Yet another anti-congestion pricing lawsuit was thrown out today, after a state Supreme Court justice spiked a lawsuit brought by the Town of Hempstead.
Town of Hempstead Supervisor Don Clavin suit argued that when Gov. Kathy Hochul announced in November that she was “unpausing” congestion pricing and instituting the toll with a phased-in pricing scheme starting at $9, she illegally usurped the MTA’s power to decide how to implement the toll. Clavin also argued that the tolling schedule did not go through the proper notification and study process as laid out by the State Administrative Procedure Act when the MTA Board approved the $9 toll.
Lawyers for the MTA and the State of New York countered that Hochul announcing a new toll schedule at a press conference did not actually constitute the MTA implementing the law, and that the agency took the correct actions under state law by treating the congestion pricing toll as the same kind of toll it had always had the ability to set on other bridges and tunnels.
After a morning no-show by the attorneys for the plaintiffs (more on that later), Justice Arthur Engoron heard arguments from both sides for a little over an hour in the afternoon. The judge seemed skeptical of arguments from the lawyers for the Town of Hempstead, which relied on using Hochul’s press conference statement to suggest the governor herself usurped the MTA’s authority to set and implement a toll price.
Lawyers for the Town of Hempstead also argued that they were entitled to a chance to find communications that would prove Hochul held a secret meeting with MTA officials during which she told them the $9 toll would happen.
Engoron did not mince words when he issued his decision from the bench, siding with the MTA’s argument that, at the end of the day, the agency implemented the tolling rate.
“Based on the papers and the arguments, the motion to dismiss is granted,” he said, referring to the MTA filing. “I’m not going to invalidate a system of regulation 60 or 70 years in the making because the governor said, ‘I decide.’ Seen in context the [MTA] implemented this.”
He also rejected the idea that Hochul forced the MTA to do her bidding.
“I appreciate the argument that she walked into a meeting and said, ‘You’re gonna do what I said.’ Did she hold a gun to their heads? No,” he said.
The dismissal came after a stunning series of events on Tuesday morning … when the hearing was supposed to happen.
The problem was that lawyers for the Town of Hempstead didn’t show up — then claimed that they simply didn’t know about it.
A collection of confused lawyers for the MTA and the State of New York rose as Engoron headed to his bench inside the New York State Supreme Court, and then informed Engoron that they hadn’t heard from the people suing them for days.
“Maybe they don’t want to pay the toll,” said a bemused Roberta Kaplan, a lawyer for the MTA, obviously aware that phone and email do not trigger congestion pricing.
Engoron briefly stalled for time by quizzing a pack of law students and interns who were in the audience to get a real-time look at how the state court system works how they decided to come see his hearing, but that did not take very long. Eventually, Brandon Trice, another of the MTA’s lawyers, managed to reach one of the plaintiffs’ attorneys, so Engoron summoned Trice and the phone to the bench.
Engoron’s outraged clerk noted that the MTA’s attorneys were on hand — and clearly knew about the hearing.
“This was duly scheduled weeks ago,” the clerk said, before reminding plaintiff’s Josh Liebman and Judah Serfaty that New York State Supreme Court provides updates on E-courts, not NYS Courts Electronic Filing.
As your slackjawed reporter gaped at the goings-on, Engoron offered to allow the cloud-minded Town of Hempstead attorneys to show up at 2:15 p.m. for an hour-long hearing. The attorneys hemmed and hawed about whether they could make it in time, and eventually everyone in the room settled on trying to hold the hearing virtually.
“We’re doing a Microsoft Teams meeting, so you might want to get dressed,” Engoron’s clerk informed the missing lawyers.
“As Gilda Radner said, ‘It’s always something,'” a bemused Engoron said aloud before allowing Trice to begin the MTA’s arguments for why the Town of Hempstead’s case should be thrown out.
But before Trice could finish the history of congestion pricing in New York State, Liebman and Serfaty interrupted multiple times to complain of choppy audio.
After the third such complaint, the parties threw in the towel on Microsoft Teams, and Liebman and Serfaty agreed to get to court by 2:15 p.m.
“Drive fast, but keep to the speed limit,” Engoron said, perhaps in jest.
