Taxi Of Tomorrow Legal Challenge by CelesteKatz

VIEWS: 2,028 PAGES: 16

									SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

COMMITTEE FOR TAXI SAFETY,
                        Petitioner,                           Index No. j / ^ R / z M f


                                                              NOTICE OF PETITION
CITY OF NEW YORK; MICHAEL R.
BLOOMBERG, in his official capacity as
Mayor of the City of New York; THE
NEW YORK CITY TAXI & LIMOUSINE
COMMISSION ("TLC"); DAVID
YASSKY, in his official capacity as
Commissioner, Chair and Chief Executive
Officer of the TLC,
                        Respondents.

To the above-named Respondents:

                PLEASE TAKE NOTICE, that on the annexed petition, verified on

November 23, 2011, and on the annexed exhibits, Petitioner will move before this Court

located at 60 Centre Street, New York, New York, in the Motion Support Office

Courtroom, Room 130, on the 10th day of January, 2012, at 9:30 a.m., or as soon

thereafter as counsel can be heard, for a judgment against Respondents pursuant to

Article 78 of the Civil Practice Law and Rules, declaring that Respondents' award of the

Taxi of Tomorrow contract to Nissan was arbitrary and capricious and an abuse of

discretion.

               PLEASE TAKE FURTHER NOTICE that you are hereby summoned and

required to serve upon the undersigned an answer and supporting affidavits, if any, at

least five (5) days prior to the aforesaid date of hearing.           *


                                                                          COUWY CLERKS OFFI06

                                                                              JWV 2 3 /!-•)'• r
Dated: New York, New York
       November 23, 2011

                    Respectfully submitted,

                    PAUL, WEISS, RIFKIND, WHARTON&
                     GARRISON LLP

                    By: M^Tte                 £(.. ^ y / ^ *-•
                        Roberta A. Kaplan
                        Robyn F. Tamofsky
                        Mark Ciani

                    1285 Avenue of the Americas
                    New York, New York 10019-6064
                    (212)373-3000

                    Attorneys for Petitioner Committee for Taxi Safety


TO:   City of New York
      c/o Corporation Counsel for the City of New York
      100 Church Street
      New York, NY 10007

      Michael R. Bloomberg
      c/o Corporation Counsel for the City of New York
      100 Church Street
      New York, NY 10007

      The New York City Taxi & Limousine Commission
      c/o Corporation Counsel for the City of New York
      100 Church Street
      New York, NY 10007

      David Yassky
      c/o Corporation Counsel for the City of New York
      100 Church Street
      New York, NY 10007
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

COMMITTEE FOR TAXI SAFETY,
                      Petitioner,                        Index No.      HWi/ZoH


                                                         VERIFIED PETITION
CITY OF NEW YORK; MICHAEL R.
BLOOMBERG, in his official capacity as
Mayor of the City of New York; THE
NEW YORK CITY TAXI & LIMOUSINE
COMMISSION ("TLC"); DAVID
YASSKY, in his official capacity as
Commissioner, Chair and Chief Executive
Officer of the TLC,
                      Respondents.

               Petitioner Committee for Taxi Safety ("Petitioner"), by their attorneys,

Paul, Weiss, Rifkind, Wharton & Garrison LLP, bring this writ of certiorari for review

pursuant to Article 78 of the New York Civil Practice Law and Rules (the "CPLR")

challenging the arbitrary and capricious determination by respondents, the City of New

York, Michael R. Bloomberg, the New York City Taxi & Limousine Commission, and

David Yassky (together, "Respondents") to award an exclusive contract to the car

manufacturer Nissan to make the "Taxi of Tomorrow." Petitioner alleges as follows:

                                    INTRODUCTION

               1.     This proceeding arises out of New York City's new requirement

that, beginning in 2013, all taxi medallion owners replacing taxi vehicles — either

because of a legally-imposed retirement of the vehicle or the medallion owner's own

choice ~ are obligated to purchase the so-called "Taxi of Tomorrow," a yet-to-be-

manufactured version of the Nissan NV200 van.
                2.     Respondents selected the Nissan NV200 as the exclusive vehicle

that those in the New York City taxi industry must use to replace their taxis, announcing

a decade-long exclusive contract with Nissan that provides that all medallion taxis in

New York City must be Nissan NV200s.

                3.     Awarding an exclusive contract to Nissan marks the first time in

the history of New York City taxicab regulation that taxicab medallion and vehicle

owners will be required to purchase and use a single brand and model automobile.

                4.    The Nissan NV200 uses outmoded engineering, design, and

technology. The vehicle's features and design led New York State Assembly member

Micah Kellner to say, "Who knew that the Taxi of Tomorrow was the delivery van of

yesterday?" Moreover, the Nissan NV200 is not accessible to the people with mobility

disabilities.

                5.    There are concerns that the NV200 will not be an adequate

replacement for the cars that now make up the New York City taxi fleet. The NV200

does not appear to be ruggedly built and therefore may not be able to remain in good

repair over many miles of rough driving on the poorly maintained streets of New York

City. Restricting taxi medallion drivers to one and only one type of car deprives drivers

and riders of options that might better suit their individual preferences. And because the

Taxi of Tomorrow is sole-sourcedfroma Japanese manufacturer, if any problems arise

with the vehicle - such as mechanical issues, recalls or manufacturing delays - New

York City taxi drivers and riders could find themselves facing a shortage of operable

taxis.
                6.     The costs of driving a cab will increase not only because the

NV200 is produced in foreign countries, but also because medallion owners will be able

to only purchase replacement vehicles and partsfromone source ~ Nissan ~ who will

control the price of its product.

               7.      Foisting a potentially inadequate vehicle on New York City taxi

owner and operators inevitably will detrimentally impact managers' and owners' income

and increase the costs of driving and will therefore cause a decrease in the value of taxi

medallions.

               8.      Awarding the Japanese automobile company Nissan with a

monopoly on manufacturing vehicles for the New York City taxi industry was arbitrary

and capricious and had no basis in law or fact.

               9.      This Court should issue a declaratory judgment stating that the

Taxi of Tomorrow contract with Nissan is an arbitrary and capricious government

decision and therefore may not be enforced.
                                      THE PARTIES
                10.    Petitioner Committee for Taxi Safety is a trade association of

licensed lease agents responsible for managing over 3,500 taxicabs. Petitioner is the

largest licensed leasing association in New York City. Its address is 23-10 Jackson

Avenue, Long Island City, New York, 11101.

                11.    Petitioner Committee for Taxi Safety brings this claim on its own

behalf and also as representative of its adversely affected members, who are taxi

medallion owners and New York City-licensed agents that manage taxi cab medallions

and vehicles and that lease medallions and vehicles to drivers. Any members of

Petitioner Committee for Taxi Safety have standing to sue in their own right. The

members of Petitioner Committee for Taxi Safety will be directly injured by the

requirement that all new New York City taxis after 2013 must be Taxis of Tomorrow.

                12.    Petitioner Committee for Taxi Safety's purpose is to facilitate

individuals' ability to drive taxis by leasing medallions and vehicles directly to them.

Petitioner Committee's members accomplish this goal, in part, by purchasing medallions

and vehicles, the latter of which are leased to drivers. Petitioner is therefore an

appropriate representative of its members' interests in this case: the claims asserted by

Petitioner, if successful, will preserve the value of taxi medallions and enable the industry

to continue to provide high levels of service to the public.

               13.     Respondent City of New York ("City") is a municipality organized

and existing under the laws of the State of New York. On information and belief, at all

times relevant hereto, Respondent City, acting through the TLC, was responsible for the

decision to make the Taxi of Tomorrow the only authorized New York City taxi starting

in 2013.
                14.    Respondent New York City Taxicab & Limousine Commission

("TLC") is an administrative agency for the City of New York, created by § 2300 of the

New York City Charter. The TLC has nine members (known as "Commissioners"), all of

whom are appointed by the Mayor of the City of New York with the advice and consent

of the New York City Council. The TLC has the power to act by majority vote. Id. at §

2301. Its mandate is, inter alia, to regulate the taxi and limousine industry and to

establish "standards for driver safety, standards for equipment safety and design; [and]

standards for noise and pollution control." N.Y.C. Charter § 2300. The TLC is

responsible for licensing and regulating NYC's medallion yellow taxicabs, for-hire

vehicles (community-based liveries and black cars), commuter vans, paratransit vehicles

(ambulettes), and certain luxury limousines. This action concerns only NYC's medallion

yellow taxicabs, which are the most heavily regulated cars in NYC and are the only for-

hire cars permitted to accept hailsfrompassengers in the street, N.Y.C. Admin. Code §

19-502(1). On information and belief, at all times relevant hereto, the TLC was

responsible for making the Taxi of Tomorrow the only authorized New York City taxi

starting in 2013.

               15.     Respondent Bloomberg is sued in his official capacity as the

Mayor of the City of New York. On information and belief, at all times relevant hereto,

Respondent Bloomberg, acting as Mayor and through his effective control over the TLC,

for making the Taxi of Tomorrow the only authorized New York City taxi starting in

2013.

               16.     Respondent David Yassky ("Yassky") is sued in his official

capacity as the Commissioner, Chair, and Chief Executive Officer of the TLC. On
information and belief, at all times relevant hereto, Respondent Yassky and/or his

predecessor Commissioner Matthew W. Daus ("Daus") were/was responsible for making

the Taxi of Tomorrow the only authorized New York City taxi starting in 2013.

                             JURISDICTION AND VENUE

               17.     This Court has jurisdiction pursuant to CPLR Article 78 to review

final determinations made by Respondents.

               18.     New York County is the proper venue pursuant to CPLR 7804(b)

and 506(b). Respondents made their arbitrary and capricious determination in New York

County and Respondents' offices are located in New York County.

                              FACTUAL ALLEGATIONS
New York City Taxicab Background.

               19.     Taxicabs were first introduced to New York City during the turn of

the 20th century.

               20.     Although popular among New York City's residents, taxicabs were

not subject to significant regulation until the passage of the Haas Act in 1937. The Haas

Act established the medallion system for New York taxicabs, which is still in use today.

The Act's provisions included a limitation on the number of medallion licenses (and

therefore, taxicabs) to the number that existed at the time. The effect was to reduce the

supply of taxicabs, such that competition for customers was reduced.

               21.     As taxicabs became more popular, the value of medallions

increased once license holders realized that they were a transferable asset.

               22.     Throughout its history, the New York City taxicab fleet has been

manufactured by different companies and in different models. The Checker taxicab, for

example, was very popular for a time, but it shared its popularity with other models over
the years, such as the Ford Galaxy and the Plymouth Fury Three. In the 1990s and

2000s, the most popular taxicabs included the Chevrolet Caprice, the Ford Crown

Victoria, the Ford Explorer, the Ford Escape Hybrid, and the Toyota Sienna.

The Taxi of Tomorrow Initiative Is the Respondents' First Attempt Ever to Impose
One Automobile Model on All Taxicab Vehicle and Medallion Owners.
               23.     In December 2009, the TLC issued a "request for proposals,"

inviting auto manufacturers and designers to submit designs for the new New York City

taxicab. In November 2010, the TLC announced the three finalists: Karsan, Ford, and

Nissan. Recently, the Nissan NV200 van was selected as the winner, and Nissan was

awarded - for the first time ever - the exclusive right to manufacture one model to be the

only authorized vehicle that can be licensed as a new taxicab in New York City.

               24.     While the contract has not yet been signed, on information and

belief, its terms are set and the mayor and the TLC have moved forward as if the contract

has already been signed. The contract will be a ten-year manufacturing and supply

contract, with vehicles ready for purchase beginning in late 2013. The Taxi of Tomorrow

will replace old models of taxis already out on the streets which, by TLC rules, must be

replaced if they cannot pass inspection or if they are damaged in accidents, and must be

replaced without regard to inspection after a three to seven year period of use. The

manufacturer's suggested retail price will be approximately $29,000 and the contract in

total is estimated to be worth over $1 billion to Nissan.

               25.     Indeed, the mayor, the TLC and Nissan recently held a Taxi of

Tomorrow Design Expo in New York City on 23rd Street at Broadway and 5th Avenue

from November 1 to 5, 2011. The Expo featured an interactive display showcasing the

vehicle's planned interior. The exhibit was run by "NYC Taxi of Tomorrow Nissan"
representatives, who wore uniforms which said "NYC Taxi of Tomorrow Nissan" on

them, and stood next to billboards and publicity stands which read "NYC Taxi of

Tomorrow Nissan." At the Expo, the representatives told crowds of New Yorkers that

the contract had been signed as far as they knew and that the details of the design had

beenfinalizeddown to the anti-microbial seat upholstery and the passenger controlled

rear-seat heat/air conditioning.

               26.     The Taxi of Tomorrow website lists the Planned Standard

Features, Other Vehicle Features, and Safety Features of the Taxi of Tomorrow. The

City's website offers details about features of the Taxi of Tomorrow relating to safety,

comfort, amenities, economy, ease of entry and exit, driver features, and fuel efficiency.

Thus, the threat that Petitioner faces is real and immediate because the design for the

vehicle appears complete and Nissan appears ready to manufacture the Taxi of

Tomorrow.

               27.     Respondents' effort to introduce the Taxi of Tomorrow will be the

first time in the 100-year history of New York City taxicabs in which the use of a

particular brand and model of vehicle will be mandated.

               28.     Past practice of the Respondents suggests that industry

stakeholders have reason to be concerned. In the past, the TLC has approved inadequate

vehicles, such as a retrofitted Chevrolet Uplander. With respect to that vehicle, there

were reported instances of car doors coming unhinged while passengers were in the

vehicles, of rear axles coming off the cars, and of engine mounts "giving out."

               29.     Industry stakeholders are not the only ones who are concerned

about the Taxi of Tomorrow. Before awarding the Taxi of Tomorrow contract to Nissan,
the TLC held an online public opinion poll on the website www.taxioftomorrow.com to

determine which of the competitors for the Taxi of Tomorrow contract was most

attractive to the taxi riding public. According to the TLC poll, Ford TransitConnect

received a 23% vote, Karsan received 76% of votes and the winner, Nissan, received only

2% of the vote.

                30.    The decision to choose the Nissan NV200 as the Taxi of

Tomorrow is also unpopular among New York politicians. On May 3, 2011, New York

City Public Advocate Bill de Blasio, New York State Assembly Member Micah Z.

Kellner and Brooklyn Borough President Marty Markowitz sent a letter to Comptroller

John C. Liu requesting an investigation of potential conflicts of interest in the selection

process of the Taxi of Tomorrow. Upon information and belief, Comptroller Liu has not

responded to that letter.

               31.     There are at least three reasons for this negative reaction. First, the

NV200 is afront-wheeldrive van and has a unibody construction; the NV200 therefore is

not anticipated to be as reliable as the rear-wheel drive cars that currently operate as

taxicabs. As a result, it may not be able to hold up under the rigorous driving conditions

that New York City taxicabs must endure day in and day out. Second, because the Taxi

of Tomorrow is a sole-source contract, should Nissan have problems with the NV200,

due to strikes, supplier issues, recalls, or the sorts of production delays that plagued

Honda and Toyota following the Tohoku earthquake in May 2011, Petitioner and taxi

riding New Yorkers could find themselves facing a taxi cab shortage. Moreover, the cost

of vehicle and part replacements are expected to rise, given that Nissan will be the

exclusive provider to the entire New York City taxicab industry. As the exclusive
provider, Nissan will have no incentive to improve the quality of the vehicle or respond

to problems with the vehicle in a satisfactory manner. Finally, the NV200 is neither a

hybrid vehicle nor accessible to people with mobility disabilities.

Respondents' Decision To Award the Taxi of Tomorrow Contract to Nissan Was
Arbitrary and Capricious and an Abuse of Discretion.
               32.     Title 35, Chapter 67 of the Rules for the City of New York,

entitled "Rules for Taxicab Hack-Up and Maintenance," establishes the design, features,

and engineering requirements for taxicabs in New York City.

               33.     Vehicles currently operating as taxicabs meet these requirements.

               34.     Historically, the TLC has approved vehicle specifications, not

vehicle models. As a result, any vehicle that met the TLC's specifications would be

approved and could function as a taxicab.

               35.     The Taxi of Tomorrow initiative prevents taxicab owners and

operatorsfromusing vehicles that otherwise meet the specifications established by

Chapter 67 of the Rules of the City of New York. There is no sound basis to exclude

vehicles that meet these specifications from functioning as taxicabs. As a result, the Taxi

of Tomorrow initiative is arbitrary and capricious under law.

The Petition Satisfies All Administrative Prerequisites.

               36.    Petitioner challenges the Taxi of Tomorrow initiative because it is

arbitrary and capricious. On this cause of action, CPLR 7803(3) requires a determination

"final and binding" on the Petitioner. "[A]n administrative determination becomes final

and binding when it definitively impacts and aggrieves the party seeking judicial review."

Matter ofScott v. City of Albany, 1 A.D.3d 738, 739, 766 N.Y.S.2d 650, 651 (App. Div.

3d Dep't 2003). An administrative determination definitively impacts and aggrieves the


                                            10
party seeking judicial review when the injured party understands the consequences of the

determination and can "accurately assess the impact." New York City Off Track Betting

Corp. v. New York Racing & Wagering Board, 196 A.D.2d 15, 18, 608 N. Y.S.2d 328,

330 (App. Div. 3d Dep't 1994).

                37.       Upon information and belief, representatives at the Taxi of

Tomorrow Design Expo, held on November 1 through November 5, 2011, informed the

public for the first time that Respondents entered a contract with Nissan to manufacture

the Taxi of Tomorrow and that design details had been finalized. The Expo featured an

interactive display showcasing the vehicle's planned interior. This Expo provided

Petitioner with the means to accurately assess the impact of the Respondents' contract

with Nissan.

                38.       Petitioner is not required to exhaust any administrative remedies

under the New York Procurement Policy Board Rules or any other applicable law to

assert its claim in this Article 78 proceeding. Accordingly, this Article 78 proceeding is

timely and appropriately initiated.

                39.       No prior application has been made for the relief sought in this

petition.

                                     CAUSE OF ACTION

                                    Declaratory Judgment

                40.       Petitioner repeats and realleges the preceding paragraphs as though

fully set forth herein.

                41.       Title 35, Chapter 67 of the Rules for the City of New York,

entitled "Rules for Taxicab Hack-Up and Maintenance" establishes the design, features,

and engineering requirements for taxicabs in New York City.

                                               11
                42.     By awarding an exclusive contract to Nissan to manufacture the

Taxi of Tomorrow, Respondents exclude other vehicles who meet the standards set forth

in Chapter 67 of the Rules of the City of New York.

                43.     The Nissan NV200 is not superior to other approved taxicab

vehicles and mandating that taxicab medallion and vehicle owners purchase this specific

vehicle is not in the public interest.

                44.     Respondents' award of the exclusive contract to Nissan has no

sound basis in reason and was made without regard to the facts as alleged herein.

                45.     Denying Petitioner the ability to choose other vehicles that meet

these standards is arbitrary and capricious, contrary to law, and an abuse of discretion by

Respondents. Respondents' exclusive contract with Nissan lacks a rational basis and was

made without regard to the relevant facts and regulations.




                                             12
               WHEREFORE,

                      (a)     Petitioner seeks a declaration, pursuant to New York Civil

Practice Law and Rule 7803, that Respondents award of the Taxi of Tomorrow contract

to Nissan was arbitrary and capricious and an abuse of discretion; and

                      (b)     Petitioner seeks such other relief as the Court deems just

and proper.



Dated: New York, New York
       November 23,2011

                      Respectfully submitted,

                      PAUL, WEISS, RIFKIND, WHARTON&
                       GARRISON LLP
                      Bv:   ^ ^ f c ' / ^ ^ ^ / ^ ^
                         Roberta A. Kaplan
                         Robyn F. Tamofsky
                         Mark Ciani

                      1285 Avenue of the Americas
                      New York, New York 10019-6064
                      (212) 373-3000

                      Attorneys for Petitioner Committee for Taxi Safety




                                            13
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY

COMMITTEE FOR TAXI SAFETY,
                       Petitioner,                            Index No. j     I'Sdfefo/l

                      v.
                                                              VERIFICATION
CITY OF NEW YORK; MICHAEL R.
BLOOMBERG, in his official capacity as
Mayor of the City of New York; THE
NEW YORK CITY TAXI & LIMOUSINE
COMMISSION ("TLC"); DAVID
YASSKY, in his official capacity as
Commissioner, Chair and Chief Executive
Officer of the TLC,
                       Respondents.

STATE OF NEW YORK  )
                   ) ss:
COUNTY OF NEW YORK )

               I, Mark Ciani, being duly sworn, state that I am counsel for Committee for

Taxi Safety, Petitioner in this action and that the foregoing Verified Petition is true to my

own knowledge, except as to actions therein stated to be alleged on information and

belief, and as to those actions, I believe them to be true.

               This verification is made by me because Committee for Taxi Safety is not

in the county where my office is located.



                                                        Mark Ciani
Signed before me this Ls       day of November, 2011



Notary

                                        *„• W P M, HANSON
                                       Notary Public, State of New York
                                        ^     No 01HA6229216
                                        Qualified in New York County
                                     Commission Expires October 4, 2014

								
To top