        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

569
CA 13-01812
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF ROGER D. HENSON, DOING
BUSINESS AS TNT TOWING SERVICE, WAYMON HENSON,
DOING BUSINESS AS METRO COLLISION, AND WAYMON D.
HENSON, INC., DOING BUSINESS AS HENSON’S TOWING
SERVICE, PETITIONERS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

CITY OF SYRACUSE, RESPONDENT-APPELLANT,
ET AL., RESPONDENT.


MARY ANNE DOHERTY, CORPORATION COUNSEL, SYRACUSE (ANN MAGNARELLI
ALEXANDER OF COUNSEL), FOR RESPONDENT-APPELLANT.

TISDELL, MOORE & WALTER, SYRACUSE (ROBERT L. TISDELL OF COUNSEL), FOR
PETITIONERS-RESPONDENTS.


     Appeal from a judgment (denominated order) of the Supreme Court,
Onondaga County (James P. Murphy, J.), entered May 1, 2013 in a CPLR
article 78 proceeding. The judgment granted the petition and
permanently reinstated petitioners to the City of Syracuse’s
rotational towing list, pending proper notice and a hearing.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     Memorandum: Petitioners commenced this CPLR article 78
proceeding seeking to annul the determination removing them from the
rotational towing list of respondent City of Syracuse (City) and to
reinstate them to the list until they received proper notice and a
hearing. Supreme Court granted the petition, holding that Henson v
City of Syracuse (147 Misc 2d 1064), which involved the same parties
as here, established that petitioners had a property interest in the
towing list and could not be removed from it without due process.
That was error. Supreme Court erred in determining that collateral
estoppel applies and that a property interest existed between
petitioners and the City based on Henson.

     Collateral estoppel “applies only ‘if the issue in the second
action is identical to an issue which was raised, necessarily decided
and material in the first action, and the plaintiff had a full and
fair opportunity to litigate the issue in the earlier action’ ” (City
of New York v Welsbach Elec. Corp., 9 NY3d 124, 128; see Plumley v
                                 -2-                           569
                                                         CA 13-01812

Erie Blvd. Hydropower, L.P., 114 AD3d 1249, 1249).

     We conclude that there is no identity of issue here inasmuch as
the instant case involves different facts from those in Henson (see
Reiss v Maynard, 129 AD2d 999, 1000, appeal dismissed 70 NY2d 748; cf.
Academic Health Professionals Ins. Assn. v Kaleida Health [appeal No.
2], 305 AD2d 1055, 1056, appeal dismissed 100 NY2d 614, lv dismissed
100 NY2d 614). In Henson (147 Misc 2d at 1065), the City removed
petitioners from the rotational towing list because they gave “an
unlawful gratuity” to an employee of the Department of Motor Vehicles.
In the instant case, the City removed petitioners from the rotational
towing list because they charged “extra fees” and because of their
attitude toward City police officers. The doctrine of collateral
estoppel therefore does not apply (see Plumley, 114 AD3d at 1249;
Reiss, 129 AD2d at 1000). Even assuming, arguendo, that collateral
estoppel applies, we note that Henson is not controlling because
subsequent cases have held that a towing company does not have a
“property . . . interest in its inclusion on a municipal rotational
tow list that would entitle it to . . . a hearing” (Matter of Alltow,
Inc. v Village of Wappingers Falls, 94 AD3d 879, 881; see Matter of
Prestige Towing & Recovery, Inc. v State of New York, 74 AD3d 1606,
1608; see also Matter of Loyal Tire & Auto Ctr. v New York State
Thruway Auth., 227 AD2d 82, 85-86, lv denied 90 NY2d 804).

     We agree with the City that petitioners are not entitled to
mandamus relief inasmuch as inclusion or removal from the rotational
towing list is discretionary and the City’s determination was not
irrational, arbitrary, or capricious. “[M]andamus does not lie to
enforce the performance of a duty that is discretionary, as opposed to
ministerial” (New York Civ. Liberties Union v State of New York, 4
NY3d 175, 184, rearg denied 4 NY3d 882; see Alltow, Inc., 94 AD3d at
880; Matter of Eck v Mayor of Vil. of Attica, 28 AD3d 1195, 1196).
“[W]hen the issue concerns the exercise of discretion . . . , [t]he
courts cannot interfere unless there is no rational basis for the
exercise of discretion or the action complained of is arbitrary and
capricious” (Matter of Pell v Board of Educ. of Union Free School
Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34
NY2d 222, 230-231 [internal quotation marks omitted]; see Prestige
Towing & Recovery, Inc., 74 AD3d at 1607; Matter of City of Buffalo
[Buffalo Police Benevolent Assn.], 13 AD3d 1202, 1203). We conclude
upon our review of the record that there was a rational basis for the
City’s determination, and that the City did not act in an arbitrary or
capricious manner in removing petitioners from the towing list (see
Alltow, Inc., 94 AD3d at 881; Prestige Towing & Recovery, Inc., 74
AD3d at 1607-1608).




Entered:   July 3, 2014                        Frances E. Cafarell
                                               Clerk of the Court
