LL60642, LL60643
Page 1
Dept. of Consumer Affairs v. Diffut Auto Rerpair Inc. d/b/a Bonet Collision and Tommy Benitez
CITY OF NEW YORK
DEPARTMENT OF CONSUMER AFFAIRS
DEPARTMENT OF CONSUMER AFFAIRS,Complainant,
-against-
DIFFUT AUTO REPAIR inc. d/b/a BONet colllision and tommy benitez,
Respondent. / DECISION AND ORDER
Violation Nos.: LL 60342
LL 60343
License Nos.: 895514 TT Co
1040448 TTD
Respondent Diffut’s Address:
333 E. 109th St.
New York, NY 10029
Respondent Benitez’s Address:
875 Taylor Ave.
Bronx, NY 10473
Date: August 26, 2004
A consolidated hearing on the above matters was held on June 12, 2002.
Appearances: For the Department: Inspector Grumet. For the Respondent: N. Richard Siegel, Authorized Representative; Alfredo Bonet, Owner; Tommy Benitez, Tow Driver.
The respondent Diffut Auto Repair Inc. d/b/a Bonet Collison is charged with violating the following:
1)Administrative Code, Section 20-515(b), soliciting at the scene of a vehicular accident;
2)Administrative Code, Section 20-518(b)(1), removing an undrivable car from the scene of an accident without having been directed to do so by the police department through the DARP program;
3)Administrative Code, Section 20-518(b)(2), responding to the scene of an accident without a specific request;
4) Administrative Code, Section 20-518(b)(4), charging a fee in excess of the $65 allowed for towing and first day’s storage under the DARP program;
5)Title 6 of the Rules of the City of New York (“6 RCNY”), Section 2-363(h), licensees may be held responsible for act or omission of their employees which results in the licensee’s failure to comply with applicable regulations;
6)Administrative Code, Section 20-509(d)(1), charging for towing and storage of vehicle which is not specifically authorized by law or rule; and
7) 6 RCNY, Section 1-13, failing to respond in writing within 20 days to the Department regarding a complaint.
The respondent Tommy Benitez is charged with violating the following:
1)Administrative Code, Section 20-515(b), soliciting at the scene of an accident;
2)Administrative Code, Section 20-518(b)(1), removing an undrivable car from the scene of an accident without having been directed to do so by the police department through the DARP program; and
3)Administrative Code, Section 20-518(b)(2), responding to the scene of an accident without a specific request.
Based on the evidence in this case, I RECOMMEND the following:
Findings of Fact
At 12:45 a.m. on January 1, 2002, a car owned by Paul Alexander and operated by Adelissa Huertes became disabled on the Bruckner Expressway after Ms. Huertes inadvertently hit a curb. With a flat tire and an undrivable car, she pulled over to the side of the road, then flagged down a Bonet Collision (“Bonet”) tow truck operated by Tommy Benitez. No other vehicle was involved, no police report was made, no police officers were at the scene, nor was a tow truck requested under the Directed Accident Response Program.
Ms. Huertes signed an Authorization to Tow form, permitting Mr. Benitez to tow Mr. Alexander’s car to Bonet’s place of business, about 1-2 miles away. The following day, Mr. Alexander had another tow company remove his car from its storage facility, and paid Bonet $177.53 as follows:
Fee for towing and first day’s storage$65.00
$3.50 each mile or part thereof 14.00
storage 10.00
additional amount for removal by another tow co. 25.00
yard charge 50.00
sales tax 13.53
Subsequently, after Mr. Alexander filed a complaint alleging that he was overcharged and a DCA mediator intervened, Alfredo Bonet authorized a refund to Mr. Alexander of $54.13, representing the yard charge plus tax, to resolve the dispute.
The Department mailed a copy of Mr. Alexander’s complaint to Bonet on February 15, 2002; Bonet responded in writing on March 20, 2002.
Bonet is a DARP participant.
Opinion
First, I find that Ms. Huertes was involved in an accident. The court in Arthur A. Johnson Corporation et al., v. Indemnity Insurance Company of North America (7 NY 2d 222) used a broad definition: “the term is to be used in its common sense of ‘an event of an unfortunate character that takes place without one’s foresight or expectation’ (taken from Matter of Croshier v. Levitt, 5 NY 2d 259, 269 [1959], or “an unexpected, unfortunate occurrence.”
Therefore, it is immaterial that there was only one car involved.
Charge # 1
The Department did not meet its burden of proving charge # 1 against either respondent by a preponderance of the credible evidence. Specifically, Inspector Grumet presented no testimony or other evidence to prove that Mr. Benitez “solicit[ed] or offer[ed] any inducement or [made] any representations” at the scene of the accident for the towing or repair of Mr. Alexander’s vehicle. In fact, there is no dispute that Ms. Huertes flagged down Mr. Benitez’s tow truck, presumably for the purpose of having him tow her vehicle.[1]
Charge # 2
Section 20-518(b)(1) states, in pertinent part:
No such vehicle [involved in a vehicular accident], other than a vehicle that has a maximum gross vehicle weight of at least fifteen thousand pounds, may be removed by a tow operator chosen by the person in charge of such vehicle.
The credible, and undisputed evidence established that Mr. Benitez removed Ms. Huertes’ vehicle, at her request. The credible evidence also established that the police department was not aware of the accident and did not direct the removal. The statute does not permit him to remove the car. Accordingly, both respondents are guilty of violating this charge.
Charge # 3
The credible evidence shows both respondents guilty of responding to the scene of an accident without a specific request.
Section 20-518(b)(2) states:
No tow truck operator shall travel en route to, or respond to, the scene or the reported scene of a vehicular accident, or remove a vehicle therefrom, unless a specific request of the services of such tow truck operator has been received by such operator of the towing company which employs such operator from a person in charge of a vehicle that has a maximum gross vehicle weight of at least fifteen thousand pounds, or unless such tow truck operator has been directed to do so by the police department (emphasis added].
Although the credible evidence established that Mr. Benitez was not previously aware of Ms. Huertes’s having hit the curb and blown out her tires, and that he stopped only after being flagged down by Ms. Huertes, the statute does not permit him to travel to or respond to an accident without a request having been received by the tow company in advance.
Although Section 20-518(b)(2) regulates the conduct of tow truck operators, Bonet is found guilty by virtue of 6 RCNY, Section 2-363(h), which states that licensees may be held responsible for any act or omission of any of their employees which results in the licensee’s failure to comply with such regulations as are applicable.
Charge # 4
The credible evidence establishes that the respondent charged an excess fee for towing and storage of Mr. Alexander’s vehicle.
At the time of this incident, Section 20-518(b)(4) provided, in pertinent part:
Notwithstanding any other provision of this subchapter, a towing company that removes an accident vehicle to its storage facility at the place of business which qualifies such company for participation in the directed accident response program or to its auxiliary storage facilities approved by the commissioner shall not charge for the towing of a vehicle . . . and the first day of storage for such vehicle a fee exceeding sixty-five dollars.
The credible evidence established that Bonet Collision charged Mr. Alexander a total of $79 plus tax for towing and the first day of storage, even though Bonet towed the vehicle to its storage facility (which qualifies Bonet for participation in DARP).
Charge # 6
Administrative Code, Section 20-509(d)(1) applies to “tow truck operators.” Inasmuch as the Department charged Bonet with violating this statute, it is inapplicable and accordingly will be dismissed.
Charge # 7
The credible evidence shows that Bonet failed to respond in writing to the Department within 20 days. Specifically, although Mr. Bonet argued that he never received the DCA complaint that Inspector Grumet credibly testified was mailed on February 15, 2002, I found her testimony believable that the mail sent to Bonet was not returned. Although Mr. Bonet argued that he was at his grandmother’s funeral on March 20 when contacted by DCA, this is not a meritorious defense in that he could have responded sooner.
However, because Bonet did respond to the complaint, albeit 33 days after it was mailed, the fine imposed shall be reduced from the maximum permissible.
Order
DIFFUT AUTO REPAIR d/b/a BONET COLLISION (LL60342)
The respondent Diffut Auto Repair Inc. d/b/a Bonet Collison is found guilty of charge #’s 2, 3, 4, and 7.
The respondent Diffut Auto Repair d/b/a Bonet Collision is ordered to pay to the Department a TOTAL FINE of $2,700 as follows:
Charge 2:$750
Charge 3:$1,500
Charge 4:$350
Charge 7:$100
The respondent Diffut Auto Repair d/b/a Bonet Collision is ordered to pay RESTITUTION to Paul Alexander in the total amount of $15.16, which represents $14 overcharged, plus tax.
The respondent Diffut Auto Repair d/b/a Bonet Collision is found not guilty of charge #’s 1 and 6, and these charges are DISMISSED.
TOMMY BENITEZ (LL60343)
The respondent Tommy Benitez is found guilty of charge #’s 2 and 3, and is ordered to pay to the Department a TOTAL FINE OF $2,250 as follows:
Charge 2:$750
Charge 3:$1,500
The respondent Tommy Benitez is found not guilty of charge # 1, and this charge is DISMISSED.
This constitutes the recommendation of the Administrative Law Judge.
______
Judith Gould
Administrative Law Judge
DECISION AND ORDER
The recommendation of the Administrative Law Judge is approved.
Failure to comply with this order within thirty (30) days shall result in the suspension of the licenses at issue, and may result in the suspension of any other Department of Consumer Affairs license(s) held by the respondents.
______
Nancy J. Schindler
Deputy Director of Adjudication
cc:N. Richard Siegel
2175 70th St.
Brooklyn, NY 10029
Paul Alexander
2314 Holland Ave. (6C)
Bronx, NY 10467
Karen Miller, Esq.
Legal Division
Beverly Gotay
If you wish to APPEAL this decision, or file a MOTION FOR REHEARING, you must file your appeal or motion with the Director of Adjudication, Department of Consumer Affairs, 66 John Street, New York, NY 10038, within 30 days of the date of this decision. You must include with your appeal or motion a check or money order for the sum of $25 payable to the Department of Consumer Affairs. In addition, the respondent must serve a copy of its appeal or motion for rehearing, and any other related documents, on the Legal Division of the Department of Consumer Affairs, 42 Broadway, 9th Floor, New York, NY 10004.
N.Y.C. Department of Consumer Affairs 66 John Street-11th Floor New York, N.Y. 10038 (212) 361-7770
Website address: www.nyc.gov/consumers
[1] Ms. Huertes did not testify at the hearing.