This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 120
Greater New York Taxi
Association, et al.,
        Appellants,
        v.
New York City Taxi and Limousine
Commission, &c., et al.,
        Respondents,
Nissan Taxi Marketing, N.A.,
LLC., et al.,
        Intervenors-Respondents.



          Mitchell Berns, for appellants.
          Elizabeth I. Freedman, for respondents.
          Peter J. Brennan, for intervenors-respondents.
          Design Trust for Public Space et al., amici curiae.




STEIN, J.:
          The New York City Taxi and Limousine Commission (TLC)
engaged in a lengthy process to create the "Taxi of Tomorrow,"
culminating in rules that established a particular make and model
of vehicle as the City's official taxicab.   We now hold that the
TLC did not exceed its authority or violate the separation of

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                               - 2 -                       No. 120

powers doctrine by enacting those rules.
                                I.
           Anyone reminiscing about New York City public
transportation from the 1960s through at least the 1980s will
probably evoke an image of Checker cabs driving residents and
visitors through the busy City streets.    Checker Motor
Corporation made the iconic American taxicab that was valued by
owners for its durability, and was appreciated by passengers for
its large rear seat and trunk space.   That era came to an end
when the last Checker cab was produced in 1982, and they were all
taken out of service as New York City taxis by the late 1990s.
Just as the Checker cab was the iconic taxi of yesteryear, the
TLC sought to discover or create an iconic Taxi of Tomorrow
(ToT).   That process has led to the case that is now before us.
           The TLC, which regulates taxis and other cars for hire
in New York City, was created in 1971 (see NY City Charter §
2300).   In order to qualify as a taxi in New York City, a vehicle
must carry passengers for compensation and be equipped with a
taxi meter; it must also be painted yellow and display a current
TLC medallion, which indicate that the vehicle is duly licensed
to pick up passengers via street hails anywhere in the City (see
Administrative Code of City of NY § 19-502 [l]; § 19-504 [a] [1];
§ 19-514 [a]; 34 RCNY 4-01 [b]; L 2012, ch 9, § 11; see also
Greater N.Y. Taxi Assn. v State of New York, 21 NY3d 289, 298




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                                 - 3 -                       No. 120

[2013]; Tax Law § 1280 [d]).1    A medallion is required to operate
a yellow cab, with the number of available medallions set by the
State Legislature and the New York City Council (see General
Municipal Law § 181; NYC Charter § 2303 [b] [4]; see also L 2011,
ch 602, § 2).   Most medallions are unrestricted, although some
are limited to wheelchair accessible vehicles or alternative fuel
vehicles; an unrestricted medallion may be used for those types
of vehicles as well.   With Checker -- which is no longer in
business -- standing out as a notable exception, car
manufacturers typically did not and do not design and produce
vehicles with the intention that they be used as taxis.    Instead,
medallion owners would buy a passenger car meeting certain
specifications and then "hack-up" that vehicle by adding a
partition, roof light and other required equipment that is
strictly regulated by the TLC (see 35 RCNY 67-05.1A).    The use of
passenger vehicles is less than ideal because taxis are subjected
to long hours and rough driving conditions, as compared with
average passenger vehicles.     Additionally, the use of hacked-up
passenger vehicles may pose safety risks.    For example, crash
testing is completed on a vehicle model before it is hacked up,
and the partition that is added after crash testing may interfere


     1
       Green cabs, also known as Boro Taxis, are permitted to
pick up street hails only in areas of the City not adequately
served by yellow cabs, including the boroughs outside of
Manhattan (see 35 RCNY 82-52 [a]; L 2012, ch 9, § 4 [b], [c]; L
2011, ch 602; see also Tax Law § 1280 [o]). Those taxis are not
at issue here.

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with the inflation of side-curtain air bags during an actual
collision.
          Historically, the TLC set standards for all yellow cabs
based on specifications (or specs) of a make and model of vehicle
that was popular for use as a taxi.    In the early 2000s, after
passengers complained about insufficient leg room in vehicle
models approved as taxis, Ford began making the stretch Crown
Victoria, and the TLC -- apparently after consulting with Ford --
increased the required minimum leg room specs for all taxis to
reflect the leg room in that model.    The TLC acknowledged that,
for years, the Crown Victoria was "the only commercially
available vehicle model that has complied" with the taxi vehicle
specs (35 RCNY 67-05 [in Statement of Basis and Purpose in City
Record May 5, 2011]).   That model became the most popular taxi
vehicle, at one point comprising approximately 90% of the City's
fleet.
          The TLC commenced the ToT program in 2007, partly
spurred by Ford's announcement that it planned to discontinue the
Crown Victoria.   The process began with committees and public
hearings, engaging all taxi industry stakeholders (drivers,
medallion owners and passengers), with the idea of designing a
vehicle that would be manufactured primarily for use as a taxi,
rather than retro-fitting passenger vehicles for that purpose.
As the process continued, the TLC initiated a request for
proposals in late 2009, seeking a manufacturer of original


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equipment to provide an innovative vehicle developed as a taxi,
based on guidelines that included certain important qualities.
The successful bidder would be awarded a 10-year exclusive
contract for sales of this vehicle as the City's official taxi.
The TLC narrowed the seven bidders down to three models, sought
public and industry opinion and, finally, in mid-2011, selected
the Nissan NV200 as the ToT.    Rather than incorporating the specs
from that model into the rules, as the TLC had historically done,
the ToT rules specify the required make and model.   Thus, with
limited exceptions, the rules require each taxi owner to purchase
an NV200 to replace an existing vehicle when it is retired (see
35 RCNY 51-03; 67-05.1B).
          The Department of Citywide Administrative Services then
entered into a Vehicle Supply Agreement (VSA) with Nissan.      The
VSA included the 10-year exclusive supply contract, provided the
specs for the vehicle and set a maximum manufacturer's suggested
retail price, but no minimum.   Nissan was also required under the
VSA to furnish a wheelchair accessible version, that would be
up-fitted before delivery to any purchaser making that request,
and to create a hybrid version in the future.2   If a vehicle
superior to the NV200 becomes available after five years, the TLC


     2
       At oral argument, the parties discussed a December 2014
amendment to the VSA (eliminating the requirement that Nissan
develop a hybrid version and providing that, if one is developed,
there will be no exclusivity related to the hybrid version).
That amended contract is not in the record before this Court and
these changes have not been reflected in the rules.

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may provide notice to Nissan and terminate the VSA, unless Nissan
modifies the NV200 or designs a new vehicle to match or exceed
the specs of the superior vehicle.     The VSA is not directly
challenged here.3
          After a challenge to the original ToT rules (see
Committee for Taxi Safety, Inc. v City of New York, 40 Misc 3d
930 [Sup Ct, New York County 2013]), the TLC enacted revised ToT
rules that were essentially the same, but contained an exemption
for hybrid vehicles.   Additionally, the revised rules provided
new specs for hybrids, in order to bring the hybrid options more
in line with the NV200.   The hybrid rules are not challenged
here; rather, the current challenge is limited to the TLC's
selection of one vehicle model as the exclusive gas-powered taxi
eligible for use by taxi medallion owners.
          Petitioners, an association of medallion owners and an
individual owner of a fleet, commenced this combined CPLR article
78 proceeding and declaratory judgment action, seeking to
invalidate the ToT rules and obtain a related declaration.       The


     3
       We reject petitioners' characterization of the TLC as
having entered into a partnership with Nissan. The TLC publicly
issued a request for proposals that was open to any vehicle
manufacturer. Once Nissan was chosen as the successful bidder --
again, through a lengthy public process -- the TLC necessarily
worked closely with Nissan to ensure that the vehicle that was
produced actually met the TLC's expectations, and to address
other related issues, such as parts availability, vehicle service
and conversion to a wheelchair accessible version. Nissan was a
contractor for, not a partner with, the TLC. That agency
retained its position as a regulator of all participants in the
taxi industry, including the designer and supplier of the ToT.

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complaint alleged, among other things, that the TLC lacked
authority to enact the ToT rules and violated the separation of
powers doctrine in doing so.   Supreme Court granted a motion to
allow Nissan Taxi Marketing, N.A., LLC and Nissan North America,
Inc. (collectively, Nissan) to intervene.   On the merits, the
court held that the TLC exceeded its authority under the City
Charter and violated the separation of powers by intruding in the
City Council's domain, and declared that the ToT rules were
invalid (see 42 Misc 3d 324 [Sup Ct, New York County 2013]).
          The Appellate Division, with one Justice dissenting,
reversed Supreme Court's order and judgment and declared that the
rules are valid (121 AD3d 21 [1st Dept 2014]).   The same panel
granted petitioners leave to appeal, and certified a question as
to whether its order was properly made.4
                                II.
          Petitioners allege that the regulations challenged here
are beyond the TLC's authority because they mandate a single
gas-powered model as the City's official taxi vehicle, rather
than setting specifications that could potentially be met by
other makes and models (see 35 RCNY 67-05.1B).   Petitioners
acknowledge that the TLC has the authority to enact rules with
stringent specs that can only be met by one model at the time the
rules are enacted.   In addition, petitioners do not dispute that

     4
       Due to the impending implementation of the rules in April
2015, this Court granted petitioners' motion for a stay pending
appeal (25 NY3d 957 [2015]).

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the TLC has the authority to approve the use of a single vehicle
model as part of a pilot project for limited periods of time (see
NYC Charter § 2303 [b] [9]; see also Matter of Black Car
Assistance Corp. v City of New York, 110 AD3d 618, 618-619 [1st
Dept 2013] [holding that the 12-month pilot E-Hail Program
complies with City Charter § 2303 (b) (9)]).   It is also
undisputed that the City Council, itself, could enact a law
limiting taxis to one model, or could specifically grant the TLC
the authority to do so.5   Thus, the limited issue presented here
is whether the TLC had the authority to require the use of a
particular vehicle make and model as a taxi, as opposed to
requiring taxi vehicles to meet certain specs, without the City
Council explicitly specifying such authority, or whether the TLC
intruded on the City Council's domain by enacting the ToT rules.
          A legislature may enact a general statutory provision
and delegate power to an agency to fill in the details, as long
as reasonable safeguards and guidelines are provided to the
agency (see Boreali v Axelrod, 71 NY2d 1, 10 [1987]).   As a
creation of a legislative body, the TLC possesses the powers
expressly conferred by the City Council, as well as those
"required by necessary implication" (Matter of City of New York v
State of N.Y. Commn. on Cable Tel., 47 NY2d 89, 92 [1979]; see


     5
       Any argument that a monopoly in favor of Nissan is
improper is belied by these undisputed powers, which would permit
the same single-source vehicle supply situation if it was
achieved through a different process.

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Matter of Mercy Hosp. v New York State Dept. of Social Servs., 79
NY2d 197, 203 [1992]).    "[A]n agency can adopt regulations that
go beyond the text of [its enabling] legislation, provided they
are not inconsistent with the statutory language or its
underlying purposes" (Matter of General Elec. Capital Corp. v New
York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249,
254 [2004]).    The question before us is whether the authority
granted to the TLC by the City Council included the power to
enact the ToT rules, or whether the agency has exceeded its
authority and acted in a manner not contemplated by the
legislative body (see Matter of New York State Superfund
Coalition, Inc. v New York State Dept. of Envtl. Conservation, 18
NY3d 289, 294 [2011]).
            The issues of delegation of power and separation of
powers overlap and are often considered together (see Boreali, 71
NY2d at 9).    This makes sense because, if an agency was not
delegated the authority to enact certain rules, then it would
usurp the authority of the legislative branch by enacting those
rules.   "The constitutional principle of separation of powers
. . . requires that the [l]egislature make the critical policy
decisions, while the executive branch's responsibility is to
implement those policies" (Bourquin v Cuomo, 85 NY2d 781, 784
[1995]).   The branches of government cannot always be neatly
divided, however, and common sense must be applied when reviewing
a separation of powers challenge (see id. at 785).    As long as


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the legislature makes the basic policy choices, the legislation
need not be detailed or precise as to the agency's role (see
id.).
          The City Council granted the TLC extremely broad
authority to enact rules, including the ToT rules.   The TLC was
created with the stated purposes of "continuance, further
development and improvement of taxi and limousine service in the
city of New York" (NY City Charter § 2300).   The City Charter
provides that the TLC is authorized,
          "consonant with the promotion and protection
          of the public comfort and convenience[,] to
          adopt and establish an overall public
          transportation policy governing taxi . . .
          services as it relates to the overall public
          transportation network of the city; to
          establish . . . standards for equipment
          safety and design; . . . and to set standards
          and criteria for the licensing of vehicles"
          used in taxi service (NY City Charter § 2300
          [emphasis added]).
"The jurisdiction, powers and duties of the [TLC] shall include
the regulation and supervision of the business and industry of
transportation of persons by licensed vehicles for hire in the
city" (NY City Charter § 2303 [a]).    Such powers extend to, among
other things, "standards and conditions of service" (NY City
Charter § 2303 [b] [2]), "[r]equirements of standards of safety,
and design . . . of vehicles" (NY City Charter § 2303 [b] [6]
[emphasis added]),   "[t]he development and effectuation of a
broad public policy of transportation . . . as it relates to
forms of public transportation in the city, including innovation


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and experimentation in relation to type and design of equipment"
(NY City Charter § 2303 [b] [9] [emphasis added]), and the
promulgation of rules to carry out the TLC's purposes (see NY
City Charter § 2303 [b] [11]).
          In granting the TLC this broad authority, the City
Charter includes guidelines for the TLC to consider, such as
"safety, and design, comfort, convenience, noise and air
pollution control and efficiency in the operation of vehicles"
(NY City Charter § 2303 [b] [6]).    Although the TLC has generally
applied the "specs method" when promulgating rules about the
design of taxis, it points to a major shortcoming of that method
-- the situation where no available model meets the specs in the
rules as, for example, when Ford discontinued the Crown Victoria
(see 35 RCNY 67-05 [in Statement of Basis and Purpose in City
Record May 5, 2011]).   The TLC determined that "[t]he most
obvious alternative to vehicle specifications [is the]
competitive selection of taxicab vehicle models," as embodied in
the ToT project (35 RCNY 67-05 [in Statement of Basis and Purpose
in City Record May 5, 2011]).    This new method was intended to be
a more efficient way to reach the same result and, in our view,
falls within the broad authority granted to the TLC.6


     6
       Petitioners argue that no agency has the authority to
require medallion owners to enter into a contract with a
particular manufacturer. Nevertheless, the rules under the specs
method, while not explicitly stating so, had the effect of
requiring owners to purchase a specific vehicle from a single
manufacturer when only one vehicle model complied with those

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          In Boreali, the seminal case addressing the proper
delegation of power, this Court set out four "coalescing
circumstances" that are non-mandatory, somewhat-intertwined
factors for courts to consider when determining whether an agency
has crossed the hazy "line between administrative rule-making and
legislative policy-making" (71 NY2d at 11).   The first factor is
whether the agency did more than "balanc[e] costs and benefits
according to preexisting guidelines," but instead made "value
judgments entail[ing] difficult and complex choices between broad
policy goals" to resolve social problems (Matter of New York
Statewide Coalition of Hispanic Chambers of Commerce v New York
City Dept. of Health & Mental Hygiene, 23 NY3d 681, 698 [2014]
[extending Boreali and separation of powers analysis to City
agencies delegated powers under the City Charter]).   Under the
enabling legislation, the TLC was given the authority to make
certain policy choices, consistent with the guidelines enumerated
therein, and it has done so here.   In developing the ToT rules,
the TLC balanced the costs and benefits to all interested parties
-- passengers, owners, drivers and the general public -- using


specs (i.e., the Ford stretch Crown Victoria). Petitioners do
not complain about those rules and, in fact, have acknowledged
that the TLC has the authority to make rules with specs that can
be met by only one model. In our view, perhaps aside from the
time period involved, this is a distinction without a difference.
In any event, the ToT rules do not actually limit owners of
unrestricted medallions to one model; they can currently choose
the NV200, any of three hybrid models that meet the hybrid
exemption and specs, or a wheelchair accessible model (see 35
RCNY 67-05.1B [b]).

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many of the same guidelines that it previously used to develop
rules with specs.   The goal under both the specs method and the
single model approach was to select the best taxi for all
involved.   Enactment of the ToT rules did not entail a difficult
and complex choice among policy goals reserved for the City
Council (see Matter of New York City Comm. for Taxi Safety v New
York City Taxi & Limousine Commn., 256 AD2d 136, 137 [1st Dept
1998] [holding that the TLC had authority to make rules requiring
financial disclosure by medallion owners and related parties]),
or an intrusion into "economic and social concerns . . . outside
of [the TLC's] proper sphere of authority" (Boreali, 71 NY2d at
12).   Nor is the City Charter's grant of authority to the TLC to
create vehicle "standards" limited to the creation of specs.
Rather, the broad authority granted to the TLC allows for the
designation of a single vehicle model that was specifically
designed -- through a lengthy public process -- to be a taxi.
The choice of the best possible vehicle for use as a taxi plainly
fits within the purposes of the TLC to develop and improve taxi
service as part of the City's overall public transportation
system (see NYC Charter §§ 2300; 2303 [b] [9]).
            The second Boreali factor is whether the agency merely
filled in details of a broad policy or if it "wrote on a clean
slate, creating its own comprehensive set of rules without
benefit of legislative guidance" (Boreali, 71 NY2d at 13).     The
TLC was not writing on a clean slate in the sense that it has


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always regulated the taxi industry as to almost every detail of
operation.    The City Council has largely left taxi regulation to
the TLC, with little interference.      The only instance of
intervention identified by the parties was when the City Council
required the TLC to "approve one or more hybrid electric vehicle
models for use as a taxicab" (Administrative Code of City of NY §
19-533 [emphasis added]).   The City Council's use of the words
"one or more," together with the direction that the TLC approve a
"model or models" (Administrative Code § 19-533 [emphasis
added]), rather than specs, constitutes some legislative guidance
from which we can infer that the Council generally recognized the
single model method as within the TLC's authority.
          The third Boreali factor is whether the legislature has
unsuccessfully tried to reach agreement on the issue, which would
indicate that the matter is a policy consideration for the
elected body to resolve (see Boreali, 71 NY2d at 13).
Petitioners' argument that the City Council has debated the one-
model issue and failed to come to a resolution is without
foundation.   The bills that petitioners identify dealt with other
matters, such as requiring all taxis to be hybrids or wheelchair
accessible, not with whether all gas-powered taxis should be one
model.   Petitioners have not demonstrated that the Council tried,
but failed, to make all taxis a single model.      Additionally,
there is no dispute that the TLC has historically based its specs
on particular models; the practical result of that practice has


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not been meaningfully different from limiting the citywide fleet
to one model.   Where an agency has promulgated regulations in a
particular area for an extended time without any interference
from the legislative body, we can infer, to some degree, that the
legislature approves of the agency's interpretation or action
(see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d
854, 866 [2003]; compare Matter of New York Statewide Coalition
of Hispanic Chambers of Commerce, 23 NY3d at 692-693, 700;
Boreali, 71 NY2d at 13).   As noted, the City Council has
generally refrained from intervening in the TLC's broad
regulation of the taxi industry -- including as to the specific
question at issue here -- for over four decades.
          The fourth Boreali factor, whether the agency used
special expertise or competence in the field to develop the
challenged regulations (see Boreali, 71 NY2d at 13-14), is
neutral in this case.   Technical expertise was clearly essential
to select the single best model as the ToT, but not necessarily
to decide whether to limit the selection to one model (regardless
of which vehicle was chosen).
          As noted, these factors are not mandatory, need not be
weighed evenly, and are essentially guidelines for conducting an
analysis of an agency's exercise of power.   When this Court
recently conducted a Boreali analysis in Matter of New York
Statewide Coalition of Hispanic Chambers of Commerce, to
determine whether an agency's ban on large sugary drinks was


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permissible regulation, as opposed to impermissible policy-
making, we focused on whether the challenged regulation attempted
to resolve difficult social problems concerning matters of
personal autonomy by "interfer[ing] with commonplace daily
activities preferred by large numbers of people" (23 NY3d at 698-
699 [noting that, while few people would risk the safety of their
children near unguarded apartment windows, a significant number
of people regularly overindulge in sugary drinks]).         Viewing the
ToT rules with this overall focus, and concluding that they do
not involve difficult social problems of any nature, our analysis
compels the determination that the TLC engaged in proper
rulemaking, rather than improper legislating.
            Given the broad statutory powers granted to the TLC to
set policy as guided by enumerated safeguards and guidelines, the
TLC did not exceed its authority or intrude on the City Council's
domain in violation of the separation of powers doctrine by
enacting the ToT rules.    Accordingly, the order of the Appellate
Division should be affirmed, with costs, and the certified
question answered in the affirmative.
*   *   *    *   *   *    *   *     *      *   *   *   *   *   *     *   *
Order affirmed, with costs, and certified question answered in
the affirmative. Opinion by Judge Stein. Chief Judge Lippman
and Judges Read, Pigott, Rivera, Abdus-Salaam and Fahey concur.

Decided June 25, 2015




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