Taxi & Limousine Comm'n V Fuentes

Taxi & Limousine Comm’n v. Ayyad OATH Index No. 2265/08, mem. dec. (June 9, 2008)

The credible evidence failed to support a finding that respondent engaged in reckless driving, verbally harassed and assaulted a cyclist, and acted against the best interests of the public by stealing the cyclist’s bicycle lock. Charges dismissed. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner -against- MOHAMED AYYAD Respondent ______

MEMORANDUM DECISION INGRID M. ADDISON, Administrative Law Judge The Taxi and Limousine Commission brought this license revocation proceeding under its rules, title 35 of the Rules of the City of New York (“RCNY”), and the New York City Administrative Code. Respondent, taxi driver Mohamed Ayyad, is charged with verbally harassing and assaulting a cyclist, driving in a reckless manner, and stealing property belonging to a cyclist, in violation of Taxicab Drivers Rules 2-60(a), 2-60(b), 2-21(a) and 2-61(a)(2) (ALJ Ex. 1). At a hearing before me on May 19, 2008, petitioner relied on the complaining witness’ testimony. Respondent, who appeared pro se, testified on his own behalf and relied on the testimony of his passenger at or around the time of the alleged incident with the complainant. I kept the record open, at petitioner’s request, for the complainant to submit records of his telephone call to 911, the police report and the emergency room medical report reflecting the treatment obtained.1

1 I marked the police report, the FDNY prehospital care report, the hospital emergency room report and the telephone record, as petitioner’s exhibits 4 through 7, respectively. 2

For the following reasons, I find that petitioner has failed to prove the charges by a preponderance of the credible evidence. The charges are therefore dismissed.

ANALYSIS The complainant testified that between 4:30 p.m. and 5:00 p.m. on January 25, 2008, he was riding his bicycle along West 55th Street in Manhattan under very cold and icy conditions when, somewhere between 10th and 11th Avenues, respondent drove dangerously close to him (Tr. 7-8, 26-27). Respondent stopped between 11th and 12th Avenues where the complainant observed a female passenger emerge from the vehicle and enter the first building on the north side of the block at 11th Avenue and 55th Street (Tr. 8-9, 31-32). The complainant dismounted his bicycle, approached respondent’s cab, knocked on the window, and “possibly” in an elevated voice cautioned respondent about his driving. Respondent replied “Fuck you. I know how to drive,” and the complainant responded in kind (Tr. 9). Within seconds of the complainant riding off, respondent drove into him from behind with such force that respondent’s license plate holder broke, the bicycle lock broke, and the complainant was knocked off and landed on his bicycle (Tr. 10-12, 44; Pet. Ex. 1). On cross, he admitted that he did not see respondent hit him because he was struck from behind but he presumed that respondent’s vehicle impacted with the tire of his bike (Tr. 34, 36, 41-42). While he was trying to stand up, respondent, who had exited his vehicle, struck the complainant a couple of times “like around the shoulder, top of the head area, I’m not sure” (Tr. 10, 45-47). When he got up, a struggle ensued over possession of the bicycle. Both complainant and respondent had their hands on the handle bar and respondent, who had gotten hold of the detached bicycle lock, repeatedly swung it with one hand towards the complainant (Tr. 10-11, 47-49). The complainant initially stated that the lock, the dimensions of which were 4-5 inches x 1 foot, never made contact with him (Tr. 10). On cross, he claimed “[respondent] might have hit me in the hand” but then stated “I don’t believe [respondent] hit me with it” (Tr. 65-66). He said that respondent eventually released his hold on the bike, causing him to fall backwards, and respondent drove off with the bicycle lock (Tr. 11). In spite of his acknowledgement that some yellow cabs are unique, he said that he made no note of any distinguishing features on respondent’s cab. Rather, to him it was just another yellow cab (Tr. 32-33). 3

The complainant submitted a police report to establish that he had called the police (Pet. Ex. 4). The report contained respondent’s license plate number, which the complainant claimed to have obtained because he had a clear view of respondent’s vehicle from the front and rear. The report also reflected that the complainant reported being struck and knocked off his bike by respondent’s vehicle and that while the complainant was in the process of calling 911, the driver screamed at him and drove off. He said that he urged the police to treat his report as an assault because he had been knocked off his bike but they wrote it as a motor vehicle accident complaint (Tr. 11-12). The complainant stated that an ambulance arrived on the scene but he refused their services because he did not have medical insurance. Later, he felt light-headed, and was urged by friends and family to see a doctor. Hence, at around 9:46 p.m., he sought medical attention at St. Vincent’s Hospital emergency room where he was diagnosed with back strain and shoulder sprain and was prescribed Ibuprofen and Flexeril (Tr.11; Pet. Exs. 5, 6). He indicated that the hospital bills remain unpaid and he was seeking to recover money to pay them (Tr. 18, 22; Pet. Ex. 2). In addition, even though he had hoped to have his bike repaired, he was told that it would have to be replaced because there was a crack in the frame (Tr. 40). Further, the complainant claimed that he had to purchase a new lock to secure a bike that a friend had loaned to him. He said that he is seeking to recover money for the cost of the bike and the new lock (Tr. 22; Pet. Ex. 3). Respondent testified that he has been driving a taxi since 2005, and has no record on his hack license, which he considers a privilege. He also stated that he has never been issued violations for speeding or running stop lights (Tr. 6). On January 25, he picked up a passenger at Broadway and 62nd Street, drove north along Broadway, south along Columbus Avenue and west along 57th Street, at the passenger’s request. He then turned south on 11th Avenue (Tr. 74- 75). In support of his testimony, respondent produced a taxitronic map which, petitioner stipulated, represented the Global Positioning System (“GPS”) records that tracked respondent’s trips and routes, and had been provided to respondent by petitioner’s investigation unit (Tr. 75; Resp. Ex. A). Respondent stated that, while at the corner of 11th Avenue and 55th Street, he observed the complainant at the crosswalk. His bike was in the lane of oncoming traffic and the complainant was irrationally yelling and swinging his hands towards passing cars. Respondent recounted that it was already rush hour on a Friday afternoon and recollected that when the light changed, the driver of one car actually shouted at the complainant who was in his way, while 4 another driver tried to avoid the complainant’s bike (Tr. 79-81). As his passenger expressed her concern for the complainant, respondent remarked that the complainant was probably crazy. He told her that that was typical of what he observed each day on the streets of New York, and hoped that the complainant did not get struck by a car (Tr. 81). Respondent said that soon after he turned right on 55th Street, he stopped to let the passenger off. As the passenger was paying him, he heard a loud noise, which turned out to be the complainant, pounding on the hood of his cab and shouting “you get the fuck out of the car right now.” The complainant ran to the other side of the cab and did the same thing. The passenger became scared and cried out “what’s going on? I gotta go. What’d this guy do? I’ll call the police. Call the police.” Respondent stated that when the complainant saw him pick up the phone to call the police, he mounted his bike and, as he rode off, turned and flung something towards the cab. He later added that the complainant laughed before riding off (Tr. 81-82, 91, 103). On cross, respondent insisted that he did not leave his cab. He explained that he was well aware that the first inquiry made by police officers where incidents involve taxicabs is whether the driver exited his vehicle (Tr. 101). Further, he did not follow the complainant because of prior incidents in Queens and the Bronx, at which the police had cautioned him that chasing after someone could be considered harassment (Tr. 102). Above all, he reasoned that pursuit of the complainant might have been more costly. Respondent said that he informed his passenger that the complainant had left and it was safe for her to exit. She told him that she could not wait for the police to arrive and he replied that the police would be unable to do anything because he could not provide them with the complainant’s identity. The passenger gave him her number in the event that the police wished to speak with her about what had occurred. Respondent did not call the police even though he was angered by the minor dents that complainant had made by pounding on his vehicle. He expressed that, even though he was very angry at the complainant for pummeling his cab, his primary concern was his passenger’s safety. He was, therefore, happy that the complainant had ridden off and that his passenger was safe. He also analogized other experiences that he considered far worse, such as passengers regurgitating in his cab, or running off without paying the fare (Tr. 82-83, 99-100). The passenger testified that on January 25, she was scheduled to attend an interview at 5:00 p.m. at Pier 90. To get there on time, she hailed respondent’s cab at Broadway and 62nd 5 street, and instructed him to take 57th Street (Tr. 52). Respondent drove along 57th Street to 11th Avenue, where he turned southbound to 55th Street. As they waited at the traffic lights at the intersection of 11th Avenue and 55th Street, she observed a cyclist (whom she identified as the complainant) in the crosswalk, flailing his arms and yelling out at people (Tr. 53). She was initially concerned for his safety because his bike was on the ground, but respondent expressed the view that this was representative of daily life in New York. Respondent also intimated that the complainant might have been inebriated (Tr. 54, 56). The passenger stated that as they turned right onto 55th Street, she turned around and, out of the corner of her eye, saw the complainant charging towards them on the bike. When he got to their cab, he flung his bike down and started pounding on the front hood of respondent’s cab on the driver’s side, screaming “get the fuck out of the car, get the fuck out of the car” (Tr. 54, 58). The passenger was reluctant to use the expletive but did so on cross (Tr. 59). She said that the complainant then ran around to the other side of the cab and started pounding on that side. Alarmed, she told respondent that she would call the police. Respondent tried to calm her down and told her that he would place the call (Tr. 54-55). The passenger said that she was ready to exit the vehicle, noting that she had asked respondent to stop about one block away from her destination because she wanted to smoke a cigarette (Tr. 52, 60). She was relieved to see the complainant leave as respondent got his phone to place the call to the police and reaffirmed this on cross (Tr. 55, 61). She said that, as she was leaving, she gave respondent her contact information in the event that the police needed to speak with her (Tr. 55). She then walked towards her destination, which was in the same direction that the complainant had taken, thereby contradicting the complainant’s statement that she had entered a building on that block (Tr. 57, 61). She could not initially recall whether she had actually seen the complainant remount his bike and ride off but said that, in retrospect, she thought that she had seen him ride away (Tr. 60). She testified that respondent did not exit his car nor did he strike the complainant with it and was surprised that the complainant had initiated charges against respondent (Tr. 56-57). She further expressed the sentiment that the complainant should take responsibility for his actions (Tr. 55). In a revocation proceeding, petitioner bears the burden of proof, and must establish its charges by a preponderance of the credible evidence. See Taxi & Limousine Comm’n v. Kharoufi, OATH Index No. 1277/07 (Mar. 12, 2007); Taxi & Limousine Comm’n v. Egalite, 6

OATH Index No. 1542/00 (Aug. 4, 2000); Taxi & Limousine Comm’n v. Singh, OATH Index No. 280/99 (Sept. 22, 1998). Where the charges are disputed, resolution often depends on an assessment of witness credibility, including witness demeanor, consistency of witness testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which the witness testimony comports with common sense. Taxi & Limousine Comm’n v. Narcisse, OATH Index No. 1998/07, at 5 (Aug. 16, 2007), modified on penalty, (Comm’r/Chair Dec. (Sept. 24, 2007); Dep’t of Sanitation v. Menzies, OATH Index No. 678/98, at 2-3 (Feb. 4, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998). Here, both complainant and respondent had powerful incentives to fabricate their testimony. On the one hand, the complainant made it abundantly clear that he was seeking financial compensation for his medical bills that are outstanding, his purchase of a new lock, and the expense of a new bicycle (Tr. 16, 18, 22). As such, the only documents which he produced at trial were hospital bills and a bill for money purportedly spent on a replacement bicycle lock. On the other hand, if found guilty, respondent faces revocation of his hack license. However, I could discern no reason, financial or otherwise, for respondent’s passenger at the time of the incident to fabricate her testimony or distort the truth. In fact, I found her to be extremely sincere. She cautioned that the events occurred such a long time ago but when respondent called and asked her to testify, she recalled that it was indeed a bizarre incident (Tr. 53). She convincingly testified that her first encounter with respondent was when she entered his cab on January 25, and only heard from him when he asked her to testify (Tr. 59). She has been responsibly employed as a database administrator of a not-for-profit organization for seven years and has no other job (Tr. 59-60). She also appeared very committed to her job as she expressed her anxiety to get to work while waiting to testify. Despite petitioner’s assertion that the passenger’s testimony might have been scripted, I found no support for such an inference to be drawn. There were minor inconsistencies between her testimony and respondent’s, which suggested, rather, that her testimony was not coached or rehearsed. Accordingly, my evaluation of the testimony of the two principals and respondent’s passenger, plus their submissions, leaves me to conclude that petitioner has not sustained its charges by a preponderance of the credible evidence.

Driving in a Reckless Manner 7

The Commission’s rules provide that “[a] driver shall not operate his taxicab in such manner or at a speed which unreasonably endangers users of other vehicles, pedestrians, or his passengers.” 35 RCNY § 2-21(a) (Lexis 2008). The Commission alleged that respondent drove recklessly in the vicinity of 10th Avenue and West 55th Street. The complainant testified that the incident was initiated by respondent between 10th and 11th Avenues when respondent drove dangerously close to him (Tr. 7-8, 26-27). However, based on the Commission’s investigation and the GPS data, plotting respondent’s route at or around the time of the incident, it is clear that respondent was not between 10th and 11th Avenues (Resp. Ex. A). The map supports respondent’s and the corroborating testimony of his passenger that respondent first turned unto 55th Street from 11th Avenue and, as such, could not have been the driver who drove recklessly between 10th and 11th Avenues, and had no part in causing the complainant to approach him on the next block (Ayyad: Tr. 79-81; Passenger: Tr. 53). The complainant himself declared that he was unable to distinguish between yellow cabs (Tr. 32-33). Therefore, while I do not discredit his testimony that a yellow cab drove recklessly close to him between 10th and 11th Avenues, petitioner has failed to establish that that yellow cab was respondent’s.

Allegations of Harassment and Assault Petitioner charged that respondent verbally harassed and assaulted the complainant, in violation of Taxicab Drivers Rules 2-60(a) and 2-60(b), which prohibit a driver from threatening, harassing or abusing a passenger or other person and from using or attempting to use physical force against a passenger or other person. 35 RCNY § 2-60 (Lexis 2008). These rules impose an absolute prohibition on verbal abuse and/or the use of physical force against passengers and members of the public while on duty as a driver. See Taxi & Limousine Comm’n v. Sobczak, OATH Index No. 1691/08 (Apr. 7, 2008), modified on penalty, (Comm’r/Chair Dec. (May. 9, 2008) (driver found guilty of verbally harassing complainant taxi driver, after both engaged in a verbal confrontation, and complainant had provoked the incident); Taxi & Limousine Comm’n v. Conille, OATH Index No. 361/08 (Nov. 15, 2007) (driver found guilty of verbally harassing a pedestrian who initiated a verbal altercation when she struck respondent’s vehicle); Narcisse, OATH 1998/07 (driver found guilty of verbally harassing a motorist after a contentious verbal altercation over a parking spot). 8

Under the mistaken belief that respondent was the driver who had previously offended him, the complainant claimed that when he approached respondent to caution him about his unsafe driving, respondent cursed at him (Tr. 9). Not surprisingly, respondent’s recollection is quite contradictory. I found respondent’s version more credible for the following reasons. The complainant testified that the day was very cold and the streets icy (Tr. 8). Given those conditions, a taxicab driver’s reckless driving would have made the complainant livid. Therefore, I am disinclined to believe the complainant’s claim that he approached respondent’s vehicle to caution him about driving. I find that to be a gross understatement and a calculated effort to portray himself as a passive victim. It is more likely that, having had what was probably a scary experience, he was blinded with anger and approached respondent in an irate manner with a barrage of expletives, pounding on respondent’s vehicle, as respondent and the passenger testified. I also credit respondent’s and his passenger’s testimony that respondent did not wind the window down or exit his vehicle at the complainant’s action (Ayyad: Tr. 101; Passenger: Tr. 56- 57). Having already discussed the possibility that the complainant might have been “crazy” or “drunk,” respondent and his passenger would likely have followed the dictates of common sense and remained inside, taking no action to exacerbate the situation. The passenger testified that she was extremely alarmed and respondent was more concerned for her safety than the damage that the complainant was inflicting on his vehicle (Tr. 57-58, 61). Accordingly, I find that petitioner has failed to establish that respondent verbally harassed the complainant. Turning to the assault allegation, I am unconvinced that respondent assaulted the complainant. It is unlikely that the passenger, who is slightly built, would have exited the cab had the complainant still been at the scene, given the behavior that she described. Even absent her testimony that respondent remained inside the cab and that she exited only after the complainant had ridden off, I find the complainant’s testimony to be incredible. First, he claimed that respondent’s vehicle “rammed” into him with such force that respondent’s license plate holder broke and the complainant fell off his bike which was irreparably damaged (Tr. 10- 12, 40, 44). At the hearing, he introduced what he insisted were the remnants of respondent’s license plate holder (Pet. Ex. 1). Respondent disputed that these remnants were from his cab and contended that they appeared to from a Lincoln Continental, while his vehicle was a Crown 9

Victoria (Tr. 14). Other than the complainant’s testimony, which I found to be self-serving, there was nothing to link the pieces of broken plastic that he produced to respondent’s vehicle. Moreover, not only was there no proof of damage to the complainant’s bike, but given the extent of the damage alleged, it is remarkable that he emerged so unscathed that he refused immediate medical attention and only sought it approximately five hours later, when persuaded to do so by family and friends (Tr. 11). In addition, the complainant testified that respondent physically assaulted him when respondent emerged from his vehicle. He could not recall where he was struck and suggested that it might have been at the side of the head or across his shoulders (Tr. 10, 45-47). Petitioner’s investigator’s report reflected that the complainant claimed to have been punched several times on the side of the head (Resp. Ex. C). Indeed, the complainant’s main reason for seeking medical treatment a few hours later was a feeling of lightheadedness (Tr. 11). Yet, the medical diagnosis appeared to reflect no correlation to his stated symptoms. Rather, he was treated only for back strain and shoulder sprain, injuries that are not inconsistent with cyclists’ exertions (Pet. Ex. 6). There was no indication that any purported head injuries were reported or addressed. The complainant testified that he called 911 soon after the incident occurred (Tr. 11). In support of this testimony, he submitted a telephone bill in his father’s name, which showed a call placed to 911 at 4:40 p.m. on the day of the incident (Pet. Ex. 7). There was no explanation as to why he submitted his father’s telephone bill and I decline to engage in speculation as to the true genesis of the call. Even if I were to accept the 911 call as the complainant’s, it is difficult to reconcile the time of the call with respondent’s GPS information on the taxitronic map (Resp. Ex. A). The data reflects that respondent stopped his meter at 16:41 hours (4:41 p.m.). Had there been a verbal encounter, followed by respondent striking the complainant’s bike with his vehicle, emerging from his vehicle, physically striking the complainant about the head and shoulders, then struggling with him for his bike, it is unlikely that the complainant’s call would have been made to 911 at 4:40 p.m., prior to respondent’s arrival on the scene and prior to the complainant’s encounter with respondent. It is also worth noting that this incident allegedly occurred at rush hour on a Friday afternoon. Yet, there was no suggestion by petitioner or the complainant that there were any witnesses to respondent’s supposedly vicious assault. In sum, while it is possible that the complainant was exposed to reckless driving by a taxicab driver that left him enraged, the credible evidence suggests that respondent was not that 10 driver. It may well be that the complainant was so incensed by his ordeal that he was determined that someone should pay for it. He declared that all yellow cabs look alike. Therefore, as far as he was concerned, the mere possibility that respondent was the driver who triggered his ire was enough to justify pursuing respondent. However, respondent’s testimony that he did not exit his vehicle, in spite of the complainant’s aggressive behavior, was corroborated by the passenger. Accordingly, petitioner has not established by a preponderance of the credible evidence that respondent assaulted the complainant, in violation of rule 2-60(b).

Stealing Complainant’s Personal Property Respondent is charged with acting against the best interests of the public by stealing the complainant’s bicycle lock. Rule 2-61(a)(2) prohibits a driver, in the performance of his duties, from committing or attempting to commit any act that is against the best interests of the public. Because I credit respondent’s, and his passenger’s testimony that he did not exit the vehicle, and that the complainant rode off ahead of respondent in the same direction as the passenger, I conclude that respondent did not steal the complainant’s bicycle lock, as alleged.

FINDINGS

1. The credible evidence did not support a finding that respondent drove in a reckless manner, in violation of Taxicab Drivers Rule 2-21(a).

2. The credible evidence did not support a finding that respondent verbally harassed a cyclist, in violation of Taxicab Drivers Rule 2-60(a).

3. The credible evidence did not support a finding that respondent assaulted a cyclist, in violation of Taxicab Drivers Rule 2-60(b).

4. The credible evidence did not support a finding that respondent acted against the best interests of the public, by stealing a cyclist’s bicycle lock, in violation of Taxicab Drivers Rule 2-61(a)(2). 11

CONCLUSION

Having found that petitioner’s charges were not supported by the credible evidence, the charges against respondent are dismissed.

Ingrid M. Addison Administrative Law Judge June 9, 2008

SUBMITTED TO:

MATTHEW W. DAUS Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ. Attorney for Petitioner

MOHAMED AYYAD Respondent pro se