Tabitha Ward, Pro Se Petitioner James B. Henly, Vice President and General Counsel, By: Bonnie Harper, New York City Transit Authority, Respondent, 130 Livingston Street — Room 1220, Brooklyn, NY 11201, 718.694.5613
Tabitha Ward, Pro Se Petitioner
James B. Henly, Vice President and General Counsel, By: Bonnie Harper, New York City Transit Authority, Respondent, 130 Livingston Street — Room 1220, Brooklyn, NY 11201, 718.694.5613
Johnny L. Baynes, J.The petitioner in this pro se CPLR Article 78 proceeding seeks review of a January 4, 2018 decision of the New York City Transit Authority's ("Transit") Transit Adjudication Bureau Appeals Board ("TAB") affirming a November 27, 2017 determination by one of its hearings officers, and upon such review, dismissal of a $ 100 ticket charging her with riding Transit's bus without paying a fare in violation of 21 NYCRR 1050.4(a) (" Rule 1050.4(a)").
Initially, as a general rule, pro se parties' pleadings are to be "liberally construed, and, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Taken in that light, Petitioner's informal November 6, 2017 letter in support of the petition alleges that on that day, between 12:30 and 12:45, she swiped her Metrocard and paid her fare on a downtown bound M11 bus. Petitioner maintains, both in her original letter and in a subsequent sworn December 3, 2017 statement, that she obtained a free transfer ticket from the M11 bus driver before deboarding to run an errand, and then boarded Transit's cross-town M79 SBS bus, or "Select" bus within the two-hour grace period allowed under Transit's transfer rules. Transit does not dispute that Petitioner paid her fare and obtained a free transfer ticket before deboarding the M11 bus. The parties further agree that the foregoing Select M79, to which Petitioner transferred, runs on a pre-boarding curbside ticket vending machine, or "kiosk," payment system, rather than the usual onboard Metrocard payment system. The parties dispute, however, whether Transit's own rules allowed her to board the Select M79 bus using her M11 transfer, rather than her being required to also obtain a separate kiosk ticket.
The parties agree that after Petitioner exited the Select M79 bus, one of Transit's officers approached her and requested her kiosk ticket at which point she attests that she realized that she had lost it. The parties agree, however, that Petitioner handed the officer her Metrocard, and authorized the officer to swipe it to confirm that she had in fact just used it within Transit's two-hour transfer grace period.Transit interposed an October 8, 2018 CPLR § 3211 summary judgment motion seeking to dismiss the petition. Said motion, however, was only supported by a document from an attorney within the Transit's General Counsel's office, purporting to be a "Statement of the Facts," as opposed to the affidavit of a person alleging personal knowledge of material facts attested, or even a valid attorney affirmation.
In said Statement of Facts, Transit admits that Petitioner had a hearing by mail, rather than a full hearing at which testimony was taken, after which Transit's hearings officer issued its initial November 27, 2017 decision. Said decision corroborates Petitioner's claim that she had already paid her M11 bus fare, and did so at exactly 12:24 pm, well within two hours of the time that Transit's officer issued the underlying $ 100 ticket. The decision, however, cites the Transit's Rule 1050.4(a) for the conclusion that "[n]o one may board a select bus without first obtaining a proof of payment receipt from the curbside vending machines and every passenger must present a proof of payment receipt when requested to do so by inspectors, even if the passenger is in possession of a valid metrocard and/or transfer (emphasis added)."
Thus, Transit maintains that Petitioner would have received the ticket for failing to obtain a curbside kiosk ticket, even if she had presented her valid transfer ticket, and irrespective of her verification of payment entitling her to such transfer ticket.
While the Transit hearings officer did not quote the exact language of the rule that it purports to apply, this Court takes judicial notice that Rule 1050.4(a) provides:
"No person shall use or enter upon the facilities or conveyances of [Transit], for any purpose, without the payment of the fare or tender of other valid fare media used in accordance with any conditions and restrictions imposed by [Transit]."
After an administrative appeal, TAB issued its January 4, 2018 decision upholding its hearings officer's original decision, and expressly finding that "[t]he time frame [of the M11 fare payment] is immaterial, as [Petitioner] was still required to use her transfer to register a fare at a curbside kiosk and obtain a receipt prior to boarding," and that "[m]ere possession of the a transfer is insufficient."
Said TAB decision does not identify the manner in which a transfer ticket, as opposed to a Metrocard, may be used to register a fare at a curbside kiosk, however, said decision highlights the key issue, namely, whether or not possession of a transfer ticket obviates the obligation to obtain a kiosk ticket on Select buses.
Before addressing the foregoing key issue, it is noted that approximately three months after interposing its original October 23, 2018 cross-motion, Transit's General Counsel's office interposed a new document purporting to be a January 16, 2019 "Reply Affirmation," however, since Petitioner appeared but did not submit formal opposition, Transit's purported Reply Affirmation was, in reality, an untimely "supplemental affirmation," submitted without seeking prior leave of this Court, and without proffering a good cause to so supplement its pleadings. In this regard, such supplemental affirmations generally should be disregarded. CPLR 2214(c). See Ostrov v. Rozbruch , 91 A.D.3d 147, 155, 936 N.Y.S.2d 31 (1st Dept. 2012) ("Supplemental affirmations ... should be sparingly used to clarify limited issues, and should not be utilized as a matter of course to correct deficiencies in a party's moving or answering papers"); Flores v. Stankiewicz , 35 A.D.3d 804, 805, 827 N.Y.S.2d 281 (2d Dept.2006) ("The Supreme Court should not have considered the plaintiff's alleged documentary proof as it was submitted in counsel's self-entitled "Supplemental Affirmation in Opposition," which was, in effect, an improper sur-reply (citations omitted) ). Indeed, disregarding such unauthorized supplemental affirmation may be in Transit's best interest since, at a glance, it appears to misstate that Petitioner's testimony was taken during her write-in hearing, when the record reflects that it was not taken, and such misstatement could be deemed to violate the subscribing attorney's oath.
In substantively addressing the parties' dispute, it is noted that Section 1209-a(3) New York State's Public Authorities Law imbues Transit with "non-exclusive jurisdiction over violations of ... the rules which may from time to time be established by the Transit (emphasis added)," and the question presented in this CPLR § 7803 Article 78 proceeding is whether Transit's underlying determination "was arbitrary and capricious or an abuse of discretion" CPLR § 7803(3) ; or whether such determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, "on the entire record, supported by substantial evidence" CPLR § 7803(4).
In deciding whether said hearings officer's determination is "supported by substantial evidence," and/or whether TAB's decision was arbitrary and capricious, this Court takes judicial notice that Transit's transfers confirm on their face they are not valid for "entry to subway" or "trip[s] on [the] route transfer was issued."
Thus, Transit's transfer ticket itself does not appear to contain anything suggesting that it is invalid on Select buses, or that it must be converted into a kiosk ticket to be used on such Select buses.
This Court also takes further judicial notice that Transit's "web.mta.info" page provides under its section entitled "Making Connections" that "[i]f you pay your fare with MetroCard, you may transfer free from local bus-to-subway, subway-to-local bus or local bus-to-local bus within two hours of the time you paid your fare." Said web info page, however, expressly limits that "you cannot use an Unlimited Ride MetroCard on Express buses, unless you purchase a 7-day Express Bus Plus MetroCard," but again provides no limitation on bus paper transfers with respect to Select buses.
In brief, nothing that Transit has properly submitted, nor anything readily found on its webpage supports TAB's interpretation that the time frame of a transfer is "immaterial," or, that possession of a transfer, or other Transit issued proof of payment, is insufficient to board their Select buses.
While New York City and New York State's legislatures imbued Transit with wide discretion in its rule and policy making, their passengers are entitled to notice of those rules and policies, and imposing $ 100 penalties without such notice is arbitrary and capricious. The City Council authorized the Transit to create methods of charging, collecting, and verifying payment of fares, as well as authorizing Transit to punish those who avoid their fares. This Court does not, however, believe that Transit was authorized to create an aptitude or "problem solving" test for passengers who have in fact paid their fare, for which the penalty of failure is a $ 100 fine. See Zvegintzov v. NYC Transit Authority , 144 A.D.3d 934, 41 N.Y.S.3d 715 (2nd Dept. 2016).
WHEREFORE, under the unique facts and circumstances of this particular case, it is hereby
ORDERED AND ADJUDGED that Petitioner's application is granted and her $ 100 ticket is annulled.
The foregoing constitutes the Decision and Order of this Court.