Yep Tours vs. City of New York

Case 1:17-cv-01110-JGK Document 1 Filed 02/14/17 Page 1 of 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ________________________________________________ YEP TOUR, INC., ) Index No. ) ) Plaintiff, ) -againstCOMPLAINT ) ) ) ) THE CITY OF NEW YORK, NEW YORK CITY ) DEPARTMENT OF TRANSPORTATION and NEW YORK CITY DEPARTMENT OF FINANCE, SHERIFF ) JURY TRIAL DEMANDED ) JOSEPH FUCITO, JOHN DOE #1, and JOHN DOE #2, ) ) Defendants. )

PRELIMINARY STATEMENT 1.

This is an action in which Plaintiff, YEP TOUR, INC. seeks damages for injuries

sustained as a result of the defendants’ violation of its rights as secured by 49 U.S. Code §14501, 42 U.S.C. §§1983, 1985(3), 1986, and by Equal Protection and Due Process Clauses of the Fourteenth Amendment and Interstate Commerce Clause of the United States Constitution, and for rights secured under the laws and Constitution of the State of New York. Plaintiff also sues in traditional tort pursuant to pendent State claims.

Plaintiff has been deprived of its

constitutional, federal and common law rights when the defendants unlawfully and purposely preempts the authority granted to plaintiff by the federal government when defendant continuously denies plaintiff’s applications for a ‘bus stop’ as required by City law.

Furthermore, defendant continues to profit from the numerous fines levied against plaintiff, in excess of $500,000.00, for non-compliance with the very ‘bus stop’ law for which it has continuously denied plaintiff’s applications.

Plaintiff seeks damages, compensatory and

punitive, affirmative, equitable relief and injunctive relief, and award of costs and attorney’s fees and such other and further relief as this Court deems equitable and just.

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JURISDICTION 2.

Jurisdiction is conferred upon this Court by 28 U.S.C. §§ 1331, 1343, 1343(a)(3)

and (4), this being an action seeking redress for the violation of the Plaintiff’s constitutional and civil rights. The amount of damages in controversy is in excess of fifty thousand dollars ($50,000.00), exclusive of interests and costs.

3.

Any claims for declaratory and injunctive relief are authorized by 28 U.S.C.

§§2201 and 2202 and Rules 57 and 65(a) of the Federal Rules of Civil Procedure.

4.

The Plaintiffs further invoke this Court’s supplemental jurisdiction, pursuant to 28

U.S.C. §1367(a), over any and all state law claims and as against all parties that are so related to claims in this action within the original jurisdiction of this Court that they form part of the same case or controversy. Jurisdiction of this court for the pendent claims is authorized by F.R.Civ.P. 18(a) and arises under the doctrine of pendent jurisdiction.

5.

The Plaintiffs respectfully demand a trial by jury on each and every one of the

claims as pleaded herein.

VENUE 6.

Venue is proper for the United States District Court for the Southern District of

New York pursuant to 28 U.S.C. §1391(a), (b) and (c) and §1402 (b) because the claims arose in this district.

PARTIES 7.

Plaintiff, YEP TOURS, INC., is an interstate transportation company (hereinafter

referred to as “plaintiff” or “YEP Tours”) duly authorized to conduct business within the State of New York, with offices at 12 Harvard Street, 1st Floor, Worcester, MA 01619.

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Case 1:17-cv-01110-JGK Document 1 Filed 02/14/17 Page 3 of 13 8.

Upon information and belief, at all times hereinafter mentioned, Defendant, THE

CITY OF NEW YORK, (“CITY”), was and is a municipal corporation duly organized and existing under the laws of the State of New York.

9.

At all times hereinafter mentioned, Defendant CITY is a municipal entity

authorized under the laws of the State of New York to operate and maintain the NEW YORK CITY DEPARTMENT OF TRANSPORTATION (“NYCDOT”), inter alia, which acts as its agents in the area of enforcement, custodial care and management of matters related to transportation, and for whose actions, and the actions of individual NYCDOT agents employed thereby, defendant CITY was and is ultimately responsible.

10.

At all times hereinafter mentioned, Defendant CITY operated, maintained and

controlled the NYCDOT, including all agents and officers therein and assumed the risks incidental to the maintenance and the employment of agents and officers as said risks attach to the consumers of the services provided by the NYCDOT. 11.

At all times hereinafter mentioned, Defendant CITY is a municipal entity

authorized under the laws of the State of New York to operate and maintain the NEW YORK CITY DEPARTMENT OF FINANCE (“NYCDOF”), inter alia, which acts as its agents in the area of enforcement, custodial care and management of matters related to finance, fines and taxation, and for whose actions, and the actions of individual NYCDOF agents employed thereby, defendant CITY was and is ultimately responsible.

12.

At all times hereinafter mentioned, Defendant CITY operated, maintained and

controlled the NYCDOF, including all agents and officers therein and assumed the risks incidental to the maintenance and the employment of agents and officers as said risks attach to the consumers of the services provided by the NYCDOF. 13.

Upon information and belief, at all times hereinafter mentioned, Defendant

JOSEPH FUCITO (“FUCITO”), was employed as a Sherill by defendant CITY, assigned to the THE RAMBADADT LAW OFFICE

Case 1:17-cv-01110-JGK Document 1 Filed 02/14/17 Page 4 of 13 NYCDOF, and as such had a first line responsibility for taking appropriate measures to ensure that proper procedure was followed and preserve the constitutional rights of persons and parties involved. Defendant FUCITO is sued both in his individual and official capacity. At all times hereinafter mentioned, defendant was acting within the scope of his employment with the NYCDOT and NYCDOF. 14.

Defendants JOHN DOE 1 and JOHN DOE 2, were employed as agents and

officers by defendant CITY, and as such had a first line responsibility for taking appropriate measures to ensure that proper procedure was followed on all finance and transportation issues and preserve the constitutional rights of all persons and entities affected by their determinations.

Defendants JOHN DOE 1, JOHN DOE 2 are sued both in their individual and official capacity.

At all times hereinafter mentioned, defendants were acting within the scope of their employment with the NYCDOT and NYCDOF. 15.

At all times, relevant herein, each and every individual defendant herein was

acting under color of state law in the course and scope of their duties and functions as agents, servants, employees and officers of the City of New York, at all times relevant herein with the power and authority vested in them as officers, agents and employees of the City of New York, and incidental to the lawful pursuit of their duties as officers, employees and agents of the City of New York.

STATEMENT OF THE FACTS 16.

On or about November 18, 2013, Plaintiff YEP Tour, Inc. was incorporated in the

State of Massachusetts.

17.

Plaintiff YEP Tour is an interstate transportation carrier authorized to conduct

business under the United States Department of Transportation (“USDOT�).

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Case 1:17-cv-01110-JGK Document 1 Filed 02/14/17 Page 5 of 13 18.

Plaintiff provides transportation between New York City and other East Coast

cities with its ticketing agency and the majority of its customers entering and leaving from lower Manhattan, in the neighborhood known as Chinatown.

19.

YEP Tours is a minority owned business that brings over a million people into the

city each year to work or visit and has a tremendous impact on the New York City economy.

20.

Currently YEP Tours runs an average of thirty-two (32) trips a day, in and out of

the City, every hour on the hour from its location in lower Manhattan.

21.

In the year 2013 the City of New York adopted the New York City ‘Bus Stop’

Permit System for the Intercity Bus Industry, this law required that all intercity bus companies apply for specific bus stops in order to pick up and drop off customers on New York City Streets.

This application was to be made to the Bus Stop Management Unit of the NYCDOT. (Ex. B— Intercity Bus Stop Permit Law).

22.

Since YEP Tour’s incorporation in 2013, it has applied numerous times for

numerous bus stops and has been denied each time with nothing more than an arbitrary reason of ‘inconvenience’ 1. (Ex. A—Applications).

23.

As a result, over the last three (3) years, YEP Tour has incurred numerous parking

tickets and fines for picking-up and dropping-off passengers without a designated bus stop.

24.

Despite their diligent and consistent efforts to comply with the Intercity Bus Stop

Permit Laws requiring them to apply for a bus stop permit, YEP Tour was repeatedly denied any stop in Manhattan and the ticketing continued. (Ex. A).

25.

On or about January 17, 2017, the defendants seized two (2) buses owned by

plaintiff YEP Tour stating that plaintiff owed $11,000.00 in parking fines due to their inability to secure a bus stop permit from the City. (Ex. C—News Article).

1

Plaintiff has submitted more than 40 applications for bus stops and have been denied each time.

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Case 1:17-cv-01110-JGK Document 1 Filed 02/14/17 Page 6 of 13 26.

Plaintiff YEP Tour paid the fines and their buses were released. (Ex. D).

27.

Although plaintiff YEP Tour provides transportation services for a million plus

passengers in-and-out of the City of New York YEP Tours is continually denied a bus stop permit. However, in contrast, the NYCDOT has issued more than forty (40) bus stop permits to the “Hampton Jitney” and ten (10) bus stop permits to “7 Bus”, both bus companies only transport passengers to-and-from New York City to the Hamptons. Defendants have been unfairly selective as to which companies are receiving bus stop permits. (Ex. E—DOT Approved Stops).

28.

On or about January 31, 2017, defendants City of New York, NYCDOT and

NYCDOF, through Sheriff JOSEPH FUCITO, received a judgment against plaintiff YEP Tours in the amount of $127,051.26 2. (Ex. F—Sheriff Judgment and Sale).

29.

On or about February 2, 2017, Sheriff JOSEPH FUCITO seized three (3)

passenger buses from Plaintiff YEP Tour and has noticed that they will be sold at auction on February 16, 2017 at 12:00pm.

30.

Plaintiff YEP Tour has been wrongfully denied a bus stop permit despite

numerous applications submitted over the course of two (2) years. The defendant City of New York and its agents NYCDOT and NYCDOF have benefitted financially by continually issuing parking tickets against plaintiff; receiving revenue while continuing to deny plaintiff’s bus stop permit requests.

31.

As of the date of this complaint plaintiff YEP Tour cannot operate in New York

City as there are tow orders issued by defendants against all of their buses.

2

The parking tickets listed on the judgment go as far back as January 2015, however, the most recent tickets listed have not been properly adjudicated and Plaintiff has not had an opportunity to challenge the validity of the parking tickets.

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Case 1:17-cv-01110-JGK Document 1 Filed 02/14/17 Page 7 of 13 32.

Defendants arbitrary and wrongful refusal to grant plaintiff YEP Tours a bus stop

permit has resulted in not only a seizure of its vehicles but has also shut down its business in the City of New York.

33.

Hence the necessity of this complaint.

FIRST CAUSE OF ACTION Federal Preemption 34.

Plaintiff repeats the allegations made in paragraphs 1-33 and incorporates those

allegations by reference with the same force and effect as if herein set forth.

35.

At all times, relevant herein, the conduct of all defendants was subject to 45 U.S.

Code §14501, pursuant to the Supremacy Clause of the United States Constitution, which states that the “federal law is the supreme law of the land”.

36.

By their conduct, Defendants, acting under color of state law, deprived Plaintiff

YEP TOURS, INC. from its right to be free from the enforcement of State law, regulation, standard, or provision having the force and effect relating to scheduling of interstate or intrastate transportation, including the discontinuance or reduction in the level of service, in that defendants through their regulations and practices have discontinued and reduced the level of service which plaintiff provides thus preempting the federal regulation.

37.

Defendants’ actions caused the violation of Plaintiff’s rights under the U.S. Code

and under federal and state law and resulted in the damage claims set forth above.

38.

WHEREFORE, on this claim Plaintiff demand compensatory damages and

punitive damages in an amount ‘costly enough that it will not be undertaken’ up to and including a ruling in Plaintiff’s favor and for such other and further relief deemed to be just and equitable.

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Case 1:17-cv-01110-JGK Document 1 Filed 02/14/17 Page 8 of 13 SECOND CAUSE OF ACTION Fourteenth Amendment Violation—Equal Protection Due Process 39.

Plaintiff repeats the allegations made in paragraphs 1-38 and incorporate those

allegations by reference with the same force and effect as if herein set forth.

40.

At all times, relevant herein, the conduct of all defendants was subject to 42

U.S.C. §§1983, 1985, and 1986; Equal Protection and Due Process Clauses of the 14th Amendment.

41.

The conduct of each of the defendants THE CITY OF NEW YORK, NEW

YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY DEPARTMENT OF FINANCE, SHERIFF JOSEPH FUCITO, JOHN DOE #1 and JOHN DOE #2, acting under color of state law, jointly and severally, in conspiring with each other to cause, in failing to prevent others from causing, and in unlawfully causing plaintiff’s suffer loss of its right to operate as provided in the federal rules; and in depriving plaintiff its Fourteenth Amendment rights to Due Process and Equal Protection in the implementation of the laws and regulations of the CITY in its knowing and arbitrary denial of Plaintiff’s request for a ‘bus stop’. Plaintiff has been deprived of its right to treated equally by the defendants undertaking with deliberate indifference, intentionally, maliciously and/or without lawful justification, and was designed to and did cause specific and serious harm suffering and damages in violation of Plaintiff’s Constitutional rights as guaranteed under 42 U.S.C. §§1983, 1985, 1986 and the Fourteenth Amendment.

42.

WHEREFORE, on this claim Plaintiff demands compensatory damages and

punitive damages in an amount ‘costly enough that it will not be undertaken’ up to and including a ruling in Plaintiff’s favor and for such other and further relief deemed to be just and equitable.

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Case 1:17-cv-01110-JGK Document 1 Filed 02/14/17 Page 9 of 13 THIRD CAUSE OF ACTION Interstate Commerce Clause 43.

Plaintiff repeats the allegations made in paragraphs 1-42 and incorporate those

allegations by reference with the same force and effect as if herein set forth.

44.

The Commerce Clause of the United States Constitution prohibits states from

enacting legislation that protects its own citizens from competition from citizens of other states, that regulates conduct wholly outside of the state’s borders, or that places an undue burden on interstate commerce.

45.

The New York City ‘Bus Stop’ Permit System for the Intercity Bus Industry as

implemented by defendants THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT

OF

FINANCE,

THE

NEW

YORK

CITY

DEPARTMENT

OF

TRANSPORTATION, SHERIFF JOSEPH FUCITO, JOHN DOE #1 and JOHN DOE #2 (hereinafter ‘defendants’) violates the Commerce Clause because they are protectionist measures intended to benefit New York based transportation companies at the expense of YEP TOURS INC., a Massachusetts transportation company by eliminating YEP TOURS INC.’s ability to operate in New York City through its arbitrary process.

46.

The New York City ‘Bus Stop’ Permit System for the Intercity Bus Industry as

implemented by defendants also violates the Commerce Clause because it has the purpose and effect of regulating conduct in Massachusetts and wholly outside the State and City of New York.

47.

The New York City ‘Bus Stop’ Permit System for the Intercity Bus Industry as

implemented by defendants further violates the Commerce Clause because it imposes a substantial burden on interstate commerce by forcing Massachusetts based transportation companies, such as YEP TOURS INC., to pay exorbitant fines by not issuing them bus stops—or

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Case 1:17-cv-01110-JGK Document 1 Filed 02/14/17 Page 10 of 13 forgo the largest market in the East Coast and see the profits plunge or worst case scenario, go out of business.

48.

The New York City ‘Bus Stop’ Permit System for the Intercity Bus Industry as

implemented by defendants serves no legitimate State or City purpose because it does not protect the welfare of the people within the State or City of New York and its stated purpose to protect the community—is pretextual.

49.

WHEREFORE, on this claim Plaintiff seeks declaratory or injunctive relief under

28 U.S.C. §2201.

FOURTH CAUSE OF ACTION Discriminatory Practices 50.

Plaintiff repeats the allegations made in paragraphs 1-49 and incorporate those

allegations by reference with the same force and effect as if herein set forth.

51.

At all times, relevant herein, the conduct of all defendants was subject to 42

U.S.C. §§1983, 1985, and 1986; Equal Protection and Due Process Clauses of the 14th Amendment.

52.

Plaintiff YEP TOUR INC. has a constitutional right to due process under the law

in accordance with the selection process for the assignment of a bus stop under the New York City ‘Bus Stop’ Permit System for the Intercity Bus Industry. Defendants have arbitrarily and purposely denied plaintiff a bus stop on the basis that plaintiff operates from a minority neighborhood and more than 80% of plaintiff’s clientele are minorities.

Defendants have

arbitrarily, purposely and unfairly denied plaintiff’s applications in violation of the 14th Amendment Due Process Clause and deserve Equal Protection.

53.

WHEREFORE, on this claim Plaintiff demands compensatory damages and

punitive damages in an amount ‘costly enough that it will not be undertaken’ up to and including a ruling in Plaintiff’s favor and for such other and further relief deemed to be just and equitable.

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Case 1:17-cv-01110-JGK Document 1 Filed 02/14/17 Page 11 of 13

PRAYER FOR RELIEF WHEREFORE, the Plaintiff YEP TOURS INC. demands the following relief jointly and severally against all of the Defendants: a.

Awarding Plaintiff YEP TOURS INC., compensatory damages in the amount of one million dollars ($1,000,000.00) on causes of actions 1 and 4.

b.

Declare the New York City ‘Bus Stop’ Permit System for the Intercity Bus Industry invalid because it is expressly and implicitly preempted by the Supremacy Clause of the United States Constitution and 49 U.S. Code §14501.

c.

Declare the New York City ‘Bus Stop’ Permit System for the Intercity Bus Industry invalid because it violates the Commerce Clause of the United States Constitution or, in the alternative, because it is expressly and implicitly preempted by 49 U.S. Code §14501.

d.

A court order, pursuant to 42 U.S.C. §1988, stating that the Plaintiffs are entitled to the costs involved in maintaining this action, including attorney’s fees.

e.

For such other and further relief as this Court may deem appropriate and equitable, including injunctive and declaratory relief as may be required in the interest of justice.

Dated: New York, New York February 14, 2017

___________________________________ Robert Rambadadt, Esq. (RR 9959) Co-Counsel: Dru Carey, Esq. THE RAMBADADT LAW OFFICE Attorneys for Plaintiff THE RAMBADADT LAW OFFICE

Case 1:17-cv-01110-JGK Document 1 Filed 02/14/17 Page 12 of 13 20 W. 20th Street, 2nd Floor New York, New York 10011 (646) 450-8049

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Case 1:17-cv-01110-JGK Document 1 Filed 02/14/17 Page 13 of 13

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ______________________________________________________________________________ ______________________________________________________________________________ YEP TOUR, INC., Plaintiff, -against-

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION and NEW YORK CITY DEPARTMENT OF FINANCE, SHERIFF JOSEPH FUCITO, JOHN DOE #1, and JOHN DOE #2, Defendants. ______________________________________________________________________________ ______________________________________________________________________________

COMPLAINT ______________________________________________________________________________ ______________________________________________________________________________

THE RAMBADADT LAW OFFICE Attorneys for Plaintiff 20 W. 20th Street, 2nd Floor New York, New York 10011 (646) 450-8049 ______________________________________________________________________________ ______________________________________________________________________________ TO: Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of the State of New York, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous.

Dated: __02/13/2017_______

Signature:_

___

Print Signer’s Name: __Robert Rambadadt__________

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