Harris v New York City Tr. Auth.

[*1] Harris v New York City Tr. Auth. 2009 NY Slip Op 50181(U) [22 Misc 3d 1118(A)] Decided on January 22, 2009 Supreme Court, Kings County Saitta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 22, 2009
Supreme Court, Kings County

Pamela Harris, Petitioner,

against

New York City Transit Authority, Respondent.



14219/2008

Wayne P. Saitta, J.

Upon the foregoing papers in this CPLR Article 78 proceeding, petitioner Pamela Harris, (hereinafter "Petitioner"), acting pro se, seeks a judgment annulling the determination of Respondent, New York City Transit Authority (hereinafter "Respondent" or "NYCTA") which determined that the Petitioner did not present a legally valid excuse for her violation of 21 N.Y.C.R.R. §1050.4(a) . Petitioner asserts that she should not have to pay the fine as she is indigent.

Upon reading the Order to Show Cause in Special Proceeding by Petitioner PAMELA HARRIS, pro se, dated May 2nd, 2008, together with the Verified Petition of PAMELA HARRIS, dated May 2nd, 2008, together with the Affidavit of Emergency by PAMELA HARRIS, dated May 2nd, 2008, together with the Notice of Decision and Order by NYCTA, dated February 11th, 2008, together with the Notice of Impending Judgment on Final Default Decision and Order by Transit Adjudication Bureau, dated April 11th, 2008; the Verified Answer and Affirmation in Opposition by Eric Lio, Esq., Attorney for Respondent, NYCTA, dated May 20th, 2008. Upon request by the Court, Respondent NYCTA furnished a copy of the hearing held on February 11th, 2008 related to Petitioner's alleged violation. After argument of counsel and due deliberation thereon, the Article 78 petition is granted to the extent of vacating the fines and remanding the matter for a de novo hearing.

FACTS

On January 11th, 2008, Respondent alleges Petitioner entered the transit without paying the fare. A police officer issued Petitioner a Notice of Violation No.T099738706, (hereinafter "NoV"), pursuant to 21 N.Y.C.R.R. §1050.4(a) which imposed a civil fine upon her for $60.00 for fare evasion.

The NoV was answerable on or before February 11th, 2008. Petitioner appeared pro se for the Transit Adjudication Board hearing on February 11th, 2008.

The only proof presented by Respondent at the hearing that Petitioner was guilty of having violated 21 N.Y.C.R.R. §1050.4(a) was the NoV; the officer did not appear to testify.

Petitioner presented a letter from the "Holy Apostle Soup Kitchen" which she said should [*2]have permitted her access to the system without paying as she is a poor person. The hearing officer thereafter made a determination that Petitioner violated the statute, and that she did not have a valid legal excuse for having done so.

Having failed to pay the fine after 60 days, two $25.00 default penalties were assessed for each 30 days resulting in the total amount of $110.00 and on April 11th, 2008, a Notice of Impending Judgment of Final Default Decision and Order was mailed to her informing her that a judgment for $110.00 would be entered against her unless she paid the amount, or requested the judgment be vacated, by May 12th, 2008.

Petitioner then filed this petition.

In its answer, Respondent asserts two affirmative defenses, 1) that the proceeding is premature as Petitioner failed to exhaust all of her administrative remedies, and 2) that the petitioner fails to state a cause of action upon which relief can be granted and therefore must be dismissed.

DISCUSSION

In the process of determining that Petitioner violated 21 N.Y.C.R.R. §1050.4(a), Respondent conducted a hearing on February 11th, 2008 at which a hearing officer was present, who questioned Petitioner.

Pursuant to CPLR §7803(e), "The body or officer shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court."

The hearing transcript contains numerous notations of omissions where the transcriber states the content of the tape was "inaudible or indecipherable".

"Where ... a hearing is held, the determination [of an administrative agency] must be supported by substantial evidence". Bush v. Mulligan, 869 NYS2d 569, {57 AD3d 772} (2 Dept 2008) citing Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231, 356 NYS2d 833, 313 NE2d 321; see CPLR 7803[4] ). "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact'., Id., citing 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 180, 408 NYS2d 54, 379 NE2d 1183.

"In the case of an insufficient record, the procedure often used by the Article 78 court is to remit or remand the matter to the body or officer for further consideration. Remander is appropriate where the record is incomplete, "precluding a proper review of the particular determination". 6A N.Y.Jur 2d Article 78 § 340.

In this case the Respondent's submission is so incomplete that it is impossible to meaningfully review the hearing officer's determination that the Petitioner was guilty of the violation of which she was charged.

As there is not an adequate record to review, the Court need not reach the issue, which it raised sua sponte, that Respondent's procedures which allowed Petitioner to be found guilty and fined based on the notice of violation alone without the testimony of the officer who issued the notice, violated her constitutional rights to due process and to confront her accuser.

Accordingly, NYCTA must hold a new hearing with a proper record so Petitioner may seek review of any finding of violation and imposition of any fine. [*3]

WHEREFORE, Petitioner's Article 78 proceeding is granted to the extent of vacating the fine and the default penalties assessed against Petitioner and remanding the matter for a de novo hearing and determination.

This shall constitute the decision and order of this Court.

E N T E R ,

__________________________

JSC