Verified Answer of the NYC Taxi & Limousine Commission

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------- x

Samuel H. Sloan,

Petitioner,

VERIFIED ANSWER

- against - Index No. 123003/01

New York City Taxi and Limousine Commission,

Respondent.

----------------------------------------------------------------------- x

Respondent, the New York City Taxi and Limousine Commission (hereinafter "TLC'), by its attorney, MICHAEL D. HESS, Corporation Counsel of the City of New York, for its answer to the Petition, respectfully alleges the following upon information and belief:

1 Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph "1" of the Petition, except admits that petitioner had a taxicab driver's license from November 1, 1997 to October 31, 1999 and that petitioner applied for a new taxicab driver's license on April 27, 2001, and denies that petitioner meets the requirements for obtaining a taxi driver's license.

2 Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph "2" of the Petition.

3. Denies the allegations set forth in paragraph "3" of the Petition and avers that the caption of this proceeding has been amended and all individual respondents were struck from the caption.

4 Denies the allegations set forth in paragraph "4" of the Petition, except admits that TLC's decision to change its policy on grace periods for late renewal applications for taxicab drivers' licenses was struck down by the Appellate Division as an improper rule change.

5. Denies the allegations set forth in paragraph "5" of the Petition, and avers that the matter of Khan v. Taxi and Limousine Commission, New York County Supreme Court Index No.: 114557/01, was dismissed by so ordered stipulation on October 29, 2001.

6. Denies the allegations set forth in paragraphs "6" and "7" of the Petition.

7. Denies the allegations set forth in paragraphs "8" of the Petition.

8. Admits the allegations set forth in paragraphs "9" through "16" of the Petition, except avers that the caption of this proceeding has been amended and all individual respondents were struck from the caption.

9. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph "17" of the Petition.

10. Admits the allegations set forth in paragraph "18" of the Petition.

11. Denies the allegations set forth in paragraph "19" of the Petition insofar as they allege or purport to allege that TLC acted improperly.

12. Denies the allegations set forth in paragraph "20" of the Petition, except admits that petitioner held a taxicab driver's license from November 1997 to October 31, 1999, and denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning whether petitioner has ever been involved in an accident and whether any customers have ever had any complaints about petitioner.

13. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph "21" of the Petition, except admits that petitioner's taxicab driver's license expired on October 31, 1999 and petitioner did not renew his license, and avers that before July 1, 1999, TLC allowed drivers a six month grace period to file renewal applications, that effective July 1, 1999 TLC adopted a new policy giving drivers a one month grace period to renew application, and, further, that this change in policy was widely publicized in an Industry Notice dated June 1999.

14. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph "22" of the Petition.

15. Denies the allegations set forth in paragraph "23" of the Petition.

16. Denies the allegations set forth in paragraph "24" of the Petition, except admits that TLC's policy change was held to be a rule change that requires compliance with the City Administrative Procedure Act and respectfully refers the Court to the reported decision in Singh v. Taxi and Limousine Commission, 723 N.Y.S. 2d 476 (1st Dept. 2001), lv. denied 2001 N.Y. Lexis 3028 (2001) for its full text and true meaning.

17. Denies the allegations set forth in paragraph "25" of the Petition, except admits that petitioner filed a new application for a taxicab driver's license, Application/License No. 5081212, on April 27, 2001, that petitioner paid the required fee, completed the required taxi school with a 92% score, and passed all other required tests, and that TLC thereafter discovered that petitioner had an unpaid default judgment from a previous summons.

18. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph "26" of the Petition, and respectfully refers the Court to TLC Summons No. 164239 for its full text and true meaning.

19. Denies the allegations set forth in paragraph "27" of the Petition, except admits that petitioner was found guilty by default of the violations indicated on Summons No. 164239 and was assessed a fine of $280 dollars and four points on his license.

20. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph "28" of the Petition.

21. Denies the allegations set forth in paragraph "29" of the Petition, and affirmatively avers that Roger Morgan is the director of driver licensing for TLC and he previously advised petitioner, in sum and substance, that the "taxi license" number entered on Summons No. 164239, which is 5061483, was a number created by TLC for purposes of that summons because petitioner did not have a taxi driver's license at the time the summons was issued.

22. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs "30" and "31" of the Petition.

23. Denies the allegations set forth in paragraph "32" of the Petition, except admits that petitioner made a motion to vacate the default judgment that had been issued in connection with Summons No. 164239 and refers the Court to the decision on petitioner's motion to vacate for its full text and true meaning.

24. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph "33" of the Petition, except admits that petitioner paid the outstanding judgment of $280 and received a clearance and further admits that, subsequently, petitioner was notified to appear for a hearing before the TLC Licensing Standards Committee in regard to disorderly conduct at JFK Airport.

25. Denies the allegations set forth in paragraph "34" of the Petition, except denies knowledge or information sufficient to form a belief as to what petitioner was advised by other taxi drivers regarding filing appeals.

26. Denies the allegations set forth in paragraph "35" of the Petition insofar as they allege or purport to allege that TLC acted improperly.

27. Denies the allegations set forth in paragraph "36" of the Petition, except admits that petitioner appeared for a Licensing Standards hearing on June 26, 2001 before Administrative Law Judge "ALJ" Valerie Greaves and denies knowledge. or information sufficient to form a belief as to the truth of the allegations concerning what petitioner's counsel told him.

28. Denies the allegations set forth in paragraph "37" of the Petition, except admits that petitioner was not provided with a copy of the hearing/determination of ALJ Greaves following the Licensing Standards Committee hearing and that petitioner's application for a taxicab driver's license, Application/License No. 5081212 was denied on or about August 15, 2001 on grounds that issuance of a license to petitioner would create an unreasonable risk to the public, and avers that the TLC Assistant Commissioner for Licensing, Desiree Blackwood spoke with petitioner concerning his request to see items from his licensing file and she advised petitioner, in sum and substance, that he should file a request under the Freedom of Information Law ("FOIL").

29. Denies the allegations set forth in paragraph "38" of the Petition, and avers that Assistant Commissioner Blackwood advised the petitioner, in sum and substance, how to make an appointment with the TLC Commissioner for Licensing, Charles Tortorici.

30. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph "39" of the Petition, except admits that petitioner filed an application with TLC for a for-hire vehicle driver's license on September 7, 2001 and TLC issued a for-hire vehicle driver's license to petitioner, License No.: 5093363, on September 19, 2001, and avers that petitioner failed to disclose on his application that he had previously applied for a taxicab driver's license under Application/License No. 5081212.

31. Denies the allegations set forth in paragraph "40" of the Petition, except admits that TLC notified petitioner on October 19, 2001 that his license was suspended, and avers that petitioner discussed his objections to the suspension with TLC Deputy Commissioner for Licensing, Charles Tortorici and that on November 23, 2001, TLC Assistant General Counsel, Marc Hardekopf, sent a letter to petitioner advising him that a hearing concerning License No. 5093363 was scheduled for December 13, 2001.

32. Denies the allegations s et forth in paragraph "41" of the Petition, except admits that petitioner has discussed this matter with Deputy Commissioner Tortorici and avers that Deputy Commissioner Tortorici advised petitioner, in sum and substance, that petitioner would have to discuss matters relating to his suspension with the legal department of TLC.

33. Denies the allegations set forth in paragraph "42" of the Petition, except admits that TLC Assistant General Counsel, Marc Hardekopf, sent a letter to petitioner advising him that a hearing concerning License No. 5093363 was scheduled for December 13, 2001.

34. Denies the allegations set forth in paragraph "43" of the Petition.

35. Denies the allegations set forth in paragraph "44" of the Petition, and avers that TLC erred in advising petitioner that he answered Question No. 18 on his application for License No. 5093363 falsely and that petitioner should have been advised that he answered Question No. 17 falsely.

36. Denies the allegations set forth in paragraph "45" of the Petition, except admits that petitioner made a request for documents under the Freedom of Information Law ("FOIL") and avers that TLC is currently processing petitioner's FOIL request.

37. Denies the allegations set forth in paragraph "46" of the Petition, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning petitioner's attempts to obtain representation.

38. Denies the allegations set forth in paragraph "47" except admits that petitioner purports to proceed as set forth therein.

RELEVANT FACTS AND STATUTORY BACKGROUND

39. Section 2300 of Chapter 65 of the New York City Charter (hereinafter "City Charter") provides for the creation of the TLC and sets forth the purpose and functions of the TLC, including, inter alia, "to set standards and criteria for the licensing of vehicles, drivers and chauffeurs, owners and operators engaged in such services."

40. Section 2303 of the City Charter further enumerates the powers and duties of the TLC. Among other things, the TLC is authorized to regulate and supervise "the issuance, revocation, suspension of licenses for drivers, chauffeurs, owners or operators of vehicles ... and the establishment of qualifying standards required for such licensees. (City Charter 2303(b)(5).) TLC is also authorized to formulate, promulgate and effectuate "rules and regulations reasonably designed to carry out the purposes, terms and provisions of [Chapter 65]." (City Charter 2303(b)(11).)

41. Section 19-505 of the New York City Administrative Code ("Admin. Code") sets forth a general requirement that all taxicab drivers must be licensed by TLC and sets forth certain specific qualifications for drivers, including that all licensed drivers must comply with the rules and regulations promulgated by TLC. That section states, in pertinent parts, as follows:

19-505 General provisions for licensing of drivers. a. No person shall drive any motor vehicle for hire which is regulated by the provisions of this chapter without first obtaining from the commission:

(i) a taxicab driver's license, if the vehicle driver is a taxicab; or

(ii) a coach driver's license, if the vehicle driver is a coach; or

(iii) a for-hire vehicle driver's license, if the vehicle driver is a for-hire vehicle; or

* * *

b. Each applicant for. a license, other than a commuter van driver's license must:

1. Hold a New York State chauffeur's license.

2. Be nineteen years of age or over.

3. Be of sound physical condition ....

4. Be fingerprinted.

5. Be of good moral character.

6. Not be addicted to the use of drugs or intoxicating liquors.
(Emphasis added.)

* * *

k. Every driver who has obtained a license pursuant to this section shall comply with the rules and regulations promulgated by the commission for drivers of the type of vehicle for which the driver is licensed.

42. Petitioner applied for a TLC taxicab driver's license [note 1], on or about August 20, 1997. That license, License No. 496476, was granted in 1997 and was set to expire on October 31, 1999.

[NOTE 1] TLC issues different types of driver's licenses. One type of driver license issued by TLC is for taxicab, or yellow cab, drivers, which are also known as hack licenses or medallion operator licenses. Another type of license issued by TLC is for for-hire vehicles, also known as limousines or black cars.

43. After License No. 496476 expired on October 31, 1999, petitioner failed to renew his taxicab driver's license. Petitioner alleges that he attempted to file a renewal application sometime within six months after his license expired, but that TLC refused to accept his late renewal application. [note 2] Petitioner did not commence any proceedings to challenge TLC's alleged actions in this regard.

[NOTE 2} On July 1, 1999, TLC effectuated a change in policy concerning the acceptance of late renewal applications. Previously, TLC accepted renewal applications up to six months late. As of July 1, 1999, TLC would not accept renewal applications more than thirty days late. This policy change was widely publicized in an Industry Notice that was provided to group representing the taxicab industry, taxicab industry publications and all TLC registered taxicab fleets and leased-managed fleets. TLC's policy change was later struck down by the Appellate Division, First Department, on grounds that it was an improperly promulgated rule change. Singh v. Taxi and Limousine Commission, 723 N.Y.S. 2d 476 (1st Dept. 2001), lv. denied 2001 N.Y. Lexis 3028 (2001). The Appellate Division decision in Singh was issued on April 24, 2001 and the TLC's motion for leave to appeal was denied on September 11, 2001.

44. On April 27, 2001, approximately one and a half years after petitioner's original taxicab driver's license expired, he applied for a new taxicab driver's license. That application was assigned a number, Application/License No. 5081212. (A copy of petitioner's application for a taxi driver's license, dated April 27, 2001, is annexed hereto as Exhibit "A.")

45. Sometime thereafter, TLC discovered that petitioner had previously defaulted on a summons issued for TLC violations and that default judgment was still outstanding. (A copy of Summons No. 164239 is annexed hereto as Exhibit "B.") The summons was issued to "Samuel H. Sloan" with a State Driver's License Number 799315111 on August 19, 2000. The summons was issued for three offenses: (1) no E-Z pass tags mounted, (2) missing hack license, and (3) missing trip record. The summons was issued at "LGA," or LaGuardia Airport. The summons indicated that a hearing would be held on December 11, 2000, at a hearing location apparently to be provided "by mail." Following the issuance of the summons, a license number was created for identification purposes and filled in on the summons under the heading "Taxi License."

46. On November 13, 2000, a letter was mailed to petitioner at the address of 24 6th Avenue, Brooklyn, New York, advising him that a hearing on Summons No. 164239 was scheduled for December 11, 2000 at JFK Airport. (A copy of the letter mailed to petitioner on November 13, 2000 is annexed to the Petition as Petitioner's Exhibit J.) A printout from the State of New York Division of Criminal Justice Service concerning petitioner shows a previous address listed for petitioner of 24 [6th] Avenue, Brooklyn, New York. (A copy of the Division of Criminal Justice Service printout concerning petitioner is annexed hereto as Exhibit "C.")

47. TLC records indicate that Summons No. 164239 was adjudicated on default, on December 11, 2000, with a fine of $280 and four points to petitioner's license assessed as a penalty. The TLC copy of the summons is also stamped "default." (See Exhibit "B.") (A copy of TLC notations regarding the default judgment issued against petitioner is annexed hereto as Exhibit "D.")

48. Chapter 8 of Title 35 of the Rules of the City of New York ("RCNY") governs adjudications of violations of TLC rules and regulations. That chapter establishes a Commission Adjudications Tribunal, which has original jurisdiction to hold hearings and issue determinations on violations of the Admin. Code and the RCNY. (35 RCNY 8-02.) Section 8-12 sets forth procedures for instances when a respondent before TLC fails to appear at a scheduled hearing. That section states that TLC shall conduct an inquest and impose appropriate penalties, including a penalty for failure to appear. It further states that if the respondent is a TLC licensee, his or her license shall be suspended until the fines are paid or until an ALJ vacates the judgment. A motion to vacate a default judgment must be made within 120 days and must set forth a reason for failure to appear and a valid defense to the charges. The rules do not require a hearing to be held on a respondent's motion to vacate. Instead, the rules state that if the ALJ determines that the respondent has "established both a valid excuse for his failure to appear at the hearing and a defense to the violation which, if proven, would be legally sufficient," then the default determination shall be vacated and the respondent shall be entitled to a hearing. (35 RNCY 8-12(e).) (A copy of Chapter 8 of Title 35 of the RCNY is annexed hereto as Exhibit "E.")

49. On or about June 4. 2001, petitioner made a Motion to Vacate the default judgment on Summons No. 164239, by submitting an Affidavit in Support of Motion to Vacate. (A copy of petitioner's Affidavit is annexed to the Petition as Petitioner's Exhibit B.) In that Affidavit, petitioner alleged that he never received the summons in question. Petitioner admitted that the State Driver's License number written on the summons was his driver's license number. However, petitioner stated that the address on the summons was different than the address on his then current Division of Motor Vehicles driver's license and, further, he stated that his name is Samuel H. Sloan but that the summons was issued to Samuel Sloan, no middle initial. Petitioner also pointed out that the "taxi license" number listed on the summons, 5061483, was not and never had been his taxi driver's license. As a purported defense to the charges in the summons, petitioner stated, without any supporting documentation, that he was out of town at the time that the summons was issued. He further stated that the violations noted on the summons, such as "missing hack record" and "missing trip record" are requirements for licensed taxi drivers, but that he was not a licensed taxi driver at the time the summons was issued so those requirements did not apply to him. [note 3]

[Note 3] As it is, it apparently would not be the first time that petitioner drove a taxicab without a valid TLC license. As stated above, petitioner's taxicab driver's license expired October 31, 1999 and he did not apply for a new license until April 27, 2001. In spite of this, stories or articles posted on the Home Page by Sam Sloan at www.ishidress.com on the Internet describe occasions when petitioner drove a taxicab, including from December 31, 1999 through January 3, 2000, on May 27, 2000, and on June 17, 2000. (Copies of excerpts or printouts from petitioner's website are annexed hereto as Exhibit "F".) Petitioner has also posted a copy of the Petition in this proceeding on his website, along with other stories, articles and/or documents pertaining to this matter.

50. Contrary to petitioner's allegations regarding defects in Summons No. 164239, the name on the summons was "Sloan, Samuel H." The driver's address was listed as 24 6th Avenue, Brooklyn, New York. As set forth above, this address is listed as petitioner's prior address in the Division of Criminal Justice Services records pertaining to petitioner. (See Exhibit "C.") Moreover, as one of the violations cited was "missing hack license" and as petitioner did not, in fact, have a valid taxicab driver's license on August 19, 2000 when the summons was issued, there would not have been a valid taxi license number to enter on the summons. As stated above, TLC created a number for identification purposes and entered the same on the summons.

51. Petitioner's Motion to Vacate was denied by TLC on June 5, 2001, with a decision issued by ALJ Michelle Manzione. ALJ Manzione did not find that petitioner established a valid excuse for his failure to appear at the hearing on the summons. In her findings of fact, ALJ Manzione pointed out that the DMV license presented to the issuing officer must have listed petitioner's address at 24 6th Avenue, Brooklyn, New York and therefore, notice of the scheduled hearing date was properly sent to that address. (A copy of ALJ Manzione's decision on petitioner's Motion to Vacate is annexed hereto as Exhibit "G.")

52. TLC rules regarding appeals of ALJ's decisions state that "[a]n appeal must be addressed to the Deputy Commissioner for Legal Affairs/General Counsel and received within thirty (30) calendar days of the date of the decision to be appealed. (35 RNCY 8-13(a)(i).) (See Exhibit "E.")

53. Following receipt of ALJ Manzione's decision denying his Motion to Vacate, petitioner prepared a Petition to Rehear Motion to Vacate. Contrary to TLC rules that state that appeals shall be addressed to the Deputy Commissioner for Legal Affairs/General Counsel, petitioner mailed same directly to ALJ Manzione at her home address. (Copies of petitioner's Petition to Rehear Motion to Vacate and the envelope used to mail the same to ALJ Manzione are annexed hereto as Exhibit "H.") In his Petition to Rehear, petitioner wrote, "However, I recommend that you not forget my name, because I will remember yours as soon as I find out what it is. (Your signature is illegible.)" He also wrote, ". . . but I can assure you that you have not heard the last of me because I intend to see you in jail." Section 2-60 of the TLC rules pertaining to taxicab drivers states that "[a] driver shall not threaten, harass or abuse any passenger or any governmental or Commission representative, public servant or other person while performing his duties and responsibilities as a driver .... " (35 RCNY 2-60.)

54. On or about June 12, 2001 a complaint was made to the TLC Licensing Division alleging that petitioner was verbally abusive towards TLC employees in the hearing department located at JFK Airport. (A copy of the written complaint, redacted to protect the complainant's identity and safety, is annexed hereto as Exhibit 4i. 9 7)

55. TLC rules state that TLC may direct a licensee or an applicant for a license to appear for a fitness hearing, to be conducted before an ALJ, if TLC "believes that a licensee or applicant for a license ... does not meet or does not continue to meet the qualifications for licensure . . . ." (See Exhibit "E," 35 RCNY 8-15(a).)

56. On June 13, 2001, a notice was mailed to petitioner instructing him to appear before the TLC Licensing Standards Committee, in connection with his application, No. 5081212, in order to "give the members of the Committee an opportunity to further discuss your application for a [TLC] license, specially [sic] in regard to ... disorderly conduct at JFK Airport." Petitioner's appearance was scheduled for June 26, 2001. (A copy of the June 13, 2001 notice to petitioner is annexed hereto as Exhibit "J.")

57. On June 26, 2001, petitioner appeared at TLC before ALJ V. Greaves. Following that meeting, ALJ Greaves issued a determination, recommending that petitioner's application for a taxicab driver's license be disapproved. ALJ Greaves found that petitioner's conduct regarding this matter does not represent the behavior of a well adjusted reasonable person." She further wrote that "[a]s a medallion taxicab driver, the applicant would be constantly in contact with the public and his behavior thus far illustrates a lack of good judgment and a hostile manner." (A copy of ALJ Greaves' determination is annexed hereto as Exhibit "K." [note 4].

[NOTE 4] A transcript of the hearing conducted by ALJ Greaves is not available at this time. As soon as a transcript becomes available, petitioner and the Court will be provided with a copy of same.

58. On July 19, 2001, TLC sent a letter to petitioner at the address listed on his application, 258 Herzl Street, Brooklyn, New York, advising him that his application for a taxicab driver's license, Application / License No. 5081212, was denied on grounds that issuance of a license to petitioner "would create an unreasonable risk to the public." Petitioner had filed a change of address with TLC on or about June 26, 2001, and a second letter stating petitioner's application was denied was mailed to petitioner at his new address on August 15, 2001. (Copies of the letters mailed to petitioner are annexed hereto as "L.")

59. By letter dated July 23, 2001, petitioner filed a grievance with the Grievance Committee for the 2nd and 11th Districts. (A copy of petitioner's letter to the Grievance Committee is annexed hereto as Exhibit "M.")

60. On August 21, 2001, petitioner wrote to Deputy Commissioner Tortorici of TLC, stating that he was very upset about the decision to deny his license application. Deputy Commissioner Tortorici responded to petitioner in a letter dated August 31, 2001, stating that that the decision to deny petitioner's license is a final determination, from which no administrative appeal is provided. (Copies of correspondence between petitioner and Deputy Commissioner Tortorici are annexed hereto as Exhibit "N.") 35 RCNY 8-15(d) states that, following a fitness hearing, the ALJ presiding over the hearing shall make a recommendation as to the applicant's fitness to possess a license, then the Deputy Commissioner for Licensing, or his designee, may accept, reject or modify the ALJ's recommendation, and that that decision shall constitute a final determination of TLC. (See Exhibit "E," 35 RCNY 8-15(d).)

61. On or about September 7, 2001, petitioner filed an application with TLC for a for-hire vehicle driver's license, under Application/License No. 5093363. Question No. 17 on the application asks "[h]ave you ever applied for or are you now the holder of any license granted by the Taxi and Limousine Commission?" Petitioner failed to reveal that he had recently applied for a taxicab driver's license under Application/License No. 5081212, which application was denied. The first page of the TLC application form contains a notation at the bottom of the form which reads, "PENALTY FOR FALSIFICATION, FALSIFICATION OF ANY STATEMENT MADE HEREIN IS A CRIME PUNISHABLE BY A FINE AND/OR IMPRISONMENT, AND/OR DENIAL OF T.L.C. OPERATOR'S LICENSE, OR IF GRANTED, REVOCATION OF LICENSE. (A copy of petitioner's application for a for-hire vehicle driver's license is annexed hereto as Exhibit "O.") Petitioner's application was approved and a license was issued on September 19, 2001.

62. Section 19-512.1 of the Admin. Code gives TLC authority to suspend taxicab or for-hire vehicles licenses, prior to giving notice and an opportunity for a hearing, for good cause shown relating to a threat to the public health, or safety. (Admin. Code 19-512.1.) If TLC summarily suspends a license, pending revocation proceedings, in order to insure public health, safety or welfare, it must is advise the licensee of the summary suspension within five days. If the licensee so requests, TLC must hold a hearing on the summary suspension request made within ten calendar days thereafter. (See Exhibit "E," 35 RCNY 8-16. See also Admin. Code 19-512.1.)

63. After discovering that petitioner failed to answer Question No. 17 and that petitioner had very recently been denied a taxicab driver's license by TLC, a notice was sent to petitioner on October 19, 2001, advising him that his license, No. 5093363, was suspended and that he could request a hearing within ten (10) calendar days of the date of the notice in order to 5 have TLC's determination reviewed.[note 5] (A copy of the notice from TLC dated October 19, 2001 is annexed hereto as Exhibit "P.")

[NOTE 5] The notice sent to petitioner erroneously stated that his license was being suspended for failing to truthfully answer Question No. 18 (which asks whether the applicant has ever had a license that was suspended or revoked), when it should have identified Question No. 17. In spite of the error, petitioner was sufficiently on notice that he had failed to truthfully complete his application. In fact, upon further investigation, it appears that petitioner also failed to truthfully answer Question No. 20, which asks whether the applicant has ever been convicted of a crime in any jurisdiction. LEXIS research reveals that Samuel H. Sloan, a/k/a Ismail Sloan, was incarcerated in Alameda County, California in 1995 for violating his Virginia parole. Samuel H. Sloan, aka Ismail Sloan v. Plummer, 1995 U.S. Dist. LEXIS 11612 (N.D.C.A. 1995). Petitioner's home page on the Internet also contains stories or articles that refer to petitioner as Ismail or M. Ismail Sloan.

64. In the time following issuance of the October 19, 2001 notice of suspension, petitioner apparently visited TLC's Long Island City, New York office and petitioner corresponded with TLC. It is unclear from the record whether petitioner actually requested or was willing to participate in a hearing on the summary suspension, as he was entitled to request pursuant to 35 RCNY 8-16. For example, in petitioner's October 26, 2001 letter addressed to Jeanmarie Ariola of TLC, petitioner wrote, "The statement in your letter that I have the right to request a hearing is meaningless, when you have not informed me of any charges against me or informed me what the hearing would be about. More than that, these hearings take months, during which I would not be able to work .... Accordingly, I demand that you reinstate my TLC License forthwith. ..." (Copies of correspondence and an electronic mail transmission, concerning petitioner's contacts with TLC following the emergency suspension of his license are annexed hereto as Exhibit "Q." See also, exhibits annexed to the Petition as Petitioner's Exhibits R and U.)

65. Thereafter, on November 23, 2001, TLC wrote to petitioner and notified him that TLC was seeking the discretionary revocation of petitioner's for-hire vehicle driver's license, No. 5093363. The notice to petitioner set forth the various grounds upon which revocation was being sought. Petitioner was advised that the hearing was scheduled for December 13, 2001. (A copy of the November 23, 2001 letter to petitioner is annexed hereto as Exhibit "R.")

66. On or about December 10, 2001, petitioner commenced this proceeding by Order to Show Cause. Petitioner requested a temporary restraining order which, in part, sought to enjoin TLC from holding the scheduled hearing on December 13, 2001.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

67. Petitioner's request for an order instructing TLC to return License No. 5093363 is premature in that the administrative remedies have not been exhausted.

68. An Article 78 proceeding is the proper procedure for challenging an administrative determination by a governmental body. CPLR 7803; see also, Solnick v. Whalen, 49 N.Y.2d 224 (1980); Press v. County of Monroe, 50 N.Y.2d 695 (1980). Pursuant to 17 CPLR 7801, an Article 78 proceeding can only be used to challenge determinations that are final or that cannot be adequately reviewed by appeal to some body or officer. (See, CPLR 7801(l).) "It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law." Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 525 57 (1978).

69. At this juncture in the instant matter, TLC has not issued a final determination as to whether License No. 5093363 will be revoked. TLC attempted to schedule a revocation hearing on this matter, and petitioner subsequently commenced this proceeding by Order to Show Cause and requested a temporary restraining order enjoining TLC from conducting a revocation hearing. The revocation hearing originally scheduled by TLC will be rescheduled and petitioner will be given an opportunity to appear and to respond to the charges against him. Pursuant to TLC rules, following the hearing, the presiding ALJ will issue a recommended decision and the petitioner (the respondent therein) will have an opportunity to provide a written response to the recommendation. Additionally petitioner will have the opportunity to appeal the ALJ's recommended decision to the Chairperson of the TLC. Finally, after the TLC Chairperson makes a decision whether to accept, modify or reject the recommended decision of the ALJ, petitioner may appeal the Chairperson's decision directly to the TLC Commissioners. (See Exhibit "E," 35 RCNY 8-14.) Only after all of his administrative appeals have been exhausted may petitioner challenge the TLC determination in an Article 78 proceeding. Watergate II Apartments, supra.

70. While the outcome of the revocation proceeding is pending, petitioner's license remains on suspension pursuant to section 8-16 of the TLC rules. TLC is authorized to summarily suspend a license if emergency action is "required to insure public health, safety or welfare." (See Exhibit "E," 35 RCNY 8-16.) Once suspended, a licensee is promptly given an opportunity to obtain a hearing on the matter of the summary suspension, thereby meeting required standards of due process. Ricketts v. City of New York, 181 Misc. 2d 838, 845 (Sup. Ct. N.Y. Co. 1999), Drolet v. New York State Racing and Wagering Board, 115 Misc. 2d 7 (Sup. Ct. Nassau Co. 1982). See also, Pringle v. Moore, 88 N.Y.2d 426 (1996).

71. It is not clear from the record that petitioner actually requested that a hearing be held on the issue of summary suspension of his license. In fact, after TLC noticed a revocation hearing, petitioner commenced this proceeding and sought a temporary restraining order enjoining TLC from conducting that hearing and demanded the immediate return of his license. However, petitioner cannot both oppose the suspension and possible revocation of his license and refuse to participate in hearings designed to comport with requirements of due process. Petitioner has been given an opportunity to request a hearing to challenge the summary suspension, but no such hearing has been had. Accordingly, any challenge to the summary suspension of petitioner's license is also premature at this time and petitioner has failed to exhaust available administrative remedies. See Drolet v. New York State Racing and Wagering Board, supra at 9, 10.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

72. Respondent's determination to deny petitioner's application for a taxicab driver's license, Application/License No. 5081212, was supported by substantial evidence and was not unreasonable, arbitrary and capricious or an abuse of discretion.

73. The TLC is vested with broad discretion to regulate taxi and limousine service in the City of New York and, pursuant to section 2303(b)(5) of the City Charter, has full authority to set licensing standards for drivers. Administrative agencies enjoy broad discretionary power when making determinations on matters they are empowered to decide. Section 7803 of the CPLR provides for very limited judicial review of administrative actions. Section 7803 provides, in part, as follows:

The only questions that may be raised in a proceeding under this article are:

* * *

3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or

4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.

74. It is well established that what is reviewed under the arbitrary and capricious standard is the rationality or the reasonableness of an agency's determination. A court may overturn an administrative action only if the record reveals no rational or reasonable basis for it. In deciding whether an agency's determination was supported by substantial evidence or was arbitrary, capricious, or an abuse of discretion, courts are limited to an assessment of whether a rational basis exists for the administrative determination and their review ends when a rational basis has been found. See, e.g. Heintz v. Brown, 80 N.Y.2d 998, 1001 (1992) (citing Pell v. Board of Educ., 34 N.Y.2d 222, 230-31(1974)); Sullivan County Harness Rac. Ass'n v. Glasser, 30 N.Y.2d 269, 277 (1972); Barton Trucking Corp. v. O'Connell, 7 N.Y.2d 299, 314 (1959); Marsh Hanley, 50 A.D.2d 687 (3rd Dept. 1975).

75. When a determination has been made and the person acting has not acted arbitrarily or in abuse of discretionary power, courts must confirm the agency's determination. Pell v. Board of Educ., 34 N.Y.2d 222, 231 (1974); See also Sullivan County Harness Rac. Ass'n, 30 N.Y.2d at 278 (if acts of agency find support in record, agency determination is conclusive).

76. In the instant matter, TLC had received a complaint regarding petitioner's verbally abusive behavior towards TLC employees and TLC had also learned that petitioner mailed a Petition to Rehear Motion to Vacate, which contained threatening language, directly to TLC ALJ Manzione, at her home address. Even if petitioner was not aware that the address he obtained for ALJ Manzione was her home address, the TLC rules clearly state that appeals be made to the TLC Deputy Commissioner for Legal Affairs/General Counsel. TLC thus notified petitioner to appear before the Licensing Standards Committee, in connection with his application for a taxicab driver's license. Following that hearing, ALJ Greaves determined that petitioner's "conduct regarding this matter does not represent the behavior of a well adjusted reasonable person" and that his behavior "illustrates a lack of good judgment and a hostile manner." Even taken alone, the Petition for Motion for Rehearing, with its threatening language, provides sufficient evidence to support ALJ Greaves' recommended decision that petitioner's license application be denied. Accordingly, it was rational and reasonable in all respects for TLC to deny petitioner's application for a taxicab driver's license under Application/License No. 5081212, and that determination is supported by substantial evidence.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

77. Petitioner's demand for an order directing TLC to renew taxicab driver's license number 496476 is time barred by the statute of limitations.

78. Section 217(l) of the Civil Practice Law and Rules ("CPLR") states that a proceeding against a body or officer [pursuant to Article 78] "must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner ... or after the respondent's refusal, upon the demand of the petitioner ... to perform its duty...." (Emphasis added.)

79. In the Petition, petitioner states that he requested that TLC accept his renewal application when he returned to the country in December 1999. (See Petition, para. 21.) Petitioner did not commence this proceeding, which, in part, demands that TLC issue License No. 496476 to him, until December 10, 2001, clearly more than four months after December 1999. Moreover, whatever attempts petitioner may have made to have his renewal application accepted were apparently abandoned in April 2001, more than four months prior to December 10, 2001, when petitioner filed for a new application for a taxicab driver's license (Application/License No. 5081212). Accordingly, any relief sought in connection with License No. 496476 is time-barred by the statute of limitations.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

80. Petitioner's claim for damages is not cognizable, as respondent TLC and its employees have absolute immunity from damages for discretionary actions.

81. It is well settled that "when official action involves the exercise of discretion, the [public] officer [or municipality] is not liable for the injurious consequences of that action even if resulting from negligence or malice." Tango v. Tulcvech, 61 N.Y.2d 34, 40 (1983). See also Mon v. City of New York, 78 N.Y.2d 3O9, 313 (1991); Rottkamp v. Young, 21 A.D.2d 373, 375 (2d Dept.), aff'd 15 N.Y.2d 831 (1965).

82. TLC has discretionary authority to deny license applications and to suspend licenses on an emergency basis. Discretionary authority is that authority which involves "the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result." Tango v. Tulevech, 61 N.Y.2d at 41.

83. The doctrine of governmental immunity applies even if an act is determined to be wrongful. Tango v. Tulevech, 61 N.Y.2d at 40; Rottkgmp v. Young, 21 A.D.2d at 375. In addition, it is equally well-settled that official acts involving the exercise of discretion are immune from damage claims. Tango v. Tuievech, 61 N.Y.2d 34, 39 (1983); 154 East Park Avenue Corp. v. City of Long Beach, 52 N.Y.2d 991, 993, cert. denied 454 U.S. 858 (1981); Matter of Mehta v. DCA, 162 A.D.2d 236, 237 (1st Dept. 1990); Rottkamp v. Young, 21 A.D.2d 373 (2d Dept. 1964), aff'd, 15 N.Y.2d 831 (1965). As TLC's decision to deny petitioner's application for a taxicab driver's license and TLC's decision to summarily suspend petitioner's for-hire vehicle license pending a revocation proceeding are both matters within the discretionary authority of TLC, damages claim will not lie against it as a matter of law.

WHEREFORE, respondent respectfully requests that this Court dismiss this proceeding in all respects and grant such other and further relief as this Court may deem just and proper.

Dated: New York, New York
December 20, 2001

MICHAEL D. HESS
Corporation Counsel of the
City of New York
Attorney for Respondent
60 John Street,
New York, New York 10038
(718) 222-5144

By: __________________
Kristine D. Holden
Assistant Corporation Counsel


UPDATE: Sam Sloan has won his court case against the TLC.

Here are links:
My Home Page

Contact address - please send e-mail to the following address: Sloan@ishipress.com