N.Y. Transportation Law § 80: Jurisdiction of commissioner

§ 80. Jurisdiction of commissioner. 1. The jurisdiction, supervision,

powers and duties of the commissioner under this chapter shall extend to

common carriers, common and contract carriers of passengers by motor

vehicle, and common and contract carriers of property by motor vehicle,

and to the persons owning, leasing or operating the same. Such

jurisdiction does not extend however to any public authority or any

subsidiary thereof exercising any power granted under the public

authorities law.

2. A person or persons owning or holding a majority of the stock of

any common carrier specified in subdivision one of this section and

subject to the jurisdiction of the commissioner shall be subject to the

supervision of the commissioner in respect of the relations between such

common carrier and such owners or holders of a majority of the stock

thereof insofar as such relations arise from or by reason of such

ownership or holding of stock thereof or the receipt or holding of any

money or property thereof or from or by reason of any contract between

them; and in respect of such relations shall in like manner and to the

same extent as such common carrier be subject to examination of

accounts, records and memoranda and shall furnish such reports and

information as the commissioner shall from time to time direct and

require and shall be subject to like penalties for default therein.

3. Corporations formed to acquire property or to transact business

which would be subject to the provisions of this chapter, and

corporations and other persons possessing franchises for any of the

purposes contemplated by this chapter, shall be deemed to be subject to

the provisions of this chapter although no property may have been

acquired, business transacted or franchises exercised.

4. Notwithstanding any other provision of law, the commissioner shall

not have jurisdiction over the regulation of any bus line operations

that are wholly within the boundaries of any city when such city has

adopted an ordinance, local law or charter to regulate or franchise bus

line operations, except that the commissioner shall have jurisdiction

with respect to safety of operation of motor vehicles and self-insurance

requirements of such bus lines. The commissioner shall, however, have

exclusive jurisdiction over the regulation of common carriers of

passengers by motor vehicle that provide operations on a prearranged

basis over non-specified or irregular routes within a city, except as

provided in subdivision five of this section or as otherwise provided in

this chapter. It is further provided, however, that once the

commissioner issues a certificate to a motor carrier to operate as a

common carrier of passengers by motor vehicle, such motor carrier shall

be under the exclusive jurisdiction of the commissioner with respect to

the service performed under such certificate, except as provided in

subdivision five of this section.

5. a. (1) Notwithstanding any other provision of law, in any city with

a population of over one million, the commissioner shall not have

jurisdiction over the regulation of any van service or other common

carrier of passengers by motor vehicle covered under article seven of

this chapter when such van service or other such common carrier is

operated wholly within the boundaries of such city or is operated partly

within such city if the partial operation consists of the pick up and

discharge of passengers wholly within such city, when such city has

adopted an ordinance, local law or charter to regulate or franchise such

operations; provided, however, that the commissioner shall have

exclusive jurisdiction with respect to the safety of operation of motor

vehicles operated as van services or other such common carriers of

passengers, except that concurrent jurisdiction with respect to

enforcement of such safety standards may be transferred pursuant to

agreement between the department and such city; and provided further

that the commissioner shall have exclusive jurisdiction with respect to

van services and other such common carriers that are designed for the

transport of transportation disabled persons as defined in section

fifteen-b of this chapter, except that such city shall continue to have

jurisdiction over the licensure of wheelchair accessible vans and

drivers of such vans as provided in chapter five of title nineteen of

the administrative code of the city of New York; and provided further

that the commissioner shall have exclusive jurisdiction with respect to

the operations of motor vehicles as van services or other such common

carriers of passengers covered under article seven of this chapter to or

from an airport in such city when such van services or other such common

carriers of passengers have been issued a permit by the port authority

of New York and New Jersey to operate at an airport in such city or

apply for such permit and within a reasonable period of time are issued

such permit by such authority. Such local law or ordinance shall: (i)

designate a city agency which will assume the regulatory responsibility,

(ii) contain regulations for the issuance of operating authority in

accordance with criteria to be established pursuant to such local law or

ordinance, which criteria shall include but not be limited to the

fitness, willingness and ability of the applicant to provide the

transportation to be authorized by the certificate and to comply with

the local law or ordinance, and consideration of the present or future

public convenience and necessity, and prohibit the operation of any

vehicle as a van service or other such common carrier of passengers

without such operating authority or without complying with regulations

promulgated by the commissioner regarding safety of operations, (iii)

make provisions for the continuation of operating authority for van

services and other such common carriers of passengers previously

approved by the department which are in compliance with such operating

authority through the conversion of such operating authority to

operating authority issued by the city agency designated by the local

law or ordinance adopted pursuant to this subdivision, pursuant to

agreement between the department and such city, provided that all such

van services and common carriers shall comply with such local law or

ordinance within one year of the effective date of such local law or

ordinance, (iv) contain adequate regulatory and enforcement mechanisms,

(v) provide that such city agency shall, after consultation with the

department, render a final administrative determination on any

application for the issuance of a permit, certificate or other operating

authority within one hundred eighty days after a completed application

is filed, provided that the failure to approve or disapprove any

completed application by such agency within one hundred eighty days

shall be deemed a disapproval of said application, and (vi) provide for

the imposition of a fee for such operating authority not to exceed the

amount of the license fee for for-hire vehicles established by the

commissioner of the agency having jurisdiction over the licensing of

for-hire vehicles in accordance with subdivision b of section 19-504 of

the administrative code of the city of New York, as amended.

(2) Such local law or ordinance shall prohibit a van service or other

such common carrier of passengers, other than van services and other

such common carriers that are designed for the transport of

transportation disabled persons as defined in section fifteen-b of this

chapter and may lawfully engage in such transportation or under the

exclusive jurisdiction of the commissioner, from soliciting, picking up

or discharging passengers at stops of, or along a route which is

traveled upon by, a bus line which is operated by a transit authority or

such city or a private bus company approved by such city to operate

pursuant to a local law, ordinance or charter provision enacted in

accordance with subdivision four of this section; provided, however,

that such local law or ordinance shall provide that this prohibition

shall not apply to the pick up or discharge of passengers in the borough

of Manhattan south of Chambers Street by van services or other such

common carriers of passengers with authority from the department as of

the first day of July, nineteen hundred ninety-two to pick up or

discharge passengers along bus routes in such area, provided further

that the scope of operations by such van services or other common

carriers of passengers along bus routes in such area shall not exceed

the scope of such operations prior to the first day of July, nineteen

hundred ninety-two.

(3) Notwithstanding any provision of law to the contrary, such local

law or ordinance may provide for the administrative adjudication of a

violation of such local law or ordinance by an agency or an

administrative tribunal of an agency heretofore authorized pursuant to

the charter of such city to adjudicate violations of local law, rules

and regulations pertaining to for-hire vehicles as if it were a

violation relating to for-hire vehicles and in accordance with the

provisions of such charter pertaining to the adjudication of violations

relating to for-hire vehicles. Such local law or ordinance may provide

that notices of violation of such local law or ordinance may be served

by any police officer, officer or employee designated by the city agency

with regulatory responsibility, or authorized officers or employees of

the transit authority of such city, and shall be returnable to such

agency or administrative tribunal. Such local law or ordinance shall

provide that the civil penalty imposed by such agency or administrative

tribunal for a first violation relating to a van service or other such

common carrier of passengers shall not be more than one thousand

dollars, and for a second or subsequent violation within two years of

the first violation shall not be more than twenty-five hundred dollars.

Judgments based on such adjudications may be entered and enforced

without court proceedings in accordance with the provisions of such

charter pertaining to the enforcement of judgments relating to for-hire

vehicles.

(4) Such local law or ordinance shall provide that where such agency

or administrative tribunal finds an owner liable for operating a vehicle

as a van service or other such common carrier without the operating

authority required by such local law or ordinance, such agency or

administrative tribunal may notify the commissioner of motor vehicles of

such finding and the commissioner shall thereupon suspend the

registration of such vehicle and shall deny any application for the

registration of such vehicle or any application for the renewal thereof

pursuant to subdivision five-a of section four hundred one of the

vehicle and traffic law until such time as such agency or administrative

tribunal may give notice that the violation has been corrected to its

satisfaction. The procedure on any such suspension shall be the same as

in the case of a suspension under the vehicle and traffic law. Operation

of any motor vehicle for which the registration has been suspended as

herein provided shall constitute a class A misdemeanor.

(5) Such local law or ordinance may provide for the seizure and

forfeiture of vehicles that have been operated as a van service or other

such common carrier of passengers without the operating authority

required by such local law or ordinance, in accordance with the

provisions of paragraphs b and c of this subdivision.

b. (1) A local law or ordinance adopted pursuant to paragraph a of

this subdivision may provide that any police officer or officer or

employee designated by the city agency with regulatory responsibility

may, upon service of a notice of violation upon the owner or operator of

a vehicle, seize a vehicle which such police officer or authorized

officer or employee has reasonable cause to believe is being operated as

a van service or other such common carrier of passengers by or on behalf

of an individual or entity which is not the holder of operating

authority to operate a van service or other such common carrier of

passengers. All passengers in any seized vehicle shall be left in or

transported to a location which is readily accessible to other means of

public transportation. Any vehicle seized pursuant to this paragraph

shall be delivered into the custody of the city agency with regulatory

responsibility or other appropriate agency of the city. Within one

business day after the seizure, notice of such seizure and a copy of the

notice of violation shall be mailed to the owner of such vehicle at the

address for such owner set forth in the records maintained by the

department of motor vehicles, or for vehicles not registered in New York

state, such equivalent record in such state of registration.

(2) A hearing to adjudicate the violation underlying the seizure shall

be held before the agency or administrative tribunal designated by such

local law or ordinance to adjudicate violations of such local law or

ordinance within five business days after the date of seizure. Such

agency or administrative tribunal shall within one business day of the

conclusion of the hearing render a determination as to whether the

vehicle has been operated by or on behalf of an individual or entity

which is not the holder of operating authority to operate a van service

or other such common carrier of passengers. An owner shall be eligible

to obtain release of such vehicle prior to such hearing if such owner

has not previously been found liable in an administrative or court

proceeding for operating a vehicle as a van service or other such common

carrier in violation of a local law or ordinance adopted pursuant to

paragraph a of this subdivision, which violation was committed within a

five-year period prior to the violation resulting in seizure. The

vehicle shall be released to an eligible owner upon the posting of a

bond in a form satisfactory to such agency or administrative tribunal in

an amount that shall not exceed an amount sufficient to cover the

maximum fines or civil penalties which may be imposed for the violation

underlying the seizure and all reasonable costs for removal and storage

of such vehicle.

(3) Where such agency or administrative tribunal after adjudication of

the violation underlying the seizure finds that the vehicle has been

operated by or on behalf of an individual or entity which is not the

holder of operating authority to operate a van service or other such

common carrier of passengers, (i) if the vehicle is not subject to

forfeiture pursuant to paragraph c of this subdivision, such agency or

administrative tribunal shall release such vehicle to an owner upon

payment of the applicable fines and civil penalties and all reasonable

removal and storage costs, or (ii) if the vehicle is subject to

forfeiture pursuant to paragraph c of this subdivision, such agency or

administrative tribunal may release such vehicle to an owner upon

payment of the applicable fines and civil penalties and all reasonable

removal and storage costs, or may commence a forfeiture action pursuant

to paragraph c of this subdivision within ten days after the owner's

written demand for such vehicle.

(4) Where such agency or administrative tribunal after adjudication of

the violation underlying the seizure finds that the charge of operating

without the required operating authority has not been sustained, the

vehicle shall be released to the owner.

(5) If an owner or representative of such owner has not sought to

reclaim a seized vehicle within thirty days after the mailing of notice

to such owner of the final adjudication by such city agency or

administrative tribunal of the violation underlying the seizure, such

vehicle shall be deemed by such agency or administrative tribunal to be

abandoned. Such vehicle shall be disposed of by the city agency with

regulatory responsibility or other appropriate agency of the city

pursuant to section twelve hundred twenty-four of the vehicle and

traffic law; provided, however, that notwithstanding any inconsistent

provision of section twelve hundred twenty-four of such law, if an owner

seeks to reclaim such vehicle pursuant to the provisions of section

twelve hundred twenty-four of such law, such owner shall be deemed to

have made a written demand for such vehicle and such agency or

administrative tribunal shall take such action as may be authorized by

subparagraph three or four of this paragraph.

c. (1) In addition to the penalties, sanctions and remedies provided

for in paragraphs a and b of this subdivision or subdivisions six and

seven of section one hundred forty-five of this chapter, a vehicle

seized pursuant to paragraph b of this subdivision and all rights, title

and interest therein shall be subject to forfeiture to the city in

accordance with the procedures set forth in this paragraph upon judicial

determination thereof if the owner of such vehicle has been found liable

at least two times in an administrative or court proceeding for

violating a provision of a local law or ordinance adopted pursuant to

paragraph a of this subdivision that prohibits the operation of a

vehicle as a van service or other such common carrier of passengers

without the operating authority required by such local law or ordinance,

both of which violations were committed within a five-year period.

(2) A forfeiture action which is commenced pursuant to this paragraph

shall be commenced by filing of a summons with notice or a summons and

complaint pursuant to the civil practice law and rules, and such summons

with notice or summons and complaint shall be served pursuant to

subparagraph three of this paragraph. A vehicle which is the subject of

such action shall remain in the custody of the city agency with

regulatory responsibility or other appropriate agency of the city

pending the final determination of the forfeiture action.

(3) Service of a summons with notice or a summons and complaint shall

be made: (i) by personal service pursuant to the civil practice law and

rules upon all owners of the vehicle listed in the records maintained by

the department of motor vehicles, or for vehicles not registered in New

York state, in the records maintained by the state of registration; (ii)

by first class mail upon all individuals who have notified such city

agency or administrative tribunal that they are an owner of the vehicle;

and (iii) by first class mail upon all persons holding a security

interest in such vehicle which security interest has been filed with the

department of motor vehicles pursuant to the provisions of title ten of

the vehicle and traffic law, at the address set forth in the records of

such department, or for vehicles not registered in New York state, all

persons holding a security interest in such vehicle which security

interest has been filed with such state of registration at the address

provided by such state of registration.

(4) Any owner who receives notice of the institution of a forfeiture

action who claims an interest in the vehicle subject to forfeiture shall

assert a claim for the recovery of the vehicle or satisfaction of the

owner's interest in such vehicle by intervening in the forfeiture action

in accordance with the civil practice law and rules. Any person with a

security interest in such vehicle who receives notice of the institution

of the forfeiture action who claims an interest in such vehicle subject

to forfeiture shall assert a claim for satisfaction of such person's

security interest in such vehicle by intervening in the forfeiture

action in accordance with the civil practice law and rules.

(5) No vehicle shall be forfeited under this paragraph, to the extent

of the interest of a person who claims an interest in the vehicle, where

such person pleads and proves as an affirmative defense that: (i) the

use of the vehicle for the conduct that was the basis for a seizure

authorized by a local law or ordinance adopted pursuant to paragraph a

of this subdivision occurred without the knowledge of such person, or if

such person had knowledge of such use, without the consent of such

person, and that such person did not knowingly obtain such interest in

the vehicle in order to avoid the forfeiture of such vehicle; or (ii)

the conduct that was the basis for such seizure was committed by any

person other than such person claiming an interest in the vehicle, while

such vehicle was unlawfully in the possession of a person who acquired

possession thereof in violation of the criminal laws of the United

States or any state. For purposes of this subparagraph, where such

person claiming an interest in the vehicle had knowledge of the use of

the vehicle for the conduct that was the basis for such seizure, such

person shall be deemed to have consented to the unlawful conduct unless

such person establishes that he or she did all that could reasonably

have been done to prevent the use of the vehicle for such unlawful

conduct.

(6) The agency of the city having custody of the forfeited vehicle,

after judicial determination of forfeiture, shall, at its discretion,

either: (i) retain such vehicle for the official use of the city or,

(ii) by public notice of at least twenty days, sell such forfeited

vehicle at public sale. The net proceeds of any such sale shall be paid

into the general fund of such city.

(7) At any time within six months after the forfeiture, any person

claiming an interest in a vehicle which has been forfeited pursuant to

this paragraph who was not sent notice of the commencement of the

forfeiture action pursuant to subparagraph three of this paragraph or

who did not otherwise receive actual notice of the forfeiture action may

assert in an action commenced before the justice of the supreme court

before whom the forfeiture action was held such claim as could have been

asserted in such forfeiture action pursuant to this paragraph. The court

may grant the relief sought upon such terms and conditions as it deems

reasonable and just if such person claiming an interest in the vehicle

establishes that he or she was not sent notice of the commencement of

the forfeiture action and was without actual knowledge of the forfeiture

action and establishes either of the affirmative defenses set forth in

subparagraph five of this paragraph.

(8) In any action commenced pursuant to subparagraph two or seven of

this paragraph, where the court awards a sum of money to one or more

persons in satisfaction of such person's or persons' interest or

interests in the forfeited vehicle, the total amount awarded to satisfy

such interest or interests shall not exceed the amount of the net

proceeds of the sale of the forfeited vehicle, after deduction of the

lawful expenses incurred by the city, including the reasonable costs of

removal and storage of the vehicle between the time of seizure and the

date of sale.

(9) For purposes of this paragraph, the term "security interest" shall

mean a security interest as defined in subdivision k of section two

thousand one hundred one of the vehicle and traffic law.

d. For purposes of this subdivision, the term "owner" shall mean an

owner as defined in section one hundred twenty-eight and in subdivision

three of section three hundred eighty-eight of the vehicle and traffic

law.

e. The provisions of this subdivision authorizing penalties, sanctions

and remedies shall not be construed to supersede the provisions of

subdivisions six and seven of section one hundred forty-five of this

chapter but shall be construed to provide penalties, sanctions and

remedies in addition to those provided in such subdivisions.

f. Any city with a population of over one million which adopts a local

law or ordinance pursuant to this subdivision to regulate van service

and other such common carrier operations shall, no later than two years

following the effective date of such local law or ordinance, submit a

report regarding the regulation of such van services and other such

common carriers to the governor, the temporary president of the senate

and the speaker of the assembly. Such report shall, to the extent such

information is available, include but not be limited to: (i) the

estimated number of individuals and entities with proper operating

authority to operate a van service and other such common carrier, both

prior to the commencement of local regulation and after such two-year

period, and the number of vehicles operated by such individuals or

entities; (ii) the estimated number of vehicles operated without proper

operating authority, both prior to the commencement of local regulation

and after such two-year period; (iii) the number of individuals and

entities which had applied for operating authority during such two-year

period; (iv) the number of applications which had been denied and a

breakdown of the reasons for such denials; (v) the number of notices of

violations or summonses issued to vehicles pursuant to local law or

ordinance during such two-year period, and a breakdown of the

dispositions of such violation notices or summonses; (vi) the number of

vehicles seized pursuant to local law or ordinance during such two-year

period, and a breakdown of the dispositions of such seizures; (vii) the

number of vehicles forfeited pursuant to local law or ordinance during

such two-year period; (viii) the total amount of fines collected

pursuant to such local law or ordinance; and (ix) a description of the

manner in which service is being provided to commuters who previously

used van services and other such common carriers which had been

operating without proper operating authority.