Taxi and Limousine Comm n v. Koneh OATH Index No. 2146/14 (June 13, 2014)

Transcription

1 Taxi and Limousine Comm n v. Koneh OATH Index No. 2146/14 (June 13, 2014) In discretionary license revocation proceeding, petitioner failed to prove that a taxi driver used physical force against a passenger. ALJ recommends dismissal of the charges. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner - against - MUSA KONEH 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 Commission s Taxicab Drivers Rules. Respondent Musa Koneh, a taxicab driver with hack license # , is charged with forcibly taking a passenger s wallet and throwing it on the ground and using physical force against the passenger by ripping his watch off his wrist, breaking the band, and causing a gash in his arm, in violation of Taxicab Drivers Rules. See 35 RCNY 54-12(e) & (g) (Lexis 2013). A hearing was held on May 6, 2014, during which petitioner presented the testimony of the complainant, passenger James Dunn. Respondent testified on his own behalf. The TLC seeks revocation of respondent s taxicab driver s license and the maximum statutory fine of $1,850. Based upon the foregoing, I find that petitioner failed to establish the charged misconduct and recommend dismissal of the charges. ANALYSIS Section of the Taxicab Drivers Rules proscribes the deliberate performance of any act that is against the best interests of the public and prohibits the use of any physical force

2 - 2 - against a person by a driver in the performance of his or her duties or responsibilities as a licensee. 35 RCNY 54-12(e) & (g). Violation of these provisions subjects the driver to revocation, suspension up to 30 or 60 days, and/or fines up to $350 or $1,500, respectively. Respondent is charged with forcibly taking the passenger s wallet and throwing it to the ground, and ripping the passenger s watch off his wrist and damaging it by breaking the band, in violation of subsection e (Petition or Pet.). He is also charged with using physical force to rip the watch off the passenger s wrist, causing a gash in the passenger s arm, in violation of subsection g (Pet.). The charges arise from an incident occurring on December 19, 2013, at approximately 11:48 p.m., in the vicinity of 275 Summer Street, Stamford, Connecticut, where respondent was delivering passenger James Dunn to the location of a Courtyard Marriot hotel. Mr. Dunn testified that his company s holiday party was held in lower Manhattan on December 19 and ended around 9:00 p.m. (Tr. 9-10). He returned to his office to retrieve his bags. He called for car service, but they were booked (Tr ). He went to State and Whitehall Streets, near his office, to hail a taxicab. Although he resides in Atlanta, Georgia, he was working in New York that week, and he was staying at a hotel in Stamford, Connecticut (Tr ). He regularly stayed at the same hotel in Stamford because he and his family had lived in Stamford before moving to Atlanta a year earlier, and his children still live in the area (Tr. 12, 22). He had taken a taxicab to the hotel the previous night and the metered fare was $159 (Tr. 13, 51). Mr. Dunn testified that he drank two beers and two glasses of water at the holiday party (Tr. 10). He was certain of the number of drinks because, as a member of management at his company, he likes to set a good example for the employees. He also ate food from the buffet. Respondent drove up in his taxicab and Mr. Dunn got in (Tr. 13). He sat behind the passenger seat and gave the driver the address (Tr. 18). Mr. Dunn said there was no conversation between them during the trip, as he was busy checking and Facebook. He did recall, however, asking the driver to take Exit 7 off of Interstate 95, as it was a quicker route to the hotel during holiday traffic (Tr. 19). Mr. Dunn denied sleeping during the trip and denied being intoxicated (Tr. 50). When the taxi arrived in Stamford, respondent pulled up to the hotel, parallel to the street and perpendicular to the hotel driveway, without driving into the portico (Tr. 20, 26). As Mr.

3 - 3 - Dunn pulled out his wallet, respondent stated that the fare was $300 (Tr. 27). Mr. Dunn was shocked, given the much lower fare he had the previous night. He looked at the meter and realized for the first time that it was off. He had not thought to look at the meter sooner because the headrest was blocking his view (Tr. 29, 52). Respondent said he did not have the meter on. Mr. Dunn objected that a $300 fare was a rip-off. He often makes this trip and the fare could not possibly be $300. He told respondent to call his boss. Mr. Dunn said respondent began to escalate and insisted that he owed this money. He felt intimidated as the discussion got a little heated, although he denied there was yelling (Tr ). Respondent s demeanor indicated that [h]e wanted his money, he said (Tr. 28). He told respondent to call his boss or they would have a problem. Although he regularly took cabs, Mr. Dunn stated that he did not pay attention to whether there was a screen in the back of the taxicab and did not recall seeing anything on the screen, although he was aware that such a screen normally provided fare information (Tr. 52). He stated, if there was [a screen] on that vehicle,... I didn t notice if there was or not (Tr. 52). He conceded that such a screen would normally provide the passenger with the ability to swipe a credit card from the back seat, but he did not recall seeing a screen that offered him the option of paying cash or credit (Tr. 53). He did not recall pressing a button on the screen at the beginning of the trip (Tr. 52). He did not recall respondent making a phone call at the start of the trip (Tr. 50). Although he did tell respondent to call his boss at some point, he did not recall him doing so (Tr. 65). Mr. Dunn denied discussing a flat rate fare with respondent or negotiating a rate with him, and he said $200 was never offered as a fare (Tr. 52, 65). Since the encounter was getting heated, Mr. Dunn decided he wanted a witness, so he began to exit the cab to get a valet or doorman from the hotel (Tr. 29). He left his duffle bag inside the car. As he exited, he had his wallet in his right hand and he opened the taxi door with his left hand. Before he could look for a hotel employee, respondent ripped his watch off his left arm and slapped his wallet to the ground causing his credit cards to fly out, as far as five feet away into the street. He said that respondent stepped out of the cab for the altercation. He said it was a one shot move when the driver ripped off the watch. It was basically in and yank. (Tr. 33). Respondent held his watch as Mr. Dunn gathered his credit cards (Tr. 30). He told respondent that he was willing to pay $150; otherwise, he would call the police. Respondent agreed to take the $150. Mr. Dunn gathered his credit cards; respondent handed him his watch;

4 - 4 - and Mr. Dunn got back into the cab as the fare was paid (Tr. 35, 68). He gave respondent his American Express card and respondent ran the card (Tr. 30). 1 Sitting in the cab, Mr. Dunn signed his credit card receipt and returned it to respondent, who then asked for a tip (Tr. 30). He refused, shocked that respondent would ask after assaulting him. He slid over to the driver s side, which was on the side closer to the hotel (Tr. 31, 58), and exited the cab. Respondent drove away. Although they were on a well trafficked street, Mr. Dunn said no one stopped to inquire about what was going on (Tr. 58). Pedestrians walked past, looked and said what s going on here? but did not engage (Tr. 59). Although there was a desk for the hotel valet a short distance away, he did not recall if anyone was standing at the desk (Tr , 59). There was also a window on the portico that was directly in front of the hotel s front desk (Tr. 32). He surmised that no one from the front lobby of the hotel saw anything because no one came (Tr. 60). Mr. Dunn walked into the hotel. He did not notice that he was injured until a hotel employee said to him, you have blood all over your [shirt] cuff, as blood ran down his hand (Tr. 36). Only then did he realize that he had some gashes on his wrist as a result of the driver ripping his watch off his arm (Tr. 36). He went up to his room, took off his shirt, washed the gash in his arm, applied Neosporin ointment, and wrapped it in toilet paper to stop the bleeding (Tr. 44). He did not take photos of any evidence while in his hotel room, including the shirt he was wearing with the bloody cuff (Tr ). He did not call the police, or file a police report, or go to a hospital (Tr. 44, 63, 64). He left for Atlanta the following morning, a Friday (Tr ). He took a cell phone photo of his arm the following Saturday or Sunday, December 21 and 22 (Pet. Ex. 3; Tr. 37); he took photos of his broken watch four days after the incident (Pet. Exs. 4A, 4B). He never had the injury checked by a doctor or at a hospital. In addition to the photographs, petitioner submitted documentary evidence to corroborate Mr. Dunn s account of what happened, including the receipt for the cab ride (Pet. Ex. 1), Google Maps photos of the hotel, street, and portico (Pet. Ex. 2), and the passenger complaint form (Pet. Ex. 5). 1 Despite being adamant on direct examination, during cross Mr. Dunn could not recall who processed the transaction and was uncertain whether respondent did it for him (Tr. 67).

5 - 5 - Mr. Dunn identified the complaint he submitted to the TLC at 3:29 p.m. on December 23, 2013 (Tr. 65), which states as follows: Ride was from lower Manhattan to Stamford CT. when I arrived at my destination driver advised I owed him $ he did not use the Meter. I took the same trip the evening before and the fare was $ I told Him [sic] he needed to call his bosses or I would call the police. I attempted to leave the taxi to get the door man at the hotel to witness the event. The driver attacked me took my wallet and threw it on the ground, and ripped my watch off my wrist Breaking [sic] the band and causing a gash in my arm. (Pet. Ex. 5) (emphasis added). Mr. Dunn admitted that, contrary to the statement in his complaint, respondent did not take his wallet (Tr. 46). Rather, he slapped it out of his hand. Thus, he no longer claims that respondent took the wallet from him. Respondent denied there was any physical altercation with Mr. Dunn. Respondent testified that he picked up the passenger at State and Whitehall Streets as a street hail (Tr. 78). The passenger said he was going to Stamford, Connecticut, and respondent said it would be a flat rate because it was an out-of-town trip. Respondent said he would have to call his partner for the exact fare, because the partner had the book that published flat rate fares (Tr ). 2 For trips outside the City, Commission rules require the driver to negotiate a flat rate trip charge before the beginning of the trip. 35 RCNY 54-17(g)(1)(i). Respondent called his friend and asked for the fare to Stamford. His friend told him the fare was $332, so he discounted it to $300 and logged it into the meter. The passenger accepted it by selecting Yes on the screen that faces the rear seat. Doing so, respondent testified, causes the fare to then appear on the meter (Tr , 107). Respondent produced as an exhibit a copy of his trip log for that night, a record that the Commission maintains electronically (Resp. Ex. A). It indicates that respondent made a pick up at 22:42 hours, or 10:42 p.m., at the FDR Drive and made the drop off at 226 Summer Street in Stamford, Connecticut, for a fare of $300 (Resp. Ex. A). Drop off was at 23:30 hours, or 11:30 p.m. Id. According to respondent, the trip log is evidence that the passenger was appropriately charged a flat rate fare because the meter cannot charge a flat rate fare without the customer depressing Yes on the screen. The passenger may reject the flat rate by depressing No (Tr. 2 Respondent testified that this partner or friend is another driver with whom he shares the taxicab, splitting night and day driving shifts.

6 - 6-83). Once the rate is accepted, it will appear on the meter. Although petitioner s counsel disputed this fact, there was no evidence adduced on the record of the hearing upon which to do so. Respondent testified that, as he drove, the passenger fell asleep in the back seat (Tr. 84). Respondent thought he seemed a bit drunk (Tr. 84). Respondent awakened him as they neared Stamford, near Exit 7. The passenger told him to take Exit 8 as they had passed Exit 7 and he began to give respondent directions to the hotel. When they arrived, respondent pressed the time off and the fare appeared on the screen (Tr. 85). The passenger looked at the screen and said I never pay this amount, that he normally pays $150. Respondent replied that he did not think so. The passenger told him to call your boss, so he called his friend again to have him check the book for the correct price, because the passenger was disputing the amount. He told his friend to check the rates for Exit 7 or 8 (Tr. 94). The friend checked and noted that the $332 fare he had given him was actually for Stratford, not Stamford. (Respondent has an accent.) The flat fare to Stamford was listed as $209 (Tr. 86). Respondent explained the mistake to the passenger and offered him a rate of $200 and logged it into the meter (Tr ). Respondent produced a copy of the New York Chauffeur and Tourist Guide, a fare book used by many New York City taxicab drivers, according to his testimony (Resp. Ex. B). The fare book prices were consistent with his testimony. Mr. Dunn accepted the $200 fare using the screen (Tr. 95). However, he continued to complain that he had paid only $150 for the trip the day before, and he refused to pay any more than that rate (Tr. 97, 99). Respondent gave in and typed $150 into the meter, rather than be forced to contact the police over a refusal (Tr ). Mr. Dunn again accepted the price and paid with a credit card using the rear screen. Respondent denied swiping Mr. Dunn s credit card, stating that he has no ability to swipe a credit card from the front seat and that it is unlawful for him to take a passenger s credit card (Tr. 98). Respondent handed Mr. Dunn the receipt as he sat in the cab, and Dunn exited the cab (Tr. 102). Respondent said Mr. Dunn remained in the back seat the entire time and he only left the cab after paying (Tr. 99, ). The driver s trip log corroborates his account to the extent that it shows a succession of three flat rate fares charged for this trip: the trip from FDR Drive to Summer Street, arriving at 11:30 p.m., had a fare of $300; a second fare of $200 is charged at 11:41 p.m.; and a third fare of

7 - 7 - $150 is charged at 11:48 p.m. (Resp. Ex. A). Thus, I credited respondent s testimony about negotiating the fare with the passenger. I also credited respondent s testimony that he discussed the flat rate with Mr. Dunn prior to leaving downtown Manhattan. Mr. Dunn s testimony that he asked respondent to call his boss when the disagreement arose corroborated respondent s account. This would be an unusual request of a passenger unless there had been the earlier phone call to the friend (or boss ), as respondent testified, to consult the fare book about the appropriate fare to charge. I credited respondent s testimony that the passenger had to accept the flat rate fare for the meter to accept it. The Commission s counsel argued that it was possible for the driver to accept the rate from the front seat without passenger input (Tr ), but respondent s denial that he could impose a flat rate on a passenger without the passenger s acceptance was uncontroverted. Petitioner neither submitted evidence to disprove it nor sought an opportunity to supplement the record. Mr. Dunn s account -- that he never looked at the meter, not one time, during the 45- minute ride to Stamford, even though he was awake and active in the backseat -- was not credible. As an initial matter, it was inconsistent with his vigilance about the cost and insistence that he not pay more than he paid the prior evening. His failure to look at the meter was consistent with two of the claims made by respondent: that Dunn agreed to a flat rate fare and that he fell asleep and was possibly tipsy. I believe that the passenger fell asleep during the drive, after agreeing to a flat fee that he subsequently regretted. Respondent denied slapping the wallet from the passenger s hand; he denied yanking the watch from his wrist, and he denied attacking Mr. Dunn (Tr ). I found his denials of any physical altercation to be credible. He said they argued about the fare inside the cab, but there were no raised voices and no cursing, which was not inconsistent with Dunn who denied there was yelling (Tr ). Although respondent believed the $209 rate his friend reported to him was correct, respondent could not be certain since the friend had made a mistake the first time, which is why he gave in and agreed to the $150 (Tr ). He said he did not get angry. Respondent evinced a calm demeanor at the hearing. He offered straightforward testimony about the incident and his motivation to resolve the dispute so that he could be paid and return to New York City. He did not appear to exaggerate any aspect of his testimony.

8 - 8 - Respondent ultimately left the hotel with another fare in his taxi. He said the hotel was crowded as there appeared to be a party going on, and that passengers congregated outside the cab waiting for them to complete their transaction and, as soon as Mr. Dunn exited, he took on another passenger (Tr ). This is corroborated by the trip log which shows that respondent picked up a fare from a location nearby (Resp. Ex. B). This would hardly have been the case had anyone observed the driver in an altercation with a passenger who left the cab bleeding. There were several aspects of Mr. Dunn s story that were difficult to credit. He insisted there was no negotiation of the fare, while the driver s trip log corroborates respondent s testimony that there was a succession of fares accepted by Dunn. There is no explanation for the succession of fares offered in Dunn s account. Petitioner would have this tribunal speculate that respondent himself accepted the fares without input from the passenger, but the Commission failed to demonstrate that any such thing was possible. Though it was possible that hotel staff were inattentive at the moment of his arrival, I thought it odd that no one from the hotel came over to assist Mr. Dunn, particularly if he was physically attacked outside of the taxi and forced to pick up scattered credit cards from the street, as he said. According to photographs submitted as evidence, the hotel is well lit, located in a commercial area, with windows in front that would have put him in view of a doorman or valet; the cab was only a few feet away from an entrance and within sight of the valet station. Even after the fact, he might have told the story to an employee who could have corroborated it for him, and would have most likely called the police for him. Another problematic aspect of petitioner s case is the photograph of the alleged injury to Mr. Dunn s arm (Pet. Ex. 3). The photo is of a jagged, partially-healed wound with red, black and yellow colored tissue, suggesting either infection and/or scab formation. Dunn said the photo was taken two or three days later and he testified that the injury had started to fester over as it was turning yellow in a couple of places (Tr. 37). The wound in the photograph does not appear to be a two days old. It looks both older and unlike a wound created by having a watch yanked off of a wrist. I also had difficulty with the perspective of the photograph and I stated as much at the hearing (Tr. 73). The wound appears in the photograph to be very large, although it could be a close up of a very small wound. If it is as large as the scale in the photograph, it could not possibly be a wrist injury. The photograph shows a thick area of flesh and no nearby bones that

9 - 9 - would indicate it is an injury close to the wrist. Thus, aside from the lack of perspective in terms of size, I could not confidently identify the body part in the photo to be an arm. No hand or fingers are visible. At the hearing, Mr. Dunn showed me the side of his lower arm near the wrist, which had a reddish blotch on it, to indicate where the wound depicted in the photo had been on his body. However, the blotch he showed me was very near his wrist, in a boney, narrow area of the arm. This is not the area depicted in the photo. If I were to fathom a guess as to the part of the anatomy depicted in the photograph, I would guess that it is a thigh or upper arm. Significantly, Mr. Dunn himself cannot be identified in the photograph. When asked about the perspective of the photo, Mr. Dunn stated that he lacked experience of this kind and he had not thought to capture scale and size (Tr ). He showed me one other photograph of the alleged injury from his phone, but it was qualitatively the same as the one already in evidence (Tr. 71). Aside from the photograph, I did not understand how large gashes could form in a single yanking motion leveled at a wristwatch, why the gashes would be located in a large fleshy area of the arm when the watch was allegedly torn from the wrist, or how the creation of these gashes did not tear open the long sleeved cuffed shirt that Dunn wore. None of these questions could be answered by the evidentiary record before me. The photographs of the watch, which Dunn said he took after returning home to Atlanta, were grainy and of marginal value (Pet. Exs. 4A, 4B). They are of a watch with one of its bands separated from the face but the degree to which the watch is broken is not discernible. Mr. Dunn testified that the brand of his watch was Tissot (Tr. 34), a designer brand that ranges in price from several hundred to several thousand dollars, but the face of the watch is not large enough to make the name visible. When asked on cross examination why he did not bring the watch to the hearing, he said, I usually don t wear it with this suit (Tr. 68). This suggested the watch was wearable and in working order, although he did not say so directly. I will not speculate why so many unanswered questions remain. Having found the evidence of injury incredible, I also find the claim that there was any physical assault lacking in credibility. Once the driver had ripped the watch off his arm, as was testified, I do not believe a passenger would then get back into the cab and pay the bill. Particularly since they were parked at a central location in front of a major hotel chain, it would have been easy to contact the police via hotel security; yet Dunn did nothing to alert anyone at the hotel. The hotel would

10 presumably have camera surveillance of the area right outside of its front door, which could have provided corroboration. In the end, I simply did not believe petitioner s case. It is petitioner s burden to prove liability by a preponderance of the evidence, and its evidence failed to support a finding that there was any physical altercation in which respondent ripped the passenger s watch off his wrist, damaged the watch, and caused a gash in the passenger s arm, or took the passenger s wallet and threw it to the ground. It is a serious allegation that a taxicab driver licensed by the New York City Taxi and Limousine Commission would attack a passenger in a fare dispute, creating a wound of some seriousness, but the record of this case did not sustain the charges. I therefore recommend dismissal of the charges. FINDING AND CONCLUSION Petitioner failed to prove that respondent used physical force against a passenger by forcibly taking a passenger s wallet and throwing it to the ground and by ripping his watch off his wrist, breaking the band, and causing a gash in his arm, in violation of Taxicab Drivers Rules 54-12(e) and (g). RECOMMENDATION For the foregoing reasons, I recommend dismissal of the charges. June 13, 2014 Tynia D. Richard Administrative Law Judge SUBMITTED TO: MEERA JOSHI Commissioner APPEARANCES: JI JAHNG, ESQ. Attorney for Petitioner FASIH DIN, ESQ. Attorney for Respondent