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This entry was published on 2014-09-22
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SECTION 80
Jurisdiction of commissioner
Transportation (TRA) CHAPTER 61-A, ARTICLE 3
§ 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.