Opinion 96 - 8


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

FEES -- Justice Courts (payment of fees pursuant to General Municipal Law, §99-l[1][a] for handling violations of toll collection regulations evidenced by photo-monitoring); (payment of fees pursuant to General Municipal Law, §99-l[1][a] for handling cases which result in default judgments)

STATE COMPTROLLER -- Justice Court Fund (payment of fees pursuant to General Municipal Law, §99-l[1][a] for handling violations of toll collection regulations evidenced by photo-monitoring)

VEHICLE AND TRAFFIC REGULATIONS -- Toll Collection Provisions (violation of toll collection regulations evidenced by photo-monitoring as an offense for purposes of General Municipal Law, §99-l[1][a])

WORDS AND PHRASES -- "other offenses" (meaning of for purposes of General Municipal Law, §99-l[1][a])

GENERAL MUNICIPAL LAW, §99-l(1)(a); VEHICLE AND TRAFFIC LAW, §§155, 1630; PUBLIC AUTHORITIES LAW, §361: Towns and villages are entitled to the fee provided for by General Municipal Law, §99-l(1)(a) for each case handled by their justice courts involving a violation, as evidenced by photo-monitoring, of toll collection regulations promulgated by the Thruway Authority, even if the case results in a default judgment.

You ask whether a town or village is entitled to the fee provided for by General Municipal Law, §99-l for certain cases handled by their justice courts which result in a default judgment. The cases in question involve violations of the New York State Thruway Authority's toll collection regulations pertaining to the "E-Z Pass" electronic toll collection program. The violations are evidenced by information obtained from a photo-monitoring system.

Section 2985 of the Public Authorities Law empowers any public authority which operates a toll highway, bridge and/or tunnel facility, such as the Thruway Authority (see Public Authorities Law, §§352[1], 354[8]), to impose monetary liability on the owner of a vehicle for failure to comply with toll collection regulations (see 21 NYCRR Part 101; Public Authorities Law, §361; Vehicle and Traffic Law, §1630), if such violation is evidenced by information obtained from a photo-monitoring system (Public Authorities Law, §2985[1],[2]). Although the Thruway Authority is responsible for preparing and mailing a notice of violation to the vehicle owner alleged to be liable (Public Authorities Law, §2985[7]), the adjudication of the liability " ... shall be by the entity having jurisdiction over violations of the rules and regulations of the public authority serving the notice of liability ... and shall be heard and determined ... in the same manner as charges of other regulatory violations of such public authority ..." (Public Authorities Law, §2985[8]; see also Public Authorities Law, §361(1)). Failure of the owner to contest the liability in the manner and time specified in the notice of liability is deemed an admission of liability and a default judgment may be entered thereon (Public Authorities Law, §2985[7][c]). The penalty imposed is expressly declared to be civil in nature and is not made part of the motor vehicle operating record of the violator (Public Authorities Law, §§2985[2], [6]). The maximum amount of liability for the first and each succeeding violation of toll collection regulations is set forth in subdivision 5 of section 2985.

General Municipal Law, §99-l provides for payment to towns and villages of fees for services of the town or village court with respect to certain enumerated criminal actions and other proceedings. As it applies to your inquiry, section 99-l provides as follows:

1. Towns and villages, for their own respective benefits shall be entitled to receive for the services of the town court and the village court in criminal actions and other proceedings:

(a) For all services in each case of a misdemeanor or other offenses, including misdemeanors and moving violations under the vehicle and traffic law, instituted in and triable in such a court, wherein a fine, if imposed, would be the property of the state, ten dollars.

Thus, General Municipal Law, §99-l(1)(a) provides for the payment of a ten dollar fee for misdemeanors and "other offenses".

It is clear from the above discussed provisions of the Public Authorities Law, §2985 that liability for violation of toll collection regulations under section 2985 does not constitute a misdemeanor. However, Public Authorities Law, §361, which empowers the Thruway Authority to promulgate, inter alia, toll collection regulations (see also Vehicle and Traffic Law, §1630[4]), expressly designates a violation of such rules or regulations as an offense (Public Authorities Law, §361[1][d]). Additionally, it appears that a violation of toll collection regulations constitutes a "traffic infraction". Vehicle and Traffic Law, §155, insofar as is pertinent, defines "traffic infraction" as "[t]he violation of any provision of this chapter, ... or of any law, ordinance, order, rule or regulation regulating traffic which is not declared by this chapter or other law of this state to be a misdemeanor or a felony. ...". Penal Law, §10.00[2] defines "offense" to include a traffic infraction as defined in the Vehicle and Traffic Law, §155 (see also People v Vierno, 159 Misc 2d 770, 606 NYS2d 557). It is our opinion, then, that a violation of the "E-Z Pass" toll collection regulations constitutes an "offense" within the meaning of General Municipal Law, §99-l(1)(a).

The provisions of section 99-l(1)(a) further limit the payment of the ten dollar fee to cases in which a fine, if imposed, would be the property of the state.(2)  Generally, the distribution of fines and penalties for a violation of "any act relating to the use of highways by motor vehicles or trailers" is subject to the provisions of the Vehicle and Traffic Law, §1803(1). The distribution of moneys collected in accordance with section 2985 of the Public Authorities Law, which does not prescribe a specific distribution of the penalties, is governed by section 1803(1)(d), which states, in part, that with respect to "violations of ... any act relating to the use of highways by motor vehicles ... for which no other distribution is prescribed, all fines, penalties and forfeitures shall be paid to the state". Accordingly, in our opinion, a case involving a violation, as evidenced by a photo-monitoring system, of the "E-Z Pass" toll collection regulations handled by a town or village justice court meets the qualifications set forth in section 99-l(1)(a) for payment of the ten dollar fee.

It is further our opinion that the fact that a case may result in a default judgment has no bearing on payment to a town or village pursuant to section 99-l. This Office has previously expressed the opinion that the purpose of General Municipal Law, §99-l is to provide remuneration to towns and villages for any substantial services rendered by their courts in connection with the criminal actions and other proceedings set forth in that section (1992 Opns St Comp No. 92-21, p 53; Memorandum to the Governor from Hon. Frank C. Moore, re: Senate Patro. 141 Pr. 141, March 31, 1947). Similarly, a recent court case characterized the ten dollar payment as a "fee to compensate for court costs", stating that the "[l]egislative history establishes that the purpose of the statute was to reimburse local courts for their efforts on behalf of the State in relation to the processing of those types of offenses listed in the statute" (emphasis added; Riley v Regan, 192 AD2d 905, 597 NYS2d 186).

Neither the language of section 99-l nor judicial interpretation distinguishes between cases which are fully adjudicated and those which are resolved by default judgment. For example, the court in Riley v Regan, supra, upheld the payment of ten dollars per case for the processing of cases enumerated in section 99-l(1)(a) by the justice court placing no emphasis on the disposition of the case. Thus, in our view, the disposition of a given case is not determinative of whether the town or village is reimbursed, so long as the justice court performs any substantial services in connection with processing a case.

Here, we are informed that a town or village justice, in handling a case involving a violation, evidenced by a photo-monitoring system, of the "E-Z Pass" toll collection regulations, receives the original notice of liability, a copy of which has been sent to the owner of the automobile. Upon receipt of the notice of liability, justice court personnel must create a docket for the case, i.e, number the file, indicate the justice to whom the case is assigned, and log in appropriate information including the name of the owner of the automobile, the date by which a response must be made and the statute alleged to have been violated. In the case of a default, the docket must be amended to note that a default judgment has been entered, and a record of disposition must be completed and sent to the Thruway Authority, with a copy being filed and retained by the court. Additionally, if the owner of the automobile pays the penalty to the court after the record of disposition has been filed, the court must then complete and file with the Thruway Authority a supplemental record of disposition. In our view, the performance of these services by the justice court constitutes substantial services.

Accordingly, it is our opinion that a town or village is entitled to payment of the fee provided for in General Municipal Law, §99-l for cases handled by their justice courts involving a violation, as evidenced by a photo-monitoring system, of the "E-Z Pass" toll collection regulations.

April 22, 1996
Michael J. Cummings, Director
Justice Court Fund

1. In People ex .rel. NYS Thruway v NYRAC, Yonkers City Court, April 26, 1995, Doran, J., motion to reargue pending, the court raised sua sponte the issue of whether it had jurisdiction to adjudicate liability and impose civil penalties for violations, despite the language of Public Authorities Law, §2985(8). The court noted that its jurisdiction over Thruway Authority regulations is criminal in both substance and procedure, and concluded that it did not have jurisdiction over these proceedings for civil penalties. For purposes of this opinion, however, we have assumed that town and village courts have jurisdiction over these cases.

2. As noted, the liability imposed by Public Authorities Law, §2985 is a "civil penalty", not a fine. If read literally, section 99-l applies only when a "fine" is imposed. However, although the terms "fine" and "penalty" generally are held to have distinct meanings (see, e.g., Dumbarton Oaks v New York State Liquor Auth., 58 NY2d 89, 459 NYS2d 564), the terms are also often are used together (see, e.g., Vehicle and Traffic Law, Article 45, §§1800-1809) or as if synonymous (see, e.g., Vehicle and Traffic Law, §1180, imposing a "fine" for violations of maximum speed limits, and section 1803[5] directing the disposition of "fines, penalties and forfeitures" imposed with respect to those same violations). In particular, section 1803(2), which provides that towns and villages shall be entitled to fees under General Municipal Law, §99-l for certain cases in which the state is entitled to "fines and penalties", evinces a legislative intent that there be no distinction for purposes of General Municipal Law, §99-l. Moreover, a literal read of section 99-l would render meaningless the express inclusion therein of those offenses which are not misdemeanors or felonies (i.e., "other offenses") for which a penalty is imposed. Therefore, we believe that section 99-l applies here even though a civil penalty is imposed.