REPLY MEMORANDUM OF LAW IN SUPPORT OF 
PLAINTIFF’S MOTION FOR IMMEDIATE INJUNCTIVE RELIEF  

PRELIMINARY STATEMENT  

The declaration of Peter Mazer dated April 25, 2001 and the accompanying memorandum of law -- defendants’ most recent position in this action -- are built on fabrication. The TLC is deliberately vague as to whether Mr. Smith’s hack license is operable. Thus we request that a TRO be issued forthwith.

Mr. Mazer claims he had determined to revoke Mr. Smith’s license on March 20, 2001, just hours before learning about this action.  The TLC’s timing is perfect— too perfect. In fact, Mazer’s story continues the TLC’s pattern of submitting false and fraudulent arguments in this case:

1.   Mazer claims he received a telephone call from Mr. Horowitz “on [his] private cellular phone” after he left his office on March 20 in which Mr. Horowitz told him that this action was about to be filed.  This could not have happened since plaintiff’s counsel did not tell Mr. Horowitz about this action until March 21.

2.   On March 22, Mr. Horowitz and TLC lawyer Joseph Eckstein appeared in this Court, and said nothing about the timeline on which the TLC now relies.

3.   On March 27, Victoria Su, the TLC lawyer who—according to Mr. Mazer—first noticed the excess of “points” on Mr. Smith’s record, submitted a declaration in this action. There is not one word about her role in the chain of events Mr. Mazer now narrates.

4.   In its most recent papers, the TLC backs away from its earlier false claim that revocation on the points charge was mandatory.  Yet Mazer still relies on the opinion of a TLC administrative judge that is based on its prior false statement of the law and pretends that the ALJ binds the agency rather than the other way around.

5.   Neither Mazer nor Mr. Horowitz even attempt to grapple with the indisputable fact that the points on which the revocation is supposedly based never should have been issued in the first place.

6.   Mazer fails to justify the TLC’s changing the terms of Mr. Smith’s plea bargain five months after the fact and months after the end of Mr. Smith’s probationary period. In fact, as of March 20, 2001, Mr. Smith had zero TLC points on his record.

7.   By its silence, the TLC admits the balance of equities favors the granting of immediate equitable relief.

While Mazer’s narration is incredible on its face, at best it indicates the need for an evidentiary hearing at which he should testify, along with Ms. Su, Mr. Horowitz, Diane McGrath-McKechnie, and other as yet unnamed TLC lawyers and officials.

The TLC’s New Version of the Facts is a Fabrication

On April 25, Mr. Mazer signed a declaration (which was delivered on April 27) setting forth the TLC’s defense to Mr. Smith’s retaliation claims.  First, he endeavoring to show that the TLC’s efforts to revoke Mr. Smith’s license on the points charge was routine. Then he attempts to show that the action could not have been retaliatory since it was decided upon before the TLC knew about Mr. Smith’s federal action.  For this claim to work, the timing must be exact, and, in Mazer’s story, it is.

Mazer contends (¶¶ 18-19) that on March 20, the day of his summary suspension hearing, Ms. Su reviewed his record with her “supervisor,” who is unnamed. “The file was then given to me,” Mazer continues— omitting who gave it to him.  His review of the Mr. Smith’s TLC record “indicated that he was a probationary driver subject to revocation, and that a notice to this effect should be issued to the driver.”  Mazer says he made this determination at “approximately 3:00 p.m.”—just hours after the hearing “scheduled for” 1:00 pm. This—if true-- is stunningly efficient work.

Just hours later--after he claims to have determined Mr. Smith’s fate in his mind-- Mr. Mazer says he got a phone call from Mr. Horowitz “on [his] private cellular phone.”  Mr. Horowitz told him that Mr. Smith was about to file an action in federal court.  Mr. Horowitz knew this, Mazer allows, because he had received “a telephone phone message from plaintiff’s attorney Daniel L. Ackman.”  

In fact, there was no phone message on March 20. Mr. Ackman, as stated in his April 2 declaration (¶ 3) called Mr. Horowitz on March 21, one day before filing this action. And he did not leave a message.  He and Mr. Horowitz actually spoke.

Mr. Mazer goes on to say that although he made his determination in his mind on March 20. “Thereafter, I directed that the revocation notice not be mailed to the plaintiff until after the hearing on plaintiff’s request for a temporary restraining order.”  Mr. Mazer fails to say why he waited.  The TLC’s position has always been the points charge and the refusal charge are separate and distinct.  If that is true, there was no reason to wait.

Moreover, at the TRO hearing on March 22, Mr. Horowitz and Mr. Eckstein told this court that notice to Mr. Smith’s license had been sent already.  The postage stamp, however, indicated the fact that the letter was not sent until March 23.  (Declaration of Daniel L. Ackman dated April 2, 2001 ¶¶ 4, 8-9).  Hence the story changes.

The Role of Ms. McGrath-McKechie and Ms. Su:

Ultimately, the refusal charge against Mr. Smith was dismissed “without prejudice” on orders from Diane McGrath-McKechnie. (See Declaration of Daniel L. Ackman dated April 12, 2001 ¶13 and exhibits thereto)  While the Chair personally intervened in this aspect of the case, Mr. Mazer asks the Court to believe she played no role whatsoever in initiating or furthering the points charge.  But certainly there is factual basis to believe she personally orchestrated these events. Indeed, the decision to drop the refusal charge “without prejudice”  and to “concentrate resources” on the points charge indicates personal animus. McGrath-McKechnie is determined to revoke Mr. Smith’s license for some reason—never mind what. 

As Mazer notes, Ms. Su represented the TLC at his “summary suspension” hearing.  The sole purpose of that hearing--  so we have been told—is to see if there is a “prima facie” case for refusal and to review the driver’s record.  Yet neither Ms. Su nor the TLC judge said anything about the points on his record at that hearing—though Mazer now says Ms. Su noticed them immediately.

Moreover, Ms. Su filed a declaration in this action on March 28.  In that declaration, she mentions the points issue, but says nothing about her purported role in discovering them or her conversations with her anonymous “supervisor.”  She does not say why she did not raise the points issue at the hearing. Similarly, Mr. Horowitz presumably spoke to Mazer before the March 22 hearing.  Yet he said nothing in court about Mazer’s prior decision.  Only now, weeks later, and after plaintiff amended his complaint does the TLC offer its new version of reality.

At best, Mr. Mazer’s declaration indicates the need for an evidentiary hearing.  He should be made to testify, along with Ms. Su, her unnamed “supervisor,” Mr. Horowitz, TLC general counsel Matt Daus, Diane McGrath-McKechie and others. 

Mr. Smith Had, In Fact, Zero TLC Points on his TLC Record

As noted previously, the TLC printout of Mr. Smith’s record indicated he had “No Points” under the heading “Previous Week’s TLC Points.”  (See Declaration of Daniel L. Ackman dated April 2, 2001, Exh. 4).  The points were in fact erased by virtue of his completion of a TLC Point Reduction Defensive Driver Course, which Mr. Smith took at LaGuardia Community College on November 29, 2000.   At that 8-hour course, Mr. Bill Tate, the TLC instructor, explained in great detail that successful completion of the course would eliminate four points from the student’s TLC record. 

After completing the course, Mr. Smith took his documentation to the TLC Office in Long Island City.  The clerk at Window 8 photocopied his documentation and reminded him he needed to go to the next window as well, the so-called point reduction window. Mr. Smith did that and the clerk told him, “You’re clear.” 

Mr. Smith thanked the clerk and went back to work. Later, he paid $60 to have his license renewed (though he kept the same license) and passed a drug test that cost him $20.  No TLC official at any point suggested him license was “subject to revocation.” (See Supplementary Declaration of Richard Travers Smith)

The TLC Now Concedes it Misstated the Law,
But Fails to Reconcile its Actions with that Law

Initially, the TLC informed this Court that the revocation of a probationary driver with at least four points was mandatory. (Declaration of Daniel L. Ackman dated April 12, 2001 ¶ 6)  Now the agency concedes, as it must, that the rule is discretionary, that the driver is “subject to” revocation.  Yet, Mazer fails to explain why or how he determined immediately, in his discretion, that Mr. Smith’s license should be revoked.

What Mazer does do is purport to analyze a “random sample” of probationary drivers whose licenses were revoked.  He does not, of course, provide any underlying information and asks his claim to be accepted at face value.  He says 11 of 15 in his “sample” were revoked during or at the end of the probationary period. Four, he says, were revoked “after the conclusion of the probationary period.” 

Mazer does not say how much after—a day, a week, a month?  Were any drivers revoked, as Mr. Smith was, six months later?  Mazer does not say.  The silence speaks volumes.

He also does not say why some probationary drivers were revoked after the fact.  What spurred the review?  A new violation or something else?  It is possible that an ALJ who assessed the points that put the driver over the limit did not know the driver’s record.  But here, all four points were issued at one time.  The TLC judge who is “primarily” responsible, according to Mazer, or enforcing the rules, failed to revoke. (¶ 9)  Nor did the TLC revoke his license at the end of the probationary period, as it might have. (¶ 14)

Mazer indicates (¶¶ 11-12) that some drivers request a hearing[1] and are spared revocation when they prove (a) they did not in fact accumulate a sufficient number of points (but were charged nonetheless) or (b) if points were issued “for multiple offenses that occurred on the same day”—such as when the TLC charges two infractions for the same offense, as they do always in Operation Refusal cases.  What about cases where the points were unlawfully issued in the first place?

Mazer “analyzes” (¶17) the two summons issued to Mr. Smith (actually there were four). In doing so he does not dispute that the underlying trip sheet violations did not require a personal appearance and thus there was no basis for the TLC Rule 2-66(b) charges, which led to the points. (See Declaration of Daniel L. Ackman dated April 2, 2001 ¶¶ 16-25) Instead, he relies on a guilty plea. But Mr. Smith made this plea on the understanding that he would get his license back—as he did.  He kept it, too, until he sued the TLC.

As his agency’s position has no legal merit, Mazer simply relies on the TLC judge “who rejected [the] argument” that the TLC ALJs have some duty to warn drivers (without counsel) of the consequences of a plea. He goes on: “ALJ Sherman also rejected the argument that the decision to revoke was discretionary.” 

Thus, Mr. Smith hides behind the TLC ALJ to make legal conclusions that he cannot bring himself to utter.  The ALJ in turn hid behind the agency, saying he his role was “ministerial” and that he had “no discretion.”  This is more Alice-in-Wonderland stuff.

The TLC’s Actions Violate Fundamental Principles of Due Process

For more than a generation, the Supreme Court has held that due process requires a guilty plea be knowing and voluntary, that the defendant be advised of the consequences of that plea, and that the government adhere to the plea bargain.  E.g., Brady v. United States, 397 U.S. 742 (1970); Santobello v. New York, 404 U.S. 257 (1971); Boykin v. Alabama, 395 U.S. 238 (1969).  In Santobello, for example, the Court held: “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled…. The staff lawyers in a prosecutor's office have the burden of ‘letting the left hand know what the right hand is doing’ or has done. That the breach of agreement was inadvertent does not lessen its impact.” 404 U.S. at 262.

It is also, of course, the judge’s role to reject a plea agreement if he knows or should know, as here, that there is no factual basis for it. See generally Fed. R. Crim. P. 11 and especially Rule 11(f) (“Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.”)

While these rules were developed in criminal cases, they are based on due process principles and thus apply here.  In opposition to these basic notions of fairness, Mr. Mazer says nothing. He indicates that “no statistics” have been kept, but that “many drivers” had their probationary licenses revoked even though they were no longer on probation.  He offers no explanation as to why the TLC reaches back or how long after the fact it does so.  Mazer tells us nothing about these purported other cases. 

Mr. Smith believed with good reason that the $440 in fines he paid (most of which were unjustified) would be the sole penalty for his trip sheet violations and his “non-cooperation” violations.  For the TLC to now change the bargain is itself a violation of  due process.  It is also more evidence of retaliation against Mr. Smith for the exercise of his First Amendment rights.

The TLC’s Purported Legitimate Reasons Do Not Meet its Burden of Proof

The TLC relies on one case, Gilligan v. Town of Moreau, 2000 U.S. App. LEXIS 27198  (2d Cir. 2000), for the proposition that it can defeat plaintiff’s claims by offering a legitimate, non-retaliatory reason for its second prosecution of Mr. Smith. In that case, the court ruled simply that the “plaintiff could not prove defendants were aware of the substance of her protected speech before discharging her.”

In this case, there is no dispute that Mr. Smith’s action is a protected activity or that revocation is an adverse decision.  In this case, the TLC has retracted its earlier claim that it sent its points termination notice before knowing about this action. It now admits it acted after this action was filed, and after a TRO was issued.  It claims only that Mr. Mazer made a mental note of his intention beforehand.  This naked assertion is not a reason, but a pretext. 

There is, of course, no record of the TLC’s plans as of March 20, no proof that the proffered reason was the real reason. The TLC expects the Court to accept its most recent version of the facts without question.  While this expectation is no doubt upheld in the TLC’s own courts, we pray it not succeed here.  Indeed the Gilligan court stated that a plaintiff may prove causation and retaliation by showing that “the retaliatory action occurred close in time to the protected activities.”  The retaliation in this case followed the protected activity by a single day.

The Balance of Equities Favor Mr. Smith over the TLC

Mr. Smith’s claim that he was retaliated against is based on facts that are undisputed and indisputable.  The TLC’s story justifying its actions is preposterous on its face, internally inconsistent, and built on fabrication.  Thus, Mr. Smith is likely to prevail on the merits.  The equities also strongly favor granting him preliminary injunctive relief.

Mazer admits that had Mr. Smith not received the refusal summons—which the TLC has since dismissed and was factually baseless[2]—“it is not likely he would have been identified as a probationary license violator.” (¶20)  In other words, he would have continued driving his taxi and performing a productive service.  None of the violations to which he pleaded guilty represent any threat to anyone.  The very worst thing he did—accepting all the allegations as sacrosanct—is miss a court hearing on a trip sheet violation.  For this, the TLC insists he must lose his license.  Have they no shame?

Balanced against Mr. Smith’s right to his livelihood is—what exactly?  The TLC’s need to keep the streets safe from trip sheet violators?  Or is it Ms. McGrath-McKechnie’s desire to make sure all drivers kowtow to its demand, even its lawless demands. Of course, defendants’ brief does not even mention equities because they have none in their favor.

CONCLUSION

The Constitution envisions an equipoise between power and responsibility.  The TLC claims great authority to sanction cabbies and even take away their livelihoods. Yet it acts without responsibility to law, to its own rules, to fairness, and to truth.[3]

Thus, plaintiff requests this Court issue an order (1) that plaintiff’s hack license be restored immediately with all privileges and immunities thereto, (2) that defendants be enjoined from revoking plaintiff’s license based on alleged violation of TLC Rule 2-04, which would be in retaliation for the exercise of his First Amendment rights, (3) that defendants be enjoined from taking any other action against plaintiff based on facts prior to March 22, 2001 without leave of the Court, (4) that the dismissal of the refusal charge be made with prejudice, and (5) such further relief that the court deems just and proper.

Dated: New York, New York
           April 30, 2001 

 Attorneys for Plaintiff