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New York Apple Tours, which runs double-decker sightseeing buses in New York City, will be able to resume operations under a pair of injunctions issued Wednesday by Manhattan Supreme Court Justice Phyllis Gangel-Jacob. The court granted petitions under Article 78 that stay two regulatory actions that would have put the tour bus company out of business. New York Apple Tours’ license to operate had been revoked by the City Department of Consumer Affairs (DCA) after a pedestrian was struck and killed by a New York Apple Tours bus in late May, and its bus registrations were pulled by the State Department of Motor Vehicles. But Justice Gangel-Jacob said that the governmental decisions were “precipitous” and were taken without adequate due process. In New York Apple Tours v. Hoffman, 112044/00, Justice Gangel-Jacob said that preliminary injunctions staying the government actions were supported by the likelihood of the tour bus company’s eventual success in challenging the license and registration revocations. The injunctions were also supported by the irreparable harm that would come to the company if it could not resume its business, and by equitable considerations, the court said. The court also appointed Ross Sandler, a former Commissioner of the City Department of Transportation and now a professor at New York Law School, to monitor the company’s public safety practices. The judge said that the Department of Consumer Affairs, in hastily scheduling a two-day hearing on the revocation of the tour company’s license to operate sightseeing buses, denied the company due process by not giving it more than one day to prepare a defense. The DMV revoked the company’s bus registrations without a hearing, Justice Gangel-Jacob said, utterly failing to provide it with due process. The fatal accident, the court said, dealt with one driver and one bus out of a staff of 80 drivers and fleet of 63 buses. Even with the tragic fatality, there was not enough evidence on the record to summarily lift all of the company’s registrations, she said. “Putting more than 300 employees out of work with no warning at the height of the tourism season is certainly contrary to the public interest,” Justice Gangel-Jacob said. Tourists visiting the City would also be adversely affected if the company’s buses are taken off the street, she added. MUCH PRODDING Justice Gangel-Jacob observed that the actions of the City and State governments were taken after much prodding from public officials and community activists. She took the rare step of examining their motives in pushing for regulatory action against the tour company. “I know many of these community activists and many of those public officials and I can fairly attest that in other circumstances they have been and are stalwart defenders of due process even for the least attractive and most objectionable civil and criminal defendants in our society,” Justice Gangel-Jacob wrote. “So what has happened here? Might it be what has come to be called a ‘NIMBY’ (‘Not In My Back Yard’) reaction?” She noted that the community has objected to New York Apple Tours’ operations, complaining of traffic congestion and exhaust emissions as well as public safety. Justice Gangel-Jacob said also that the pedestrian’s death added to the intensity of community feeling. “There is little doubt but that the incident gave rise to much of the group emotion and certainly the precipitous action on the part of the State and the City,” Justice Gangel-Jacob wrote. But the community’s feelings create no exception to the company’s entitlement to due process, she concluded. “The congestion is the price we pay for the privilege … to live in this great City,” Justice Gangel-Jacob wrote. “We also enjoy the privilege of complaining. … [But] included in making [City life] as good as possible is due process.” New York Apple Tours’ lead attorney is Bruce G. Paulsen, of Seward & Kissel. Assistant Corporation Counsel Rachel Goldman represented the Department of Consumer Affairs, and Assistant Attorney General Lee Adlerstein handled the case for the New York Department of Motor Vehicles.

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