Taxi & Limousine Comm’n v. Niazy OATH Index No. 608/20 (Oct. 31, 2019), adopted, Comm’r Dec. (Nov. 25, 2019), appended

Petitioner suspended respondent’s TLC Driver’s License based on

his arrest for assault in the third degree. At a summary suspension

hearing, the evidence established that respondent’s continued

licensure pending outcome of the criminal charges would pose a

direct and substantial threat to public health or safety. ALJ

recommends that respondent’s license remain suspended until the

criminal charges are resolved.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION Petitioner

- against -

ATIFRAHMAN NIAZY Respondent

______________________________________________________

REPORT AND RECOMMENDATION

ASTRID B. GLOADE, Administrative Law Judge

Petitioner, the Taxi and Limousine Commission (“Commission”), commenced this

summary suspension proceeding against respondent, Atifrahman Niazy, holder of a TLC Driver

License, pursuant to the Commission’s rules, title 35 of the Rules of the City of New York

(“RCNY”), and the New York City Administrative Code. Admin. Code § 19-512.1 (Lexis

2019); 35 RCNY § 68-15(d) (Lexis 2019). The Commission suspended respondent’s license

after it received notice that he had been arrested on August 8, 2019, and charged with leaving the

scene of an accident involving personal injury (Pet. Ex. 1). Respondent was subsequently

charged with assault in the third degree and petitioner seeks to continue suspension of his license

during the pendency of the criminal charges on the ground that respondent poses a direct and

substantial threat to the health or safety of the public (ALJ Ex. 1).

At a trial held before me on October 9, 2019, petitioner relied on documentary evidence.

Respondent testified on his own behalf and presented documentary evidence. For the reasons set

forth below, I find that respondent’s TLC Driver License should remain suspended.

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ANALYSIS

Section 19-512.1(a) of the New York City Administrative Code authorizes the

Commission “for good cause shown relating to a direct and substantial threat to the public health

or safety” to suspend a license before a hearing, and authorizes revocation or suspension after a

hearing. The Commission’s rules permit pre-hearing, summary suspension of a Taxi Driver

License “based upon an arrest or citation if the Chairperson believes that the charges, if true,

would demonstrate that continued licensure would constitute a direct and substantial threat to

public health or safety.” 35 RCNY § 68-15(d)(1) (Lexis 2019). The rules provide for notice of

suspension to the licensee within five days of the suspension and the licensee can request a

hearing within ten calendar days from receipt of the notice. 35 RCNY § 68-15(a)(3), (b)(1).

Section 68-15(d) of the Commission’s rules include a list of charges that trigger summary

suspension, reflecting the Commission’s position that the charges bear upon public health or

safety. The Commission has long maintained that its rule requires a presumption that the

elements of the charged crimes are true. See Taxi & Limousine Comm’n v. Mirakov,

Comm’r/Chair Dec. (Jan. 8, 2008), rejecting, OATH Index No. 1053/08 (Dec. 7, 2007); Taxi &

Limousine Comm’n v. Adjoor, Comm’r/Chair Dec. (Dec. 20, 2007), rejecting, OATH Index No.

1044/08 (Dec. 7, 200).

This tribunal has consistently expressed concern “about the tension between an

irrefutable presumption that all elements of an arrest charge are true and the licensee’s due

process right to a meaningful hearing.” Taxi & Limousine Comm’n v. Azad, OATH Index No.

142/20 at 2 (Aug. 15, 2019) (citing Taxi & Limousine Comm’n v. Basar, OATH Index No.

874/12 at 3 (Jan. 20, 2012)). Accordingly, in determining whether to recommend that

suspension of a license be lifted, we have considered factors beyond whether a licensee has been

charged with a crime and have allowed the parties to present relevant evidence. See Taxi &

Limousine Comm’n v. Sow, OATH Index No. 467/20 at 4-5 (Oct. 15, 2019) (citations omitted).

The Commission’s interpretation of its rules has been challenged by its licensees in

protracted litigation in which they claim the Commission’s post-suspension hearings do not

comply with constitutional due process requirements. See Nnebe v. Daus, 665 F. Supp. 2d 311

(S.D.N.Y. 2009), aff’d in part, vacated in part and remanded, 644 F.3d 147 (2d Cir. 2011), on

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remand, 184 F. Supp. 3d 54 (S.D.N.Y. 2016), amended opinion, 306 F. Supp. 3d 552 (S.D.N.Y.

2018), aff’d in part, vacated in part and remanded, 931 F.3d 66 (2d Cir. 2019).1

In Nnebe, the Second Circuit held that “a hearing that in effect conclusively presumes

that suspension is appropriate based solely on the abstract relationship of the elements of a

charged offense to safe driving provides inadequate procedural due process.” Nnebe v. Daus,

931 F.3d at 86. Relying on section 19-512.1(a) of the Administrative Code, the Court noted that

to suspend a license, the Commission must show “good cause” that “relat[es] to a direct and

substantial threat to the public health or safety,” from continued licensure of the driver. Id. at 82.

Thus, the Second Circuit concluded, “a meaningful hearing . . . must give the driver an

opportunity to show that his or her particular licensure does not cause a threat to public safety,”

Id. at 83. Relevant factors in this inquiry include the conduct underlying the arrest, the driver’s

overall record, and the driver’s character. Id. at 82. By way of example, the Court noted that “in

the majority of cases, the further removed the crime is from the driver’s job, the less ‘direct’ the

threat may be if [the driver] remains licensed” and that “[d]epending on the surrounding

circumstances and the driver’s history, the threat may also be more or less ‘substantial.’” Id.

The Court further noted that a driver could be charged with conduct that was the sole infraction

in an otherwise unblemished record or that satisfies the elements of a crime, but was “technical

or mitigated,” such that continued licensure does not “pose the kind of threat conjured by the

general nature of the crime charged.” Id.

Emphasizing that it was not requiring “an inquiry into factual guilt or innocence to satisfy

the due process inquiry,” the Court noted that “a hearing that encompasses some level of

conduct-specific findings based upon the facts underlying the complaint and the driver’s history

and characteristics, for example, would be sufficient.” Id. at 88. The case was remanded to the

District Court to “fashion a constitutionally adequate process, after hearing from the parties.” Id.

Thus, to continue suspension of a driver’s license while criminal charges are pending, the Second

Circuit required that the Commission demonstrate that a licensee’s continued licensure relates to

a direct and substantial threat to the public health or safety, considering factors including the

conduct underlying the arrest and the driver’s overall record and character.

1 A summary of the history of the Nnebe litigation can be found in Taxi & Limousine Comm’n v. Baig, OATH Index

No. 179/20 at 3-4 (Aug. 15, 2019) and Taxi & Limousine Comm’n v. Azad, OATH Index No. 142/20 at 3-4 (Aug.

15, 2019.)

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Here, respondent’s license was suspended after he was arrested and charged with assault

in the third degree, for allegedly having struck a pedestrian with his car door (Pet. Ex. 4).

Respondent seeks to lift the suspension based on video and other evidence that he claims shows

that he did not strike the pedestrian. The suspension should continue, however, because

consideration of the conduct underlying respondent’s arrest and his overall record show that his

continued licensure pending resolution of the criminal charges would pose a direct and

substantial threat to public safety.

By notice dated August 9, 2019, petitioner suspended respondent’s TLC Driver License

after being notified of respondent’s arrest for leaving the scene of a personal injury accident (Pet.

Ex. 1). At trial, petitioner presented an arrest notification, an arrest report, and a criminal court

complaint, which establish that on August 8, 2019, the Police Department issued respondent a

desk appearance ticket (“DAT”) for leaving the scene of an accident involving personal injury in

violation of the Vehicle and Traffic Law (“VTL”) (Pet. Exs. 1B, 2, 3, 4).

The charge, however, was upgraded from a VTL violation to assault in the third degree

and harassment in the second degree in the criminal court complaint (Pet. Ex. 4; Resp. Ex. D).

The criminal court complaint, signed by Police Officer Noboa, is based upon information

provided by a complainant identified as Mr. Rivera (Pet. Ex. 4; Resp. Ex. D). According to

Officer Noboa, who signed the complaint on August 14, 2019, the complainant told him that on

or about August 2, 2019, between 3:50 and 4:10 p.m., in front of 32-19 Greenpoint Avenue,

Queens, respondent “drove by him and opened his driver side car door, hitting the complainant

in the back, causing him substantial pain, then closing said car door and driving off.” The

complainant claimed that as a result of respondent’s actions, he “fell to his knees, sustained

injuries, and had to be transported to a local hospital” (Pet. Ex. 4).

In addition to documents relating to respondent’s arrest, petitioner offered two

stipulations of settlement by which respondent resolved complaints alleging violation of the

Commission’s rules. Petitioner argued that the stipulations are relevant under the standard

articulated in Nnebe, as they go to respondent’s record as a driver and whether his continued

licensure would bear on public health and safety (Tr. 19). Respondent objected to these exhibits,

contending that they were unduly prejudicial and relevant only if respondent used his record as a

defense to the charges (Tr. 20, 22). However, the Court in Nnebe advanced no such limitation on

consideration of respondent’s driving record, which it deemed relevant for determining “the

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arrest’s relation to public health or safety.” Nnebe, 931 F.3d at 82. Accordingly, the stipulations

were admitted over respondent’s objections. However, one document was afforded no weight as

it was an offer of settlement, signed by a petitioner’s representative, but not signed by respondent

(Pet. Ex. 5). Petitioner offered no other evidence to establish that respondent accepted the

offered settlement. The second document, dated November 17, 2017, indicates that respondent

pled guilty in a “road rage incident” in which he is alleged to have thrown a bottle at another

vehicle, engaged in a physical altercation with the driver of that vehicle, and used a wrench to

break a mirror on the other vehicle (Pet. Ex. 6). Respondent agreed to pay a fine of $1,500 for

having violated Commission rule 80-12(f), which prohibits a licensee from using or attempting

to use physical force against a person.

In the present case, respondent did not dispute that on August 2, 2019, he had a

confrontation with a member of the public while he was traveling southbound on Greenpoint

Avenue to his dispatch base. According to respondent, he was driving down the street when he

passed a man standing in the street who threw a hard object onto his windshield. Respondent

maintained that he did not hit the pedestrian. He stopped his vehicle and exited to see if it had

been damaged. He went to the rear of his car as the pedestrian approached him from the

passenger side of the vehicle and stated that respondent had driven too close. A bystander

approached respondent’s vehicle and told him that because there was a stalled truck in the

northbound lane, respondent’s vehicle would cause a traffic jam, so respondent left (Tr. 48-53).

On August 8, 2019, the police contacted respondent after using his license plate number to locate

him. He was arrested and issued a DAT that day (Tr. 26-27, 36; Resp. Ex. A).

After his arrest, respondent went back to the location of the incident and canvassed

nearby businesses for witnesses and video evidence (Tr. 28-31, 37-38). Respondent secured

video that he maintains is of the incident from a Penske truck leasing business located on

Greenpoint Avenue. According to respondent, he provided the date and time of the incident to

employees at the Penske shop, who located the video and copied it on to a USB thumb drive that

respondent had brought with him (Tr. 39-40; Resp. Ex. C).

The video, which is about one minute and 15 seconds in duration, bears a date and time

stamp showing the date as August 2, 2019, and the start time of the video as 16:44:27. The video

shows a man, apparently holding a clipboard, standing in the middle of the street. The man

appears to be directing traffic around a stationary truck that is blocking a lane of traffic. At

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about 16:44:47, respondent’s car, a sports utility vehicle (“SUV”), approaches the man in the

street and seems to make contact with the object in the man’s hand. As the man jumps back from

the vehicle, the object in his hand falls to the ground. Respondent’s car comes to a stop. Starting

at 16:44:52, respondent exits his car and walks to the rear on the driver’s side as the man in the

street picks up the object from the ground and walks behind the car on the passenger side

towards respondent. The man throws the object to the ground, steps towards respondent, and

gesticulates towards him. The vehicle blocks the men from the view of the camera and it is not

possible to see the full interaction between respondent and the man, although the man can be

seen moving his arms above the top of the car. At about 16:45:20, a third man approaches

respondent and the second man, who are still at the rear of respondent’s vehicle. At about

16:45:37, respondent walks towards the front driver’s side of his car, and opens the door, at

which point the video ends (Resp. Ex. C).

In addition to the video, respondent obtained a written, notarized statement from Mr.

Lazo, who identified himself as a witness to the incident (Resp. Ex. B). The statement, dated

September 17, 2019, and made under penalty of perjury, indicates that on August 2, 2019,

sometime in the afternoon, Lazo was working in his shop on Greenpoint Avenue when he heard

honking horns. He exited his shop and saw a disabled truck blocking traffic and the driver of the

truck standing in the lane of traffic opposite the truck. Lazo wrote that he saw an SUV approach

and the truck driver hit the windshield of the vehicle as it attempted to pass the truck driver. The

SUV driver stopped and immediately walked to the rear of the SUV, where he encountered the

truck driver. The SUV driver yelled at the truck driver for hitting his windshield, while the truck

driver yelled at the SUV driver for not yielding to oncoming traffic. A bystander intervened and

escorted the SUV driver back into his vehicle. According to Lazo, the drivers did not touch each

other.

Lazo wrote that respondent came to his shop a few days after the incident, asking to

review security footage because he had been arrested and charged with assaulting the truck

driver and leaving the scene of an accident. According to Lazo’s statement, the security system

had already overwritten video of the incident. However, he had watched the footage after

witnessing the incident because his suspicion was aroused when a police car and ambulance

arrived “long after” the confrontation had occurred, while the truck driver was still on the scene

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with his disabled vehicle. According to Lazo, the video he reviewed did not show respondent or

his vehicle striking the truck driver (Resp. Ex. C).

As the Second Circuit stated in Nnebe, petitioner bears the burden of establishing that

respondent’s continued licensure would pose a direct and substantial threat to public safety.

Nnebe, 931 F.3d at 82; see also Azad, OATH 142/20 at 6. Furthermore, to meet the requirements

of due process, the facts underlying the complaint, as well as respondent’s driving history,

should be considered in determining whether continuation of his license while the criminal

charges are pending would pose a direct and substantial threat to public health or safety. Nnebe,

931 F.3d at 87.

Here, petitioner has met its burden of establishing that respondent’s continued licensure

during the pendency of the criminal matter is a direct and substantial threat to public safety.

Respondent was charged with assault following an incident in which it is alleged that he drove

by a member of the public, opened his driver side car door, and hit that person in the back,

causing injury. If true, the allegations show that respondent, while operating his vehicle, was

violent in interacting with a member of the public. There is a direct correlation between the

charges here, which arose while respondent was operating his vehicle and driving to his dispatch

base (Tr. 59), and respondent’s duty as a licensee to safely transport members of the public.

Respondent presented evidence seeking to establish that continued suspension of his

license is not warranted because the allegations in the criminal complaint are factually

inaccurate. That evidence establishes that on the day of the alleged incident, respondent was

driving his vehicle in the vicinity of the incident that led to his arrest and that he got into a

confrontation with a member of the public. Respondent argued that he did not open his driver

side car door and hit the complainant in the back before driving off as charged, and that the video

supports his contention (Tr. 8, 28). I disagree.

There are aspects of the petitioner’s evidence that raise questions as to its reliability

regarding the facts underlying the criminal complaint. First, the criminal complaint alleges that

the incident occurred between 3:50 and 4:10 p.m., yet the time stamp on the video indicates that

the incident captured on the video occurred at about 4:44 p.m. Second, the evidence

demonstrates that a verbal confrontation occurred, but it is unclear whether it devolved into a

physical assault. Interestingly, the video is edited so that it ends just as respondent is about to

enter his vehicle and does not show him driving away from the scene. Therefore, it does not

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show whether the encounter continued before respondent left the area, which makes it of limited

probative value as to whether the verbal confrontation became physical before respondent left

the scene. Finally, although respondent submitted a sworn witness statement that is consistent

with his version of the confrontation, it is at odds with the video. The witness wrote that the

pedestrian struck respondent’s windshield, but the video shows that respondent’s vehicle made

contact with an object in a pedestrian’s hand before respondent exited his car to confront the

pedestrian.

Moreover, respondent’s driving record supports a finding that his continued licensure

pending the outcome of the criminal matter is a public safety threat. Two years ago he pled

guilty to violating the Commission’s rules, stemming from a road rage incident that included a

physical altercation with another driver and damage to that driver’s vehicle (Pet. Ex. 6). The

conduct underlying the criminal charges do not reflect a sole incident in an otherwise

unblemished record, but suggest that respondent has a tendency to engage in violent

confrontations with members of the public while operating his vehicle.

Continued suspension of respondent’s license is warranted because the incident is driving

related and concerns respondent’s interaction with a member of the public, and respondent was

recently engaged in a prior similar conduct. On the basis of “the facts underlying the complaint

and the driver’s history and characteristics,” continued suspension of respondent’s license is

warranted. Nnebe, 931 F.3d at 88.

In sum, petitioner established that under the circumstances presented here, respondent’s

continued licensure would pose a direct and substantial threat to the health or safety of the

public. Accordingly, his license should remain suspended until the pending criminal charges are

resolved.

FINDINGS AND CONCLUSIONS

1. Respondent was charged with assault in the third degree and it is alleged that he drove by a member of the public,

opened his driver side car door, and hit that person in the

back, causing him substantial pain.

2. Petitioner established that respondent’s continued licensure pending the outcome of the criminal case would pose a

direct and substantial threat to public health or safety.

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RECOMMENDATION

I recommend that respondent’s TLC Driver License remain suspended until the

criminal charges are resolved.

Astrid B. Gloade

Administrative Law Judge

October 31, 2019

SUBMITTED TO:

BILL HEINZEN Acting Commissioner

APPEARANCES:

ASH B. HORN, ESQ.

Attorney for the Petitioner

GREGORY J. GALLO, ESQ.

Attorney for Respondent

20-0608.pdfatifrahman niazy 5598885 summary suspension continues 11.25.19