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Fate of NY and NJ Toll Hikes Uncertain

MANHATTAN (CN) - A lawyer for automobile clubs urged a federal judge on Thursday to quickly block a toll hike affecting Manhattan-bound commuters, noting that drivers who use cash will not be eligible for reimbursement if the new charges are ultimately deemed illegal.

While the Port Authority of New York and New Jersey say the possibility of reimbursement removes the need for an injunction, attorney Michael Fitzgerald said only E-ZPass users would be able to get their money back.

U.S. District Judge Richard Holwell also seemed unsure about the haste, asking why the auto clubs declined to take additional discovery before the hearing.

Fitzgerald replied that cash accounts for roughly one-fifth of toll payments, and these drivers need an injunction as soon as possible.

In September, the Automobile Club of New York and AAA North Jersey filed a lawsuit challenging the hikes, which top off at $12 for drivers paying in cash and will climb 75 cents a year until 2015.

Citing a Port Authority press release and financial statement, Fitzgerald said that part of the hikes will illegally fund the construction of the World Trade Center redevelopment, instead of financing only the interstate transportation network.

The Port Authority of New York and New Jersey has denied these claims. Port Authority Chief Financial Officer Michael Fabiano swore in an affidavit that World Trade Center construction would not see a dime of the new tolls, and the agency's lawyers stuck to that script.

"There is simply no money left over to fund anything," attorney Kathleen Miller told the court Thursday. Her client hopes to dismiss the case outright

Fitzgerald countered that the Port Authority's affidavit contradicted its earlier position, and that the agency could not be trusted to keep its word.

"The information in the Fabiano affidavit is admittedly preliminary, unaudited, and unapproved, and much of it was likely prepared specifically for this litigation," according to AAA's Nov. 18 brief. "The Port Authority can walk away from it at any time. The Port Authority should not be permitted to publicly provide one reason to support a toll increase, and then give the court another reason, particularly when the new explanation is a preliminary plan that has not been approved by the Port Authority commissioners."

At the hearing, Fitzgerald again downplayed the affidavit as a "report to say they're broke."

Port Authority lawyer Carlene McIntyre argued that private entities should not be allowed to challenge the hikes at all, citing a 3rd Circuit decision.

"Could the attorney general?" Holwell asked.

"Perhaps," McIntyre allowed.

On Nov. 23, Holwell let Rep. Michael Grimm, R-Staten Island, file an amicus brief describing the effect the hikes have on his constituents, who rely on the Bayonne Bridge, the Outerbridge Crossing and the Goethals Bridge.

Port Authority lawyers had opposed allowing his testimony, and they continued to argue it had no empirical basis.

Reports of a Staten Island business struggling after the toll hikes might have been caused by the "economic climate," Miller said.

Stone-faced, Holwell reserved decision on both the motion for an injunction and the motion to dismiss.

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