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MEMORANDUM

SUPREME COURT QUEENS COUNTY

 

 

CIVIL TERM PART 2 HON. ALLAN B. WEISS
MELROSE CREDIT UNION MONTAUK CREDIT Index No. 6443/15
UNION, PROGRESSIVE CREDIT UNION AND
LOMTO FEDERAL CREDIT UNION, Motion Date: 6/22/15
Petitioners, Motion Seq. No. :1
-against?

THE CITY OF NEW YORK, BILL DE BLASIO,
in his Official Capacity as the Mayor of the City of
New York, THE NEW YORK CITY TAXI 
LIMOUSINE COMMISSION, MEERA JOSHI,

in her Official Capacity as the Chair of the New
York Taxi and Lime Commission and ERIC T.
SCHNEIDERMAN, in his Official Capacity as

the Attorney General ofthe State of New York,

Respondents.

 

Respondent City of New York, respondent Bill De Blasio, the Mayor ofthe City of
New York, respondent New York City Taxi and Limousine Commission (TLC), and
respondent Meera Joshi, the Chair of the New York City Taxi and Limousine
Commission, have moved for an order pursuant to CPLR 3211(a)(3), (5), and (7) and
CPLR 7804(0 dismissing this Article 78 proceeding brought against them.

This case arises from the introduction of new technologies in the ground
transportation industry that are used to dispatch vehicles and to connect passengers with
drivers. The use of a smartphone application to obtain a ride has blurred the distinction
between a street hail and a pre?arrangement and has disturbed the balance of economic
interests within the industry.

The petitioners are four federally insured, non-profit credit unions that provide
financing for New York City taxi medallion owners who purchase the medallions from
the City ofNew York. The city sold approximately 1,400 medallions between 2006 and

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2014, raising approximately $800,000,000 in revenue for its treasury. The petitioners hold
security interests in 5,331 medallions for which they have made loans totaling
approximately 2.47 billion dollars. The petitioners essentially allege that the business
activity of companies like Uber Technology, Inc. (UTI) and its affiliated entities has
encroached upon the exclusive right of medallion taxis to pick up passengers who ?hail?
them in certain areas ofthe City of New York. The petitioners allege that the service
provided by Uber type companies has caused the value of medallions to plummet as much
as 40% in recent months, and the petitioners warn of credit contraction and numerous
foreclosures.

There are three relevant classes of vehicles that are available for passenger hire
in New York City: (1) yelldw medallion taxis, (2) green taxis, and (3) non?medallion for
hire vehicles, including black cars, luxury limousines, and livery vehicles collectively
For- Hire Vehicles or A medallion is a yellow plate issued by the TLC and
purchased at an auction that is fastened to the hood ofthe taxi. See, NYC Adm Code
?19-502 ?For?hire vehicle? means a motor vehicle carrying passengers for hire in
the city, with a seating capacity of twenty passengers or less, not including th'e?d?river,
other than a taxicab, coach, NYC Adm Code A livery vehicle is
defined by its affiliation with a base station and is neither a black car nor a luxury
limousine. (See, NYC Adm Code ?l9-502 ??Black car? means a for-hire vehicle
dispatched from a central facility whose owner hOIds? a franchise from the Corporation or
other business entity which operates such central facility, or who is a member of a
cooperative that operates such central facility, Where such central facility has certified to
the satisfaction ofthe commission that more than ninety percent of the central facility's
for-hire business is on a payment basis other than direct cash payment by a passenger.? 
NYC Adm Code 

NYC Adm Code ?19-502 prevides: ?Taxi?, ?taxicab? or ?cab? means a motor
vehicle carrying passengers for hire in the city, designed to carry a maximum of five
passengers, duly liCensed as a taxi cab by the commission and permitted to accept hails
from passengers in the street.? (See, Greater New York Taxi Ass'n v. New York City Taxi
and Limousine Com?n, 25 600 [2015].) 35 contains
references to ?street hails,? which, the court infers, are those made through calling out,
whistling, or gestures by passengers near the curb.

NYC Code provides in relevant part: ?No motor vehicle other than
a duly liCensed taxicab shall be permitted to accept hails from passengers in the street.?
Yellow medallion taxis can pick up passengers who hail them anywhere in New York
City and also have certain exclusive rights to pick up passengers through hails in
particular areas of New York City.(See, Greater New York Taxi Ass'n v. State

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21 289 [2013].) The part of Manhattan that is south of East 96th Street and West
110th Street, an area where yellow medallion taxis have exclusive rights, is known as the
central business district. (See, Greater New York Taxi Ass'n v. State, supra.) Green taxis,
not required to have a medallion and created in 201 1 primarily to service street hails in
the outer boroughs, can answer street hails anywhere in New York City except in areas
reserved for yellow medallion taxis.

?In contrast to yellow cabs, livery vehicles are prohibited from picking up street
hails and may accept passengers only on the basis oftelephone contract [sic] or other
prearrangement see Administrative Code of City ofN.Y. 19?507[a] The livery
client contacts a ?base station? that dispatches a livery vehicle to the requested location
(Administrative Code of City of NY. (Greater New York Taxi Ass'n v. State,
supra at 297.) Black cars also cannot pick up hailing passengers anywhere in the City of
New York. ?No driver of any for?hire vehicle shall accept a passenger within the city of
New York by means other than prearrangement with a base unless said driver is operating
either a taxicab licensed by the TLC {with a medallion affixed thereto, or (ii) a vehicle
with a valid HAIL license and said passenger is hailing the vehicle from a location where
street hails of such vehicles are permitted.? (Chapter 9 ofthe Laws of 2012, A hail
license essentially authorizes a vehicle to pick up passengers by street hail in New York
City except in areas reserved for yellow medallion taxis. (See, Chapter 9 ofthe Laws of
2012, Black, cars must be dispatched through their affiliated base station with
passenger pick-up scheduled for a specific time and place.?A Driver must not solicit or
pick up Passengers other than by prearrangement through a licensed Base, or dispatch of
an Accessible Vehicle.? (. 35 RCNY 55?19.)

Thus, under existinglaw and regulations, yellow medallion taxis and green taxis
in unrestricted areas are the only vehicles authorized to transport passengers who hail
them on the street, and are only permitted to service passengers who make pre-
arrangeiments with a base station. 

In May 201 l, the practical difference between a hail and a pre-arrangement
became blurred with the introduction of smart phone applications that operate in the FHV
sector. While the number of cars available to respond to an e?hail and the speed ofthe
response made the e-hail in some ways similar to the street hail, nevertheless, the TLC
permitted FHV vehicles to use the smart phone apps. According to Joanne Rausen, the
Assistant Commissioner for Data and Technology ofthe TLC In order to encourage
the development of new technologies and services, while at the same time protecting the
riding public, TLC permitted app use in the FHV sector on the condition that app
providers;(1) obtain a TLC issued FHV base license; or (2) enter into an agreement with
an existing TLC?licensed base to act as a referral and advertising service for such base.?

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Rausen states that ?as many as 42 percent of all are affiliated with bases that
reported having passenger-facing smartphone apps,? and ?passengers using smartphones
to schedule FHV service can do so by utilizing one ofthe 76 different apps reported to
TLC by 134 different bases.?

The New York City Taxi and Limousine Commission (TLC) also started a pilot
program which allowed yellow medallion taxis to arrange passenger pickups by way of
smart phone applications. According to Rausen, ?Accessing medallion taxis through an
app is a fOrm of pre-arrangement,? and [n]othing in the governing statutes or rules
prohibits medallion taxis from accepting rides via pre-arrangement.? The pilot program
withstood a legal challenge by members bfthe black car industry. (See, Black Car
Assistance Corp. v. City ofNew York, 110 618 [2013].) The Appellate Division,
First Department, held that (1) the pilotipir?ogram did [net violate the authority under
the city charter to regulate and supervise experimentation; (2) ?the pregram complies
with Administrative Code 19?511(a) requiring the licensing of communications systems
upon such terms as TLC?deems advisable,? and (3) the pilot program did net violate
Administrative Code which prohibits drivers from refusing, ?without
justifiable grounds, to take any passenger or prospective passenger to any destination
within the city.?

On January 29,2015, the TLC appmved new rules (the E?Hail Rules) dealing with
the licensure of ei-hail appliKCations in taxis. The new ru1es concerned, inter alia, what the
TLC called an ?E-hail? and an ?E?Paymeht.? Selctioh?z'l ofthe Rules provided in relevant
part: E-Hail is a Hail requested through an E4Hail Application.? E-Hail Application
or E-Hail App. A Software program licensed by the TLC under Chapter 78 residing on a
smartphone or other electronic (device ?Hail. A request, either through a verbal
(audio) action such as calling out, yelling, or whistling, and/or a visible physical action,
such as" raising one?s hand Or arm, or through an electronic method, such as an E-Hail
App, for on-demand Taxicab or Street Hail Livery service at the metered rate of fare as
set forth in ?58-26 and ?82-26 of these Rules by a person who is currently ready to
travel.?

Uber Technology, Inc. (UTI) and its affiliated entities (collectively Uber) provide
ground transportation services in New York City through black car bases. UTI developed
a smart phone app which enables passengers to obtain transportation services through its
use. Passengers: download the Uber app to their smartphones and create an account with
UTI, placing a credit card number with UTI. When a passenger uses the Uber app, it
displays a map showing the locations of available vehicles and informs the passenger of
the approximate travel time ofthe closest available vehicle to the passenger?s location.
After a passenger requests transportation, the Uber app transmits the request to the nearest

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available driver who is signed in to the Uber app. If the driver declines the request or
does not accept the request within fifteen seconds, the request is sent to the next closest
driver. The driver providing service receives a percentage ofthe payment made to Uber.
In January, 2015 Uber reported that it had approximately 16,000 drivers actively
accepting passengers through the Uber app.

Uber does not regard its drivers as employees, and its does not operate, lease, or
own its vehicles. Uber purports to ?partner? with its drivers, and some ofthese drivers,
affiliated with other ground transportation companies, make a side deal with Uber to drive
its customers while also driving for the other companies.

On May 27, 2015, the petitioners, who regard Uber and similar companies as a
parallel, unlicensed, taxicab network? that circumvents eighty years of regulation, began
the instant special proceeding, which according to the petition, seek[s] to prevent the
imminent collapse of the taxicab medallion market, and along with it, the entire taxicab
industry.? They have seized upon the promulgation of rules on or about January
29, 2015 (the E?Hail Rules) which permit yellow and green taxis to pick up passengers
via ?e-hails? using a TLC approved smart phone application. The petitioners assert that
the new rules make clear that an e?hail is a hailunot a pre-arrangement, and they argue
that black car companies like Uber may not pick up passengers via a hail. The petitioners
seek, inter alia, to compel the TLC to enforce rules and regulations prohibiting black car
companies like Uber from responding to hails. 

On or about April 24, 2015, the TLC published proposed rules (the E-Dispatch
Rules) pertaining to the dispatch of including rules pertaining to electronic
dispatch via apps. The TLC approved the rules on June 22, 2015, and the rules, which
include a definition of an electronic ,dispatch (?Dispatch arranged through a licensed FHV
Dispatch Application?) and a Pre-Arranged Trip A Pre-Arranged Trip, for a Street Hail
Livery, is a trip commenced by a Passenger pre?arranging a trip through a Base, by
telephone, smartphone application? [emphasis added], website, or other method?) took
effect on July 29, 2015.3 The promulgated rules may be found on the internet,) The
rules provide that all entities that dispatch FHV vehicles, including by way of smart
phone applications, must obtain a license and must conform to uniform protection and
safety standards. According to Rausen, the rules ?seek to, inter alia, establish uniform
standards for smartphone apps utilized by HV companies, license all apps, require the
provision of important information to the passenger, establish standards to protect private
information clarify that [Street Hail Livery] may accept dispatch by app,
restrict the location at airports where may accept an electronic dispatch via app
require bases to have a way for all customers to contact the base with customer
service related issues and complaints.?

 

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The petitioners purport to be aggrieved by the E-Hail and E-Dispatch Rules,
which allegedly are inconsistent with exclusive rights granted to medallion taxis by law.
NYC Code 19-503(b) provides in relevant part: ?No rule or regulation promulgated
subsequent to the effective date ofthis local law may be inconsistent with or Supersede
any provision of this local law The petitioners complain that the now claims
that an E-Hail does not actually constitute a ?Hail? if the electronic request for on demand
service by a passenger currently ready to travel is sent to an Uber [vehicle] rather than to
a taxicab.?

In deciding this case, the court is mindful that it must be careful to avoid the
fashioning of orders orjudgments that go beyond any mandatory directives of existing
statutes and regulations and intrude upon the policy-making and discretionary decisions
that are reserved/Vito the legislative and executive branches.? (Klostermann v. Cuomo,

61 525,541 [1984]; .Gonzalez v. Village ofPort Chester, 109 614 [2013].)
It is not the court?s function to adjust the competing political and economic interests
disturbed by the introduction of Uber type apps.

The petitioners first cause of actiOn is in the nature of mandamus to compel (see,
CPLR 7801, 7803[1]; Regini v. Board OfEdu'c. afBro?xville Union Free Schools,
128 1073 [2015]] the re8pondents to enforce laws and regulations permitting only
taxis to respond?to street hails. ?The extraordinary remedy of mandamus will lie only to
compel the performance of a ministerial act and ?only?vVhen there exists a clear legal right
to the relief sought (Ogunbayo v. Administration for Children's Services,
106 327 [2013]; Daniels v. Lewis, 95? 1011 [2012'] [failure to state a cause
of action]). ?Mandamus to compel is appropriate Only where a clear legal right to the
relief sought has been shown, the action sought to be compelled is one commanded to?be
performed by law and no admiriiStrative diSCretion is involVed (New York Civil Liberties
Union v. Siate ofNew York, 3 811, 813-814 [2004]; ClaytOri v. New York City 
Taxi Limousine 602 [2014] [discretionary government function--
motion to dismiss grahted].) Mandamus may?be?obtained ?to compel acts that officials
are duty-bound to perform.? (Klosiermanri v. Cuomo, supra at 540; Gonzalez v. Village
ofPort Chester, supra [grant of taxicab licenses was not a ministerial act that Could be
compelled by mandamus].)

?The extraordinary remedy of mandamus is available in limited circumstances only
to compel the performanCe of a purely ministerial act which does not involve the exercise
of official discretion of judgment, and only when a clear legal right to the relief has been
demonstrated (Rose Woods, LLC v. Weisman, 85 801, 802 [2011]
[emphasis added]; Wisniewski v. Michalski, 114 1188 [2014] Gonzalez v.

Village ofPort Chester, supra.)

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?[M]andamus does not lie to enforce the performance ofa duty that is
discretionary, as opposed to ministerial (New York Civil Liberties Union v. State,
4 175, 184 [2005].) discretionary act involves the exercise ofr?easoned
judgment which could typically produce different acceptable results whereas a ministerial
act envisions direct adherence to a governing rule or standard with a compulsory result
(New York Civ. Liberties Union v. State ofNew York, supra, 184; Gonzalez v.
Village ofPort Chester, supra.) ?The act sought to be compelled must be ministerial,
nondiscretionary and nonjudgmental, and be premised upon specific statutory authority
mandating performance in a specific manner (Brown v. New York State Dept. of
Social Services, 106 740, 741 [1984]; New York Civil Liberties Union v. State of
New York, supra.)

An Article 78 proceeding in the nature of mandamus: may be dismissed pursuant to
CPLR 3211(a)(7): (1) where it does not seek to compel the performance of a ministerial
act (see, Clayton v. New York City Taxi Limousine Com?n, supra; New York Civil
Liberties Union v. State ofNew York, supra at 813 [?we find no error in Supreme Court's
determination that plaintiffs also essentially seek relief in the nature of mandamus to
compel registration review of their schools pursuant to 8 but fail to
state a claim for such relief because the administrative action they seek is discretionary
rather than and/or (2) where the allegations of the petition do not show that
there is a, ?fclear legal r_ight?ito relief. (See, Burch v. Harper, 54 854 [2008].)

Thecases concerning mandamus to compel an administrative body to enforce the
law are not easily reconciled. (Compare, Jurnove v. Lawrence, 38 895 [2007]
?while the courts will not interfere with the exercise by law enforcement officials of their
broad discretion to allocate resources and devise enforcement strategies, mandamus .will
lie if. they have abdicated their! responsibilities by failing to discharge them, whatever
their motive may be?] with, Church ofChosen v. City ofElmira, 18 978 [2005]
[?With respect to the alleged code violations by petitioners' neighbors, the decision to
enforCe a municipal code rests in the discretion of the public officials charged with its
enforcement and? relief in the nature of mandamus is simply unavailable andiMayes v.
Cooper, 283 760, 7,61 [2001] [petition to compel the enforcement of local
zoning ordinance does not lie to compel the performance of?such a discretionary
But even under the Jurnove (test, mandamus to compel does not lie in this
case, because, as the parties? submissions have shown, the TCL, actively engaged in
regulating the introduction of new smart phone technology in the ground transportation
industry, has not ?abdicated? its responsibilities to enforce the law.

This case fundamentally concerns an administrative determination to
classify and treat passenger communications to companies like Uber as a type of pre-

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arrangement rather than as a hail. In determining whether the petitioners have a cause of
action in the nature of mandamus to compel, the court need not rule on the legality of the
administrative classifications. It is enough for the court to find that this discretionary
matter lies at the heart ofthis case and intertwines with any duty ofthe TLC to enforce its
rules and regulations pertaining to hails. It is enough for the court to find that this is not a
case where no administrative discretion is involved (see, New York Civil Liberties Union
v. State ofNew York, supra), but rather one involving ?the exercise of reasoned
judgment.? (New York Civ. Liberties Union v. State ofNew York, supra at 184.)
Mandamus does not lie to compel an act which involves an exercise ofjudgment or
discretion (Brusco v. Braun, 84 674, 679 and the firSt cause of
action is not adequate because it does not involve a purely ministerial act.? Rose
Woods, LLC v. Weisman, supra at 802.)

The petitioners also do not have a cause of action for relief in the nature of
mandamus because?the pleadings and tsubmissic?ms do not show a clear right to relief.
"Where, as here, evidentiary material is submitted and considered on a motion to dismiss
a complaint pursuant to CPLR 3211(a)(7), and the motion is not c?onvertedginto one for,
summaryjudginent, the question becomes whether the plaintiff has a cause of action, not 
whether the plaintiff has stated one (Haiiwooa? u. incorporated of'Otd
571 [2015]; Agar" Liberty Mat. Agency Corp.,118 830
[2014]; Fishberger 6272 [2008].) The respondents? submissions on
this motion refute any allegations in the petition concerning a clear right to relief. Rausen
alleges: ?The purpose of the E-Hail Rules was to Officially set forth detailed rules i
governing the Operation of electronic app services in taxis. The rules promulgated on
January 29,2015 in no way pertain to FHV service or the conduct of FHV drivers in
providing?FHV service. The rules strictly pertain to allowing yellow medallion taxis and
the green Street Hail Livery vehicles to utilize eleCtronic apps to connect with
prospective yellow and green taxi passengers.? A clear right to relief cannot be found on
the basis ofa set of rules which the administrative agency does not regard as having any
relevance to FHV vehicles. ?An agency's interpretation ofits own regulations ?is entitled
to deference  that interpretation is not irrational or unreasonable (IG Second
Generatibn Partners LP. v. New York State Div. ofHousing and Community ReneWal
10 474, 481 [2008] quoting Matter ofGaines v. New York State Div. ofHous. 
Comniunity Renewal, 90 545, 

The petitioners? second cause of action is captioned CPLR 7803(1):
Mandamus to Compel the Promulgation of Rules and Regulations Necessary to
Implement the Provisions of Title 19.? The second cause of action alleges, inter alia, that
?[r]espondents have not promulgated rules and regulations that are consistent with
upholding and enforcing the taxicab medallion owners? exclusive right to hails,
particularly in light of recent E?Hailing activities by certain including Uber.?

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While mandamus to compel may lie where a statutory directive to an administrative body
to promulgate rules is mandatory, not discretionary (see, Neighbors Against Garbage v.
Doherty, 245 81 [1997]), the petitioners did not allege that any specific provision
of Title 19 ofthe Administrative Code directs the TLC to promulgate rules banning
from responding to communications by passengers via an e-app. Moreover, the
determination to treat the use of a Uber app as a type of pre?arrangement is a matter of
administrative discretion, and the second cause of action does not involve a ?purely
ministerial act.? (Rose Woods, LLC v. Weisman, supra at 802.)

The petitioners? third cause of action is brought ?to prohibit respondents from
enforcing any existing rules and regulations that are inconsistent with taxicab medallion
owners? exclusive right to hails, ?including those adopted by the TLC on January 29,
2015 [The E?Hail Rules].? NYC Code provides in relevant part: ?No
motor vehicle other than a duly licensed taxicab shall be permitted to accept hails from
passengers in the street.. NYC Code driver of a for-hire
vehicle, other than a driver operating a for-hire vehicle with a valid HAIL license, shall
accept passengers unless the passengers have engaged the use of theifor-hire vehicle on
the basis oftele?phone contract or prearrangement.? The petitioners do not have a cause
of action for Article 78 relief in the nature of prohibition. CPLR 7803, ?Questions
raised,? provides in relevant part: ?The only questions that may be raised in a proceeding
under this article are: whether the body or officer proceeded, is proceeding or is
about to proceed without er in excess ofjurisdiction; (See, Di Lorenzo v. Muriagh,
36 {306 [1975].) petitioner?seeking a writ of prohibition must demonstrate
that: (1) a body or officer is acting in ajudicial or quasi-judicial capacity, (2) that body or
officer is proceeding or threatening to proceed in excess of its jurisdiction and (3)
petitioner has a clear legal right to the relief requested (Garner v. New York State
Dept. ofCorrectional Services, 10 358, 362 [2008]; Rachelle v. Rice, 112 
942 [2013]; Sedore v. Epstein, 56 60 [2008].) The third cause of action fails on all
three grounds. First, ?prohibition does not lie against strictly administrative action, but
only againstjudicial and quasi?judicial action. When brought against an administrative
official, the latter must therefore be shown to be exceeding jurisdiction in some
quasi-judicial capacity.? (Siegel, NY Practice [4th ?559; see, Morgenthau v.
Erlbaum, 59 143 [1983]. Prohibition ?may not issue against legislative,
executive, or ministerial action (Morgenthau v. Erlbaam, supra at 147.) An
administrative agency engaged in rule-making acts in relation to the legislative function.
(See, Boreali v. Axelrod, 71 1, 13 [1987] [filling ?in the Second, the
TLC did not exceed its regulatory powers in adopting the E?Hail and E-Dispatch Rules
since those powers are very broad. (See, Greater N. Y. Taxi Assn. New York City Taxi 
Limousine Commit, supra [?The City Council granted the TLC extremely broad
authority to enact rules The E?Hail Rules state in relevant part: The
Commission?s authority for these rules is found section 2303 ofthe New York City
Charter and sections 19?503 and 19-511 ofthe New York City Administrative Code.?

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Section 2303 of the City Charter broadly provides: The jurisdiction, powers and duties
ofthe commission shall include the regulation and supervision ofthe business and
industry of transportation of persons by licensed vehicles for hire in the city, pursuant to
provisions of this chapter.? Section 19?503 broadly anthorizes the TLC to ?promulgate
such rules and regulations as are necessary to exercise the authority conferred upon it by
the charter and to implement the provisions of this chapter.? The E?Dispatch Rules also
state: The Commission?s authority for these rules is found section 2303 ofthe New
York City Charter and sections 19-503 and 19-511 ofthe New York City Administrative
Code.? The TLC had sufficient regulatory authority to promulgate the E-Hail and E-
Dispatch: Rules since they conCern ?the regulation and supervision? of taxis, and
other vehicles transporting?passengers. Moreover, the TLC, which may set public
transportation policies and, in Rausten?s words, ?encourage the deVelopment of new
technologies and services,? had sufficient regulatory authority to treat app
communicatiOns as bothihails or pre?arrangements. The TLC had sufficient authority to
treat the app communications differently depending on the needs of the partiCular
segment ol?the ground transportation industry dealt with. Both the E-Hail and E-
Dispalch Rules contain a ?Statement of Basis and Purpose of Rule,? demonstrating that
the TLC had reasons for itsiactions. Third, the petitioners did not show a clear right to
relief, since the? E-Hail Rules do Enotiapply to and, in adopting the E-Dispatch
Rules: the TLC had sufficient authority; to treat electronic communicationsto as
The E'?Hail Rules and the E?Dispatcih Rules are not inconsistent 'witli"
NYC Code NYC Code which do not redStri'ct? the TLC
from treating electronic communications as hails or pre-arrangernents according to
proper,?thou?gh,different, regulatory purpos?es. 

The petitioners5 fourth cause of action is brought to prohibit the respondents from
promulgating or enforcing rules permitting the electronic dispatch of As
discussed above, the petitioners do net have a cause of action for such relief. See,
Garner v. New York StdtelDept. ofCo?rrectional Services, supra; Rachelle v. Rice,
supra; SedOre v. Epstein, supra.)

The pe?titioner?S? fifth cause of action is captioned CPLR 7803(3):
Mandamus to Review Determination/Declaratory Judgment?) They seek to set aside the
E-Hail and E-Dispatch Rules as ?affected by an error of and Capricious,
or an abuse of discretion.? The petitioners do not have a cause of action for Article 78
relief. ?Arbitrary action is without sound basis in reason and is generally taken without
regard to? the facts.? (Pell v. Board of-Ed. of Union Free School Dist. No. 1 of Towns of
Scarsdale and Mamaroneck, Westchester County, 34 222, 231 [1974].) The
pleadings and submissions do not show that the actions were arbitrary and
capricious. Moreover, as discussed above, the E-Hail Rules and E-Dispatch Rules are not
inconsistent with any provision in the City Charter or Administrative Code, and the TLC
did not abuse its discretion in treating electronic communications as hails or pre-

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arrangements according to different regulatory purposes. To the extent that the fifth cause
of action seeks a declaratory judgment, it is merely duplicative of that part ofthe cause of
action which seeks Article 78 relief.(See, Gable Transport, Inc. v. State, 29 1125
[2006].)

Accordingly, that branch of the cross motion which is for an order pursuant to
CPLR 3211(a)(7) and CPLR 7804(0 dismissing the petition is granted. The remaining
branches of the motion are denied as moot.

Settle order.

Dated: 9/8/15

 

J.S.C.

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