Taxi & Limousine Commission v. Marcel Plaisimon, Lic. No. 872148

DECISION

The appeal of Marcel Plaismon (the “Respondent”) is denied.

The decision of the Administrative Law Judge (the “ALJ”) is affirmed.

BACKGROUND

On November 23, 2010, the Respondent appealed ALJ Dewey Golkin’s decision dated November 4, 2010. In that decision, the ALJ found the Respondent in violation of Rule 6-18J[1] and Rule 6-18I[2] as stated in summons number 394218C, by denying Respondent’s motion to vacate the decision of ALJ Suzanne Zalewski dated November 4, 2010.

The ALJ’s decision states, in relevant part:

Respondent states he was out of town 10/28/10 to 11/6/10. Since the notice was sent out by [the “Taxi and Limousine Commission” or “TLC”)] on 10/13/10 the Respondent had notice of hearing and failed to attend or adjourn. I do not find excusable neglect.

Respondent establishes a meritorious defense but absent excusable neglect this motion must be denied.

The Respondent argues on appeal that he was out of town on October 28 through November 6, 2010, and was not aware that he had to provide proof that he was out of town when he submitted the motion to vacate papers. Copies of two receipts were attached by the Respondent to his appeal from Florida establishments dated October 30, 2010 and November 4, 2010, respectively.

The Commission did not file a response to the Respondent’s appeal.

ANALYSIS

The ALJ’s decision is correct.

The consumer hearing was held on November 4, 2010. The consumer testified by telephone. After that hearing, the ALJ found the Respondent guilty of violating Rules 6-18I and 6-18J. On November 10, 2010, the Respondent filed a motion to vacate the decision of November 4, 2010. The ALJ below denied that motion, finding no excusable neglect.

If the Respondent disagrees with the ALJ’s inquest determination, the Respondent may file a motion to vacate the default judgment and provide written evidence of both (1) why the Respondent failed to appear at the hearing (“excusable neglect”), and (2) a defense to the charge, which, if established and proven at a hearing, would result in the dismissal of the summons (“meritorious defense”) (see Taxi & Limousine Commission v. Rami Ahmad, Lic. No. 5158305 [June 13, 2008]).

Here, the Respondent failed to establish excusable neglect. Knowing in advance he would be out town on the date of the hearing, he had sufficient time to adjourn the November 4, 2010 hearing. However, the Respondent chose not to do so. The Respondent did not provide any documents to show that he was called away at the last moment. He merely stated in the motion papers that he went to Florida to visit his children.

An ALJ’s findings will not be disturbed on appeal if those findings are based on substantial evidence. Substantial evidence is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact (see Taxi & Limousine Commission v. Exec U Car Limo Inc., Lic. No. 5179939 [September 27, 2007] citing 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176 [July 13, 1978]). The ALJ’s finding that the Respondent failed to establish excusable neglect is based upon substantial evidence and therefore, the ALJ’s decision is affirmed.

Dated: June 2, 2011

Taxi and Limousine Commission Appeals Unit

By: Michael A. Schwartz

Administrative Law Judge, Appeals Unit

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

[1] Driver shall not be discourteous to passengers.

[2] Driver shall not threaten or harass passengers.