EL MOSAAD MOHAMED-ALI v. CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EL MOSAAD MOHAMED-ALI,

Plaintiff-Appellant,

v.

CITY OF NEWARK, a Municipal Corporation of the State of New Jersey,

Defendant-Respondent,

and

CITY OF NEWARK, DIVISION OF TAXICABS, a corporate and politic of the City of Newark, MARIA MARTINEZ, individually and in her capacity as Dispatcher, JOSE LABOY, individually and in his capacity as Chairperson for Taxi Cab Commission, ALVERA WIGGINS, individually and in her capacity as Acting Director of the Division of Taxicabs, EDWARD SELLERS, individually and in his capacity as Commissioner of the Taxi Cab Commission, GERARD ALEXANDRE, individually and in his capacity as Commissioner of the of the Taxi Cab Commission, D. RODNEY DAVIS, individually and in his capacity as Commissioner of the Taxi Cab Commission, LUIS OSORIO, former Manager of Division of Taxi Cab Commission, MARCIA SPRUILL, Chief Inspector of Division of Taxicabs, LUIS MUNOZ, Special Inspector Division of Taxicabs, JAMES CRAWFORD, individually and in his capacity as Commissioner of the Taxi Cab Commission, JOHN KEMP, individually and in his capacity as Business Administrator for the City of Newark, JANE DOES 1- 4 AND JOHN DOES 1-4.

Defendants.

___________________________________________

September 13, 2013

Submitted April 23, 2013 Decided

Before Judges Yannotti and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No L-5245-09.

Elmosaad Mohamed-Ali, appellant pro se.

Department of Law, City of Newark, attorneys for respondent (Anna Pereira, Corporation Counsel, of counsel; Steven F. Olivo, on the brief).

PER CURIAM

Plaintiff Elmosaad1 Mohamed-Ali appeals from the March 2, 2012 Law Division order granting summary judgment to defendant City of Newark and dismissing his complaint. For the reasons that follow, we affirm.

We glean the following from the sparse record. Plaintiff worked as a licensed taxi driver in the City of Newark since 2000. On June 27, 2007, plaintiff had an altercation with a dispatcher at Newark Liberty International Airport. The next day, plaintiff received a phone call from an employee of the Newark Division of Taxicabs (Division), requesting that he come to the Division s office immediately. When plaintiff arrived, he was informed that his license was being suspended immediately, pending a hearing on the airport incident. Plaintiff also received a written notice of the July 12, 2007 hearing, stating that the hearing concerned the complaint the dispatcher brought against him for the June 26, 2007 incident and citing the municipal ordinance violations with which he was charged.

At the July 12, 2007 hearing before the Newark Taxi Commission, the airport dispatcher testified that plaintiff had physically attacked her after she spoke to him about not following her instructions. Plaintiff denied the dispatcher s statements and reported that the dispatcher yelled at him, then struck him and suddenly fell to the ground. The Commission members credited the dispatcher s statements and suspended plaintiff's taxi license for six months. Plaintiff had the right to appeal a suspension to the Business Administrator for a hearing. Newark, N.J., Rev. Gen. Ordinances tit. 34, ch. 1, art. 11, 53(a) (2012). If he was dissatisfied with that result, he had a right to appeal to the City Council.2

After the Commission hearing, plaintiff obtained written instructions on how to appeal and obtain a stay of the license suspension. He had to file a written application of appeal within seven days of the Commission's decision, pay a $75 filing fee and deposit $200 for the transcript. "Upon completion and acceptance of the above items by the Division of Taxicabs, a stay of execution will commence." The record shows that on July 13, 2007, plaintiff paid the filing fee and made the transcript deposit. The only written application for a hearing in the record was addressed to the Business Administrator, dated June 29, 2007, wherein he protested the June 27 suspension and requested a hearing.

On July 17, 2007, an attorney representing plaintiff wrote to the Assistant Corporate Counsel heading the litigation unit inquiring about the plaintiff's appeal and the automatic stay. The record does not reflect this Assistant Corporation Counsel had any responsibilities with the Division, what response plaintiff s attorney received, or what the attorney did to follow up the letter. When a different attorney representing plaintiff wrote directly to the Division in October 2007, he received an immediate response. The Division informed him that plaintiff was entitled to a stay, which he could obtain by going to the Division s office and filling out some papers for a temporary license, which would remain in effect until the appeal was completed. The record does not reflect what plaintiff did in response to this information.

On June 25, 2009, plaintiff filed a complaint against Newark, several Newark employees, and other individuals, alleging that he had been deprived of his property interest in his taxi license without due process of law, contrary to 42 U.S.C.A. 1983. He alleged that the notice of the hearing was insufficient, the hearing was inadequate and unfair, and he was denied his right to an appeal. He also alleged that the six- months suspension was not permitted by the municipal ordinance. He claimed damages due to the six month license suspension of loss of income plus numerous related economic losses.

After discovery, defendants moved for summary judgment, arguing that plaintiff had been provided with due process, never pursued the appeal or obtained a stay of the suspension, and, thus, did not suffer any losses due to any illegal actions of the defendants. The judge agreed that plaintiff had a property interest in his taxi license. The judge found, however, that the written notice of the July 12, 2007 hearing was sufficient to provide notice of the charges and that plaintiff had an opportunity to present evidence and confront the witness.

The judge also observed that plaintiff had a right to appeal to the Business Administrator for another hearing, which provided for an automatic stay of the suspension. The judge found that the record did not show that plaintiff appealed to the Business Administrator at all. He characterized plaintiff's demand for damages for the six months suspension when he could have gotten a stay of that suspension as an attempt to be reimbursed for damages he did not need to suffer in the first place. Finding that plaintiff failed to demonstrate that his due process rights had been violated, the judge granted defendants motion and dismissed the complaint. This appeal followed.3

On appeal, plaintiff reiterates his contentions that Newark deprived him of his property interest in his license without due process through the defective hearing notice, unfair hearing, excessive suspension, and denied stay. The City argues that the record does not support his arguments.4 We find no merit in plaintiff's arguments.

First, we address a serious deficiency in plaintiff's appendix. The appendix must include "such other parts of the record . . . as are essential to the proper consideration of the issues[.]" R. 2:6-1(a)(1)(I). Specifically, if the appeal follows from the granting of a summary judgment motion, the appendix must include "a statement of items submitted to the court . . . and all such items shall be included in the appendix, except" briefs. Ibid.

Here, plaintiff submitted his attorney's brief in opposition to summary judgment, but failed to include a statement of items or the items themselves submitted by Newark or his attorney supporting or opposing the motion. The judge referred to this record in reaching his decision. Such deficiencies hinder appellate review. Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002).

Our review of a trial court s grant of summary judgment is de novo, applying the same standard as the trial court under Rule 4:46-2(c). Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). A motion for summary judgment should be granted only when the moving party establishes the absence of any genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We accord no special deference to the legal conclusions reached by the trial judge. Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995).

The Legislature has conferred on municipalities the authority to regulate the operation of taxicabs in a municipality. N.J.S.A. 40:52-1. A municipality may require any taxicab that operates on its streets to obtain the consent of the governing body to do so. N.J.S.A. 48:16-2. "'The right to operate a taxicab is a franchise' . . . limited by law to those who have obtained the requisite" consent by obtaining a license. Paige v. Red Top, Inc., 106 N.J. Super. 254, 257 (App. Div.) (quoting Naseef v. Cord, Inc., 90 N.J. Super. 135, 140 (App. Div.), aff'd, 48 N.J. 317 (1966)), certif. denied, 54 N.J. 515 (1969).

A taxicab license holder is entitled to basic procedural fairness when the municipality makes a determination directly affecting his license. See In re Limongelli v. N.J. State Bd. of Dentistry, 137 N.J. 317, 328 (1993) ("Basic procedural fairness has always been a cornerstone of administrative law in this State."). "The right to a hearing before a governmental agency, whose proposed action will affect the rights, duties, powers or privileges of, and is directed at, a specific person, has long been imbedded in our jurisprudence." Cunningham v. N.J. Dep t of Civil Serv., 69 N.J. 13, 19 (1975). The elements of procedural fairness include "a chance to know the opposing evidence and argument and to present evidence and argument in response." High Horizons Dev. Co. v. N.J. Dep t of Transp., 120 N.J. 40, 53 (1990). Hence, as the judge found, plaintiff had a property interest in his taxicab license and was entitled to due process in his license suspension.

From the limited record on appeal, we find no basis to reverse the trial judge's determination. The record supports the judge s finding that plaintiff had adequate notice of the charges against him and had the opportunity to hear the evidence against him and present his testimony and argue his case.

Plaintiff s argument that he was illegally suspended for six months when the municipal ordinance provides for a maximum of one month is a misreading of the pertinent ordinance. The Commission may suspend a license without any time limitation under Newark, N.J., Rev. Gen. Ordinances, supra, tit. 34, ch. 1, art. 11, 54(a) (2012). The Commission may only revoke a license or medallion for thirty days under 54(b). Plaintiff erroneously argues that the Commission was limited to a thirty day suspension based upon the time limitation in the regulation pertaining solely to revocations.

Further, the claimed unfairness of the Commission s decision could have been addressed during the appeal to the Business Administrator if it had been perfected. The only document in the record purporting to file a written appeal with the Business Administrator is dated June 27, 2007, and does not meet the requirement that it be filed within seven days after the Commission hearing. If plaintiff perfected his appeal to the Business Administrator, he had an automatic right to a stay of the suspension, thus preventing the losses he complained about at least until the end of the appeals process. The record does not demonstrate that Newark failed to provide plaintiff with the appropriate notice and opportunity.

Based upon the record presented to us, evaluated in the light of the applicable legal principles, we find no basis to disturb the trial judge s order.

Affirmed.

1 Plaintiff s name is incorrectly spelled El-Mossad in the initial caption.

2 This was represented by Corporation Counsel at the summary judgment hearing.

3 Plaintiff filed the notice of appeal indicating that he was only challenging the dismissal of his claims against Newark.

4 Both parties also raise issues under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, which are not part of the case in the trial court and cannot be raised for the first time on appeal. Cnty. of Essex v. First Union Nat'l Bank, 186 N.J. 46, 51 (2006).