REPRODUCED ON RECYCLED PAPER
Supreme Court, New York County To be argued by:
Index No. 101083/2013 ELIZABETH I. FREEDMAN
(15 minutes requested)
COURT OF APPEALS
STATE OF NEW YORK
GREATER NEW YORK TAXI ASSOCIATION
and EVGENY “GENE” FREIDMAN,
Petitioners-Appellants,
- against -
THE NEW YORK CITY TAXI AND LIMOUSINE
COMMISSION, a charter-mandated agency, and
DAVID YASSKY, in his capacity as the
Chairman of the New York City Taxi and
Limousine Commission,
Respondents-Respondents,
- and -
NISSAN TAXI MARKETING, N.A. LLC and NISSAN
NORTH AMERICA, INC.
Respondents-in-Intervention-Respondents.
BRIEF FOR THE CITY RESPONDENTS
ZACHARY W. CARTER
Corporation Counsel of the
City of New York
100 Church Street
New York, New York 10007
212-356-0836 or -2500
RICHARD DEARING
FRANCIS F. CAPUTO
NICHOLAS R. CIAPPETTA
ELIZABETH I. FREEDMAN
of Counsel
March 5, 2015
APL-2014-00275
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES..........................................iii
PRELIMINARY STATEMENT...........................................1
QUESTION PRESENTED..............................................3
STATEMENT OF THE CASE...........................................4
A. The City Charter’s Delegation
to the TLC of Broad Regulatory
Authority Over the Taxi Industry.................4
B. The TLC’s Historical Regulation
of Taxi Design, Configuration, and
Appearance.......................................6
C. The Taxi of Tomorrow Program..................9
D. The Revised Taxi of Tomorrow
Rules and Hybrid Specifications.................18
E. This Article 78 Proceeding...................20
1. Supreme Court's decision
striking down TLC's rules.......................20
2. The First Department's
decision reversing Supreme Court
and upholding TLC's rules.......................21
ARGUMENT
THE APPELLATE DIVISION CORRECTLY
UPHELD THE REVISED TAXI OF
TOMORROW RULES AND HYBRID
SPECIFICATIONS..................................24
-ii-
A. The Rules Fit Well Within TLC’s
Delegated Authority, Especially
Where the Commission Has Long
Regulated Matters of Vehicle
Design, Configuration, and
Appearance......................................24
B. TLC’s Rules Do Not Violate
Separation-of-Powers............................34
1. TLC's technical regulation
of taxi design, configuration, and
appearance does not intrude into
the City Council's legislative
domain..........................................34
2. TLC's rules do not violate
local laws concerning wheelchair
accessibility or use of
alternative fuels...............................40
CONCLUSION.....................................................44
-iii-
TABLE OF AUTHORITIES
Cases Pages
Alexandre v. New York City Taxi and Limousine Commission,
2007 U.S. Dist. Lexis 73642 (S.D.N.Y. 2007) ................ 26
Black Car Assistance Corporation v. City of New York,
110 A.D.3d 618 (1st Dep’t 2013)............................. 26
Boreali v. Axelrod,
71 N.Y.2d 1 (1987) ..................................... passim
City of New York v. State of New York
Commission on Cable Television,
47 N.Y.2d 89 (1979) ........................................ 34
Greater New York Taxi Association v.
New York City Taxi and Limousine Commission,
40 Misc.3d 1062 (Sup. Ct., N.Y. County 2013) ............... 30
Levine v. Whalen,
39 N.Y.2d 510 (1976) ....................................... 38
Moore v. Board of Regents,
44 N.Y.2d 593 (1978) ....................................... 38
New York City Committee For Taxi Safety v.
New York City Taxi and Limousine Commission,
256 A.D.2d 136 (1st Dep’t 1998)......................... 24, 26
New York Statewide Coalition of Hispanic Chambers of
Commerce v. New York City Department of Health
and Mental Hygiene, 110 A.D.3d 1 (1st Dep't 2013).... 22-23, 36
New York Statewide Coalition of Hispanic Chambers of
Commerce v. New York City Department of Health
and Mental Hygiene, 23 N.Y.3d 681 (2014) ....... 34, 35, 37, 43
NYC C.L.A.S.H., Inc. v. New York State Office of Parks,
Recreation and Historic Preservation,
___ A.D.3d ___, 2014 N.Y. App. Div. Lexis 9001
(3d Dep't Dec. 31, 2014) ................................... 39
Pavle-Marty Cab Corp. v. City of New York,
48 N.Y.2d 784 (1977) ....................................... 24
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Charter and Statutes
New York City Charter § 1043.................................. 25
New York City Charter § 2300....................... 4, 25, 26, 42
New York City Charter § 2303.............................. passim
New York City Administrative Code § 19-533 ............... 19, 43
35 Rules of the City of New York, Ch. 51...................... 18
35 Rules of the City of New York, Ch. 67...................... 18
35 Rules of the City of New York § 51-03...................... 18
35 Rules of the City of New York § 67-05.1B................... 19
35 Rules of the City of New York § 67-05.1C................... 19
PRELIMINARY STATEMENT
This appeal asks whether the New York City Taxi and
Limousine Commission (TLC) acted within its broad authority
under the New York City Charter, and consistently with
separation-of-powers principles, when it adopted rules to
upgrade the quality of the City’s taxi fleet (1) by requiring
taxi medallion owners in New York City that choose not to buy a
hybrid vehicle to purchase a designated Nissan model taxicab,
known as the “Taxi of Tomorrow,” that has been customized to
better serve the riding public, taxi drivers, and owners; and
(2) by establishing technical specifications for hybrid vehicles
that may be authorized for use as taxicabs.
The Appellate Division, First Department, correctly
upheld TLC’s rules. The City Charter vests TLC with broad
authority to establish the City’s “overall transportation
policy” for taxi and for-hire vehicle service, and specifically
charges it to establish standards for service, safety, design,
comfort, and convenience in taxi operation. For decades, TLC has
comprehensively regulated the taxi industry, setting customer
fares and lease terms for owners and drivers, establishing
standards of service and protecting passengers’ rights, and,
most critically here, adopting detailed rules for the design,
configuration, and appearance of authorized taxicab vehicles.
-2-
As the Appellate Division held, the Taxi of Tomorrow
rules and hybrid vehicle specifications fit well within the
TLC’s Charter authority. The petitioners, a taxicab medallion
magnate and association of certain medallion owners, mistakenly
argue that TLC somehow crossed a line by soliciting proposals
from manufacturers through a competitive process that culminated
in the selection of a particular customized vehicle for the
City’s taxi fleet (except as to hybrid vehicles). Petitioners
acknowledge that TLC has authority to establish exacting vehicle
specifications, but contend that such specifications must be
capable of being met by any manufacturer -- at least in theory -
- and argue that TLC lacks authority to expressly mandate use of
a specific vehicle model.
Nothing in the City Charter establishes such a
limitation or justifies petitioners’ efforts to freeze in place
one particular method of regulating taxicab vehicles. The
Appellate Division rightly recognized that accepting proposals
from manufacturers beforehand, and assuring the winning
manufacturer that it would have a market in which to sell a
customized vehicle, allowed TLC to achieve greater tailoring of
the taxi fleet to serve stakeholders’ needs -- and thus to
better promote the safety, comfort, and convenience of
passengers and drivers -- than could have been attained under
the old method of setting specifications to be met by generic
-3-
passenger vehicles through aftermarket “hack-up.” The Taxi of
Tomorrow program reflects a reasonable regulatory judgment that
falls well within TLC’s authority.
Petitioners are also mistaken in arguing that TLC’s
rules violate separation-of-powers principles. Neither precedent
nor common sense suggests that technical regulation of the
City’s taxicab vehicle fleet is a matter reserved to the City
Council. To the contrary, the TLC has regulated that area for
decades. The Commission’s adoption of a new means to better
serve long-pursued regulatory ends of promoting safety, comfort,
and convenience is precisely what regulators should strive to
do, not any usurpation of legislative prerogative.
QUESTION PRESENTED
Whether the Appellate Division correctly upheld the
Revised Taxi of Tomorrow Rules and Hybrid Specifications as a
valid exercise of TLC’s broad authority under the New York City
Charter that is fully consistent with separation-of-powers
principles.
-4-
STATEMENT OF THE CASE
A. The City Charter’s Delegation to the TLC of Broad
Regulatory Authority Over the Taxi Industry
TLC was created under the New York City Charter in
1971 to regulate and license various types of vehicles for hire
in New York City (767, 2030).1 TLC currently regulates over
50,000 vehicles, including medallion (yellow) taxicabs, for-hire
vehicles (community-based liveries, street-hail (green)
liveries, and black cars); commuter vans, paratransit vehicles
(ambulettes); and certain luxury limousines (767, 2030). These
vehicles transport more than 1.2 million passengers per day, and
over 400 million people annually (767). Such customers spend
over $2.8 billion per year on taxi service (767).
New York City Charter § 2300, which creates TLC,
provides that its purposes include “the continuance, further
development and improvement of taxi and limousine service in the
City of New York.” Section 2300 also states that TLC’s “further
purpose” is “to adopt and establish an overall public
transportation policy governing taxi, coach, limousine,
wheelchair accessible van services and commuter van services”
(764). TLC’s assigned mission is thus to establish public
transportation policy to develop and improve New York City taxi
service.
1 Numbers in parentheses refer to pages in the Record on Appeal.
-5-
Section 2303 of the Charter describes TLC’s powers and
duties, beginning with its fundamental responsibility to
“regulat[e] and supervis[e] . . . the business and industry of
transportation of persons by licensed vehicles for hire in the
city.” The same section specifically provides that, along with
its roles in licensing vehicles and drivers and regulating rates
of fare, the commission shall regulate and supervise “standards
and conditions of service” and “[r]equirements of standards of
safety, and design, comfort, convenience, noise and air
pollution control and efficiency in the operation of vehicles
and auxiliary equipment.” Id. § 2303(b)(2),(6). Section 2303
also makes clear that TLC’s powers include the “development and
effectuation of a broad public policy affected by this chapter
as it relates to forms of public transportation in the city,”
and the “formulation, promulgation, and effectuation of rules
and regulations reasonably designed to carry out the purposes,
terms, and provisions” of Chapter 65 of the Charter.
Pursuant to its broad Charter authority, TLC has
comprehensively regulated the medallion taxicab industry for
decades. For example, the TLC has set rates of fare; instituted
surcharges for certain times of the day and maximum fares for
certain trips; established maximum lease rates that medallion
owners may charge drivers for medallions or medallions in
conjunction with vehicles; set geographic boundaries where
-6-
taxicabs must operate; and established mandatory service
requirements for medallion owners (2032-34). The TLC has also
adopted numerous requirements for the design, configuration, and
appearance of vehicles that may serve as taxicabs, as discussed
more below (2035-37).
B. The TLC’s Historical Regulation of Taxi Design,
Configuration, and Appearance
Under its Charter powers, TLC has extensively
regulated taxicab vehicles as to configuration, style, content,
and the parameters of permissible use by owners. Since at least
the early 1990s, TLC has adopted and enforced regulations on
large and small matters in these areas, such as mandating the
use of brand-new vehicles with less than 500 total miles
(whereas almost all other U.S. cities allow used vehicles);
setting maximum allowable horsepower for vehicles; prohibiting
bumper attachments; and designating which makes and models of
vehicles may be used as taxicabs, including approval of certain
manufacturers and not others (2032-33).
TLC has adopted further rules prescribing how often
taxi vehicles must be replaced; setting the specific future
retirement dates of each individual taxicab vehicle; prescribing
the maximum number of shifts per year that a taxicab may be
driven; and specifying the dates, content, and locations of
vehicle inspections (2033-34).
-7-
The TLC has also extensively regulated the interior
and exterior design, configuration, and appearance of taxicab
vehicles. The commission has set exacting standards, down to the
inch, for interior space for drivers, passengers, and luggage;
mandated the use of a safety barrier, or partition, of a
designated thickness between the driver’s seat and passenger
seats; and set standards for exemption from the partition rule
when warranted. The TLC has also prohibited certain types of
third-party equipment from installation in the vehicle, while
imposing mandatory requirements for other third-party equipment
in the vehicle (such as an E-Z Pass, taximeters, credit card
processing terminals and passenger information screens).
And the TLC has further specified the markings that
identify the vehicles as taxicabs and post the legal fare;
mandated the required color of the vehicles; mandated certain
signage in the interior and prohibited other signage;
established rules governing use of additional passenger seat
coverings; required a roof light and set the configuration of
the roof light illuminations to indicate whether the taxi is on-
duty; regulated whether secondary turn signals are included on
the roof light; approved or rejected specific devices intended
to be attached to the vehicle rooftop for the purposes of
advertising, including the means of their attachment; and
-8-
approved and disapproved specific models of taximeter and the
location and means of their attachment (2032-33).
Moreover, TLC has historically approved specifications
(“specs”) for a vehicle by setting them to conform to particular
vehicle models, which had the practical effect of approving a
particular make and model of vehicle, and where that was in fact
the intent of the specification (2032, 2058, 2063, 2067). From
March 1996 through January 2002, TLC’s specifications required
that any vehicle authorized as a medallion taxicab had to meet
minimum measurements for the passenger compartment interior and
leg room, and front compartment leg room (2065). From early 2002
until the Ford Crown Victoria’s discontinuance in 2011, the
specification was designed for the Extended Wheelbase Ford Crown
Victoria, which became the dominant car in the taxi industry
(2032, 2065, 2067). For at least ten years preceding the
discontinuance of the model, the Ford Crown Victoria comprised
an average of 82% of the total taxi fleet, reaching a peak of
90% of the fleet in 2005 (2032, 2067).
The introduction of hybrid and wheelchair-accessible
vehicles around 2005 moved the fleet’s composition to a trio of
commonly used models. By 2010, the Stretch Crown Victoria still
composed about two-thirds of the taxi fleet, and the Ford Escape
-9-
SUV hybrid and wheelchair-accessible Toyota Sienna minivan
essentially made up the rest.2
C. The Taxi of Tomorrow Program
As of 2007, the Stretch Crown Victoria was soon to be
discontinued by Ford. The Ford Escape SUV hybrid, the second
most popular taxi vehicle at the time, would later be scheduled
for discontinuance as well.3 The planned discontinuance of these
models placed the future composition of the taxi fleet in a
state of uncertainty and flux. The time was therefore right to
consider how the City’s taxicab needs would be met in the future
(2031).
Accordingly, beginning in 2007, TLC sought input from
industry stakeholders (medallion and vehicle owners, drivers,
and passengers) to solicit recommendations to improve and
modernize New York City’s taxicab fleet, and convened an
advisory committee to solicit feedback and input on the proposed
“Taxi of Tomorrow” project. TLC realized that in order to better
meet the needs of all stakeholders and to address the
longstanding goals of improving safety, comfort, accessibility
2 These figures may be obtained by visiting
http://www.nyc.gov/html/media/totweb/taxioftomorrow_taxioftoday.
html and clicking on the images of the vehicles in question.
3 These two models would fall from a combined 90 percent or so of
the taxi fleet in 2010 to a combined 63 percent by 2013 (768,
2031, 2120). See also http://www.nyc.gov/html/media/totweb/
taxioftomorrow_taxioftoday.html
-10-
and sustainability of the taxi vehicle, it would need to enter
into a fuller partnership with an automobile manufacturer. None
of the vehicles then being used as taxis had been specifically
designed, engineered or built for taxicab service, nor had they
been safety-tested by the manufacturer or crash-tested with the
metal and plexiglass partition installed. Rather, these vehicles
were commonly available for general use, and had to be “hacked
up” (the industry’s practice of converting vehicles for taxicab
service) by third parties who were not trained automobile
engineers, to satisfy TLC’s vehicle specifications (see 2051,
2066, 2184).
The ensuing multi-year “Taxi of Tomorrow” project
included a request for proposals, a lengthy and comprehensive
evaluation process of the proposals submitted by the three
manufacturer finalists, and the selection of the Nissan NV200 in
May 2011 as the Taxi of Tomorrow (774, 1211-16). Nissan and the
New York City Department of Citywide Administrative Services
(“DCAS”) thereafter executed a Vehicle Supply Agreement (“VSA”),
which has since been amended multiple times.
The choice of the Nissan NV200 Taxi heralds a vast
improvement in the components of a taxicab for owners, drivers,
and passengers. In particular, the design of the Nissan NV200
Taxi serves passenger and driver safety, comfort and convenience
to a degree that is entirely unmatched by existing taxis. By
-11-
working with Nissan to design a purpose-built vehicle, the City
ensured that the next generation of taxicab vehicles was
envisioned and designed specifically for use as taxis in New
York City. In the years since the Nissan NV200 Taxi was
selected, Nissan has collaborated extensively with TLC and the
industry stakeholders to perfect their vehicle design. The end-
product is the safest, most comfortable vehicle ever to serve as
a taxi in New York City (2222-25).
The NV200 Taxi was designed specifically for taxi
service in New York City. This is reflected not only in the
vehicle’s unique conveniences and its incorporation and factory-
installation of taxi equipment, but also in Nissan’s careful
balancing of passenger comfort with the durability required to
transport passengers throughout New York City twenty-four hours
a day, seven days a week (2186). The Taxi of Tomorrow was also
developed to meet the highest safety standards and to offer,
among other things, superior passenger experience, superior
driver comfort and amenities, appropriate purchase price and on-
going maintenance and repair costs, minimal environmental impact
during the life of the vehicle, minimal physical footprint with
more useable interior space, accessibility for all disabled
users, and an iconic design that would identify the taxi with
New York City (770, 837, 856).
-12-
Nissan’s Taxi of Tomorrow design was informed by
extensive evaluation and research of the conditions faced by the
City’s taxis (2187). Nissan took numerous steps to ensure that
it had the knowledge to appropriately build the NV200 Taxi to
meet the rigorous duty cycle for New York City taxicabs, under
which vehicles are driven all day, every day, in stop-and-go
traffic on poor road services (2049, 2187-89). In the spring of
2013, Nissan began testing the Taxi of Tomorrow and its systems
under actual use conditions, with Nissan engineering teams
bringing several prototype vehicles to the City to test the
vehicles’ systems, performance and resilience on the City
streets; accumulate miles on the vehicles; and evaluate whether
such use exposed any design, engineering or construction flaws
(2190). The information gathered from this testing informed the
ultimate design of the Nissan NV200 Taxi (2186-91). In sharp
contrast, the other vehicles currently used as taxis are mass-
produced to serve multiple generic purposes.
The Vehicle Supply Agreement (“VSA”) between Nissan
and DCAS describes the components of the Taxi of Tomorrow
vehicle (2050-52). Like most other custom-ordered products built
specifically for customers’ needs, the NV200 Taxi was approved
after evaluating a plan and demonstration model. The agreement
requires, among many other things, that the vehicles be tested
in accordance with federal safety standards; meet detailed
-13-
specifications; have enhanced driver and passenger comfort
features, including dual manual sliding doors, rear passenger
entry steps, passenger reading lights, adjustable driver and
passenger seats, extra legroom, rear passenger HVAC controls,
USB charge ports, transparent roof panel, and floor lighting;
warranties; and a possible pathway to a fully electric taxicab
(777-78). Some of the many benefits associated with the NV200
Taxi design are described below.
Safety. The NV200 Taxi carries a number of safety
benefits relative to the current taxi fleet. One major benefit
results from the installation of taxi equipment, particularly
the partition, in the factory during the manufacturing process,
so that such equipment is not retrofitted on the vehicle (2185).
As a result of the factory installation of taxi equipment, the
Taxi of Tomorrow, unlike any other taxi vehicle, has been crash
tested with the partition and all taxi equipment installed
(2185). The Taxi of Tomorrow is the only taxi vehicle that is
certified compliant with federal and industry safety standards
with the partition integrated into the vehicle’s structure
(2185).
The crash testing of the vehicle with the partition
installed helps to ensure that the partition does not interfere
with the proper deployment of the side curtain airbags. No other
manufacturer of vehicles used for New York City taxi service can
-14-
certify that the vehicle’s side curtain airbags will properly
deploy in the event of an accident, because partitions in all
other taxi vehicles are installed by third parties after the
vehicle is sold to taxi owners and operators (2185).4
The Nissan NV200 Taxi also has a number of additional
safety features. The vehicle has sliding rear doors, rather than
doors that swing open, to protect passing cyclists and
pedestrians from being “doored,” which can lead to serious
injuries. The vehicle also has exterior lights that are
automatically activated when the doors are opening, for the
safety of passengers, pedestrians, and cyclists (2186). Other
safety features include highlighted seatbelt buckles to promote
seatbelt use and help passengers find seatbelts, as well as grab
handles, deployable side steps with bright yellow borders
highlighting the edge of the steps, and yellow contrasting
stitching highlighting the edge of the seats (2185-86).
Wheelchair accessibility. The Vehicle Supply Agreement
requires Nissan or its designee to modify the Taxi of Tomorrow
upon request, so as to be fully wheelchair accessible (2196). At
all times, Nissan must have a contract in place with a third-
4 While GNYTA asserts that the handicap accessible versions of
the NV200 Taxi had not been crash-tested with the partition
installed at the time the VSA was executed (101; GNYTA Br. at 7
n. 4), the wheelchair accessible vehicles were crash-tested with
the partition and all necessary equipment installed before they
ever were put on the road in December 2014.
-15-
party to convert the Taxi of Tomorrow into a wheel-chair
accessible vehicle upon a purchaser’s request (777). The price
of the Nissan Taxi conversion is comparable to that of the
Toyota Sienna (the most popular accessible taxi in New York City
today), but the accessible Taxi of Tomorrow will offer more
features and passenger conveniences (2198).5
TLC determined that passengers who use wheelchairs
should have as similar a ride experience as possible in the
NV200 Taxi as passengers who do not use wheelchairs (2056). In
the Nissan NV200 taxicab, a passenger using a wheelchair, when
properly secured, sits in the same seating location in the
second row of seats as an ambulatory passenger, with the same
access to a three-point seatbelt and other amenities (2056).
Mobility-impaired passengers in the Nissan NV200 Taxi thus have
access to the same taxi features and amenities as non-disabled
passengers, including the ability to adjust the rear HVAC system
5 Only one single vehicle used as a New York City taxi, the VPG
MV1, is a factory-built wheelchair accessible model. For
various reasons, Original Equipment Manufacturers (“OEMs”)
typically do not manufacture accessible vehicles. Third-parties
generally modify vehicles to be accessible after purchasing
vehicles from OEMs (2196). GNYTA’s contention that the “proposed
retrofitting” is impractical and causes a “host of problems”
(GNYTA Br. at 7 and n. 4), is not supported by any empirical
data or proof in the record. Moreover, the Nissan NV200 Taxi is
upfitted for wheelchair accessibility, not “retrofitted,” as in
other vehicles that are later modified to be accessible (2054-
55, 2196-99).
-16-
and be closer to the taxi driver for purposes of communication
(2199, 2233). By contrast, in current wheelchair-accessible
taxicabs such as the Sienna (the most popular wheelchair-
accessible taxi), wheelchair-using passengers ride in the third
row seating position of the vehicle, which is the equivalent of
the cargo area of the NV200 Taxi (2056). Thus, in the modified
wheelchair-accessible Sienna, mobility-impaired passengers must
ride in the rear of the vehicle, somewhat adjacent to the spare
tire, and cannot access any taxi equipment, while their
ambulatory companions traveling with them ride in the second row
of seats (2056, 2199, 2233). In the wheelchair-accessible NV200
Taxi, by contrast, a properly secured wheelchair-using passenger
sits in the same seating location as ambulatory passengers
(2056).
Comfort features and amenities. The Taxi of Tomorrow
also includes many passenger amenities such as increased
legroom, dual controlled air-conditioning for both drivers and
passengers, a driver-passenger intercom, a hearing loop for hard
of hearing passengers, deployable step and grab handles for
mobility-impaired passengers, sliding doors to protect passing
cyclists, and a sky roof for passenger enjoyment (2053).
The vehicle also features charging ports (an outlet
and 2 USB ports) in the rear compartment, which allows passenger
to charge cellphones and similar devices -- a useful feature in
-17-
New York City, where urban dwellers and visitors may often be
away from home or otherwise unable to access charging outlets
for long periods. The NV200 Taxi also has special interior
lights that illuminate when the rear doors are opened, to lessen
incidents where passengers leave wallets, phones, or other
possessions behind after exiting. Enhanced driver and passenger
comfort include dual manual sliding doors, rear passenger entry
steps, passenger reading lights, adjustable seats, extra
legroom, and rear passenger HVAC controls (777, 2223-24).
Driver comfort is also improved, in that the driver’s
seat is ergonomically designed and adjustable. In other
taxicabs, once the partition is installed, it is virtually
impossible for the driver to adjust his or her seat position,
resulting in driver discomfort (2053).
Availability. The Vehicle Supply Agreement also
contains provisions requiring a minimum number of dealerships
selling the vehicle in New York City and in the metropolitan
area, with protections against collusive arrangements, thereby
ensuring that there is competition and creating downward
pressure on vehicle prices (2052). The Vehicle Supply Agreement
contains a maximum Manufacturers Suggested Retail Price (“MSRP”)
for the NV200 Taxi (2051). There is no minimum sale price
(2051). The agreement also provides for TLC to engage in pilot
program testing of alternate vehicles, up to three models of
-18-
vehicle per year, thereby allowing the industry and TLC to
continue to assess potential alternatives to the Taxi of
Tomorrow (2054).
D. The Revised Taxi of Tomorrow Rules and Hybrid
Specifications
Since the initial adoption of the Taxi of Tomorrow
rules, TLC has amended those rules and requirements specifically
to address the question of hybrid vehicles. A rule amendment in
2013 gave owners of unrestricted taxicab medallions acquiring a
new vehicle after the activation date the option to purchase
either (1) the Taxi of Tomorrow or (2) an approved alternative
fuel, or “hybrid,” vehicle meeting standard set forth in TLC’s
rules. See 35 Rules of the City of New York (“RCNY”), Chapters
67 and 51.
The 2013 amendment also established new standards for
hybrid vehicles (the “Hybrid Specifications”) in conjunction
with the Taxi of Tomorrow Rules. Among other things, the Hybrid
Specifications revised the definition of “alternative fuel
medallion” set forth in 35 RCNY § 51-03, and increased the
minimum required total interior volume from 101.5 cubic feet to
130 cubic feet. See 35 Rules of the City of New York (“RCNY”),
Chapters 67 and 51 (623-47, 793-800). TLC made the latter change
to encourage the use of larger, roomier hybrid vehicles now
available on the market, and to ensure that the passenger
-19-
experience in hybrids is consistent, whenever possible, with
that provided by the Taxi of Tomorrow.
The 2013 amendment was designed to ensure that TLC’s
rules are consistent with New York City Administrative Code
§ 19-533, which requires TLC to approve “one or more hybrid
electric vehicle models for use as a taxicab” (786-87, 2068). As
initially framed, the amendment would have allowed medallion
owners to purchase any approved alternative fuel vehicle meeting
the standards set forth in TLC’s rules until Nissan was able to
develop a hybrid vehicle that complied with the specifications
(626).
Thereafter, TLC and Nissan amended their contract, as
announced in an Industry Notice in December 2014, so that,
regardless of when and whether Nissan develops a qualifying
hybrid, unrestricted taxicab medallion owners may now continue
to purchase any approved hybrid vehicle that meets TLC’s
standards, as an alternative to purchasing the Nissan NV200 Taxi
vehicle. See 35 RCNY §§ 67-05.1B and 67-05.1C. Thus, as GNYTA
acknowledges (GNYTA Br. at 25 n. 8), Nissan will not be the
exclusive provider of hybrid vehicles.
Any hybrid vehicle that satisfies TLC’s approved
specifications can be used as a taxicab, such as the Toyota
Highlander, Lexus RX, and Toyota Prius V. If any medallion owner
identifies a hybrid model not currently on the list of approved
-20-
hybrid vehicles that meets the hybrid vehicle specifications,
TLC will approve the use of such hybrid vehicles as taxicabs,
subject to verification. The currently approved hybrids offer a
variety of choices for medallion owners, with improved passenger
comfort, including an affordable vehicle (Toyota Prius V), as
well as a luxury model (Lexus RX 450H) (2071). Unrestricted
medallion owners can thus continue to purchase any approved
hybrid vehicle for use as a taxicab.
The Revised Taxi of Tomorrow Rules and Hybrid
Specifications will go into effect as to taxi vehicles that are
scheduled for replacement on or after April 20, 2015.
E. This Article 78 Proceeding
In July 2013, GNYTA filed this CPLR Article 78
proceeding in Supreme Court, New York County, to challenge the
Revised Taxi of Tomorrow Rules and Hybrid Specifications (112-
46). Supreme Court permitted Nissan Marketing, N.A., LLC and
Nissan North America, Inc. to intervene as respondents (29).
1. Supreme Court’s decision striking down TLC’s
rules
Supreme Court (Hagler, J.) ruled that the Revised Taxi
of Tomorrow Rules and Hybrid Specifications were invalid (14-
28). While acknowledging TLC’s authority under the New York City
Charter to regulate and establish standards for the taxi
industry, the New York County Supreme Court held that the City
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Charter does not vest the TLC with authority to contract with
Nissan to exclusively manufacture and supply a customized
vehicle for New York City’s taxi fleet. Supreme Court further
held that TLC’s promulgation of the Revised Taxi of Tomorrow
Rules violated the separation-of-powers doctrine, as described
in Boreali v. Axelrod, 71 N.Y.2d 1 (1987).
2. The First Department’s decision reversing
Supreme Court and upholding TLC’s rules
In a 3-1 decision, the Appellate Division, First
Department reversed, ruling that the Revised Taxi of Tomorrow
Rules and Hybrid Specifications are valid (2478-2514). The
Appellate Division held that the rules were within TLC’s broad
delegated authority to adopt and did not violate separation of
powers principles (2480, 2488, 2489, 2495).
The Appellate Division recognized that New York City
Charter § 2303 reflects a broad and expansive mandate to develop
and improve taxi and limousine service, expressly including a
direction to adopt and establish an overall public
transportation policy governing taxi service (2488, 2494). The
Court observed that the TLC carried out its assigned mission
with a multi-year exacting process, and obtained extensive input
from all interested and concerned parties, “to ensure a final
decision that would best satisfy taxi passengers, owners, and
drivers, as well as the general public” (2489). The Court
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concluded that TLC’s selection and authorization of a specific,
specially designed vehicle as the Taxi of Tomorrow was well
within TLC’s purview of establishing taxi policy (2489).
The court observed that the Taxi of Tomorrow program
benefitted all interested parties, as TLC had wielded
negotiating power to arrange for the development of a taxi with
all the necessary qualities, along with price caps and other
protections, and additional benefits for the safety and comfort
of drivers and passengers (2490-91). The court further noted
that TLC’s selection of the Taxi of Tomorrow did not represent a
significant departure from its past practice, except insofar as
it provided substantial additional benefits to all interested
parties, namely, passengers, drivers, owners and the public,
while ensuring that future New York City taxis would be the best
possible vehicles for the job (2491).
The Appellate Division also held that the program did
not violate the separation-of-powers doctrine, in light of the
City Council’s delegation to the TLC of comprehensive
responsibility for policy relating to all aspects of the City’s
for-hire transportation services (2495). The court concluded
that not a single one of the four circumstances identified in
Boreali v. Axelrod, 71 N.Y.2d 1 (1987) is present in this case
(2496-99). The Appellate Division also determined that unlike
the situation in both Boreali and New York Statewide Coalition
-23-
of Hispanic Chambers of Commerce v. New York City Department of
Health and Mental Hygiene, 110 A.D.3d 1 (1st Dep’t 2013), which
this Court had not yet affirmed, the Legislature had clearly
articulated its policy regarding TLC’s assigned task, i.e., the
goal of ensuring and optimizing the comfort of riders, while
protecting the public, the environment, the drivers, and the
rights of medallion owners (2497). Even if TLC’s adoption of the
Revised Taxi of Tomorrow Rules could be characterized as
involving policy-making, the City Council set the parameters of
that policy-making in the New York City Charter (2497-98).
Justice Acosta was the sole dissenter (2502-14).
Justice Acosta would have ruled that the TLC had exceeded its
delegated statutory authority (2502), and that the Revised Taxi
of Tomorrow Rules also violated separation of powers principles
by usurping the City Council’s legislative authority (2509).
Justice Acosta would have further held that the Revised Taxi of
Tomorrow Rules failed to promote and conceivably contradicted
Administrative Code § 19-533, setting forth the City Council’s
recently stated policy preferences regarding hybrid vehicles, as
well as options to increase the number of wheelchair accessible
vehicles (2512-13).
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ARGUMENT
THE APPELLATE DIVISION CORRECTLY UPHELD THE
REVISED TAXI OF TOMORROW RULES AND HYBRID
SPECIFICATIONS
A. The Rules Fit Well Within TLC’s Delegated
Authority, Especially Where the Commission Has
Long Regulated Matters of Vehicle Design,
Configuration, and Appearance.
The Appellate Division correctly ruled that TLC acted
within the scope of its delegated authority under the City
Charter in adopting its Revised Taxi of Tomorrow Rules and
Hybrid Specifications. As the First Department held, Charter
§ 2300 reflects an expansive mandate for TLC to develop and
improve taxi and limousine service, and expressly charges the
Commission to establish “an overall public transportation policy
governing taxi service” (see 2488). In accordance with § 2300,
TLC has comprehensively regulated the City’s taxi industry for
decades (see 2032-2037). See also Pavle-Marty Cab Corp. v. New
York, 48 N.Y.2d 784 (1979) (upholding TLC’s minimum shift rules
as “properly implement[ing] section 2300” of the Charter).
Several clauses in Charter § 2303 provide further
support for the rules at issue here. See New York City Committee
for Taxi Safety v. New York City Taxi and Limousine Commission,
256 A.D.2d 136 (1st Dep’t 1998) (holding that § 2303 constitutes
a “broad grant of authority” to “promulgate and implement a
pervasive regulatory program”). For example, subsections (b)(2)
and (b)(6) of § 2303 vest TLC with express powers to regulate
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and supervise “standards and conditions of service” and
“[r]equirements of standards of safety, and design, comfort,
[and] convenience . . . in the operation of vehicles.” The
Revised Taxi of Tomorrow Rules and Hybrid Specifications operate
in these very areas.
Moreover, § 2303(b)(9) gives TLC authority to regulate
for the “development and effectuation of a broad public policy
of transportation” as to taxis and other for-hire vehicles,
specifically to include “innovation and experimentation in
relation to type and design of equipment, modes of service and
manner of operation.”6 And § 2303(b)(11) affords TLC additional
and flexible authority to promulgate rules “reasonably designed
to carry out the purposes, terms, and provisions” of Chapter 65
of the Charter. These provisions afford still more support to
TLC’s exercise of regulatory authority here.7
6 Subsection (b)(9) goes on to authorize TLC to institute pilot
programs that “for limited purposes and limited periods of time
may depart from the requirements otherwise established for
licensed vehicles.” The subsection as a whole has broader
application, however, not limited to pilot programs. And the
special authorization for pilot programs contained in subsection
(b)(9) only underscores that the Charter affords TLC great
flexibility in pursuing innovations in taxi service, rather than
aiming to stifle progress, as GNYTA seeks to do here.
7 GNYTA mistakenly argues that TLC is precluded under the City
Administrative Procedure Act (CAPA), Charter § 1043(b), from
invoking Charter § 2300, ostensibly because TLC did not cite
that provision when it published its public notice of the
proposed rules (GNYTA Br. at 18 n. 7). The public notice cited
§ 2303, subsection (b)(11) of which refers back to and
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In recognition of the City Council’s broad conferral
of authority in the City Charter, courts have consistently
denied challenges to TLC regulations on the grounds that the
agency lacked authority to adopt the rule. See Black Car
Assistance Corporation v. City of New York, 110 A.D.3d 618 (1st
Dep’t 2013) (upholding TLC’s authority to implement an e-hail
pilot program, as authorized by Charter § 2303(b)(9)); New York
City Committee For Taxi Safety v. New York City Taxi and
Limousine Commission, 256 A.D.2d 136 (1st Dep’t 1998); see also
Alexandre v. New York City Taxi and Limousine Commission, 2007
U.S. Dist. Lexis 73642 (S.D.N.Y. 2007) (plaintiffs failed to
show that TLC “lacked the authority . . . require installation
of TTS [Taxicab Technology System]”).
GNYTA concedes that “TLC has the authority to regulate
everything” regarding taxicab service, from “the mundane” to
“the esoteric” (GNYTA Br. at 16, 23). GNYTA thus seemingly
admits that TLC possesses authority to comprehensively regulate
the taxi industry. And GNYTA does not dispute that TLC may
establish exacting specifications for the design, configuration,
and appearance of taxi vehicles. But GNYTA nonetheless claims
incorporates the regulatory purposes set forth in § 2300.
Section 2303(b)(11) expressly authorizes TLC to promulgate
regulations “reasonably designed to effectuate the purposes,
terms and provisions” of the Chapter. (Emphasis added) GNYTA’s
hairsplitting is therefore pointless.
-27-
that TLC has exceeded its authority here by expressly selecting
a specific make and model as the sole authorized taxicab (except
as to hybrid vehicles). GNYTA argues that TLC may only establish
vehicle specifications in terms that any manufacturer could
theoretically meet, and cannot develop vehicle standards through
a competitive process by which a particular purpose-built
vehicle is specifically tailored for use as a New York City
taxi.
This argument finds no support in the City Charter or
in good sense. The Charter contains no language that imposes the
limitation for which GNYTA now argues. To the contrary, the
Charter repeatedly describes TLC’s regulatory authority in broad
and flexible terms. As the First Department observed, the only
express restriction on TLC’s regulatory authority in the Charter
is the language in § 2303(b)(4) that requires a local law before
additional taxi medallions may be issued -– a provision that has
no relevance here. Other than this narrow provision, the Charter
does not restrict the tools available to TLC to effectuate its
duties. GNYTA is seeking to engraft limitations on TLC’s
authority that do not exist, in contravention of the relevant
Charter provisions, and without citing to any precedent.
GNYTA appears to argue that designating a particular
purpose-built vehicle as the authorized taxicab for New York
City (except as to hybrid vehicles) does not constitute the
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regulation of “standards” for service, safety, comfort, and
convenience, as the Charter expressly authorizes TLC to do. But
the Taxi of Tomorrow program is a method of regulating such
standards; it simply does so through a tailored vehicle
development process, rather than by reference to generic
vehicles already available on the market or based on aftermarket
hacking up of such vehicles. The only real difference between
the issuance of detailed specifications, which GNYTA concedes
TLC has the authority to regulate (GNYTA Br. at 23), and the
adoption of the Taxi of Tomorrow regulations, is that the Taxi
of Tomorrow project set the detailed specifications before the
vehicle was manufactured, ensuring that the vehicle would be
custom-built to satisfy all of TLC’s requirements (2490).
The Revised Taxi of Tomorrow Rules and the Vehicle
Supply Agreement certainly set a standard for design, safety,
and comfort. The standard is the Nissan NV200 Taxi (except,
again, as to hybrid taxi vehicles). The Charter does not specify
to TLC how strict or relaxed the standards of design, safety,
and comfort can be. Though GNYTA may not like the standard
chosen by TLC through its competitive process, this does not
mean that TLC exceeded its delegated authority.
And though a TLC regulation, to be authorized, need
not fall within any specific clause in § 2303, the Taxi of
Tomorrow rules plainly fit under the terms of subsection
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(b)(11), at the very least. That subsection authorizes TLC to
adopt regulations that are “reasonably designed to carry out”
the purposes, terms and provisions of Chapter 65 of the Charter.
There can be no serious doubt that the Taxi of Tomorrow program
is “reasonably designed” to achieve better standards of taxi
service and of safety, comfort, and convenience.8
Moreover, GNYTA greatly overstates the degree to which
TLC’s selection of a purpose-built vehicle, except as to hybrid
taxicabs, departs from its past regulatory practice. TLC
previously set vehicle specifications (“specs”) and allowed
medallion owners to “hack-up” any vehicle that met those specs.
Simply mandating the use of a particular vehicle is not much
different. While GNYTA complains that the Revised Taxi of
Tomorrow Rules and the Hybrid Specifications limit its options
(GNYTA Br. at 16, 22-23), that is nothing new. As described
supra at 6-9, TLC has long set numerous and exacting standards
for vehicle design, configuration, and appearance.
8 In an apparent effort to argue that the program does not
promote better taxi service, GNYTA contends, without any
citation to the record or any other source, that the Nissan
NV200 Taxi “received the support of only 2% of those who voted
in an online poll” (GNYTA Br. at 5). Tellingly, GNYTA fails to
identify which poll is being cited, who was polled, who
conducted such a poll, and when and where the poll’s results and
statistics, if any, were published in this apparently privately
commissioned study (2040-41). In any event, GNYTA’s evident
disagreement with TLC’s regulatory judgment is not relevant to
whether TLC possessed authority to make that judgment.
-30-
Indeed, in 2001, TLC adopted new specifications for
passenger legroom and rear passenger cabin size that were
specially tailored to the stretch Ford Crown Victoria and led to
that vehicle’s attainment of a 90 percent share of the City’s
taxi fleet by 2005 (2065-67). There is little practical
difference between mandating a single vehicle for use as a taxi,
and setting requirements so specific that only one vehicle can
meet them. As TLC had the power to set requirements so specific
that only one vehicle met the spec, it is now certainly
authorized under the Charter to mandate one non-hybrid vehicle,
along with authorizing several hybrid models. TLC should be able
to accomplish directly what no one, including GNYTA, disputes it
can do indirectly.
In addition, GNYTA’s argument, if accepted, would
senselessly tie TLC’s hands in improving taxi service and better
promoting safety, comfort, and convenience. As the First
Department pointed out (2490-92), TLC’s adoption of a
competitive process to develop a purpose-built vehicle, coupled
with assurance that there would be a market for the resulting
vehicle, allowed the attainment of improvements to service,
safety, comfort, and convenience that could not have been
achieved simply by drafting specs based on generically available
vehicles and permitting owners to “hack up” those vehicles.
-31-
The selection of the Nissan NY200 Taxi is the result
of years of outreach and discussions by TLC, first with industry
stakeholders as to which qualities should be embodied by a
taxicab in New York City, a Request for Proposals to attract
manufacturers to submit proposals, and then with Nissan and
industry stakeholders as to the specific elements of the Taxi of
Tomorrow. The end-result is a vehicle designed and manufactured
specifically to serve as a taxi in New York City, embodying the
best of design, safety and comfort elements, and consideration
of small and large details (776-78, 2050-54, 2184-94, 2223-30).
The Taxi of Tomorrow thus represents a considerable
upgrade in terms of safety and passenger comfort and
convenience, as compared with the current New York City taxi
fleet. Taxi drivers also benefit from a driver’s seat that is
adjustable with the partition installed, a backup camera, and
breathable, antimicrobial seating material. Taxicab owners
benefit, too, from an unmatched 150,000-mile powertrain
warranty, reduced hack-up time and costs, and a vehicle content
and technology worth thousands of dollars at a price comparable
to current taxi vehicles (2050-53, 2184, 2216, 2223-24). Thus,
while TLC’s rules are not a significant departure from past
practice in the degree of restriction placed on medallion
owners’ choices of vehicles, the benefits of developing a
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purpose-built vehicle that is tailored for taxi service in the
City are quite dramatic.
There is no merit to GNYTA’s complaint that TLC has
purportedly contracted with a particular vendor to bind
medallion owners to purchase a single vehicle “at a pre-
determined price” (GNYTA Br. at 10, 16, 19, 22). The contractual
agreement between the City and Nissan (more specifically
referred to as the “Vehicle Supply Agreement”) does not bind
medallion owners (GNYTA Br. at 22). The Vehicle Supply Agreement
simply memorializes the City’s agreement with Nissan as to each
other’s respective obligations (1258-1362). The contract
requires Nissan, and not the medallion owners, to perform
certain acts. It is TLC’s Revised Taxi of Tomorrow Rules and
Hybrid Specifications, not the contract, that requires medallion
owners to purchase the Taxi of Tomorrow or an alternative
hybrid-electric vehicle.
Moreover, the Revised Taxi of Tomorrow Rules do not
establish “the non-negotiable price at which medallion owners
must purchase the Nissan Van.”9 (GNYTA Br. at 1). The Revised
9 GNYTA repeatedly refers to the Nissan NV200 Taxi as a “van”
(GNYTA Br. at 1, 5, 6, 7, 19, 23), and refers to federal
litigation brought under the Americans With Disabilities Act
(ADA) regarding the vehicle (GNYTA Br. at 5 n. 3). But the
question whether the Nissan NV200 Taxi qualifies as a “van,” and
therefore is subject to more stringent requirements under the
ADA, was vigorously disputed in the federal lawsuit, and the
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Rules do not circumscribe the ability of medallion owners to
“bargain . . . over price” (GNYTA Br. at 23), particularly since
the rules permit owners to buy the Nissan NV200 Taxi or any
approved hybrid vehicle, which does not have to be a Nissan
vehicle. The option to purchase any approved hybrid vehicle also
refutes GNYTA’s claim that TLC has “create[d] a literal
monopoly” in favor of Nissan (GNYTA Br. at 1).
In addition, the price for the Nissan NV200 Taxi is
not “non-negotiable” or “pre-determined,” contrary to GNYTA’s
repeated contentions (GNYTA Br. at 1, 16, 19, 23).
Significantly, TLC set the maximum sticker price, not a minimum
price, and the medallion owners are still free to negotiate the
price with the dealers (2051). TLC thus negotiated the ceiling
price, not the floor price, as GNYTA contends, and medallion
owners can still negotiate a lower price for their vehicles
(2051). Medallion owners cannot purchase the vehicles directly
from Nissan, but rather, purchase via negotiations with
authorized Nissan dealers (2051). Nor would GNYTA’s complaints
about price-setting have much resonance in any event, given that
TLC has long determined the economic terms of many other aspects
of the taxi business, including fares, surcharges, and lease
caps.
case was settled before the issue was ever adjudicated (2452-
53).
-34-
For all of these reasons, the Revised Taxi of Tomorrow
Rules and Hybrid Specifications fall within TLC’s broad
regulatory authority under the City Charter.
B. TLC’s Rules Do Not Violate Separation-of-Powers
Principles.
The Appellate Division, First Department, also
correctly ruled that TLC’s rules do not violate separation-of-
powers principles. Indeed, since GNYTA concedes that TLC’s
longstanding and exacting regulation of taxicab design,
configuration, and appearance is consistent with separation-of-
powers doctrine, it is hard to see how TLC’s current rules
suddenly cross a constitutional line. GNYTA’s contention (Br. at
16-17) that TLC’s technical regulation of taxicab design
“implicates the most fundamental of governmental functions” is a
grand overstatement.
1. TLC’s technical regulation of taxi design,
configuration, and appearance does not
intrude into the City Council’s legislative
domain.
There is no merit to GNYTA’s argument that TLC’s rules
run afoul of the narrow separation-of-powers constraint on
agency rulemaking established by this Court’s decisions in
Boreali v. Axelrod, 71 N.Y.2d 1 (1987), and New York Statewide
Coalition of Hispanic Chambers of Commerce v. New York City
Department of Health and Mental Hygiene, 23 N.Y.3d 681 (2014).
-35-
This argument fails at the very outset. Contrary to GNYTA’s
arguments, the decision in Statewide Coalition did not alter the
separation-of-powers analysis described in Boreali. Rather, the
Court reiterated there that the “focus” in any Boreali analysis
“must be on whether the challenged regulation” tries “to resolve
difficult social problems by making choices among competing
ends.” 23 N.Y.3d at 697 (quotation marks omitted). The Court
returned to this point again and again, repeating that the task
reserved to the legislative branch is resolving “difficult,
intricate, and controversial issues of social policy,” or, in
slightly different words, making “value judgments entail[ing]
difficult and complex choices between broad policy goals.” Id.
at 698, 699. TLC has done nothing of that sort here.
This point is driven home by contrasting the subject
matter and content of the regulations struck down in Boreali and
Statewide Coalition with that of the TLC rules challenged in
this case. Both of the prior cases involved complex balancing of
public health goals, economic considerations, and matters of
personal autonomy. In Boreali, a state agency attempted to
promulgate a comprehensive code banning and severely restricting
smoking in various public places, at a time when legislative
restrictions on smoking were quite modest, and dozens of bills
to expand those restrictions had been introduced and failed. 71
N.Y.2d at 6-7, 13. Similarly, in Statewide Coalition, a city
-36-
agency had adopted a first-of-its-kind restriction on the
permissible portion size for sugary drinks in an effort to
address obesity. 23 N.Y.3d at 690-91, 699-700. The First
Department itself had struck down the portion size restriction
before this Court affirmed that ruling. See Statewide Coalition,
110 A.D.3d 1 (1st Dep’t 2013). This Court’s decisions
invalidating the rules in Boreali and Statewide Coalition hinged
on the conclusion that both rules addressed difficult and
complex questions of social policy that were reserved for the
legislative branch.
TLC’s Revised Taxi of Tomorrow Rules and Hybrid
Specifications are dramatically different from the regulations
struck down in Boreali and Statewide Coalition. TLC is not
interfering with individuals’ personal autonomy or limiting
commonplace activities of daily life. Nor is TLC confronting
sensitive questions of social policy. TLC is not even venturing
into new regulatory terrain. From the standpoint of the riding
public, as well as industry stakeholders, TLC’s current rules
are not different in kind from its past exacting regulation of
matters of taxicab design, configuration, and appearance.
The sharp differences between TLC’s rules and the
rules struck down in the two earlier cases are enough to end the
inquiry. The Court has made clear that the four “coalescing
circumstances” identified in Boreali, now sometimes called the
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four “Boreali factors,” should not be applied in every case
challenging agency action. See Statewide Coalition, 23 N.Y.3d at
696; see also id. at 701-02 (Abdus-Salaam, J., concurring)
(noting that this Court’s “carefully circumscribed” decision
does not “establish any rigid decisional framework to be applied
mechanically” to other future agency actions). The factors need
not be consulted here to determine that TLC’s rules are
consistent with separation-of-powers doctrine.
In any event, consideration of the four “coalescing
circumstances” or “factors” from Boreali shows that none is
present in this case. First, TLC has not “constructed a
regulatory scheme laden with exceptions based solely upon
economic and social concerns.” 71 N.Y.2d at 11-12. Rather, TLC
has adopted taxicab vehicle standards that apply across the
board.
Second, TLC has not written “on a clean slate,
creating its own comprehensive set of rules without benefit of
legislative guidance.” Id. at 13. To the contrary, the Charter
contains several specific standards or objectives that guided
TLC’s rulemaking, such as improving standards of service and
maximizing safety, comfort, and convenience. The Appellate
Division correctly held that the legislative branch “had clearly
articulated its policy regarding the TLC’s assigned task,
namely, the goal of ensuring and optimizing the comfort of
-38-
riders, while protecting the public, the environment, the
drivers, and the rights of medallion owners” (2497).
Consequently, “[t]he TLC was not left to take action based on
its own ideas of sound public policy” (2497). Even if the TLC’s
adoption of the revised Taxi of Tomorrow rules could be said to
involve “policy-making” –- in the broad sense of involving
judgments made in the development of a regulatory program -- the
City Council set the parameters of that policy-making in the
City Charter. See Moore v. Board of Regents, 44 N.Y.2d 593
(1978) (recognizing Board of Regents’ “broad policy-making
function” as to higher education); Levine v. Whalen, 39 N.Y.2d
510 (1976) (upholding statute vesting agency with authority to
develop “the state’s policy with respect to hospital and related
services” to promote and protect residents’ health).
Third, TLC has not acted in an area where the City
Council has “repeatedly tried – and failed – to reach agreement
in the face of substantial public debate.” Boreali, 71 N.Y.2d at
13. There is no such legislative record here. To the contrary,
TLC has been the body that has regulated in the area of taxicab
design, configuration, and appearance for decades, without any
indication of disapproval from the Council. Thus, the decision
regarding which cars should be permitted to serve as New York
City taxis has always been the domain of TLC, without challenge,
and not that of the City Council. Indeed, TLC has regulated all
-39-
aspects of taxi and livery service pursuant to its statutory
authority for decades without interference from the City
Council.
Fourth, and finally, TLC engaged its technical
expertise in adopting the rules at issue here. Id. at 13-14. TLC
possesses unique expertise, experience, and knowledge in all
aspects of the for-hire transportation field, and is far better
equipped than the City Council to determine which vehicle or
vehicles would best serve as New York City taxis (2498-99). TLC
has specific knowledge of what needs to be improved in the
current vehicles that comprise the taxicab fleet, and has
expertise in devising the means to remedy those deficiencies in
a way that benefits all of the industry stakeholders.
Accordingly, the Appellate Division properly held that
in the absence of the four Boreali factors, which are necessary
to any violation of separation-of-powers doctrine, GNYTA failed
to establish that TLC violated that doctrine by promulgating the
challenged rules. Accord, NYC C.L.A.S.H., Inc. v. New York State
Office of Parks, Recreation and Historic Preservation, ___
A.D.3d ___, 2014 N.Y. App. Div. Lexis 9001 (3d Dep’t Dec. 31,
2014) (upholding state agency’s rule establishing smoke-free
areas in certain limited outdoor locations under its
jurisdiction, upon consideration of the four Boreali factors, to
-40-
conclude that the agency acted within its competence and
authority by regulating smoking in its parks and facilities).
2. TLC’s rules do not violate local laws
concerning wheelchair accessibility or use
of alternative fuels.
In addition, the Appellate Division, First Department
correctly rejected GNYTA’s challenge to the Revised Taxi of
Tomorrow Rules and Hybrid Specifications, giving no credence to
GNYTA’s contention that the selection of the NV200 Taxi somehow
contradicts the City Council’s policy choices adopted in
Administrative Code §§ 19-533, 19-534 and 19-535. GNYTA argues
that these local laws reflect a legislative “preference for
certain key features, such as fuel efficiency and
accessibility,” and a desire to “advance accessible and
efficient taxis” (GNYTA Br. at 25, 26). TLC’s rules, however,
are fully consistent with the cited provisions of the
Administrative Code.
The Nissan NV200 Taxi can be modified to be fully
wheelchair accessible. Nissan is required under the Vehicle
Supply Agreement upon request to provide, either itself or
through a sub-contractor, up to 100% of the deliverable Nissan
NV200 Taxis as an ADA-compliant wheelchair accessible vehicle.
The structural integrity of the accessible Taxi of Tomorrow will
be equivalent to that of the non-accessible Taxi of Tomorrow.
-41-
Moreover, like the non-accessible version of the Taxi of
Tomorrow, the accessible Nissan NV200 Taxi has now been crash-
tested with all taxi equipment, including the partition,
installed. See supra, at 15 & n. 4.
Indeed, the design of the accessible Nissan NV200 Taxi
permits a mobility-impaired passenger to ride in the same
seating position as a passenger without an ambulatory
disability, and with the same access to the three-point
seatbelt, HVAC controls and other amenities (2056, 2199, 2233).
The NV200 Taxi therefore achieves important benefits for
mobility-impaired passengers. GNYTA’s unfounded speculation
about the “host of problems” with upfitting for wheelchair
accessibility (GNYTA Br. at 7 and n. 4) are not supported by the
facts or the evidence in the record.
As the Appellate Division correctly observed, GNYTA
neither suggests nor demonstrates that a better, wheelchair-
accessible taxi option presently exists; almost all vehicles
currently used as taxicabs require aftermarket retrofitting to
become fully wheelchair accessible, and the Nissan NV200 Taxi,
along with all of its other advantageous features, is capable of
being modified so that it can become fully wheelchair
accessible; and the Nissan NV200 Taxi in unmodified form
includes many features and amenities that address a number of
disabilities and limited mobility, such as grab handles, a wide
-42-
seating area that allows for service animals, extra leg room,
and an integrated hearing loop system (2499-2500). Indeed,
accessibility was one of the objectives for the Taxi of Tomorrow
set forth in the Request For Proposals. As noted, the Nissan
NV200 Taxi has features that address a wide range of
disabilities beyond total mobility impairment, including, inter
alia, a retractable, deployable step, grab handles to assist
entry and exit, and high-contrast markings on entry steps and
seats.
The Appellate Division further correctly concluded
that the TLC’s Revised Rules and Hybrid Specifications do not
violate Administrative Code § 19-533, which requires that TLC
approve at least one hybrid vehicle for purchase and use as a
taxicab (2500). TLC has already approved three hybrid models for
use as taxicabs, and would approve any other models that meet
TLC’s standards and specifications. Administrative Code § 19-533
does not purport to require the TLC to require that the entire
taxicab fleet must be hybrid vehicles. Nor does the statute
preclude TLC’s approval of a non-hybrid for use as a taxi.
Indeed, nothing in Administrative Code § 19-533, or
its legislative history, precludes TLC from continuing to
authorize gasoline vehicles for use as a taxicab; and TLC is
expressly authorized under New York City Charter § 2300(b)(6) to
consider numerous factors in choosing approved vehicles,
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including safety and comfort. The Hybrid Specifications reflect
the fact that adequate passenger comfort and the availability of
hybrid vehicles no longer need to be mutually exclusive
objectives. The City Council left it to TLC to identify an
acceptable hybrid model or models to be used as taxicabs, which
TLC did; and Admin. Code § 19-533 does not require TLC to
approve a hybrid that does not further TLC’s policies.
The Appellate Division, First Department properly
upheld the TLC’s adoption of the Revised Taxi of Tomorrow Rules
and Hybrid Specifications, correctly holding that the “City
Council’s delegation to the TLC of comprehensive responsibility
for implementing its stated public policy in regard to the
City’s for-hire transportation services was a valid delegation
to an agency most competent to cope with the details of
optimizing taxi service while considering the concerns of all
interested parties as well as the general public” (2500).
Nothing in the Court’s decision in Statewide Coalition calls
into question the soundness and logic of the Appellate
Division’s reasoning in this case. To the contrary, Statewide
Coalition only confirms the correctness of the Appellate
Division’s ruling here.
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CONCLUSION
The First Department’s decision should be affirmed.
Dated: New York, New York
March 5, 2015
Respectfully submitted,
ZACHARY W. CARTER,
Corporation Counsel,
Attorney for Respondents-
Respondents.
By:____________________________
ELIZABETH I. FREEDMAN
Assistant Corporation Counsel
RICHARD DEARING
FRANCIS F. CAPUTO
NICHOLAS R. CIAPPETTA
ELIZABETH I. FREEDMAN
of Counsel