Last Updated on March 26, 2017 by Lawrence Berezin
A parking rule violated is a parking ticket dismissed
There are myriad (love the word) parking rules that regulate NYC Parking Ticket Land. Parking rules are written by:
- The Commissioner of the Department of Transportation
- Darth Vader of the Evil Empire
These parking rules govern every aspect of our life from the time our car grabs its fair share of curb space and is issued a parking violation until a hearing and appeal are completed and a decision rendered.
You may be familiar with the Traffic and Highway Rules formulated by the DOT. However, the lesser known rules devised by Darth Vader contain some of the best get-out-of-jail-free cards in Parking Ticket Land.
Here’s how I apply ’em to set our clients free.
Chapter 39 of title 19 of the Official Compilation of Rules of the City of New York
Chapter 39 was adopted by the Commissioner of Finance to prescribe the internal procedures and organization of the Parking Violations Bureau, the manner and time of entering pleas, the conduct of hearings, the amount and manner of payment of penalties, and other purposes of article two-B of the Vehicle and Traffic Law.
1. “Notice of violation” shall mean:
(1) A form or duplicate thereof prepared and distributed by the Bureau substantially completed and sworn to or affirmed by authorized issuing agents which shall constitute a notice of violation when served as hereinafter provided.
Comment: The white piece of paper with the bite-size bits of information reaching out from under your wiper is not a “parking ticket.” It is technically a notice of violation informing the operator and owner of the chariot that a parking rule was violated. It demands a reply by either paying the parking fine or requesting a hearing. Many of these bite-size bits of data are required elements that must be entered accurately to establish a prima facie case against the operator/owner.
2. (2) For purposes of this definition, authorized issuing agents shall be members of the Police Department, Fire Department, Department of Transportation, Traffic Enforcement Agents, Department of Sanitation, the Sheriff, Under Sheriff and Deputy Sheriffs of the Department of Finance’s Office of the City Sheriff, Fraud and Associate Fraud Investigators of the Department of Finance, Department of Business Services, Business Integrity Commission, New York City Housing Authority Police, Port Authority of New York and New Jersey Police, Police of the Metropolitan Transportation Authority and its subsidiary authorities, United States Park Police, Department of Buildings Special Patrolmen, State Regional Park Police, Taxi and Limousine Commission, Waterfront Commission of New York Harbor, Department of Parks and Recreation, Department of Correction, Roosevelt Island Security Organization, Sea Gate Association Police, Snug Harbor Rangers with peace officer status, Amtrak Police Officers, Office of Court Administration Court Officers, Department of Health Police Officers, Health and Hospitals Corporation Police Officers, New York State Office of Mental Health Safety Officers, New York State Office of Mental Retardation and Developmental Disabilities Police Officers, Triborough Bridge and Tunnel Authority Police Officers, State University Maritime College Public Safety Officers, Department of Environmental Protection Police Officers, and managers of the New York City Transit Authority.
(3) For purposes of this definition, authorized issuing agents shall also include special patrolmen appointed by the police commissioner pursuant to subdivision (c) of §14-106 of the administrative code of the City of New York to do special duty at Parkchester South Condominium, the New York City Hunts Point Terminal Market in the borough of the Bronx, Stuyvesant Town in the borough of Manhattan, and various facilities under the jurisdiction of the Department of Citywide Administrative Services.
Comment: Did you realize how many human beings and agencies are empowered to inflict pain on the driving public? Wowzers!
Chapter 39-02 Notice of Violation (Summons)
(1) The notice of violation (summons) shall be in such form as may be prescribed by the Director and shall contain the registration plate number, the type of registration, the state of registration, the date of expiration, a description of the vehicle, a general statement of the violation alleged, including a reference to section 4-08 of title 34 of the official compilation of Rules of the City of New York or applicable provision of the Vehicle and Traffic Law or of the Administrative Code of the City of New York or any other law or rule, information as to the days and hours the applicable rule or provision is in effect, unless always in effect pursuant to the rule or provision and where appropriate the word “all” when the days and/or hours in effect are every day and/or twenty-four hours a day, the date, time and place of occurrence, and, if a meter violation, the meter number. A mere listing of a meter number in cases of charged meter violations shall not be a sufficient description of a particular place of occurrence of the charged violation.
(2) Where the plate type or the expiration date are not shown on either the registration plates or sticker of a vehicle or where the registration sticker of a vehicle is covered, faded, defaced or mutilated so that it is unreadable, the plate type or the expiration date may be omitted from the notice of violation, provided that such condition is so described and inserted on the notice of violation.
(3) If any information that is required to be inserted in a notice of violation is omitted from the notice of violation, misdescribed, or illegible, the violation shall be dismissed upon application of the person charged with the violation.
Comment: These are some of my favorite rules because they describe required elements that a parking ticket warrior must enter accurately to establish a prima facie case against us. If we find an omitted, misdescribed, or illegible required element, we win a dismissal upon application. According to the Parking Violations Bureau, a judge is required to check every disputed parking violation to identify defective required elements. This mandate is more honored in the breach. [“Got Tickets” check out page 3].
I recommend identifying all defective required elements and presenting the proper proof to compel a judge to dismiss your parking violation.
Here is a pretty picture comparing NY State and NYC required elements:
Larry’s Tiperoo: The Evil Empire always rules that a warrior does not have to enter a totally accurate description of the body type of out-of-state vehicle (only a reasonably accurate description). I argue that the NY courts have consistently ruled that 5 required elements must be entered exactly accurately, and body type is one of them. The correct interpretation of the rules does not permit the Evil Empire to distinguish between NY registered vehicles and out-of-state registered vehicles. Check out these four incredibly helpful cases…
(b) Service of notice of violation (summons).
Service of the notice of violation (summons) may be made as follows:
(1) Personally on the operator of a vehicle. In such case, the name of the person served shall also be inserted in the notice of violation (summons).
(2) If the operator is not present, the notice of violation (summons) shall be served on the owner of the vehicle by affixing the notice to the vehicle in a conspicuous place. Service of the notice of violation (summons) as herein provided shall have the same force and effect as if personally served.
(c) Operator as agent for service.
The operator of a vehicle who is not the owner thereof but who uses or operates such vehicle with the permission of the owner, express or implied, shall be deemed to be the agent of such owner to receive notice of violation (summons).
Comment: This rule is fast becoming Larry’s best friend because warriors tend to embellish their comments on parking tickets. For example, I recently beat a no standing parking ticket by raising improper service as a defense. Our client was a taxi driver who was actively engaged in picking up a passenger in a no standing zone. We know that it is permissible to pick up or drop off people in a no standing zone…and so did the warrior.
However, in an effort to make this unjust parking ticket stick, the warrior entered “sitter” in the comment portion of the parking ticket. I argued that if the warrior agreed I was a sitting behind the wheel of a taxi when the ticket was issued, she should have asked for the driver’s I.D., and entered his name on the parking ticket.
What better proof that a driver was sitting behind the wheel of her chariot than a warrior acknowledging the fact in writing on the parking ticket (the warrior thought by inserting “sitter” it would contradict our claim that a taxi driver was actively engaged in picking up a passenger).
Case dismissed. Yea!
Here’s another case where our client took a photograph of the warrior placing the parking ticket under the wiper of his car. Case dismissed.
§39-10 DECISIONS AND JUDGMENTS
(d) Default judgments.
(1) Where a respondent has failed to plead within the time allowed or to appear for a hearing, or on any subsequent adjourned date, a default judgment sustaining the charges, fixing the fine and, in appropriate cases, assessing penalties and fees, may be entered against said respondent.
(2) Before such a default judgment is rendered, the Bureau shall notify the respondent by such form of first class mail as the Director may determine that a violation is outstanding, of the impending default judgment and that such judgment may be avoided by entering a plea or making an appearance within thirty days of such notice. Failure or refusal to accept or claim such mail shall be deemed adequate notice for purposes of penalties and entry of a default judgment against the respondent.
Comment: Here’s a defense I haven’t tried on for size. What do you think about raising this argument to restore a case after a default judgment was entered?
“I never received notice by mail of the impending default judgment.” Obviously, we would have to support this argument with some proof. Can anyone think of ways we can prove that notice wasn’t received?
Reading the parking rules does not qualify as leisure reading. But, you’ll be amazed at the value of understanding the legal framework in which parking tickets live.
When you’re right-FIGHT…Learn the rules.