Matter of Donmez v Department of Consumer Affairs

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Matter of Donmez v Department of Consumer Affairs 2014 NY Slip Op 31726(U) February 5, 2014 Sup Ct, New York County Docket Number: 401875/2013 Judge: Peter H. Moulton Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT Of TJ IE STATE OF 1'\EW YORK COUNTY OF NEW YORK: LAS. PART 57 (formerly 40 B) -------------------------------------------------------------------)( In the Matter of Ibrahim Donrnez, Petitioner, Index No. 401875/2013 - against Department of Consurner Affairs, Department of Parks and Recreation Respondents. ------------------------------------------------------------------)( PETER H. MOUJLTON, .LS.C.: Petitioner, a pedicab driver and pedicab ovvner, moves by verified petition dated October 25, 2013 (motion sequence 001) for a judgment annulling respondents' c'.ecisions to issue two violations to petitioner pursuant to the Administrative Code of the City oft-.iew York and their decisions to uphold the fines assessed by the administrative lmv judge of$500.00 per violation. 1 [n determining the amount of the fine, \vhich may be imposed \\ithin a statutory range of $200.00 to $500.00 per offense, the hearing officer, without explanation, imposed the highest fine. 1 Petitioner also argues that the hearing officer's rejection of petitioner's constitutional arguments, including one based on unreasonable search and seizure, \Vas arbitrary, capricious and in error of law. Respondents maintain, among other things, that this matter must be transferred to the First Deparlment because a hearing was held and any determination is bused on the substantiai evidence. Petitioner appears to consent to a transfer because he previously moved lo have the matter transferred 1 Petitioner's appeal was denied by Bruce M. Dennis Director of Adjudication by Decision and Order dated June 28, 2013. 2 Petitiont>r also argues that the fines arc improper because he cannot afford to pay them. [* 2] to the Appellate Division. The court declined to sign petiticner's Order to Show Cause as premature and ur:necessary (sf:'e Decision and Order, dated November 27, 2013). Petitioner also moves under a second verified pet' ti on, dated \Jovcrnber 1, 2013 {motion sequence 002). Ile seeks an order granting him conditional pedicab driver's anci business licenses, and for a dctcnnination that respondents violated his constitutional rights by failing to provide him with a hearing on the revocation/refusal to renew his licenses.' Respondents maintain that due process does not require a hearing bcccmse petitioner docs not have a property interest in a license. DCA notes that it mailed petitioner a letter, dated September 19, 20 J 3, which advised him that if the fines \\ere not paid by September 30, 2013 "your Ecensc(s) will be suspcnded.'' 1 By email dated September 25, 2013, petilioner was cautioned that failure to pay the fines couhl result it: suspension of his licenses under Administrafrve Code§ 20-104 (e) (3 ), \Vhieh permits suspension of the ¢·ticc!lse of any person pending payment of such fine.'' No action was taker: regarding the business license until petitioner attempted to renew that Jicensc upon its November 1, 2013 expiration. 5 Petitioner's October 31, 2013 renewal application was denied by letter dated >Jovcmber 6, 2013. The letter explained that the application was denied under Administrative Code § 20-104 (c) (3 ), based on petitioner's refusal to pay the fines, and. under Administrative Code § 20-10 l, becm:sc petitioner ··lacked the honesty and integrity required of all persons \Vho hold a license issued by :he Department." 3 Petitioner questions why a hearing 'vas provided to him regarding the violations, but regarding the licenses. 1 ¢ 111.lt By order dated March 13, 2013 the appcalsjudgc stayed enforcement of the decision of the administrative law judge until the determination of the appeal. 5 Pctitioncr asserts that his driver's license was suspended October l, 2013. [* 3] Petitioner further moves under motion seq 004 for this court 10 restore his licenses, upon the payment of the $1,000 fine. By email dated January 9, 2014, respondents conditioned restoration of petitioner's licenses-not only upon payment oft he S1 ,000 fine-but upon petitioner's '-'Vithdrm:val of his Article 78 proceeding before this court and another judge. No legal basis is asserted for the condition that petitioner's licenses may be restored only upon his waiver of his day in court. HO\vever. opposition papers in response to the most recent motion are not due until the return date of the motion on Febraary 10, 2014. 6 Discussion The verified petition dated October 25, 2013 and all papers under motion sequence 00 l must be transfoned to the Appellate Division, First Department (see A1arter (~/Spano v lvew York State Racing & Wagering Bd., 72 AD3cl 404, 405 I l st Dept 201 OJ [court erred in i::ntcrtaining petitioner's argument regarding an illegal search before transferring the proceeding to the appellal<: division because that argument did not constitute such other objection as could terminate the proceeding under CPLR 7804 [g]). However, the verified petition dated November 1, 2013 and all papers under motion sequence 002 and 004, regarding petitioner's licenses, stand on a different fcoting. No hearing was held on these issues and therefore, the issue is not b<!sed on substantial evidence \Vhich ·would require a transfer to the Appellate Division. Accordingly, it is hereby ORDERED that verified petition dated November 1, 2013 and all papers filed under motion Respondents' mvn memorandum of law at page 25 states "'pe~itioncr is free at this time to satisfy the fine assessed against him and DCA \Vould tr.en renew his pedicab business license.'' Other than payment, no condition is attached to restoration of the license. 6 3 [* 4] sequence 002 and sequence 004 arc severed from this proceeding and shall be assigned a separate index number 1.vithout puyment oLmy fees; and it is further ORDERED that petitioner file an RJl after assigrnm:nt of a separate index number, and shall indicate on the IUI that the proceeding should be refcn-cd to this coun; and it is fm1.her ORDERED that the verified petition dated November l, 2013 is held in abeyance pending respondent's submission of opposition papers on f cbruary 10, 2014 and any other papers which the couti may request; and it is further OR DER fl) that after the Clerk oCthe Court severs the matter as described above and assigns a separate index number for the proceeding retained by this court, the verified petitio:i dated October 25, 2013 and all papers under motion sequence 001 and motion sequence 003 shall be respectfully transfcITcd to the Appellate Division, First Department, for disposition, pursuant to CPLR 7804(g/; and it is ORDERED that respondents file a copy of this Decision and Order \vith the Cicrk of the Court within 10 days from the date hereof. v.-ho is directed to transfer the file as specified above to the Appellate Division, First Depar:ment. This Constitutes the Decision and Order of the Court. Dated: Febmary 5, 2014 ENTER: __ __,.:._____ .... -·- ~~-"' ¢ ¢ -« ;:__,_..:_ ,/; ~ ~ J.S.C. 7 By Decision and Order dated November 27, 2013, the court declined to sign an Order to Show Ca:.ise (motion sequence 003 ). 4

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