Jassim v. New York Taxi & Limousine Commission , 773 N.Y.S.2d 288 ( 2004 )

In this proceeding, brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Leland DeGrasse, J.], entered November 15, 2002), the petition, challenging the determination of respondent Taxi and Limousine Commission (TLC), dated May 10, 2002, which found petitioner guilty of violating 35 RCNY 2-50 (b) and 2-66 (b) (refusal of service to passenger and failure to appear at a scheduled hearing) and assessed certain fines and points against him, unanimously granted, on the law, without costs, to the extent of annulling the determination and remanding the matter for proceedings de novo.

The record supports petitioner’s contention that the determination should be annulled because he never received notice of the complaint or of the administrative hearing. The uncontroverted evidence that petitioner never received the summons and that it was addressed to an incorrect zip code was sufficient to rebut the presumption that there was proper mail service and receipt, and, at the very least, mandated a hearing on that issue (see Matter of Futterman v New York State Div. of Hous. & Community Renewal, 264 AD2d 593, 595 [1999], lv dismissed 94 NY2d 846 [1999]; Vita v Heller, 97 AD2d 464 [1983]). Consequently, TLC’s determination that petitioner failed to appear at a scheduled hearing was unsupported by substantial evidence.

Moreover, there is record evidence of a meritorious defense to the refusal of service charge. Petitioner presents evidence wherein the taxi dispatcher not only admitted that she had been mistaken in identifying him as the driver of the taxi on the date in question, but identified another driver. Petitioner also submits his trip record for that date, which indicates that he never took a fare into Brooklyn, the site of the alleged violation, and that at the time of the alleged violation he was dropping off a passenger on the Upper West Side of Manhattan. Concur—Andrias, J.P., Ellerin, Williams and Gonzalez, JJ.