more confusing. 
 
What do you think? 
 
Posted @ Wednesday, June 16, 2010 8:52 AM by Larry Berezin
Larry, thanks for sharing this story. It's nice when David beats Goliath. 
 
How does this case affect red light camera tickets which are always served via mail? I smell a class action law suit.
Posted @ Wednesday, June 16, 2010 9:58 PM by Traffic Lawyer
Larry did you play freshman basketball at UConn?
Posted @ Wednesday, June 16, 2010 11:36 PM by paul
Paul, 
 
Yes. I played in the back court with a terrific guard, Paul Greenblatt. 
Posted @ Thursday, June 17, 2010 7:35 AM by Larry Berezin
Matt, 
Great question. Judge Schlesinger's rationale is there is no provision in the VTL permitting a parking ticket to be served by mail. If there is no separate law or rule permitting service by mail of a traffic ticket, you may have struck parking ticket gold. 
 
I recommended two friends to contact you about exactly this issue. I'd love to hear your thoughts. 
 
Always great to hear from you with your special traffic ticket expertise.  
 
The reveal is, this is Matthew Weiss, Esquire. His telephone number is 212-683-7373 X12. If you have a problem with traffic tickets, I heartily and whole heartily recommend you give Matt a call. He's dedicated his practice for the past 20 years to making traffic tickets easy for his clients.  
 
Now...back to our regularly scheduled program.
Posted @ Thursday, June 17, 2010 8:14 AM by Larry Berezin
Hi, 
 
Are they chicken or what? They dared not to confont me and gave me the ticket? It is the forth time that I have gotten Parking ticket by mail. After I read your posts, there is no 100% winning chance unless I fight all the way to the Supreme Court. I may just accept the reduction. How about defective ticket? It only has my licence plate, make (but no model), no color of my vehicle, and year of my vehicle? Please advice.
Posted @ Friday, December 17, 2010 12:53 PM by Sean
Sean, 
You must be 8 feet tall with a sharp tail. Shame on them. 
 
I am sorry to report model, color and year of your vehicle are not required elements entitling you to a get out of jail free card if omitted, misdescribed or illegible. You're probably right (I hate to say that about service by mail). Your best option may be a reduction; unless you can prove you car was not at the place of occurrence on the date/time the ticket was issued.  
 
Any shot?
Posted @ Friday, December 17, 2010 2:55 PM by Larry Berezin
Hi Larry, 
 
Thanks for this blog. It's really helpful. I got a question. I got a parking ticket in the mail with penalty, of course. It has the complainant's comments 'Drive Off'. So, I fit into the case being discussed in this blog. The interesting part is that under the Signature of Complainant, it has the following statements: I affirm under penalty of perjury (Penal Law 210.45) that I personally observed the offense charged above; if the operator was present I indicated the operator's name or indicated "ID Refused" and personally served this Notice upon him/her; if the operator was not present or refused to accept personal service of this Notice, I affixed this Notice to the vehicle. Since I, the operator, was not present, the complainant (officer) DID NOT affixed this notice to my vehicle because I already drove off as noted in the comments. Now, can I use this as defense to drop the ticket in addition what you mentioned in the blog that it was lack of personal service and parking ticket can not be served by mail. Please advise. Thanks.
Posted @ Friday, January 06, 2012 4:59 PM by John
John, 
 
Good evening. 
Great idea, and shows a lot of thinking, which I heartily commend.  
 
However, (I hate quoting myself)..."This is an amazing moment in NYC parking ticket history. The big but is, there is no way the PVB is going to appeal this wonderful decision. Since it is a Supreme Court decision, and not an Appellate Division decision, it does not carry the weight of "precedent."  
 
We've tried, but most, if not all, parking ticket judges will not dismiss a parking ticket for this reason because it was a trial court decision, which is not bending precedent on future cases. 
 
I'd look for other defenses... 
Good luck.
Posted @ Friday, January 06, 2012 5:19 PM by Larry Berezin
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