Adi Talwar

This story was produced through the City Limits Accountability Reporting Initiative For Youth (CLARIFY ), City Limits’ paid training program for aspiring public-interest journalists.

In August of 2017, Greg Keller was riding his bike in Lower Manhattan when he was struck from behind mid-block by the driver of a car that had been tailgating him, ramming his back wheel before driving off, he says.

The driver returned to the scene a few minutes later after being chased down by witnesses, according to Keller, an avid cyclist who tweeted about his experience, which was previously reported by Gothamist. The NYPD issued the driver a summons for Failure to Yield under Administrative Code 19-190, a law passed by the New York City Council in 2014 that allowed police to—potentially—charge drivers with a misdemeanor if they fail to yield to a pedestrian or cyclist who has the right of way, answering calls from street safety activists who sought stricter penalties for drivers who break rules and cause harm behind the wheel.

Though Keller was frustrated by the NYPD’s response to the crash (he says he went to a nearby police precinct later that day to give a statement about the incident, but was turned away), he was somewhat placated by the fact that the driver who hit him was issued a 19-190 civil summons, which comes with a potential fine of up to $250.

“I didn’t think it was enough,” says Keller. “I wasn’t very satisfied, but I thought at least, okay, he got a summons. It will go on his record.”

As it turns out, the driver who hit Keller paid no fine. Instead, the summons against him was dismissed after he appeared before the city’s Office of Administrative Trials and Hearings (OATH), which tossed the ticket because it failed to note explicitly whether Keller had the right of way, or if he was physically injured by the crash—two requirements under section B of the 19-190 law—despite the fact that Keller says he was taken to the hospital and suffered ligament damage.

This scenario doesn’t appear to be unusual when it comes to AC 19-190 summonses: a majority of them, like the one issued to the driver who hit Keller, end up getting dismissed after OATH hearings, a City Limits analysis found.

Passed in May of 2014, AC 19-190—also known as the Right of Way or Failure to Yield Law—was part of a package of Vision Zero legislation intended to improve street safety. It was touted as a means to hold drivers more accountable, and an effort to offer justice to crash victims and advocates who felt that drivers who kill or injure people should be subject to tougher penalties than a traffic ticket.

Under the law, drivers who fail to yield to a pedestrian or cyclist who has the right of way are guilty of a traffic infraction and subject to a fine of up to $50 and up to 15 days in jail; alternately or in addition to that, officers can impose a civil summons with a possible fine of up to $100, to be determined by the city’s Environmental Control Board (ECB) via a hearing at OATH . Additionally, if the driver makes contact and causes physical injury to the pedestrian/cyclist, they can be fined up to $250 and/or be charged with an unclassified misdemeanor, an offense that could land them up to 30 days in jail. To be found in violation of a 19-190 charge, it must be found that the driver in question failed to “exercise due care,” a standard which lawyers say equates to behaving as a reasonable person would under the given circumstances.

Five years after going into effect, data shows the NYPD is largely enforcing 19-190 through the issuance of civil summonses, a majority of which ultimately end up dismissed—an outcome that advocates say undermines the original purpose of the law, which was to create criminal penalties for dangerous drivers. Between 2015 and 2018, police made 149 arrests under AC 19-190, according to NYPD data. By contrast, the police department issued more than 9,000 summonses where Failure to Yield was the top violation, though more than half of those summonses were dismissed after an OATH hearing, with drivers facing no fines, city data shows.

Tickets for Turns

2015 2016 2017 2018 2019 (through 6/1/2019) All time A summonses issued 2 47 358 828 284 1519 B summonses issued 209 1762 2270 2192 1170 7603 Total A&B summonses issued 211 1809 2628 3020 1454 9122 Share of A summonses dismissed 50.0% 70.2% 55.3% 51.1% 37.0% 50.0% Share of B summonses dismissed 40.7% 54.5% 60.7% 62.2% 41.4% 56.2% Share of A& B summonses dismissed 40.8% 54.9% 60.0% 59.2% 40.5% 55.2%

“A” Summonses under 19-190 are issued when a driver fails to yield to a pedestrian/cyclist who has the right of way; “B” Summonses are issued if the driver’s failure to yield results in contact with the pedestrian/cyclist and causes them physical injury. (Source: NYC Open Data)

Lawyers who work in traffic law say 19-190 summonses get dismissed for a variety of reasons: the facts of the case may simply not support a violation of the law, for one. But some say another common issue is when officers who respond to the scene of an incident fill the summons out incorrectly, or don’t provide enough detailed information on the ticket, as was the case with the driver who struck Keller. Additionally, police officers rarely, if ever, show up at OATH hearings for 19-190 violations, sources say, and crash victimsaren’t usually involved in such hearings—meaning an administrative judge must base their decision on the testimony of the driver and whatever information is included on the written summons.

[The cops] blowoff these ECB hearings, and it has rendered the right of way law meaningless,” says Steve Vaccaro, a personal injury lawyer who represents victims of traffic crashes and who advocated for the passage of AC 19-190. “No tribunal could ever adjudicate these charges meaningfully without the cops showing up.”

Vaccaro says the legislation was never really intended to include an option for officers to write an ECB summons; he and other street safety advocates hadinstead hoped that police could bring criminal charges against drivers who fail to yield the right of way and hurt someone—something the NYPD was historically hesitant to do unless an officer personally witnessed the infraction, Vaccaro says.

Of the 19-190 summonses issued by police between 2015 and the start of June, 83 percent were for 19-190 B summonses, meaning the pedestrian or cyclist involved in the incident suffered a physical injury as a result of the crash. Of those “B” summonses, more than half—56 percent—were dismissed without the driver being fined, data shows.

“They have made a joke out of it,” Vaccaro says.

In a statement, the NYPD says its officers are trained on the enforcement of AC 19-190 “on a continual basis.” The agency did not respond to questions about what criteria officers use in determining whether to write a civil summons or charge drivers with a misdemeanor in crashes that involve physical injuries.

“The OATH Court is a civil jurisdiction and enforcement personnel are not required to attend hearings,” the NYPD said via email.

AC 19-190 is just one element of Mayor de Blasio’s larger Vision Zero platform to reduce traffic fatalities, an effort that’s some had major successes: traffic deaths fell each year in the first five years since de Blasio took office, though they have spiked so far in 2019, causing some to question if the mayor has lost his focus on street safety as he makes a run for the White House.

Keller, the cyclist who was rear-ended in 2017, says he didn’t know the driver who struck him had his summons tossed out until a City Limits reporter notified him of such. The police officer who wrote the summons did not appear at the OATH court hearing against the driver he ticketed, documents show.

“I was treated poorly. The cops didn’t treat the crash seriously And then now to find out that it was eventually dismissed—I didn’t have much faith in the system to begin with from the interaction,” Keller says. “If I ever get hit again, I know I can’t trust the police at all.”

AC 19-190 Arrests by the NYPD

2015 2016 2017 2018 All years Manhattan 8 15 8 5 36 Brooklyn 16 12 6 12 46 Queens 12 8 9 21 50 The Bronx 3 4 2 1 10 Staten Island 0 3 3 1 7 Citywide 39 42 28 40 149

Good intentions

Mark Weprin, a former City Council member, was the main sponsor behind the bill that eventually become AC 19-190. He was prompted to do so after the death of Allison Liao, a 3-year-old girl who was fatally struck by a turning driver while crossing Main Street with her grandmother in Flushing, Queens. The Queens District Attorney’s Office declined to prosecute the driver in that case, and two traffic tickets the driver received were dismissed by the DMV , according to reports—a result Weprin called “outrageous.”

“This story really affected me, as I have a daughter myself who was just a little older at the time,” the former lawmaker told City Limits in an interview, choking up as he spoke.

“Part of your responsibility while driving, when you make a turn, is to pay attention, so it is not an innocent act,” he says, calling a car a potentially “dangerous weapon.”

“Whether your intent was to hurt someone or not, if someone gets hurt, it’s your fault,” he adds. Weprin left office in June of 2015, a year after AC 19-190 went into effect.

The bill was drafted in part, he and others say, to supercede the limitations of the NYPD when it came to imposing criminal penalties against drivers who violate rules of the road—particularly when they hit people. The department’s Collision Investigation Squad is limited in its size and resources, and only investigates crashes that involve fatalities or where an injured victim is deemed “critical,” as City Limits reported last year. The remainder of cases are handled by precinct detectives, who advocates say were often unlikely to charge drivers for infractions unless they were committing some other offense at the time, like drunk driving, and unless officers personally witnessed the crash.

Weprin’s bill was intended to allow police to make arrests based on other factors, like witness testimony.

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“So many times you’ll see stories of people fatally struck or seriously injured and the last line of the article reads: ‘No charges were filed,'” the former lawmaker said.

But in practice, even drivers whose failure to yield results in serious injury can get off without penalty. In one particularly dramatic casein 2017, police issued a 19-190 B summons to a school bus driver who turned onto a Brooklyn street, striking a woman as she crossed there and dragging her under the front wheel of the bus for several feet, according to a Daily News story, which included alarming video of the incident. The victim suffered broken ribs, a broken leg, broken collarbone and other injuries, according to the report.

Despite the video evidence, the summons against the driver—which could have, at worst, landed him a $250 fine—was dismissed at an OATH hearing because the officer who wrote the ticket used an abbreviation, putting “SPI” as a stand-in for, presumably, serious or significant physical injury. The responding officer did not appear in person at the OATH hearing, documents show.

“The summons failed to establish that the pedestrian suffered physical injury as defined under this provision. The detailed allegation states that the vehicle made contact with the pedestrian and the pedestrian suffered ‘SPI,'” a report from the OATH hearing reads. “This description is insufficient to establish a prima facie case.”

Charles Green, an attorney for the victim in that case, says he was not aware the summons against the driver who struck his client was dismissed until a City Limits reporter notified him. He advised his client not to comment for this story, citing an ongoing civil lawsuit against the driver, but did tell City Limits that the victim is “still suffering from the injuries she sustained,” in the crash.

In other instances, though, the Failure to Yield law has been applied seemingly as its proponents intended: In November of 2018, police initially issued a 19-190 B summons to a driver who struck a 90-year-old woman on the Lower East Side. The victim died from her injuries several days later, according to reports. Later that month, the NYPD requested that OATH withdraw the summons against the driver, noting that after a Collision Investigation Squad investigation “it was determined that the operator involved committed 19-190,” according to documents.

“Upon conferral with the Manhattan DA’s office, it has been determined that the operator involved will be prosecuted criminally,” the NYPD’s request to void the summons reads. The driver in that case was charged with an unclassified misdemeanor under 19-190; he was released on recognizance but is due back in court in July, records show.

While that case involved a fatality, it’s not clear what criteria the NYPD uses in most instances to determine whether to issue a driver an OATH summons under 19-190, or charge them with a misdemeanor under the law—a distinction legal experts believe falls largely to the discretion of the NYPD officers who respond to the scene of a particular crash.

“The new law seemed to give the officers a choice,” says Scott Feifer, an attorney with Feifer & Greenberg, LLP, which largely works in representing clients in traffic ticket cases. “It’s a lot easier to just collect some fine money than deal with a criminal case.”

Howard Hershenhorn, a personal injury attorney, told City Limits he’s worked on dozens of cases relating to AC 19-190, and knows of “many” instances where a pedestrian with the right of way was struck by a driver who failed to yield, but where the law wasn’t enforced.

It’s a good law with good intentions,” he says, but enforcement has been “haphazard.”

“They need to enforce it more often, and more equally, in all five boroughs,” he says.

Other attorneys who represent drivers in traffic law cases say it’s sometimes preferable when theirclients are issued a 19-190 summons—a violation of the city’s administrative code—compared to a standard Failure to Yield traffic summons under the state’s Vehicle and Traffic Law, since the latter can mean points on a driver’s license and potential insurance ramifications.

“It’s actually a little bit better for you to get that type of ticket than would be a moving violation —if you don’t get any points on your record then it’s just a fine,” says Matthew J. Weiss, of the traffic ticket law firm Weiss & Associates, PC.

Even a misdemeanor criminal charge under 19-190 is usually pleaded down to a lesser offense, experts note.

“Now you’re going to go to a criminal court, where you’re a small fish in a big pond,” Feifer says. “It’s probably going to be pleaded and bargained down to a fine.”

Fears of overreach

While street safety advocates envision AC 19-190 as way to hold drivers more accountable for their actions on the road, others worry over an alternative outcome: not that police don’t utilize the law enough, as some say is currently the case, but that they’ll use it too much, ensnaring more people in the criminal justice system unfairly.

In 2015, City Council Member Rory Lancman introduced a bill toamend the existing 19-190 law to offer a clearer definition of its “due care” standard, which states that in order to be in violation of the law, drivers must have committed “failure to exercise due care” when they failed to yield the right of way.Lancman was concerned that the NYPD could over-enforce the law or apply it arbitrarily without considering factors like weather, roadway conditions or other things outside a driver’s control.

“We didn’t pass the law with the intention that, God forbid, every time there’s an accident and somebody’s injured, that the driver would automatically be prosecuted,” Lancman tells City Limits. The bill, which has yet to pass, has been criticized as an attempt to water down the Right of Way law, though Lancman says it’s only “to make sure that the law would only be applied against the drivers who were truly driving without regard for other people’s safety.”

Others have expressed similar concerns: Defense lawyers, for instance, have challenged the constitutionality of the 19-190 law dozens of times since it went into effect on the grounds that it punishes people criminally for unintentional behavior, without considering their mental state.

“Sometimes accidents are tragic, but that does not mean that a party should be prosecuted criminally,” says Jeremy Saland, an attorney who represented a bus driver who was found guilty last year of a 19-190 misdemeanor for fatally striking a Citi Bike rider. The law is being applied inconsistently, according to Saland.

“How are they making the determination that something should go to criminal court as opposed to civil court?” he says. “A genuine accident that was neither intentional nor reckless can be prosecuted criminally on one hand and handled civilly on the other.”

Transit advocates argue that holding drivers more accountable for the harm they inflict behind the wheel is key to achieving Vision Zero’s goal of eliminating traffic deaths.

“Failure to Yield right of way is a significant cause of injuries and death to pedestrians in New York, and it’s something we need to continue to emphasize seriously as a city in trying to reduce,” says Eric McClure, executive director of StreetsPAC, a political action committee dedicated to improving street safety.

“There’s still in New York a tendency to take the side of drivers and treat preventable crashes and violations of Right of Way as accidents, rather than something the driver could have taken steps to avoid by paying more attention or taking turns more slowly.”

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