vehicle challenge in New York

2016Indeed, both plaintiffs and the Town are challenging only the validity of the legislative enactments, and “[i]t is well established that [a CPLR] article 78 proceeding is not the proper vehicle to test the validity of a legislative enactment” (Kamhi v Town of Yorktown, 141 AD2d 607, 608 [1988], affd 74 NY2d 423 [1989]; see Centerville’s Concerned Citizens, 56 AD3d at 1129; see generally Press v County of Monroe, 50 NY2d 695, 702 [1980]).

2016Indeed, both plaintiffs and the Town are challenging only the validity of the legislative enactments, and “[i]t is well established that [a CPLR] article 78 proceeding is not the proper vehicle to test the validity of a legislative enactment” (Kamhi v Town of Yorktown, 141 AD2d 607, 608 [1988], affd 74 NY2d 423 [1989]; see Centerville’s Concerned Citizens, 56 AD3d at 1129; see generally Press v County of Monroe, 50 NY2d 695, 702 [1980]).

2022Preliminarily, we note that a CPLR article 78 proceeding "is not the proper vehicle to test the validity of a legislative enactment" such as an Urban Development Action Area designation ( Kamhi v Town of Yorktown , 141 AD2d 607, 608 [2d Dept 1988], affd 74 NY2d 423 [1989]).

2021The gravamen of plaintiffs' lawsuit is that Local Law No. 2 is invalid in certain key aspects, and "it is well established that an article 78 proceeding is not the proper vehicle to test the validity of a legislative enactment" ( Kamhi v Town of Yorktown , 141 AD2d 607, 608 [2d Dept 1988], affd 74 NY2d 423 [1989]).

1991At the outset the court notes for the record that while a declaratory judgment action is the proper vehicle for a challenge to legislative action generally (Matter of Lakeland Wa ter Dist. v Onondaga County Water Auth., 24 NY2d 400 ), plaintiffs’ SEQRA claim should have been brought as a CPLR article 78 proceeding.

1989The law is well settled that a declaratory judgment action, not a proceeding pursuant to CPLR article 78, is the proper vehicle to test the validity of a legislative enactment (see, Press v County of Monroe, 50 NY2d 695, 702 ; Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400 ).

2024Admin. of City of N.Y. , 31 NY2d 184, 191 [1972]; see Press v County of Monroe , 50 NY2d 695, 702 [1980]).

1975The Court of Appeals has "consistently held that a proceeding under article 78 is not the proper vehicle to test the constitutionality of legislative enactments” (Matter of Kovarsky v Housing & Development Administration, City of N. Y, 31 NY2d 184, 191 ).

2023Corp. v Conciliation & Appeals Bd. of City of N.Y. , 62 NY2d 763 , 765 [1984]; see Matter of Elder v Russ , 212 AD3d 430, 430 [1st Dept 2023]).

1986Corp. v Conciliation & Appeals Bd. ( 62 NY2d 763, 765 ), "a declaratory judgment action is not the proper vehicle to challenge an administrative procedure, where judicial review by way of article 78 proceeding is available.” (See also, City of New York v State Bd. of Equalization & Assessment, 60 AD2d 932 .) In both Solnick v Whalen (supra) and Press v County of Monroe (supra), the court held that each action, instituted as a declaratory judgment action, should have been commenced as an article 78 proceeding and the fact that objections to the determinations were alleged on constitutional grou

2016We conclude that the court properly denied defendant’s suppression motion inasmuch as defendant’s unprovoked flight from the vehicle constituted an abandonment of the vehicle and a waiver of any claim to a reasonable expectation of privacy therein (see People v Gonzalez, 25 AD3d 620, 621 [2006], lv denied 6 NY3d 833 [2006]; People v Hanks, 275 AD2d 1008, 1008 [2000], lv denied 95 NY2d 964 [2000]; see generally People v Ramirez-Portoreal, 88 NY2d 99, 110 [1996]).

2016We conclude that the court properly denied defendant’s suppression motion inasmuch as defendant’s unprovoked flight from the vehicle constituted an abandonment of the vehicle and a waiver of any claim to a reasonable expectation of privacy therein (see People v Gonzalez, 25 AD3d 620, 621 [2006], lv denied 6 NY3d 833 [2006]; People v Hanks, 275 AD2d 1008, 1008 [2000], lv denied 95 NY2d 964 [2000]; see generally People v Ramirez-Portoreal, 88 NY2d 99, 110 [1996]).

2020Accordingly, and as an initial matter, the defendant "as a passenger in the stopped vehicle, has standing to contest the stop of the vehicle and therefore to challenge any evidence seized as the fruit of the [allegedly] unlawful stop" ( People v Nicodemus , 247 AD2d 833, 836 ; see People v Millan , 69 NY2d at 520 ; People v Fredericks , 234 AD2d 472, 473 ; People v Matthew , 228 AD2d 260, 260 ; People v Concepcion , 216 AD2d 141, 141 ; People v Dugard , 192 AD2d 418, 418 ; People v Dawson , 115 AD2d 611, 612 ; cf. People v Garcia , 39 AD3d 666, 667 ; People v Gonzalez , 25 AD3d 620, 621 ).

2016We conclude that the court properly denied defendant’s suppression motion inasmuch as defendant’s unprovoked flight from the vehicle constituted an abandonment of the vehicle and a waiver of any claim to a reasonable expectation of privacy therein (see People v Gonzalez, 25 AD3d 620, 621 [2006], lv denied 6 NY3d 833 [2006]; People v Hanks, 275 AD2d 1008, 1008 [2000], lv denied 95 NY2d 964 [2000]; see generally People v Ramirez-Portoreal, 88 NY2d 99, 110 [1996]).

2016We conclude that the court properly denied defendant’s suppression motion inasmuch as defendant’s unprovoked flight from the vehicle constituted an abandonment of the vehicle and a waiver of any claim to a reasonable expectation of privacy therein (see People v Gonzalez, 25 AD3d 620, 621 [2006], lv denied 6 NY3d 833 [2006]; People v Hanks, 275 AD2d 1008, 1008 [2000], lv denied 95 NY2d 964 [2000]; see generally People v Ramirez-Portoreal, 88 NY2d 99, 110 [1996]).

2016We conclude that the court properly denied defendant’s suppression motion inasmuch as defendant’s unprovoked flight from the vehicle constituted an abandonment of the vehicle and a waiver of any claim to a reasonable expectation of privacy therein (see People v Gonzalez, 25 AD3d 620, 621 [2006], lv denied 6 NY3d 833 [2006]; People v Hanks, 275 AD2d 1008, 1008 [2000], lv denied 95 NY2d 964 [2000]; see generally People v Ramirez-Portoreal, 88 NY2d 99, 110 [1996]).

2025"The Court of Appeals has recognized that . . . even if there is probable cause to arrest a motorist, the officer may not rely on his right to search the motorist incident to arrest unless an arrest has been or is about to be effectuated" ( People v Reinoso , 74 Misc 3d 704 , 709 [Sup Ct 2022] [holding a gun recovered from a search of Defendant's person was unlawful even after lawful stop of the vehicle for violation of PL 170.20 possession of forged instruments because there was nothing further to justify the search of the defendant and an arrest had not taken place prior to the search]; acco

2025"The Court of Appeals has recognized that . . . even if there is probable cause to arrest a motorist, the officer may not rely on his right to search the motorist incident to arrest unless an arrest has been or is about to be effectuated" ( People v Reinoso , 74 Misc 3d 704 , 709 [Sup Ct 2022] [holding a gun recovered from a search of Defendant's person was unlawful even after lawful stop of the vehicle for violation of PL 170.20 possession of forged instruments because there was nothing further to justify the search of the defendant and an arrest had not taken place prior to the search]; acco

2025"The Court of Appeals has recognized that . . . even if there is probable cause to arrest a motorist, the officer may not rely on his right to search the motorist incident to arrest unless an arrest has been or is about to be effectuated" ( People v Reinoso , 74 Misc 3d 704 , 709 [Sup Ct 2022] [holding a gun recovered from a search of Defendant's person was unlawful even after lawful stop of the vehicle for violation of PL 170.20 possession of forged instruments because there was nothing further to justify the search of the defendant and an arrest had not taken place prior to the search]; acco

2025"The Court of Appeals has recognized that . . . even if there is probable cause to arrest a motorist, the officer may not rely on his right to search the motorist incident to arrest unless an arrest has been or is about to be effectuated" ( People v Reinoso , 74 Misc 3d 704 , 709 [Sup Ct 2022] [holding a gun recovered from a search of Defendant's person was unlawful even after lawful stop of the vehicle for violation of PL 170.20 possession of forged instruments because there was nothing further to justify the search of the defendant and an arrest had not taken place prior to the search]; acco

2025For determining whether an officer has probable cause that a person violated V.T.L. § 1192, the standard is whether "it is more probable than not that the defendant is actually impaired." ( People v. Vandover , 20 NY3d 235, 239 [2012]).

2025For determining whether an officer has probable cause that a person violated V.T.L. § 1192, the standard is whether "it is more probable than not that the defendant is actually impaired." ( People v. Vandover , 20 NY3d 235, 239 [2012]).

2025"The Court of Appeals has recognized that . . . even if there is probable cause to arrest a motorist, the officer may not rely on his right to search the motorist incident to arrest unless an arrest has been or is about to be effectuated" ( People v Reinoso , 74 Misc 3d 704 , 709 [Sup Ct 2022] [holding a gun recovered from a search of Defendant's person was unlawful even after lawful stop of the vehicle for violation of PL 170.20 possession of forged instruments because there was nothing further to justify the search of the defendant and an arrest had not taken place prior to the search]; acco

2025"The Court of Appeals has recognized that . . . even if there is probable cause to arrest a motorist, the officer may not rely on his right to search the motorist incident to arrest unless an arrest has been or is about to be effectuated" ( People v Reinoso , 74 Misc 3d 704 , 709 [Sup Ct 2022] [holding a gun recovered from a search of Defendant's person was unlawful even after lawful stop of the vehicle for violation of PL 170.20 possession of forged instruments because there was nothing further to justify the search of the defendant and an arrest had not taken place prior to the search]; acco

2014Delacruz neither offered an explanation or excuse for the accident nor did he deny making the statement to plaintiff (McGraw v Ranieri, 202 AD2d 725, 727 [3d Dept 1994] [defendant failed to raise a question of fact as he offered no explanation for his guilty plea to a vehicle violation]).

2014Delacruz neither offered an explanation or excuse for the accident nor did he deny making the statement to plaintiff (McGraw v Ranieri, 202 AD2d 725, 727 [3d Dept 1994] [defendant failed to raise a question of fact as he offered no explanation for his guilty plea to a vehicle violation]).

2014Rather, he relied solely on his counsel’s affirmation, which also made no reference to defendant’s admission (see Gruppo v London, 25 AD3d 486 , 487 [1st Dept 2006] [affirmation of counsel who lacks personal knowledge of the facts is insufficient to raise a triable issue of fact]; see also Jean v Zong Hai Xu, 288 AD2d 62 [1st Dept 2001]).

2014Rather, he relied solely on his counsel’s affirmation, which also made no reference to defendant’s admission (see Gruppo v London, 25 AD3d 486 , 487 [1st Dept 2006] [affirmation of counsel who lacks personal knowledge of the facts is insufficient to raise a triable issue of fact]; see also Jean v Zong Hai Xu, 288 AD2d 62 [1st Dept 2001]).

2003Corp. v McBarnette, 84 NY2d 194, 200-201 [1994]; Solnick v Whalen, 49 NY2d 224 [1980].) In this respect, as plaintiffs point out, it is a declaratory judgment action, not a CPLR article 78 proceeding, which is the proper vehicle to challenge the constitutionality of a state statute.

2003Corp. v McBarnette , 84 NY2d 194, 200-201 [1994]; Solnick v Whalen , 49 NY2d 224 [1980].) In this respect, as plaintiffs point out, it is a declaratory judgment action, not a CPLR article 78 proceeding, which is the proper vehicle to challenge the constitutionality of a state statute. ( See Press v County of Monroe , 50 NY2d 695, 702 [1980]; New York Pub.

2020Accordingly, and as an initial matter, the defendant "as a passenger in the stopped vehicle, has standing to contest the stop of the vehicle and therefore to challenge any evidence seized as the fruit of the [allegedly] unlawful stop" ( People v Nicodemus , 247 AD2d 833, 836 ; see People v Millan , 69 NY2d at 520 ; People v Fredericks , 234 AD2d 472, 473 ; People v Matthew , 228 AD2d 260, 260 ; People v Concepcion , 216 AD2d 141, 141 ; People v Dugard , 192 AD2d 418, 418 ; People v Dawson , 115 AD2d 611, 612 ; cf. People v Garcia , 39 AD3d 666, 667 ; People v Gonzalez , 25 AD3d 620, 621 ).

1998Defendant, as a passenger in the stopped vehicle, has standing to contest the stop of the vehicle and therefore to challenge any evidence seized as the fruit of the unlawful stop (see, People v Millan, 69 NY2d 514, 520 ; People v Matthew, 228 AD2d 260 ).

2006“Absent reasonable suspicion of a vehicle violation, a ‘routine traffic check’ to determine whether or not a vehicle is being operated in compliance with the Vehicle and Traffic Law is permissible only when conducted according to nonarbitrary, nondiscriminatory, uniform procedures for detecting violations” (People v Ingle, 36 NY2d 413, 414-415 [1975]; see People v Scott, 63 NY2d 518, 524-527 [1984]).

1992Under the circumstances, the officer had reasonable suspicion that the driver was operating the vehicle in violation of the Vehicle and Traffic Law (cf., People v Ingle, 36 NY2d 413 ).

2009Co. v Delany, 28 NY2d 449, 458 [1971]; Hudson Val.

1976Co. v Delany, 28 NY2d 449 ; CPLR 103, subd [c]).