Get documents about "Taxi Of Tomorrow Legal Challenge
Document Sample
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
