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Taxi Limousine Comm’n v. Kurpaski

OATH Index No. 2566/08 (July23, 2008)

In discretionary license revocation proceeding where complaining witness offered incredible account of alleged road rage incident, petitioner failed to establishcharges. ALJ recommended dismissal of charges.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

- against -

KAZIMIERZ KURPASKI

Respondent

______

REPORT AND RECOMMENDATION

TYNIA D. RICHARD, Administrative Law Judge

This license revocation proceeding was referred by petitioner, the Taxi and Limousine Commission (“TLC” or “Commission”), pursuant to the New York City Administrative Code and the Taxi and Limousine Commission’s Taxicab Drivers Rules. Respondent Kazimierz Kurpaski, a taxi driver, is charged with assaultingand verbally harassing a motorist, reckless operation of his taxicab, throwing garbage at another vehicle,and leaving the scene of an accident without providing required information. See 35 RCNY §§ 2-21(a) & (c); 2-60(a) &(b); and 2-61(a)(2). Respondent denies the allegations.

At the hearing held on June 25 and July11, 2008, petitioner presented the testimony of the complaining motorist, and respondent testified on his own behalf.

I find that petitioner failed to prove the charges and I recommend their dismissal.

ANALYSIS

Respondent is charged with several offenses, including physically assaulting and verbally harassing a motorist, and reckless operation of his taxicab. The Administrative Code authorizes the Commission to suspend or revoke a taxicab license for good cause shown relating to a threat to the public health or safety, after notice and an opportunity for a hearing. Admin. Code § 19-512.1. The penalties that may be assessed include revocation or suspension of respondent’s license for a period of up to six months, or a fine not to exceed $1,000 for each proven offense. 35 RCNY § 8-14(g).

The allegations in the petition concern an incident that occurred on April 24, 2008, at approximately 9:15 p.m.,as respondent and complainant Demian Lerman drove their vehicles on 96th Street in Manhattan.

According to Mr. Lerman’s testimony, he was driving eastbound in the left lane[1]of 96th Street between Fifth and Madison Avenues when respondent suddenly came into his lane, forcing him to swerve across the yellow line into the westbound lane to avoid him (Tr. 6, 10). There was no oncoming traffic, and respondent’s taxicab never touchedhis vehicle. When the two men stopped at the next traffic light, at the intersectionof 96th Street and Madison Avenue, respondent rolled down his driver’s side windowand angrilyshouted at Mr. Lerman while throwing paper and garbage at him (Tr. 10). To avoid further contact, Mr. Lerman waved,indicating to respondent that he should go ahead of him. Mr. Lerman said he was not concerned with getting respondent’s medallion number at that time as there was no reason to, even though, according to him, respondent had yelled and thrown garbage at him (Tr. 31,48).

Explaining the initial incursion that respondent made into his lane, Mr. Lerman first said that respondent entered his lane while trying to “overtake” him and “push me out of my lane,”indicating that respondent’s acts were intentional (Tr. 24). But he then described respondent as “easing” into his lane and said the swerve was as if respondent had not seen him (Tr. 28),thus suggesting an innocent reason for the lane incursion. Mr. Lerman also said that respondent stopped the taxi afterward, as if he had realized there wasanear collision,and gave him the lane (Tr. 28, 30). The two cars then proceeded in their original lanes. The disparities in these accounts were not explained and remain unreconciled.

Mr. Lerman offered different accounts of his next sighting of respondent at the intersection of Park Avenue. He first testified that respondent pulled alongside him and again began to yell at him (Tr. 10). He did not understand what respondent was saying and did not know whether he used any curse words, but he said respondent was frantic and irate (Tr. 20). Mr. Lerman proceeded through the intersection and parked at his destination.

In an alternate account provided under cross-examination, he stated that, after crossing the intersection at Madison Avenue, he moved to the right lane so he could park at Park Avenue, where he was picking up a friend (Tr. 33-35). As he turned on his blinker to move into the right lane, he did not see respondent who was held up in the right lane by slowed traffic turning onto Park.[2] He parked at 96th between Lexington and Park Avenues, on the right side of the street (Tr. 36). He said he was no longer looking for respondent because the incident with the papers had ended.

He turned off his car and exited (Tr. 11, 40). As he closed his door, respondent’s taxi drove toward him “at a great rate of speed.” With insufficient time to run, he put his back against his vehicle asrespondent drove up. The taxi came close enough to pinMr. Lerman’s left knee between the two vehicles, where he remained for 10 to 15 seconds unable to move, the taxicab’s right front bumper against his knee(Tr. 39). He banged on the taxicab to indicate that he was in severe pain and could not get free. He reported that respondent smiled and revved his engine andinched up “applying more pressure and twisting to [sic] my leg and knee” (Resp. Ex. A; Tr. 12, 41).

Respondent then left, abruptly screeching backwards and then driving away (Tr. 12). Lerman said he was in shock and he got into his car and drove eastward down 96th looking for respondent to get hislicense number. As he drove, he tried to call 911 to make a report. Near Third Avenue, he saw respondent with a police officer and a woman who was complaining that respondent had hit her car (Tr. 13). He did not see the accident or observe damage to the woman’s vehicle or to the taxi, nor did he question the woman about what happened. This part of his account was not supported in any way by the police report, which states simply “PD flagged down” and fails to mention the woman or the occurrence of any other accident (Pet. Ex. 1). Mr. Lerman said he reported his encounter with respondent to the police officer, including the fact that his leg was pinned between the cars (Tr. 16, 45), but the police report does not corroborate this part of his story either; rather, the report states that the taxi struck Lerman’s left knee causing him to break the taxi’s side mirror. Mr. Lerman did not acknowledge that any mirror was broken during the incident. He said the officer asked if he needed medical attention and he refused. There were no arrests. He claimedthat respondent left the scene after hitting him without providinginsurance or identifying insurance information (Tr. 20).

Mr. Lermansaid he went home and iced his leg but, around 1:00 a.m., he decided to go to the emergency room at St. Luke’s RooseveltHospital for medical assistance (Tr. 16). The Emergency Room physicianrecommended ibuprofen for pain, gave him a prescription fora stronger painmedication that he thought might have been Vicodin, and referred him to an orthopedist (Tr. 43). He was not x-rayed. Mr. Lerman, who said he has no health insurance (Tr. 47), produced two requests for reimbursement submitted to an auto insurance company, one evidencing emergency services rendered on April 25 at St. Luke’s RooseveltHospital for a knee contusion and one for examinations conducted on May 5 by an orthopedist and radiologist (Pet. Exs. 2 & 3). He said that his claimswere denied because he was determined to be a pedestrian at the time of impact (Tr. 17).

Mr. Kurpaski is a 64-year-old man who has been driving a New York City taxicab for 25 years. In an account that was difficult to understand despite the provision of a Polish language interpreter, Mr. Kurpaski offered a vastly different account of his encounter with Mr. Lerman, of which he drew a diagram for purposes of illustration (Resp. Ex. C). He testified that, as he traveled eastbound in the far left lane, Mr. Lerman overtook and passed him by crossing the double yellow lines into the oncoming traffic lane. Mr. Lerman then reentered the eastbound traffic and got in a lane to respondent’s right. When the traffic stopped the two cars next to each other between Madison and Park Avenues, Mr. Kurpaski asked Mr. Lerman why he cut him off. Mr. Kurpaski said he was upset but he did not admit yelling, and he denied cursing at Mr. Lerman. He said Mr. Lerman then jumped out of his car and started pulling at the taxicab’s passenger door; when he could not open it, he started kicking the right passenger side of the cab and spat on the windows. Afraid of this much younger man who was striking his vehicle, respondent used the automatic mechanism to lock his doors. Frustrated, Mr. Lerman came around to the driver’s side of the taxi and pulled at respondent’s door; he then kicked the side mirror and broke it, leaving it dangling against the cab. Respondent did not get out of his cab, afraid that Lerman was a criminal and might have a gun. He saw a police car ahead and drove to it, flagging down the police officer who took reports of the incident from both men separately. He denied there was any woman present as they spoke to the policeman.

Mr. Kurpaski denied throwing garbage from his vehicle; he said he never kept garbage in his cab because it violated TLC rules. He also denied driving recklessly or ever touching Mr. Lerman with his taxicab.

There were contradictions and/or embellishmentsin every significant aspect of Mr. Lerman’s story, which distortions cast serious doubt on his veracity.[3] For example, he described respondent’s lane incursion alternately as intentional and inadvertent. I also was particularly impressed by the gratuitously false claim that he called 911 from his car after respondent pinned his knee between the vehicles and sped away (Tr. 12), a statement that he later contradicted when he admitted he could not have placed such a call because he did not own a cell phone at the time (Tr. 46).

In addition, his account of this 64-year-old taxi driver barreling toward him in his cab “at a great rate of speed” and then stopping just short of his knee, close enough to pin it between the two vehicles with enough precision -- or luck -- not to crush the leg or even dent his vehicle, is quite fantastic. So is the vision ofKurpaski smiling at him through the windshield as he revved his engine and inched closer, continuing to press and twistLerman’s leg. To accomplish this feat of surpassingdexterity, Kurpaski would have to havemaneuveredthat ton of moving metalas nimbly as a surgical instrument.

Among the more meaningful discrepancies in petitioner’s evidence was the divergence between Lerman’s explanation for his knee injury and the police report. According to the police report, Mr. Lerman told the officer that he approached the cab to ask the reason for the prior incidents and the cab struck him on the knee, causing Lerman to break its left side mirror (Pet. Ex. 1). In his testimony, Mr. Lerman did not admit approaching the cab for any reason. Most importantly, though, he denied ever being on the left side of the taxicab, and he claimed that the officer erred in this part of the report (“I was never on the left side of the car. I don’t understand if it was my mirror, which was not broken or his mirror.”) (Tr. 16). Notably, the police report is consistent with respondent’s contention that Mr. Lerman, not he, engaged in an outburst of road rage that resulted in Lerman kicking the taxicab and breaking its left side mirror, and that those actionsby Lerman caused whatever leg injury he claims. Indeed, there is no aspect of Mr. Lerman’s account that explains why the taxicab’s left side mirror would be broken and dangling. And there was no reason offered why the officer would include this detail in his reportif it were not true, particularly since it is too specific a detail to be dismissed as a mere error. In support of his defense, Mr. Kurpaski produced a mechanic’sinvoice evidencing replacement of his left outer mirror on the night of the incident (Resp. Ex. D). The invoice also indicates that his front right door panels, where Lerman is said to have initiated his assault on the vehicle, were refinished and repaired. The invoice, dated April 24, 2008 at 11:00 p.m., not only corroborates the substance of Mr. Kurpaski’s story, but also the time of the incident. Thus, I found Mr. Lerman’s version of events incredible where I foundMr. Kurpaski’s believable and corroborated.

In light of the damaged credibility of petitioner’s only witness and the numerous contradictions and inconsistencies in his testimony, I find that petitioner failed to prove that Mr. Kurpaski assaulted Mr. Lerman with his taxicab. Because I have discredited Mr. Lerman’s account, which is the only evidence of respondent’s alleged recklessness, I do not find that respondent drove recklessly, nor do I find that he threw garbage from the taxi or verbally harassed Mr. Lerman. Moreover, because I credited Mr. Kurpaski’s testimony that he flagged down the police officer after Mr. Lerman angrily assaulted his taxicab, neither is respondent guilty of leaving the scene of an accident without providing insurance and identifying information.

FINDINGS AND CONCLUSIONS

  1. Petitioner failed to prove that respondent physically assaulted a motorist with his taxicab, in violation of Taxicab Drivers Rule 2-60(b).
  1. Petitioner failed to prove that respondent recklessly operated his taxicab, in violation of Taxicab Drivers Rule 2-21(a).
  1. Petitioner failed to prove that respondent threw garbage at a moving motor vehicle, in violation of Taxicab Drivers Rule 2-61(a)(2).
  1. Petitioner failed to prove that respondent verbally harassed a motorist, in violation of Taxicab Drivers Rule 2-60(a).
  1. Petitioner failed to prove that respondent left the scene of an accident without providing the requisite insurance and identifying information, in violation of Taxicab Drivers Rule 2-21(c).

RECOMMENDATION

In accordance with the above findings, I recommend dismissal of all charges.

Tynia D. Richard

Administrative Law Judge

July23, 2008

SUBMITTED TO:

MATTHEW W. DAUS

Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

CYNTHIA D. FISHER, ESQ.

Attorney for Respondent

[1] Mr. Lerman at various times referred to this lane as the “center” lane, even though he said there were only two lanes in either direction on 96th Street (Tr. 6; Resp. Ex. A). Eventually, it became clear that he was driving in the left lane and respondent was in the right lane (Tr. 29).

[2] He later contradicted even this second version and said that respondent was alongside him on the right (Tr. 35).

[3] Mr. Lerman first reported this incident in a written statement he sent to the TLC, which also contradicted some of his sworn testimony. The statement indicates that after respondent started throwing things at him at the intersection of Madison Avenue, they both proceeded through the intersection and respondent continued to try to swerve into his lane and force him over the center yellow line (Resp. Ex. A). It was notable, therefore, that Lerman made no mention of this aggressive stalking behavior in his testimony.