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Samuel H. Sloan,
Petitioner
Respondent
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KRISTINE D. HOLDEN, an attorney admitted to practice before the courts of the State of New York, affirms the following to be true, upon information and belief, pursuant to CPLR Rule 2106 of the Civil Practice Law and Rules:
1. I am an Assistant Corporation Counsel in the office of Michael A. Cardozo, Corporation Counsel of New York, attorney for the defendants, New York City Taxi and Limousine Commission ("TLC"). I make this affirmation in opposition to plaintiff's motion for contempt against the TLC based upon my personal knowledge, my review of records maintained by the TLC, and from statements made by officers and agents of New York City.
2. Petitioner has brought this motion by Order to Show Cause. Petitioner serves a "Verified Petition" with his Order to Show Cause. As petitioners papers are in the nature of a motion for contempt, respondent will treat the "Verified Petition" as an Affirmation in Support of petitioners motion for contempt.
3. Petitioner moves to hold the TLC in contempt for allegedly failing to comply with the decision of this Court dated February 27, 2002, (A copy of the Court's decision is annexed hereto as Exhibit "A.") That decision was rendered following the Court's reading of all the papers submitted in connection with the Article 78 proceeding commenced by petitioner. The papers before the Court included the Verified Petition and respondent's Verified Answer. (Copies of the Verified Petition and respondents' Verified Answer are annexed hereto as Exhibits "B" and "C" respectively.) The facts of the underlying Article 78 proceeding are more fully set forth in respondents' Verified Answer. (See Exhibit "C.")
4. In the underlying Article 78 proceeding, petitioner moved for the following relief:
1. An order directing the respondents to issue TLC License number 5081212 or TLC License number 496476.
2. A full refund of all the moneys and school fees paid by petitioner for the issuance of TLC Licenses, both license number 5081212 and 5093363, because petitioner should have been allowed to renew license number 496476.
3. An order vacating the fine $280 and four points on the license issued by ALJ Bin K. Huang, inasmuch as this matter has been on appeal for more than five months with no response from the TLC.
4. An order requiring the respondents to produce for copying the entire file of license numbers 496476, 5081212 and 5093363 plus the decision of ALJ Greaves, the transcript of the hearing before ALJ Greaves, the complaints submitted by Michelle Manzione and Robin at the airport and any other documents or evidence pertaining to that hearing or to this case.
5. An order enjoining the holding of the hearing before the TLC now set for December 13, 2001 and reinstating petitioner's license number 5093363.
6. Since a taxi driver can make $1,000 (one thousand dollars) per week and since petitioner has been deprived of his right to a taxi driver's license for two years since December 1999, the respondents shall be ordered to pay damages in the amount of $104,000, which is $ 1 000 times 104 weeks.
7. Inasmuch as the acts of the respondents in this case are typical of the acts and behavior of respondents towards all taxi drivers, the above named respondents shall be required to pay ten million dollars in punitive, exemplary and compensatory damages, plus attorney's fees.
5. The Court, in its February 27, 2002 decision (See Exhibit "A") ordered the following:
ORDERED that the issue of the status of the appeal from TLC summons adjudication is referred to a Special Referee to hear and report and the parties are directed to serve a copy of this decision upon IAS Legal Support and complete any necessary forms in order to obtain a calendar date, and the branch of the petition relating to such claim is held in abeyance; and it is further
ORDERED AND ADJUDGED that the petition is granted to the extent that the determination by the respondent [TLC] denying petitioner's application for issuance of taxicab drivers license no. 5081212 to petitioner is annulled, and the matter remanded for further proceedings not inconsistent with this decision, and it is further ORDERED AND ADJUDGED that respondent is directed to reinstate petitioner's for-hire license TLC License number 5093363, pending a hearing on the charges in the November 23, 2001 notice of a hearing on revocation of the license; and it is further
ORDERED AND ADJUDGED that the balance of the relief requested is denied.
6. Judiciary Law §753 vests the Court with the power to punish, by fine or imprisonment or both, for various acts of civil contempt. Section 753(A)(3) provides that a court of record may punish a party to a special proceeding for any "disobedience to a lawful mandate of the court" by fine. The burden of proving civil contempt lies with the party seeking to hold another party in contempt. See Powers v. Powers, 86 N.Y.2d 63, 70 (1995); Beverina v. West, 257 A.D.2d 957 (3rd Dept. 1999).
7. As set forth by the Court of Appeals in McCain v. Dinkins, 84 N.Y.2d 216, 226 (1994), "[t]o sustain a civil contempt, a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed .... Moreover, the party to be held in contempt must have had knowledge of the order .... In addition, prejudice to the rights of a party to the litigation must be demonstrated."
8. To the extent that petitioner seeks to hold TLC in criminal contempt, pursuant to Judiciary Law §750, petitioner has the burden of establishing that TLC willfully disobeyed this Court's order. Judiciary Law §750(a)(3). See e.g., Bayamon Steel Processors, Inc. v. John Platt, 191 A.D.2d 249 (1st Dept. 1993).
9. To date, all necessary and appropriate steps have been taken by TLC or on their behalf to comply with this Court's decision. Accordingly, respondent has not disobeyed, willfully or otherwise, any lawful and unequivocal mandate of this Court.
TLC has Complied with the Order to Submit to a Hearing before a Special Referee
10. As to the Court's order to submit one of the issues raised in the Verified Petition to a hearing before a Special Referee, the necessary form for requesting a hearing before the Special Referee was submitted to the Clerk in Charge on or about March 28, 2002. Subsequently, the parties were notified to appear for the Special Referee Assignment Calendar on April 24, 2002. Sometime prior to that appearance, I contacted petitioner and advised him that I could not be present on that date and that someone from my office would appear to request an adjournment. During my conversation with petitioner, he asked that I produce copies of log book pages from a sign-in book at the TLC offices on 40 Rector Street, New York, New York on the new date for the hearing. On April 24, 2002, the Special Referee hearing was adjourned to May 14, 2002.
11. As TLC is presently complying with this Court's order concerning the hearing before the Special Referee and fully expects that the hearing will go forward on May 14, 2002, petitioner has no grounds to seek an order of contempt in this regard.
TLC has Complied with the Order to Remand Petitioner's Application for a License
12. As to this Court's order remanding petitioner's application for a taxicab driver's license (Application / License No. 5081212) "for further proceedings not inconsistent with this decision," TLC has continued to review petitioner's application.
13. The statutes and rules governing TLC do not require that decisions on applications be made within any stated time frame. In the instant matter, TLC has acted reasonably in investigating the matter of petitioner's past criminal conviction(s), which came to light during the pendency of the underlying Article 78 proceeding.
14. The exhibits annexed to the Verified Petition include a copy of a letter that petitioner sent to the Grievance Committee for the 2nd and 11th Districts, complaining about TLC Administrative Law Judge ("ALJ") Michelle Manzione. (See Exhibit "B," letter to Grievance Committee annexed as Exhibit I to the Verified Petition.) In that letter, petitioner stated that he "blew the whistle on [ALJ Manzione] and revealed on the Internet and elsewhere that she is a liar."
15. An Internet search for "Michelle Manzione", using the "Google" search engine, reveals links to www.ishipress.com, www.anusha.com, and www.samsloan.com. All three of these links lead to the same website, which is titled "Home Page by Sam Sloan" and contains photographs of petitioner. There are myriad articles and postings contained on petitioner's personal web page. Included among these articles and postings are copies of the pleadings in petitioner's Article 78 proceeding and petitioner's instant Order to Show Cause.
16. Also included among petitioner's articles and postings on his personal web page is a document entitled "Federal Lawsuit to Recover Kidnapped Daughter." (A copy of this article, printed from www.ishipress.com on May 6, 2002 is annexed hereto as Exhibit "D.") The caption on this pleading lists "M. Ismail Sloan" as the lead plaintiff; many documents contained on petitioner's web page refer to him as "Ismail Sloan" or "M. Ismail Sloan." Paragraph 267 of this document (page 37 of 45) contains a description the petitioner's arrest and indictment on kidnapping charges in approximately 1991. That paragraph reads, in pertinent part, as follows:
That visit was scheduled for September 4, 1991 and was the first time that Shamema and her father had seen each other in seven weeks. They went out the back door together and were intercepted by Richard Groff, who called the police. The police came and arrested M. Ismail Sloan, putting him in jail for 18 days. During this 18 days, he was indicted by Judge Harris for the felony of interstate kidnapping even though he and Shamema had never left the back yard of his house....
This is by no means the only article or posting to make such reference.
17. A LEXIS search of case law involving the names "Samuel or Sam" "Ismail or M. Ismail" and "Sloan" finds several cases that make it evident that petitioner has, on at least one occasion, been convicted of a crime(s) and sentenced to jail. The case of In re Custody of Shamema Honzagool Sloan, 25 Va. Cir. 227 (Cir. Ct. of Amherst County 1991), recites the following details:
During such visitation, Ismail Sloan attempted to escape from the supervision of Mr. Groff and again remove Shamema Sloan from the territorial jurisdiction of this Court. Mr. Sloan had rented a Budget rental car (in the name of another person), had in possession airplane tickets from Greenville, South Carolina, to Tokyo, Japan. He attempted to remove Shamema from the observation of Mr. Groff through the backyard of the Trent's Ferry Road property. A scuffle occurred between Mr. Groff and Mr. Sloan which resulted in Shamema actually running from Mr. Sloan and locking herself into Mr. Groff's vehicle. The police subsequently apprehended Mr. Sloan and found in his possession the rental contract for the car and the airplane tickets. An abduction charge was filed against Mr. Sloan in the City of Lynchburg where the incident occurred.
The case of Ismail Sloan v. Jones, et al., 1993 U.S. App. LEXIS 19763 (Ct. App. 4th Cir. 1993) concerns petitioner's appeal of a civil rights action filed "by inmates of the Lynchburg City Jail." The case of Samuel H. Sloan, aka Ismail Sloan v. Plummer, 1995 U.S. Dist. LEXIS 11612 (Dist. Ct. Northern Dist. of Calif.) refers to petitioner as "a Virginia parolee currently incarcerated at the Alameda County Jail on a parole revocation hold. . . .," and Ismail Sloan v. Sheriff Michael Hennessey 1993 U.S. App. LEXIS 34655 (Ct. App. 9th Cir. 1993) affirmed a District Court order dismissing petitioner's petition for habeas corpus as moot because he had been extradited to another jurisdiction. Finally, in M. Ismail Sloan, a/k/a Samuel Howard Sloan v. Commonwealth of Virginia, 1994 Va. App. LEXIS 612 (Ct. App. of Va. 1994), the Virginia Court of Appeals affirmed petitioner's conviction for failure to appear in violation of his bond. (Copies of all relevant cases are annexed hereto as Exhibit "E.")
18. Petitioner had never revealed on any license application submitted to TLC that he had previously been convicted of a crime(s). In light of all of the foregoing evidence that petitioner has previously been convicted, on March 22, 2002, TLC sent a letter to petitioner instructing him to submit the criminal complaints and certificates of disposition relating to any and all convictions incurred in Virginia and/or California in the last 15 years. Petitioner was instructed to comply with this request by April 5, 2002. This request was made in connection with petitioner's FHV license, No. 5093363, and petitioner was instructed that failure to comply with the TLC directive by April 5, 2002 could result in the immediate suspension of his license.
19. Thereafter, on April 2, 2002, petitioner wrote to TLC stating "[n]o such documents exist, or if they did exist I would have no idea or the facilities or the means to obtain them." On April 5, 2002, TLC sent a further demand to petitioner, instructing him to submit a true copy of all records, including but not limited to warrants, accusatory instruments, orders of protection and official dispositions regarding all of petitioner's arrests and/or criminal convictions, since the age of eighteen (18) in all jurisdictions. The letter advised petitioner that the requested documentation is "pertinent to the continuous licensure of your TLC License No. 5093363 and the complete background check for your TLC License Application No. 5081212, which is subject to a fitness review." Petitioner was instructed to comply by April 26, 2002. (Copies of the correspondence dated March 22, 2002 from TLC, April 2, 2002 from petitioner and April 5, 2002 from TLC are annexed hereto as Exhibit "F.")
20. To date, petitioner has not complied with TLC's demands for proof of his prior conviction(s). TLC, meanwhile, continues to try to obtain the information it needs concerning petitioner's convictions, in order to determine whether or not petitioner is fit to possess a TLC license. TLC has made requests to various state and city agencies in Virginia, to try to obtain such information. TLC has received a response from the Commonwealth of Virginia Department of Corrections citing their records concerning petitioner. However, TLC has not received any additional information concerning the nature of the crime(s) with which petitioner was charged or the dispositions of those charges. (Copies of the relevant correspondence between TLC and the State of Virginia are annexed hereto as Exhibit"G.")
21. TLC respectfully asserts that it is in full compliance with this Court's order instructing it to reconsider petitioner's application for a taxicab driver's license. TLC has not pursued an additional fitness hearing on the same grounds as those presented in the underlying Article 78 proceeding, because they are awaiting evidence that is, in many ways, more serious than the allegations raised in the Licensing Standards Hearing that was initially held in this matter and about which this Court expressed serious due process concerns. At this juncture, it would be inappropriate at best for TLC to act on petitioner's license and issue him a taxicab driver's license given TLC's mandate to protect the public health, welfare and safety with respect to taxicab service in the City and given the serious concerns that are raised by all of the evidence that points to petitioner's prior conviction(s).
22. Accordingly, as TLC is properly continuing to review and process petitioner's application for a taxicab driver's license, TLC is not in contempt of this Court's February 27, 2002 decision.
23. Moreover, it would be contrary to law for this Court to now order TLC to issue a taxicab driver's license to petitioner. It is a settled doctrine of state law that mandamus will not lie to compel the exercise of discretionary enforcement authority. Mandamus is an extraordinary remedy used to compel performance by an administrative body or officer of a duty positively required by law. Hamptons Hosp. & Medical Center, Inc. v. Moore, 52 N.Y.2d 88 (1981); Gimprich v. Board of Educ., 306 N.Y. 401 (1954). However, the mandamus remedy is available only where there is a clear and absolute right to the relief sought, and the body or officer whose duty it is to enforce such right has refused to perform such duty. Brusco v. Braun 84 N.Y.2d 674, 678 (1994); County of Fulton v. State of New York, 76 N.Y.2d 675, 678 (1990); Lisa v. Board of Educ. of the City of New York, 83 A.D.2d 949 (2d Dept. 198 1).
24. Mandamus is not available where, as here, the petitioners seek to compel administrative officials to exercise their discretion in a particular manner, because an absolute right to such relief cannot be established. Brusco v. Braun, supra; County of Fulton, 76 N.Y.2d at 678; Mullen v. Axelrod, 74 N.Y.2d 580, 583 (1989); Klostennann v. Cuomo, 61 N.Y.2d 525, 539-40 (1984); Hamptons Hosp. v Moore, 52 N.Y.2d 88. Rather, the remedy of mandamus is only available to compel an act that is ministerial, non-discretionary and non-judgmental, which act is premised upon specific statutory authority mandating performance in a specified manner. Grisi v. Shainswit, 119 A.D.2d 418 (1st Dept. 1986); Peirez v. Caso, 72 A.D.2d 797 (2d Dept. 1979); Posner v. Levitt, 37 A.D.2d 331 (3d Dept. 1971).
TLC has Complied with the Order to Reinstate FHV License No. 5093363
25. immediately upon receipt of this Court's decision with Notice of Entry, TLC reinstated petitioner's FHV license, License No. 5093363.
26. As set forth above, petitioner has since failed to comply with TLC directives instructing him to provide documentation concerning his prior conviction(s). Admin. Code § 19-505(k) requires all licensees to comply with all rules and regulations of the TLC. TLC Rule 6-18(g), promulgated at title 35, chapter 6, section 6-18(g) of the Rules of the City of New York ("RCNY") requires licensees to comply with all questions, communications, directives and summonses issued by TLC. 35 RCNY §6-22 sets forth a penalty chart which specifies that violations of Rule 6-18(g) are punishable by a fine of $200 and "suspension until compliance." Accordingly, TLC recently notified petitioner that his FHV license is suspended and will remain suspended until he complies with TLC's directive of April 5, 2002.
27. Petitioner's failure to comply with TLC's directive of April 5, 2002 is a new matter that was not previously considered by this Court and is not subject to any of the orders contained in this Court's decision. Accordingly, there are no grounds that warrant an order of contempt in this regard.
TLC has Complied with all Remaining Portions of this Court's Order
28. To the extent that petitioner motion for contempt seeks relief that was previously sought in the underlying Article 78 proceeding and denied by the Court, no such relief should now be granted. In this regard, petitioner's moving papers request, inter alia, an order (1) directing TLC to issue TLC License No. 496476; (2) directing a refund of all the monies and school fees paid by petitioner in connection with TLC License application Nos. 5081212 and 5093363; and (3) requiring TLC to produce their files on License/Application Nos. 496476, 5081212 and 5093363 for copying.
29. Finally, TLC objects to petitioner's request to reinstate all of the individual defendants that he initially named in the underlying proceeding, but whom were stricken from the caption by this Court. Those individuals have never been personally served and, as such, this Court does not have jurisdiction over them.
WHEREFORE, defendant respectfully request that this Court deny petitioner's motion in all respects.
Dated: New York, New York
May 10, 2002
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KRISTINE D. HOLDEN