Taxi & Limousine Commission v. Zafar Saleem, Lic. No. 5173847
DECISION
The decision of the ALJ was correct and is affirmed .
BACKGROUND
Zafar Saleem (“the respondent”), filed an appeal from Administrative Law Judge (“ALJ”)
Cassandra Hyppolite’s decision, dated October 3, 2007, wherein the ALJ found the respondent in violation of Rules 2-50B 1 and 2-61A(2)
2 in Summons No. 378443C. The ALJ imposed penalties of $250 and $200, respectively, and also added 3 Persistent Violator points to his operator’s license.
The decision appealed from states in relevant part as follows:
The complainant (referred to as the complaining witness [“CW”]) said that he had hailed a cab on the day in question at 7 th
Street between 5 th
and 6 th
Avenues and asked to be taken to 46 th Street and Queens Boulevard. The ALJ said that the CW testified that the respondent complained that the ride was too long and that the CW should exit the cab and take the subway, and when he did exit, respondent grabbed the CW’s right hand.
The ALJ further stated that the respondent
… testified that his vehicle was in motion and complainant jumped into the cab and told to him make a right. The ALJ then stated that the respondent testified that the CW “… started to curse at him [the respondent]. The respondent also said that “… he only asked
Complainant to exit the taxi because he was drunk ….
The ALJ found against the respondent and held
I find Complainant’s testimony credible and that it established a prima facie case that
Resp. committed both violations charged. … Resp’s admission that he exited the taxi to extract Complainant is an action against the public’s interest. … I also find that Resp. failed to present a meritorious defense to the charges and thus, the summons is sustained as to both violations charged.
The respondent’s appeal was filed, pursuant to Rule 8-13A, on November 2, 2007.
On appeal, the respondent argues that
1 Refusal of passenger service.
2 Actions against the best interests of the public.
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Taxi & Limousine Commission v. Zafar Saleem, Lic. No. 5173847
This matter should be reversed and remanded for a new hearing. ALJ failed to identify the medallion cab that respondent was allegedly drive [sic] at the alleged time and date.
ALJ concedes that while she accepts R’s testimony that c/w may have been drunk, the R did not correctly deal with the situation. An R does not have to allege specific fear of violence in order to be justified in removing a passenger. The meritorious defense is c/w’s intoxication.”
The Commission on behalf of the complaining witness did not file a response to the appeal.
ANALYSIS
The ALJ’s decision was correct. The ALJ found the testimony of the complaining witness credible and that the respondent failed to present any meritorious defenses. First, there does not appear to be any dispute over the identity of the driver of the vehicle in question, so there is no issue over identification of the medallion. Second, the Respondent mischaracterizes the ALJ’s decision, as the ALJ never conceded that the complaining witness was drunk, but in fact stated that upon cross-examination, the complaining witness “… admitted that he attended a birthday party but testified that he practices Bhudism [sic] and does not drink. In addition, he testified that it would be impossible for him to board a moving vehicle while drunk and further to write down Resp.’s information while in an intoxicated condition.” The ALJ in dicta, said that “If
Resp. found that Complainant was too intoxicated to ride in the taxi and created a danger to himself and the Resp., Resp. should have called 911 to have Complainant removed and should not have taken on the task.” The ALJ merely expressed some options available to respondent if the complaining witness were drunk, which she found he was not.
The respondent’s appeal is based upon a credibility determination which was for the ALJ, as the fact-finder to resolve. She found that respondent was not credible and that the complaining witness was credible. The determination that the respondent violated Rule 2-50B and 2-61A2 is supported by substantial evidence and must be affirmed. (s ee, 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 18, 2008
Charles E. Fraser
Deputy Commissioner for Legal Affairs
By: Michael A. Schwartz
Administrative Law Judge, Appeals Unit
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