Taxi and Limousine Commission v. G.M. Limo Inc., Lic. No. F73430

Taxi & Limousine Commission v. G.M. Limo Inc., Lic. No. F73430

DECISION

The appeal of G.M. Limo Inc. (the “respondent”) is denied.

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

BACKGROUND

On May 4, 2012, the respondent appealed ALJ Amy Baranoff’s decision dated April 16, 2012, denying the respondent’s motion to vacate the inquest decision of ALJ David Lee dated April 6, 2012. ALJ Lee found the respondent in violation of Rule 59A-12A(1)[1], Rule 59A-13J(1)[2] and Rule 59A-08C(2)[3], as stated in summons number INR001590, and imposed separate penalties totaling $450 and license revocation.

ALJ Baranoff’s decision states, in its entirety:

Respondent contends that he missed the hearing because the documents from [Taxi and Limousine Commission (the “Commission” or “TLC”)] were misplaced. I do not find this to be excusable neglect. Respondent further claims that that the insurance was renewed before the old one expired on 10/30/11. As this is an administrative summons which is based upon documentary evidence, respondent’s mere claim that he had insurance, absent any supporting documentation, does not rise to the level of a meritorious defense. Furthermore, respondent fails to address the violation of 59a-12A1, the failure to respond to the Commission’s directive. As such, I do not find a meritorious defense. The motion is denied.

On appeal, the respondent, by his attorney, Mitchell Segal, argues, in relevant part, that the respondent has been in the industry since 1983, approaching retirement, did not fully understand the requirements of his motion to vacate, and did not understand that if his motion to vacate were denied his license would be revoked. The respondent’s attorney argues that the respondent mailed in the required proof of insurance on or about November 10, 2011, after receipt of the Commission’s request dated November 1, 2011, well before the due date of November 19, 2011. The respondent’s attorney further argues that the respondent mailed the insurance information again when he received the summons dated February 27, 2012, this time by certified mail on March 12, 2012, to the Woodside address that appeared on the summons. The respondent’s attorney explained the respondent’s failure to appear at the hearing on April 6, 2012, by re-stating what the respondent wrote in his motion to vacate and that he “completely forgot.” The respondent’s attorney argued that the respondent did not state a reason for excusable neglect or provide documentation supporting the contention that he had the required insurance because he thought that the documentation requirement had been satisfied by his two prior mailings. The respondent’s attorney argues that the respondent has complied with Rule 59A-13J(1) in that he has answered truthfully all questions and has complied with all communications, directives and summonses, and is therefore not appealing the $300 fine associated with this Rule violation. The respondent’s attorney argues that the respondent has complied with Rule 59A-12A(1) in that he has maintained the required insurance at all times and attached documentation in support. The respondent’s attorney argues that the respondent did not attach his documentation to the motion to vacate because he had submitted it twice before and thought this was sufficient. The respondent’s attorney argues that Rule 59A-08C(2) should not apply since the respondent never failed to maintain the required insurance. The respondent’s attorney requests that the ALJ’s decision be reversed and the respondent’s license be reinstated.

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

ANALYSIS

ALJ Baranoff properly denied the respondent’s motion to vacate.

Ignorance is not a defense under the Commission rules (see Taxi & Limousine Commission v. Francis D. Henry, Lic. No. 5237616 [April 15, 2010]. Thus, the respondent’s attorney’s argument that the respondent did not fully understand the requirements of his motion to vacate and did not understand that his license might be revoked is not a valid defense to the charges.

To prevail on a motion to vacate, Rule 68-13C requires the respondent to submit written evidence of both a valid excuse for his failure to appear at the hearing (“excusable neglect”) and a defense to the charge, which, if established and proven at a hearing, would result in the dismissal of the summons (“meritorious defense”). In deciding a motion to vacate, an ALJ is required to make separate findings as to whether a respondent has shown excusable neglect and raised a meritorious defense (see Taxi & Limousine Commission v. Rami Ahmad, Lic. No. 5158305 [June 13, 2008]).

Meritorious Defense

A meritorious defense is a defense that, if proven true, would mean the case would be dismissed. It does not have to be proven in the motion, only stated (see Taxi & Limousine Commission v. Delfina Felix, Lic. No. 651832 [January 21, 2011]).

In his motion to vacate, the respondent claims that he was not guilty because “the valid insurance was renewed before the old one expired – 10/30/11.”

Rule 59A-08C(2) provides:

Non-Use. A For-Hire Vehicle License must be revoked for non-use if: . . . (2) For 60 or more days, the Licensee fails to maintain insurance coverage (as required by §59A-12 of this Chapter).

Rule 59A-12A(1) provides:

Maintain Liability Insurance. (1) A For-Hire Vehicle Owner must maintain the required insurance coverage on all of Owner’s Vehicles at all times.

Rule 59A-13J(1) provides:

Cooperation with the Commission. A Licensee must comply with the following required actions: (1) Answer truthfully all questions and comply as directed with all communications, directives, and summonses from the Commission or its representatives.

The respondent’s attorney submits insurance documentation not filed with the respondent’s motion to vacate, showing that the respondent had insurance from October 31, 2011 to October 31, 2012. Generally, new evidence not presented at a hearing is not considered on appeal (see Taxi & Limousine Commission v. Chaudhry R. Hussain, Lic. No. 2C64 [April 15, 2009]; Taxi & Limousine Commission v. Walid K. Alsheyab, Lic. No. 690508 [September 30, 2008] citing Bingham v. New York City Transit Authority, 99 NY2d 355 [February 20, 2003]). However, a review of the audio recording of the inquest hearing on April 6, 2012, reveals that the inspector admitted receiving insurance documentation from the respondent but that the required proof of personal injury protection for $200,000 was missing. Commission TAMIS records also state that “policy is missing a requirement of 200,000 PIP.” Thus, exception is made only to consider the portion of the respondent’s documentation showing that the respondent’s coverage of $50,000 of personal injury protection was maintained but not $200,000, as required.

The record on appeal shows that the Commission’s directive dated November 1, 2011, required that the respondent show documentary proof of valid current and valid insurance by mailing such proof to the Commission’s Long Island facility. The ALJ found that the respondent was required to submit documentary proof that he had insurance such that his mere statement that he had insurance, absent any supporting documentation, did not rise to the level of a meritorious defense.

Although a meritorious defense in a motion to vacate need only be stated, the respondent’s statement that “the valid insurance was renewed before the old one expired – 10/30/11,” if proven true, would not lead to the dismissal of the summons requiring that the respondent prove by documentary evidence that he maintained the required insurance coverage on his vehicle at all times. Thus, the ALJ properly found that the respondent did not state a meritorious defense for the Rule 59A-12A(1) violation.

For the same reason, the respondent’s statement that “the valid insurance was renewed before the old one expired – 10/30/11,” without documentary proof, would also not lead to the dismissal of the summons requiring that the respondent timely comply with the Commission’s directive to timely mail documentary proof of the minimum insurance levels required. Thus, the ALJ properly found that the respondent did not state a meritorious defense for the Rule 59A-13J(1) violation.

While the ALJ erred in not making a specific finding with respect to whether the respondent stated a meritorious defense for the Rule 59A-08C(2) violation, the error is harmless as the respondent’s statement that “the valid insurance was renewed before the old one expired – 10/30/11,” if proven true, would also not lead to the dismissal of the summons requiring that the respondent “maintain insurance coverage (as required by §59A-12 of this Chapter)” for 60 or more days because mere statement of a defense is not adequate where only a document can establish the defense. Thus, the ALJ properly found that the respondent did not state a meritorious defense for any of the three charges.

Excusable Neglect

Misplacing unspecified documents and forgetting about a hearing does not excuse a respondent from not appearing as the respondent could easily have called the Commission to find out his hearing date.

The ALJ’s findings are supported by the substantial evidence of the respondent’s statements on the motion to vacate. The ALJ correctly denied the respondent’s motion to vacate because both prongs of the test were not met. The ALJ properly found the respondent in violation of Rule 59A-12A(1), Rule 59A-13J(1) and Rule 59A-08C(2) and imposed the correct fines. The ALJ’s decision is affirmed.

Dated: May 14, 2012

OATH Taxi and Limousine Appeals Unit

By: D. Rivers

Administrative Law Judge, Appeals Unit

cc: Mitchell Segal, Esq.

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Printed on paper containing 30% post-consumer material.

[1] Failure to maintain required insurance coverage.

[2] Failure to cooperate with the Commission.

[3] Revocation of for-hire vehicle license for non-use.