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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
THE CITY OF NEW YORK and THE NEW YORK
CITY TAXI AND LIMOUSINE COMMISSION, AFFIRMATION IN
Plaintiffs, SUPPORT OF
PLAINTIFFS'
MOTION
-against- FOR SUMMARY
JUDGMENT
Index No.: 451092/2019
PEDRO ESPINAL,
Defendant.
JESSICA R. TAVARES, an attorney duly admitted to the practice of law in the courts of
the State of New York, affirms the truth of the following under penalty of perjury pursuant to
Section 2106 of the Civil Practice Law and Rules ("CPLR"):
1. I am of counsel to Christopher C. Wilson, attorney for the Plaintiffs in above
captioned action, who is acting pursuant to a designation from the Corporation Counsel of the
City of New York.
Plaintiffs'
2. I make this affirmation in support of motion for summary judgment
pursuant to CPLR § 3212. This affirmation is made upon information and belief, based upon my
review of records maintained by, and information obtained from various departments of the city
government, and from statements made to me by officers and/or agents of the City of New York.
BACKGROUND
December 15. 2018 Violation
3. On December 15, 2018, Taxi and Limousine Commission (Hereafter "TLC")
Inspector David Demi-Ejegi issued Defendant Summons No. 71201833A, alleging that on
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December 15, 2018, Defendant violated Section 19-506(b)(1) of the Admin. Code by allowing a
2003 Honda car bearing Vehicle Identification Number ("VIN") 5FNRLl 8603Bl 01459
(hereinafter the "subject vehicle"), to be operated for hire without a TLC vehicle license. h TLC
Summons No. 71201833A, annexed hereto as Exhibit 1.
4. On February 7, 2019, Defendant pled guilty to Summons No. 71201833A and
entered into a stipulation that explicitly established that a guilty plea would count as a prior
violation for purposes of calculating future penalties. S_ee Guilty Plea and Stipulation to Summons
No. 71201833A, annexed hereto as Exhibit 2.
May 28. 2019. Violation
5. On May 28, 2019, TLC Inspector Alexis Velasquez issued Defendant Summons
No. 70271324A, alleging that on May 28, 2019, Defendant violated Admin. Code § 19-506(b)(1)
by operating the subject vehicle for hire without a TLC vehicle license. h TLC Summons No.
70271324A and Notice of Vehicle Seizure, annexed hereto as Exhibit 3.
6. At the time Summons No. 70271324A was issued, and pursuant to Admin. Code §
19-506(h), TLC seized the subject vehicle. S_ee Exhibit 3.
7. On June 4, 2019, at a hearing on Summons No. 70271324A at OATH, Defendant
appeared, and after a hearing, was found guilty by a preponderance ofthe evidence of violating Admin.
Code § 19-506(b)(1) by OATH Hearing Officer Jodi Harawitz. Hearing Officer Harawitz further
ordered that TLC release the subject vehicle pending a civil forfeiture proceeding. See Notice of
Decision on TLC Summons No. 70271324A, annexed hereto as Exhibit 4.
8. Upon information and belief, Defendant is and has been at allapplicable times, the
titledand registered owner of the subject vehicle. See Department of Motor Vehicles Abstract,
annexed hereto as Exhibit 5.
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9. Pursuant to Admin. Code § 19-506(h), the subject vehicle is forfeitable.
SUMMARY OF THE PLEADINGS
10. On July 17, 2019, Plaintiffs timely commenced this civil forfeiture action against
Defendant PEDRO ESPINAL with the filing of a Summons and Complaint. See Summons and
Complaint, annexed hereto as Exhibit 6.
11. Service of the Summons and Complaint was effectuated upon Defendant on July
23, 2019 at Defendant's last known address via service on a person of suitable age and discretion,
Mr. Fausto Espinal who identified himself as Defendant's father, along with service by mail to the
Defendant's last known address. See Affidavit of Service, annexed hereto as Exhibit 7.
12. In their Plaintiffs alleged that Defendant violated Admin. Code 19-
Complaint, §
506(b)(1) on two separate occasions within 36 months and that the subject vehicle was used in the
commission of the most recent offense.
13. On August 12, 2019, Defendant PEDRO ESPINAL served an Answer upon
Plaintiffs in which he denied knowledge or information sufficient to form a belief as to the truth
of the allegations of the complaint. Notably, Defendant did not specify which allegations he
denied knowledge of. As of date of filing for this motion, Defendant's Answer has not yet been
filed with the Court. See Defendant's Answer, annexed hereto as Exhibit 8.
APPLICABLE LAW
14. Pursuant to Admin. Code § 19-506(b)(1), itis unlawful to operate or permit
another to operate a vehicle "as a taxicab, coach, wheelchair accessible van, commuter van, HAIL
city"
vehicle or for-hire vehicle in the without having obtained a license for such vehicle from
TLC.
15. Admin. Code § 19-506(h)(2) further provides that if an owner of a vehicle is guilty
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of two or more violations of Admin. Code § 19-506(b)(1) within a 36-month period, "the interest
of such owner in any vehicle used in the commission of any such second or subsequent violation
determination."
shall be subject to forfeiture upon notice and judicial
16. A judgment in favor of Plaintiffs results in forfeiture of the subject vehicle to the
Plaintiffs. Since forfeiture is a civil proceeding, Plaintiffs need prove only by a preponderance of
the evidence that the vehicle is subject to forfeiture. Property Clerk v. Ferris, 77 N.Y.2d 428, 430
(1"
(1991); Property Clerk v. McDermott, 585 N.Y.S.2d 746, 749 Dept. 1992).
SUMMARY JUDGMENT STANDARD
17. CPLR § 3212(a) states that "[a]ny party may move for summary judgment in any
joined."
action, after the issue has been A summary judgment motion "shall be granted if,upon
all the papers and proof submitted, the cause of action or defense shall be established sufficiently
."
to warrant the court as a matter of law in directing judgment in favor of any party . . C.P.L.R. §
3212 (b). The Court of Appeals has stated that summary judgment may only be granted in any
proceeding when ithas been ascertained that there are no outstanding triable issues of fact;
summary judgment does not deny the parties a trial, but merely ascertains that there is nothing to
try. Matter of Suffolk County Department of Social Services, on behalf of Michael V. et. al v.
James M., 83 N.Y.2d 178, 182 (1994). Issue finding, rather than issue determination, is the key
to judgment. Sillman v. Twentieth Century- Fox Film 3 N.Y.2d 404 (1957).
summary Corp., 395,
18. Here, Plaintiffs have presented undisputed evidence that Defendant is guilty of two
violations of Admin. Code § 19-506(b)(1) within 36 months and that the subject vehicle was used
in the commission of the most recent offense.
19. Accordingly, the subject vehicle should be forfeited to the TLC pursuant to Admin.
Code § 19-506(h)(2).
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DEFENDANT SHOULD BE COLLATERALLY ESTOPPED FROM DENYING THAT
HE ENGAGED IN UNLICENSED FOR-HIRE ACTIVITY IN THE SUBJECT VEHICLE
20. The well-settled doctrine of collateral estoppel states that a judicial finding based
upon facts litigated between the same parties in a prior proceeding is binding on those parties in
future litigation. Specifically, the Court of Appeals has held that "[w]here itcan be fairly said that
a party has had a full opportunity to litigate a particular issue, he cannot reasonably demand a
one."
second Schwartz v. Public Administrator of Bronx County, 298 N.Y.S.2d 955, 958 (1969).
Collateral estoppel applies "to give conclusive effect to the quasi-judicial determinations of
administrative agencies when rendered pursuant to the adjudicatory authority of an agency to
decide cases brought before itstribunals employing procedures substantially similarly to those
law."
used in a court of Ryan v. New York Tel. Co., 62 N.Y.2d 494, 499 (1984).
21. The criteria outlined by the Court of Appeals for the invocation of the doctrine of
collateral estoppel are identity of issue in both actions, with the finding in the prior action being
decisive of the present one, and that there must have been a full and fair opportunity to litigate the
decision now said to be controlling. Schwartz at 958.
22. The issues adjudged by OATH on Summons No. 70271324A and the claims at
issue here - whether Defendant engaged in for-hire in the subject vehicle without a TLC
activity
vehicle license - are identical and dispositive. Defendant had a full and fair
Moreover,
opportunity to litigate the issues at OATH. At the OATH hearing on this summons, Defendant
presented evidence and had an opportunity to cross-examine the TLC issuing inspector.
Nonetheless, the OATH hearing officer did not credit the Defendant. In particular, regarding
Summons No. OATH Officer Jodi Harawitz noted that she found the TLC-
70271324A, Hearing
"credible"
issuing Inspector based on his demeanor during the hearing and the details and
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consistency of the testimony regarding the incident that he was able to provide.
23. Finally, although the stipulation of guilt to Summons No. 71201833A is not
disputed by Defendant, collateral estoppel can be properly applied to the stipulation as the claims
here involve issues necessarily covered by a stipulation. See Gurvey v. Lynch, 282 A.D.2d 367,
367 (1st Dep't 2001).
CONCLUSION
24. In this case, there are no triable issues of fact to be adjudicated. The Defendant is
guilty of operating a vehicle for hire without a TLC vehicle license on two separate occasions
Plaintiffs'
within 36 months and the subject vehicle was used in the most recent offense. The
evidence."
burden of proof in civil forfeiture cases is "fair preponderance of the The TLC's
burden of proof is clearly satisfied by Defendant's Answer, in which Defendant does not deny that
he has been found guilty of or pleaded guilty to the three violations alleged in the Complaint, and
thus the TLC is entitled to the forfeiture of the subject vehicle.
25. Since ithas been clearly ascertained that there are no triable issues of fact,
summary judgment should be granted. See Proposed Decision, Order and Judgment, annexed
hereto as Exhibit 9.
WHEREFORE, Plaintiffs respectfully request as Order of Summary Judgment as
follows:
(1) That the Defendant may not lawfully possess the subject vehicle;
Plaintiffs'
(2) That the custody and retention of the subject vehicle is both lawful
and proper;
(3) That the subject vehicle be forfeited; and
(4) That the Plaintiffs be awarded the value of the subject vehicle at the time of the
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seizure in the event that Defendant sells, leases, gives, assigns, pledges, damages,
removes from thisjurisdiction or otherwise disposes of the subject vehicle; transfers
his right, title/and/or interest therein in any manner, or otherwise removes the
subject vehicle the jurisdiction of this Court or renders the subject vehicle not
available for a judgment of forfeiture; and
(5) Granting to Plaintiffs such other and further relief as the Court deems just and
proper, together with the costs and disbursements of this action.
Dated: December 23, 2019
ZACHARY W. CARTER
Corporation Counsel
of the City of New York
CHRISTOPHER C. WILSON
General Counsel
New York City Taxi and Limousine
Commission
Attorney for Plaintiffs
By: }edsica R. Tavares
Prosecuting Attorney
New York City Taxi and Limousine Commission
47th 3rd
31-00 Avenue, flOOr,
Long Island City, New York 11101
(718) 391-5536
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LIST OF EXHIBITS
Exhibit 1: TLC Summons No. 71201833A
Exhibit 2: Guilty Plea and Stipulation to Summons No. 71201833A
Exhibit 3: TLC Summons No. 70271324A and Notice of Vehicle Seizure
Exhibit 4: Notice of Decision on TLC Summons No. 70271324A
Exhibit 5: Department of Motor Vehicles Abstract
Exhibit 6: Summons and Complaint
Exhibit 7: Affidavit of Service
Exhibit 8: Defendant's Answer
Exhibit 9: Proposed Decision, Order, and Judgment
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FILED: NEW YORK COUNTY CLERK 12/23/2019 04:26 PM INDEX NO. 451092/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/23/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK THE CITY OF NEW YORK and THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, AFFIRMATION IN Plaintiffs, SUPPORT OF PLAINTIFFS' MOTION -against- FOR SUMMARY JUDGMENT Index No.: 451092/2019 PEDRO ESPINAL, Defendant. JESSICA R. TAVARES, an attorney duly admitted to the practice of law in the courts of the State of New York, affirms the truth of the following under penalty of perjury pursuant to Section 2106 of the Civil Practice Law and Rules ("CPLR"): 1. I am of counsel to Christopher C. Wilson, attorney for the Plaintiffs in above captioned action, who is acting pursuant to a designation from the Corporation Counsel of the City of New York. Plaintiffs' 2. I make this affirmation in support of motion for summary judgment pursuant to CPLR § 3212. This affirmation is made upon information and belief, based upon my review of records maintained by, and information obtained from various departments of the city government, and from statements made to me by officers and/or agents of the City of New York. BACKGROUND December 15. 2018 Violation 3. On December 15, 2018, Taxi and Limousine Commission (Hereafter "TLC") Inspector David Demi-Ejegi issued Defendant Summons No. 71201833A, alleging that on 1 of 8 FILED: NEW YORK COUNTY CLERK 12/23/2019 04:26 PM INDEX NO. 451092/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/23/2019 December 15, 2018, Defendant violated Section 19-506(b)(1) of the Admin. Code by allowing a 2003 Honda car bearing Vehicle Identification Number ("VIN") 5FNRLl 8603Bl 01459 (hereinafter the "subject vehicle"), to be operated for hire without a TLC vehicle license. h TLC Summons No. 71201833A, annexed hereto as Exhibit 1. 4. On February 7, 2019, Defendant pled guilty to Summons No. 71201833A and entered into a stipulation that explicitly established that a guilty plea would count as a prior violation for purposes of calculating future penalties. S_ee Guilty Plea and Stipulation to Summons No. 71201833A, annexed hereto as Exhibit 2. May 28. 2019. Violation 5. On May 28, 2019, TLC Inspector Alexis Velasquez issued Defendant Summons No. 70271324A, alleging that on May 28, 2019, Defendant violated Admin. Code § 19-506(b)(1) by operating the subject vehicle for hire without a TLC vehicle license. h TLC Summons No. 70271324A and Notice of Vehicle Seizure, annexed hereto as Exhibit 3. 6. At the time Summons No. 70271324A was issued, and pursuant to Admin. Code § 19-506(h), TLC seized the subject vehicle. S_ee Exhibit 3. 7. On June 4, 2019, at a hearing on Summons No. 70271324A at OATH, Defendant appeared, and after a hearing, was found guilty by a preponderance ofthe evidence of violating Admin. Code § 19-506(b)(1) by OATH Hearing Officer Jodi Harawitz. Hearing Officer Harawitz further ordered that TLC release the subject vehicle pending a civil forfeiture proceeding. See Notice of Decision on TLC Summons No. 70271324A, annexed hereto as Exhibit 4. 8. Upon information and belief, Defendant is and has been at allapplicable times, the titledand registered owner of the subject vehicle. See Department of Motor Vehicles Abstract, annexed hereto as Exhibit 5. 2 of 8 FILED: NEW YORK COUNTY CLERK 12/23/2019 04:26 PM INDEX NO. 451092/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/23/2019 9. Pursuant to Admin. Code § 19-506(h), the subject vehicle is forfeitable. SUMMARY OF THE PLEADINGS 10. On July 17, 2019, Plaintiffs timely commenced this civil forfeiture action against Defendant PEDRO ESPINAL with the filing of a Summons and Complaint. See Summons and Complaint, annexed hereto as Exhibit 6. 11. Service of the Summons and Complaint was effectuated upon Defendant on July 23, 2019 at Defendant's last known address via service on a person of suitable age and discretion, Mr. Fausto Espinal who identified himself as Defendant's father, along with service by mail to the Defendant's last known address. See Affidavit of Service, annexed hereto as Exhibit 7. 12. In their Plaintiffs alleged that Defendant violated Admin. Code 19- Complaint, § 506(b)(1) on two separate occasions within 36 months and that the subject vehicle was used in the commission of the most recent offense. 13. On August 12, 2019, Defendant PEDRO ESPINAL served an Answer upon Plaintiffs in which he denied knowledge or information sufficient to form a belief as to the truth of the allegations of the complaint. Notably, Defendant did not specify which allegations he denied knowledge of. As of date of filing for this motion, Defendant's Answer has not yet been filed with the Court. See Defendant's Answer, annexed hereto as Exhibit 8. APPLICABLE LAW 14. Pursuant to Admin. Code § 19-506(b)(1), itis unlawful to operate or permit another to operate a vehicle "as a taxicab, coach, wheelchair accessible van, commuter van, HAIL city" vehicle or for-hire vehicle in the without having obtained a license for such vehicle from TLC. 15. Admin. Code § 19-506(h)(2) further provides that if an owner of a vehicle is guilty 3 of 8 FILED: NEW YORK COUNTY CLERK 12/23/2019 04:26 PM INDEX NO. 451092/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/23/2019 of two or more violations of Admin. Code § 19-506(b)(1) within a 36-month period, "the interest of such owner in any vehicle used in the commission of any such second or subsequent violation determination." shall be subject to forfeiture upon notice and judicial 16. A judgment in favor of Plaintiffs results in forfeiture of the subject vehicle to the Plaintiffs. Since forfeiture is a civil proceeding, Plaintiffs need prove only by a preponderance of the evidence that the vehicle is subject to forfeiture. Property Clerk v. Ferris, 77 N.Y.2d 428, 430 (1" (1991); Property Clerk v. McDermott, 585 N.Y.S.2d 746, 749 Dept. 1992). SUMMARY JUDGMENT STANDARD 17. CPLR § 3212(a) states that "[a]ny party may move for summary judgment in any joined." action, after the issue has been A summary judgment motion "shall be granted if,upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently ." to warrant the court as a matter of law in directing judgment in favor of any party . . C.P.L.R. § 3212 (b). The Court of Appeals has stated that summary judgment may only be granted in any proceeding when ithas been ascertained that there are no outstanding triable issues of fact; summary judgment does not deny the parties a trial, but merely ascertains that there is nothing to try. Matter of Suffolk County Department of Social Services, on behalf of Michael V. et. al v. James M., 83 N.Y.2d 178, 182 (1994). Issue finding, rather than issue determination, is the key to judgment. Sillman v. Twentieth Century- Fox Film 3 N.Y.2d 404 (1957). summary Corp., 395, 18. Here, Plaintiffs have presented undisputed evidence that Defendant is guilty of two violations of Admin. Code § 19-506(b)(1) within 36 months and that the subject vehicle was used in the commission of the most recent offense. 19. Accordingly, the subject vehicle should be forfeited to the TLC pursuant to Admin. Code § 19-506(h)(2). 4 of 8 FILED: NEW YORK COUNTY CLERK 12/23/2019 04:26 PM INDEX NO. 451092/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/23/2019 DEFENDANT SHOULD BE COLLATERALLY ESTOPPED FROM DENYING THAT HE ENGAGED IN UNLICENSED FOR-HIRE ACTIVITY IN THE SUBJECT VEHICLE 20. The well-settled doctrine of collateral estoppel states that a judicial finding based upon facts litigated between the same parties in a prior proceeding is binding on those parties in future litigation. Specifically, the Court of Appeals has held that "[w]here itcan be fairly said that a party has had a full opportunity to litigate a particular issue, he cannot reasonably demand a one." second Schwartz v. Public Administrator of Bronx County, 298 N.Y.S.2d 955, 958 (1969). Collateral estoppel applies "to give conclusive effect to the quasi-judicial determinations of administrative agencies when rendered pursuant to the adjudicatory authority of an agency to decide cases brought before itstribunals employing procedures substantially similarly to those law." used in a court of Ryan v. New York Tel. Co., 62 N.Y.2d 494, 499 (1984). 21. The criteria outlined by the Court of Appeals for the invocation of the doctrine of collateral estoppel are identity of issue in both actions, with the finding in the prior action being decisive of the present one, and that there must have been a full and fair opportunity to litigate the decision now said to be controlling. Schwartz at 958. 22. The issues adjudged by OATH on Summons No. 70271324A and the claims at issue here - whether Defendant engaged in for-hire in the subject vehicle without a TLC activity vehicle license - are identical and dispositive. Defendant had a full and fair Moreover, opportunity to litigate the issues at OATH. At the OATH hearing on this summons, Defendant presented evidence and had an opportunity to cross-examine the TLC issuing inspector. Nonetheless, the OATH hearing officer did not credit the Defendant. In particular, regarding Summons No. OATH Officer Jodi Harawitz noted that she found the TLC- 70271324A, Hearing "credible" issuing Inspector based on his demeanor during the hearing and the details and 5 of 8 FILED: NEW YORK COUNTY CLERK 12/23/2019 04:26 PM INDEX NO. 451092/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/23/2019 consistency of the testimony regarding the incident that he was able to provide. 23. Finally, although the stipulation of guilt to Summons No. 71201833A is not disputed by Defendant, collateral estoppel can be properly applied to the stipulation as the claims here involve issues necessarily covered by a stipulation. See Gurvey v. Lynch, 282 A.D.2d 367, 367 (1st Dep't 2001). CONCLUSION 24. In this case, there are no triable issues of fact to be adjudicated. The Defendant is guilty of operating a vehicle for hire without a TLC vehicle license on two separate occasions Plaintiffs' within 36 months and the subject vehicle was used in the most recent offense. The evidence." burden of proof in civil forfeiture cases is "fair preponderance of the The TLC's burden of proof is clearly satisfied by Defendant's Answer, in which Defendant does not deny that he has been found guilty of or pleaded guilty to the three violations alleged in the Complaint, and thus the TLC is entitled to the forfeiture of the subject vehicle. 25. Since ithas been clearly ascertained that there are no triable issues of fact, summary judgment should be granted. See Proposed Decision, Order and Judgment, annexed hereto as Exhibit 9. WHEREFORE, Plaintiffs respectfully request as Order of Summary Judgment as follows: (1) That the Defendant may not lawfully possess the subject vehicle; Plaintiffs' (2) That the custody and retention of the subject vehicle is both lawful and proper; (3) That the subject vehicle be forfeited; and (4) That the Plaintiffs be awarded the value of the subject vehicle at the time of the 6 of 8 FILED: NEW YORK COUNTY CLERK 12/23/2019 04:26 PM INDEX NO. 451092/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/23/2019 seizure in the event that Defendant sells, leases, gives, assigns, pledges, damages, removes from thisjurisdiction or otherwise disposes of the subject vehicle; transfers his right, title/and/or interest therein in any manner, or otherwise removes the subject vehicle the jurisdiction of this Court or renders the subject vehicle not available for a judgment of forfeiture; and (5) Granting to Plaintiffs such other and further relief as the Court deems just and proper, together with the costs and disbursements of this action. Dated: December 23, 2019 ZACHARY W. CARTER Corporation Counsel of the City of New York CHRISTOPHER C. WILSON General Counsel New York City Taxi and Limousine Commission Attorney for Plaintiffs By: }edsica R. Tavares Prosecuting Attorney New York City Taxi and Limousine Commission 47th 3rd 31-00 Avenue, flOOr, Long Island City, New York 11101 (718) 391-5536 7 of 8 FILED: NEW YORK COUNTY CLERK 12/23/2019 04:26 PM INDEX NO. 451092/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/23/2019 LIST OF EXHIBITS Exhibit 1: TLC Summons No. 71201833A Exhibit 2: Guilty Plea and Stipulation to Summons No. 71201833A Exhibit 3: TLC Summons No. 70271324A and Notice of Vehicle Seizure Exhibit 4: Notice of Decision on TLC Summons No. 70271324A Exhibit 5: Department of Motor Vehicles Abstract Exhibit 6: Summons and Complaint Exhibit 7: Affidavit of Service Exhibit 8: Defendant's Answer Exhibit 9: Proposed Decision, Order, and Judgment 8 of 8