All Pro Autobody Inc. v New York City Dept. of Consumer Affairs

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All Pro Autobody Inc. v New York City Dept. of Consumer Affairs 2021 NY Slip Op 30120(U) January 14, 2021 Supreme Court, New York County Docket Number: 151170/2020 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 01/15/2021 12:23 PM NYSCEF DOC. NO. 47 INDEX NO. 151170/2020 RECEIVED NYSCEF: 01/15/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART IAS MOTION 59EFM Justice ------.------------------------------------------------------------------X ALL PRO AUTOBODY INC. and LUIS RIVERA, 151170/2020 INDEX NO. 03/24/2020 MOTION DATE Petitioners, MOTION SEQ. NO. ---=:....:____ -vNEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS, DECISION + ORDER ON MOTION Respondent. ---------------------------------------------------------------------------X The following e-filed documents. listed by NYSCEF document number (Motion 001) 2, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29,30, 31,32, 33, 34, 35, 36, 37, 38, 39,41,42,43,44,45,46 ARTICLE 78 (BODY OR OFFICER) were read on this motion to/for ORDER Upon the foregoing docum~nts, it is ORDERED and ADJUDGED that the petition is granted only to the extent that the penalty of termination of petitioner's tow truck licenses is vacated, and the matter is remanded to respondent for imposition of a lesser penalty, and the proceeding brought pursuant to CPLR remainder article of the 78 is otherwise determination disposed dated by November confirming 21, 2019 respondent, without costs. DECISION In its determination dated November 21, 2019 (determination), respondent found that petitioner 151170/2020 ALL PRO AUTOBODY INC. vs. NEW YORK CITY DEPARTMENT OF Motion No. 001 ' 1 of 4 Page 1of4 the of [*FILED: 2] NEW YORK COUNTY CLERK 01/15/2021 12:23 PM NYSCEF DOC. NO. 47 INDEX NO. 151170/2020 RECEIVED NYSCEF: 01/15/2021 "possessed automobile liability coverage for its tow trucks in the amount of less than the two hundred thousand dollars for injury or death of any one person resulting from any one accident, less than five hundred thousand dollars for injury or death from any one accident, and less than fifty thousand dollars to or (sic) destruction of property of one or more persons resulting from any one accident, for the period covering January 10, 2018 through March 7, 2019, in violation of 6 RCNY § 2-362(d) ." Such finding is neither arbitrary and capricious nor otherwise unlawful, and is, in fact, not disputed by petitioner. This court likewise finds rational, respondent's reasoning that petitioner's alleged ignorance of the purported "new policy requirements" 1 is beside the point. As found by respondent, in each 'of the three applications, petitioner submitted certificates of insurance that reflected sufficient ultimately, coverage upon subpoena, under the current Nationwide General rule, while, Insurance Company produced the policies of insurance that showed that the actual coverage amounts were less than required under 6 RCNY 6 RCNY § 2- 362 (d). However, while respondent states in its determination that "intent is not a requirement under the law", times that certificates petitioner of submitted insurance. This it repeats several "fraudulent court finds and such falsified" reasoning A review of the history notes for 6 RCNY § 2-362 show that the only amendment to subsection d with respect to liability insurance for the past ten years was to delete the word "personal" before the word "injury". 1 151170/2020 ALL PRO AUTOBODY INC. vs. NEW YORK CITY, DEPARTMENT OF Motion No. 001 2 of 4 Page 2 of4 [*FILED: 3] NEW YORK COUNTY CLERK 01/15/2021 12:23 PM NYSCEF DOC. NO. 47 INDEX NO. 151170/2020 RECEIVED NYSCEF: 01/15/2021 irrational as it fails to consider that each and every certificate states on. its face that it was produced by non-party All City Insurance Services, which is documentary evidence that petitioner did not fabricate such documents. Such documentary evidence is also consistent with petitioner's sworn statement that he relied upon such insurance broker for its expertise in securing adequate coverage. Though certainly not an excuse for violation of the mandated insurance requirements, petitioner 1 s such evidence establishes no more than negligence on the part of petitioner for not reading and comparing the certificates of insurance with the actual policies of insutance to confirm that his affirmations in the applications for the towing licenses were true and correct as to insurance coverage. Moreover, in its determination, petitioner finds "DCA concludes that as of March 7, 2019, All Pro Autobody has insurance coverage that satisfies the requirements in the laws and rules." Therefore, "[i]n the absence of a finding of willfulness or an intent to deceive in connection with the foregoing violations, 151170/2020 ALL PRO AUTOBODY INC. vs. NEW YORK CITY DEPARTMENT OF Motion No. 001 3 of 4 Page 3of 4 [*FILED: 4] NEW YORK COUNTY CLERK 01/15/2021 12:23 PM NYSCEF DOC. NO. 47 the violations INDEX NO. 151170/2020 RECEIVED NYSCEF: 01/15/2021 do not warrant cancellation of petitioner's license" (Platinum Pleasures of N.Y., Inc. v New York State Liquor Authority, 126 AD3d 587, 588-589 [l 5 t Dept. 2015]). 1/14/2021 DATE CHECK ONE: DEB CASE DISPOSED GRANTED D A."JA NON-FINAL DISPOSITION . DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 151170/2020 ALL PRO AUTOBODY INC. vs. NEW YORK CITY DEPARTMENT OF Motion No. 001 4 of 4 E : J.S.C D D OTHER _REFERENCE Page 4 of4

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