Taxi & Limousine Commission V

Taxi & Limousine Commission v. Surjit Bhatti, Lic. No. 435027

DECISION

The decision of the ALJ was incorrect as to the 2-61A2 violation and is reversed and remanded (rescheduled) for a new hearing.

BACKGROUND

Surjit Bhatti (“the respondent”) filed an appeal from Administrative Law Judge (“ALJ”) Alex Sherman’s decision, dated October 17, 2007, wherein the ALJ found the respondent in violation of Rules 2-61A(2)[1] and 2-25H[2],issuedin connection with summons no. 382317C. The ALJ imposed penalties of $250 plus 3 Persistent Violator points, and $200, respectively.

The decision appealed from states, in relevant part, as follows:

The complainant testified that she entered respondent’s cab at 86th Street and 1st Ave., in Manhattan, and told the respondent her destination of 92nd Street and York Avenue. The complainant further testified that the respondent was on the cell phone during the entire trip and eating chips. The complainant testified that approximately one block from her destination, the respondent rear ended another cab.

The complainant testified that the respondent got out of the cab and spoke to the other driver but gave no information to the complainant whose eye was beginning to swell.

The respondent denied that he was working at the time of this incident but is the owner of this medallion and submitted his name to the TLC in answer to the request for information as to the identity of the driver. In addition, the complainant identified the respondent as being the driver of the cab when this incident occurred.

I find complainant’s testimony credible. I do not find respondent’s testimony credible. I also do not find respondent’s trip sheet entries credible.

The trial judge is the primary trier of fact and law. Issues of credibility are determined by the trial judge.

Based upon complainant’s credible testimony, I findthe respondent guilty of DR 2-61(A2) action against the best interest of the public. Fine $250 plus 3 points. I also find the respondent guilty of DR 2-25 (H) using cell phone while drive vehicle-fine $200.

… I am also dismissing D.R. 2-42(A), discourteousness to passenger-encompassed in guilty finding of D.R. 2-61 (A) (2). …

The respondent’s appeal was filed, pursuant to Rule 8-13A, on November 15, 2007.

On appeal, the respondent argues that

The ALJ erred as a matter of law in finding a violation of 2-61A2. Although the ALJ correctly states in his decision that the question of credibility is up to him + he found the complainant credible, there is no findings of fact in his decision which support the finding of a violation of 2-61A2. It is noted that the ALJ dismissed the 2-21C charge, finding that the respondent did stop after the accident + gave information to the other driver as required. The driver therefore has been cleared of the failure to give information after an accident by the judge’s decision + findings of fact. The ALJ failed to offer any findings of fact or reasoning to support his finding of a violation of 2-61A2. this decision should be reserved accordingly.

The Commission on behalf of the complainant did not file a response to the appeal.

ANALYSIS

The ALJ’s decision finding respondent guilty of violating Rule 2-61A2 is incorrect and is reversed. Acts of negligence and non-willful conduct are not covered by Rule 2-61A. (see, Taxi & Limousine Commission v. Jean Lexine, Lic. No. 466093 [August 10, 1995]). In this case, there is no finding by the ALJ that the respondent committed any non-willful conduct against the complainant. At best, respondent was negligent in rear ending the other taxi cab, but all of the charges in connection with such incident were dismissed by the ALJ. As there is no evidence that the respondent committed any willful conduct against the complainant, the determination that the respondent violated 2-61A2 is not supported by substantial evidence and must be reversed. (see, 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179, 408 N.Y.S.2d 54 [1978]).

Dated: November 19, 2008

Charles E. Fraser

Deputy Commissioner for Legal Affairs

By: Michael A. Schwartz

Administrative Law Judge, Appeals Unit

This document was printed on paper containing 30% post-consumer materials.

[1] Actions against the best interests of the public.

[2] Using a cell phone while operating a taxicab.