Opinion 92-34

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

FINES AND PENALTIES -- Mandatory Surcharge (partial payment of parking fines and surcharges) -- Remission to State Comptroller (partial payment of parking fines and surcharges)
PARKING AND TRAFFIC REGULATIONS -- Mandatory Surcharges (partial payment of parking fines and surcharges)

VEHICLE AND TRAFFIC LAW, §1809-a: When a city receives partial payment of a parking fine or penalty and/or a mandatory surcharge, the city may apply the payment either to the fine or to the surcharge and remit the surcharge payments to the Justice Court Fund in the State Comptroller's Office.

You have inquired with respect to the mandatory parking surcharges collected in certain cities pursuant to Vehicle and Traffic Law, §1809-a. You ask if a surcharge is to be considered paid in whole or in part when a court or administrative tribunal has assessed a parking fine or penalty and surcharge but receives payment of only a portion of the total amount assessed. You also inquire with respect to the procedures to be followed by a court or administrative tribunal that has received only partial payment, as when there is a refusal to pay the surcharge.

Vehicle and Traffic Law, §1809-a, pertaining to parking surcharges, was enacted in 1991 (L 1991 ch 166, §374; as amended by L 1991 ch 526, §2). To our knowledge, the provisions of this section have not been judicially interpreted and the questions asked appear to be questions of first impression.

In pertinent part, subdivision one of section 1809-a provides:

The provisions of any other general or special law notwithstanding, whenever, in a city having a population of one hundred thousand or more according to the nineteen hundred eighty United States census, proceedings in an administrative tribunal or a court result in a finding of liability, or conviction for the violation of any statute, local law, ordinance or rule involving the parking, stopping or standing of a motor vehicle, there shall be levied a mandatory surcharge in addition to any other sentence, fine or penalty otherwise permitted or required, in the amount of five dollars.

No provision is made in the statute for the application of partial payments. The statute, as written, envisions payment of the entire amount assessed and, in our opinion, courts and administrative tribunals are obligated to make good faith efforts to collect the entire amount due. To this end, Vehicle and Traffic Law, §241, for example, which relates to final determinations by city parking violation bureaus, provides for the entry of a default judgment which remains in full force and effect for eight years if there be a failure to plead, contest, appear or comply with respect to a charge of a parking violation.

Partial payment, of course, does not relieve the person obligated for payment from the consequences of failure to pay the total amount assessed. Assuming good faith efforts will be expended to collect the entire amount owed, and there being no other statutory direction, it is our opinion that courts and tribunals may apply any partial payment to the satisfaction of either the surcharge or the fine, with the partial collection and its application being reported to the Bureau of Justice Court Fund. We note that a city remits to the Bureau only the amount of any surcharges imposed pursuant to Vehicle and Traffic Law, §1809-a, while retaining the underlying parking fines. As subsequent payments are received, an additional report must be filed properly identifying the source of the payment and its application. When partial payments are received, the receipt and application of the partial payment should be reported to the Bureau of the Justice Court Fund in a manner consistent with directions previously communicated to the affected courts and tribunals.

October 26, 1992
Melvin I. Rosenblat, Director
Justice Court Fund