Jan Karwowski, Plaintiff-Appellant-Respondent, -against- 1407 Broadway Real Estate, LLC, Defendant-Respondent-Appellant, The Cayre Group, Ltd., Defendant-Respondent.- – - – -[And a Third-Party Action]Plaintiff appeals from an order of the Supreme Court, New York County (Ellen M. Coin, J.), entered August 9, 2016, which, insofar as appealed from as limited by the briefs, dismissed his Labor Law § 241(6) claims against defendants, and denied, as moot, defendant 1407 Broadway Real Estate LLC’s cross motion for summary judgment on its contractual indemnification claim against defendant the Cayre Group, Ltd.Gregory J. Cannata & Associates, LLP, New York (Gregory J. Cannata of counsel), for appellant-respondent.Baxter Smith & Shapiro, P.C., Hicksville (Sim R. Shapiro, Robert C. Baxter and Jennifer Warycha of counsel), for respondent-appellant.Weiser & McCarthy, New York (David Weiser of counsel), for respondent.KAPNICK, J.Plaintiff, a former employee of third-party defendant XCEL Interior Contracting, Inc. (XCEL), injured his left thumb on an unguarded table saw when he was cutting a piece of plywood to be used in the renovation of defendant the Cayre Group, Ltd.’s (Cayre) executive bathroom on the 41st floor of the building located at 1407 Broadway in Manhattan. Cayre leased its showroom space on the 41st and 42nd floors of the office building from defendant 1407 Broadway Real Estate, LLC (1407 Broadway), which held the net operating lease on the whole building. Cayre entered into a lease extension with 1407 Broadway in March 2011, which included a provision that 1407 Broadway would reimburse Cayre for tenant improvements in the space, and also included a schedule of approved contractors that were permitted to work in the building, which list included XCEL. Cayre hired XCEL to do the renovations to its space pursuant to an oral agreement. The lease extension also provided that “[a]ll work done by the contractor [XCEL] must be coordinated with the Building Manager,” and that the contractor “must comply with all reasonable direction given by the Building Manager with respect to the scheduling and performance of the work.” The unguarded table saw was located on the 16th floor of the same office building, in a space where employees of XCEL kept their tools and materials for renovation projects they were performing in the building. XCEL used only a portion of the 16th floor to store its materials and tools, including the table saw, but it did not have any personnel, or office furniture in the space. According to the record, XCEL did not have a lease with either Cayre or 1407 Broadway for the space, and it did not pay rent to anyone for the space.1 XCEL’s permanent office and workshop were located in Long Island City, Queens. XCEL employees only utilized the 16th floor space when working on renovation projects in that building, where XCEL was an approved contractor. Thus it was not, as Cayre argues throughout its brief, “merely fortuitous” that both XCEL and Cayre were located in the same building on the date of plaintiff’s accident. The motion court granted Cayre’s motion for summary judgment, finding that the 16th floor work space “was a permanent workshop controlled by XCEL, not a temporary staging area ancillary to the Project and controlled by Cayre.” Although 1407 Broadway did not seek summary judgment as to plaintiff’s claims, the motion court nonetheless searched the record and found that because Labor Law 241(6) did not apply to plaintiff’s accident, plaintiff’s Labor Law claims must be dismissed as against 1407 Broadway as well. The motion court further determined that its grant of summary judgment and dismissal of all causes of action against 1407 Broadway rendered its indemnification cross claims moot.2The purpose of Labor Law 241(6) is “to protect workers engaged in duties connected to the inherently hazardous work of construction, excavation or demolition…” (Nagel v. D&R Realty Corp., 99 NY2d 98, 101 [2002]). Labor Law 241(6) provides, in relevant part, that “[a]ll contractors and owners and their agents,… when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:… 6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”Labor Law 241(6) imposes a nondelegable duty on property owners to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” (St. Louis v. Town of N. Elba, 16 NY3d 411, 413 [2011], quoting Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; see also Allen v. Cloutier Constr. Corp., 44 NY2d 290, 300 [1978]). ”A lessee of property under construction is deemed to be an ‘owner’ for purposes of liability under article 10 of New York’s Labor Law” (Kane v. Coundorous, 293 AD2d 309, 311 [1st Dept 2002]). Indeed, the term “‘owners’ within the meaning of section 241 of the Labor Law is not ‘limited to the titleholder… [It] encompass[es] a person who has an interest in the property and who fulfill[s] the role of owner by contracting to have work performed for his benefit” (id.), as was the situation here with Cayre having hired XCEL. Defendants contend that the 16th floor space was not a temporary work space or staging area created for the renovation of Cayre’s offices and executive bathroom, but rather, was XCEL’s permanent workshop and, for the past 10 years, the location where plaintiff reported to work each day and was given his assignment for that day. Thus, defendants argue that plaintiff’s accident does not fall within the scope of Labor Law 241(6) because the 16th floor workshop does not constitute an “area[] in which construction, excavation or demolition work is being performed” as required by the statute (Labor Law §241[6]). Cayre further argues that Labor Law 241(6) does not apply because at the time of his accident, plaintiff was involved in the fabrication and transportation of a component part to be used in the renovation project which, according to Cayre, was conduct that has been found to fall outside the scope of the statute.We disagree and reverse the motion court’s order. We find that there are disputed issues of fact concerning whether the 16th floor space qualifies as a construction area. ”The Flores Court, relying on Adams v. Pfizer, Inc. (293 AD2d 291 [1st Dept 2002], lv denied 99 NY2d 511 [2003]), looked to such factors as physical proximity and common ownership and operation of the off-site premises in determining whether the plaintiff was working in a construction area within the meaning of Labor Law §241(6)” (Gerrish v. 56 Leonard LLC, 147 AD3d 511, 513 [1st Dept 2017]). Indeed, “[g]enerally, the scope of a work site must be reviewed as ‘a flexible concept, defined not only by the place but by the circumstances of the work to be done. Thus, Labor Law §241(6) extends to areas where materials or equipment are being readied for use, as opposed to areas where they are merely stored for future use” (Gonnerman v. Huddleston, 78 AD3d 993, 995 [2d Dept 2010] [internal citations omitted]). Here, although defendants contend that the 16th floor space is XCEL’s permanent workshop, in fact, the 16th floor work space where the accident occurred belonged to 1407 Broadway, and the 41st floor location of the executive bathroom being renovated was owned by 1407 Broadway, and leased to Cayre. Cases in which it has been determined that the accident did not occur in a location that qualifies for Labor Law 241(6) protection are distinguishable (see Flores v. ERC Holding LLC,87 AD3d 419 [1st Dept 2011] [finding that the plaintiff was injured while working at a Bronx facility, which was leased by his employer for storage of equipment and materials to be used in a construction project in Queens on property owned by the defendant]; Adams v. Pfizer, Inc., 293 AD2d 291 [finding that the plaintiff was injured while working on a project for his employer at his employer's facility, and thus, was not engaged in "construction" within the intended meaning of the statute]; Davis v. Wind-Sun Constr., Inc., 70 AD3d 1383 [4th Dept 2010] [finding that the plaintiff was injured while working at his employer's facility]). Here, defendants cannot dispute that had the table saw been set up on the 41st floor and the accident occurred there, the protections of Labor Law §241(6) would apply. Merely because it was more convenient to leave the table saw on the 16th floor and cut the wood there, and then bring the wood up to the 41st floor by elevator, should not result in the automatic loss of the protections afforded by the statute.We further reject Cayre’s argument that, under Flores, plaintiff’s accident does not come within the ambit of Labor Law §241(6) because he was engaged in the fabrication and transportation of materials to be used in connection with construction. As stated by the Court of Appeals, Labor Law 241(6) covers industrial accidents that occur in the context of construction (Nagel v. D&R Realty Corp., 99 NY2d 98). Indeed, Shields v. General Elec. Co. (3 AD3d 715 [3d Dept 2004]) is instructive. There, the Court noted that “work that is an ‘integral part of the construction contract’ and is ‘necessitated by and incidental to the construction… and involve[s] materials being readied for use in connection therewith’ is construction work” (id. at 717, quoting Brogan v. International Bus. Machs. Corp., 157 AD2d 76, 79 [3d Dept 1990] ["(T)he lack of proximity between the place of accident and the precise location of construction is not dispositive against Labor Law liability for injuries to workers handling construction materials and equipment"]). Finally, we reverse the motion court’s denial of 1407 Broadway’s cross motion for summary judgment on its cross claim for contractual indemnification. ”A party is entitled to full contractual indemnification provided that the ‘intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances’” (Drzewinski v. Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987], quoting Margolin v. New York Life Ins. Co., 32 NY2d 149, 153 [1973]). The indemnity provision at issue here states, in relevant part, that the “Tenant shall indemnify, defend and save harmless Landlord… from and against (a) all claims of whatever nature against Landlord arising from any act, omission or negligence of Tenant, its subtenants, contractors, licensees, agents, servants, invitees, employees or visitors… .” This is a clear and unambiguous indemnity provision that does not, despite Cayre’s argument to the contrary, require a finding of “active negligence” or fault on the part of Cayre. Rather, all that is necessary to trigger the provision is a claim arising from any act or omission of Cayre or Cayre’s contractor, here, XCEL (see Santos v. BRE/Swiss, LLC, 9 AD3d 303 [1st Dept 2004]; Tobio v. Boston Props., Inc., 54 AD3d 1022, 1024 [2d Dept 2008] [finding that "(t)he indemnification clause does not, by its terms, limit indemnification only to claims arising out of the negligence of (the indemnitor) in the performance of the work"]). It is clear from the contractual language at issue here that the landlord, 1407 Broadway, intended to be indemnified by the tenant, Cayre, for any work being done by Cayre or its contractors in the building. Accordingly, the order of the Supreme Court, New York County (Ellen M. Coin, J.), entered August 9, 2016, which, insofar as appealed from as limited by the briefs, dismissed plaintiff’s Labor Law § 241(6) claims against defendants, and denied, as moot, 1407 Broadway’s cross motion for summary judgment on its contractual indemnification claim against Cayre, should be reversed, on the law, without costs, plaintiff’s Labor Law 241(6) claim reinstated as against both defendants, and 1407 Broadway’s cross motion for contractual indemnification granted.All concur.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 1, 2018
1. Apparently, the courtesy of providing rent-free space in the building was extended to other approved contractors by 1407 Broadway as well. 2. Plaintiff is not appealing the dismissal of his common-law negligence and Labor Law 200 claims.By Acosta, P.J., Friedman, Richter, Kapnick, JJ.5844. PEOPLE, res, v. Daniel Brooks, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Lindsey Richards of counsel), for res — Judgment, Supreme Court, New York County (Mark Dwyer, J.), rendered July 28, 2015, convicting defendant, after a jury trial, of criminal contempt in the first degree and aggravated family offense, and sentencing him, as a second felony offender, to an aggregate term of 1 to 3 years, unanimously affirmed.We reject defendant’s challenges to the sufficiency of the evidence supporting his contempt conviction. The record supports reasonable inferences that at least a significant portion of the hundreds of calls, frequently containing threatening, hostile and foul language, that defendant made to the victim in violation of an order of protection, was intended to harass, annoy, threaten, or alarm her, and that these calls were made with no purpose of legitimate communication (see Penal Law 215.51[b][iv]; People v. Shack, 86 NY2d 529, 538 [1995]; People v. Padin, 121 AD3d 628 [1st Dept 2014, lv denied 25 NY3d 1169 [2015]) The count charging aggravated family offense, in which certain misdemeanors are raised to felonies based on prior convictions, was not jurisdictionally defective. The count alleged all the elements of that crime, including that defendant committed a misdemeanor defined in Penal Law §240.75(2), because it “unmistakably identified the ‘specified offense’ [second-degree contempt] defendant was alleged to have committed by stating its definition, albeit without identifying it by section number” (People v. Parrilla, 145 AD3d 629, 629-630 [1st Dept 2016], lv denied 29 NY3d 951 [2017]). This count set forth the definition of second-degree criminal contempt under Penal Law §215.50(3), which is a qualifying misdemeanor under Penal Law §240.75. Although the only other count in the indictment charged first-degree contempt, a felony, there is no requirement that the “specified offense” relied upon to charge aggravated family offense be independently charged in a separate count.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Richter, Kapnick, JJ.5845. Mariano Gonzalez, plf-ap, v. West 38th Street Development LLC, et al., def-res — Robert Goodman, P.C., New York (Louis A. Badolato of counsel), for ap — The Law Offices of Kenneth Arthur Rigby, PLLC, New York (Kenneth Arthur Rigby of counsel), for res — Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered July 8, 2016, which, insofar as appealed from, denied plaintiff’s motion for partial summary judgment as to liability on his Labor Law §241(6) claim, unanimously affirmed, without costs.Regardless to whether plaintiff established a prima facie case for summary judgment, defendants raised an issue of fact in opposition as to the adequacy of the lighting in the basement at the time of the accident.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Richter, Kapnick, JJ.5846. PEOPLE, res, v. Larry Morales, def-ap — Seymour W. James, Jr., The Legal Aid Society, New York (Heidi Bota of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), for res — An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Larry Stephen, J., at plea; Patricia Nunez, J., at sentencing), rendered July 9, 2015,Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive,It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.Counsel for appellant is referred to§606.5, Rules of the AppellateDivision, First Department.By Acosta, P.J., Friedman, Richter, Kapnick, JJ.5847. Sara Buscemi-Sanz, Plaintiff, v. Hudson Meridian Construction Group, LLC def — Hudson Meridian Construction Group, LLC Third-Party plf-res, v. VIS Industries, a/k/a, VIS Plumbing Heating and Mechanical, Third-Party def-ap — Bartlett, LLP, Mineola (Douglas Langholz of counsel), for ap — Pillinger Miller Tarallo, LLP, Elmsford (Patrice Coleman of counsel), for res — Order, Supreme Court, New York County (Richard F. Braun, J.), entered January 10, 2017, which, to the extent appealed from as limited by the briefs, denied summary judgment dismissing the third-party claims for common-law and contractual indemnification and contribution, and breach of contract, unanimously affirmed, without costs.Because there is evidence that third-party defendant VIS installed copper piping in the basement apartment where plaintiff tripped, issues of fact exist as to whether the accident arose, in whole or in part, from acts or omissions of VIS.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Richter, Kapnick, JJ.5848. Alexander Rosario, plf-res, v. Albany Express def-ap, Jose A. Bonilla def — Shearer PC, Locust Valley (Mark G. Vaughan of counsel), for ap — Law Offices of Alexander Bespechny, Bronx (Alexander Bespechny of counsel), for res — Order, Supreme Court, Bronx County (Laura Douglas, J.), entered on or about June 23, 2016, which denied the motion of defendants Albany Express and Dionicio Suarez to dismiss the complaint and all cross claims as against them for want of prosecution and failure to file a note of issue after service of a CPLR 3216 demand, unanimously affirmed, without costs.The court providently exercised its discretion in denying the motion to dismiss this personal injury action for want of prosecution (see Espinoza v. 373-381 Park Ave. S., LLC, 68 AD3d 532, 533 [1st Dept 2009]). The record indicates that plaintiff actively litigated his claims against all four defendants, and appeared for a deposition and medical examination. The delay in completing discovery was primarily due to repeated adjournments of incarcerated defendant Gutierrez’s deposition, as requested by his counsel (see Walker v. Gibbons, 137 AD3d 483 [1st Dept 2016]; Donegan v. St. Joseph’s Med. Ctr., 283 AD2d 152 [1st Dept 2001]). Any delay by plaintiff in responding to movants’ post-deposition demand for medical authorizations does not suggest “an intent to abandon prosecution, persistent neglect on the part of plaintiff, or particular prejudice to defendants” (Gayle v. Body, __AD3d__, 66 NYS3d 607, 607 [1st Dept 2018]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Richter, Kapnick, JJ.5849. PEOPLE, res, v. Edwin Cruz, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for res — Judgment, Supreme Court, New York County (Laura A. Ward, J. at suppression hearing; Daniel P. Conviser, J. at jury trial and sentencing), rendered August 25, 2015, convicting defendant of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, tampering with physical evidence and resisting arrest, and sentencing him, as a second felony drug offender, to an aggregate term of 4 years, unanimously affirmed.The court properly denied defendant’s suppression motion. The hearing court saw and heard the witnesses, and there is no basis for disturbing its credibility determinations (see People v. Prochilo, 41 NY2d 759, 761 [1977]), including those relating to a detective’s ability to observe an apparent drug transaction. The credible testimony established that the detective had probable cause to arrest defendant at the outset of the pursuit (seee.g. People v. Jack, 22 AD3d 238 [1st Dept 2005], lv denied 5 NY3d 883 [2005]). Accordingly, defendant’s abandonment of physical evidence was not precipitated by any police illegality.Defendant’s legal sufficiency claims relating to his tampering with physical evidence and resisting arrest convictions are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits. We also find that those convictions were not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348 [2007]).We have considered and rejected defendant’s arguments concerning the court’s response to a jury note relating to the resisting arrest charge. In any event, any error in this regard was harmless (seePeople v. Crimmins, 36 NY2d 230 [1975]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Richter, Kapnick, JJ.5850. PEOPLE, res, v. Francisco Mendoza, def-ap — Seymour W. James, Jr., The Legal Aid Society, New York (Kristina Schwarz of counsel), for ap — Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for res — An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, Bronx County (Efrain Alvarado, J.), rendered April 3, 2013,Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive,It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.Counsel for appellant is referred to§606.5, Rules of the AppellateDivision, First Department.By Acosta, P.J., Friedman, Richter, Kapnick, JJ.5851. In re Darryl Smith, pet-ap, v. New York City Department of Buildings, res-res — Casella & Casella, LLP, Staten Island (Ralph P. Casella of counsel), for ap — Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for res — Judgment (denominated an order), Supreme Court, New York County (Barbara Jaffe, J.), entered July 13, 2016, denying the petition to annul a final determination of respondent, which denied petitioner’s application for a master plumber’s license, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.Respondent’s determination that petitioner failed to supply satisfactory proof of at least seven years of total experience under the direct and continuing supervision of a licensed master plumber within the previous 10 years, with at least two years in plumbing design and installation while a registered journeyman plumber (see Administrative Code of City of NY §§28-408.3.1[4], 28-409.1), had a rational basis and was not arbitrary and capricious (seeMatter of Krasniqi v. Department of Citywide Admin. Servs., 105 AD3d 590 [1st Dept 2013]; Matter of Rasole v. Department of Citywide Admin. Servs., 83 AD3d 509 [1st Dept 2011]). The record shows that petitioner only had four years of plumbing experience supervised by a licensed master plumber. Furthermore, petitioner admits that he did not obtain his journeyman’s registration card until October 2012, and as Supreme Court held, this fact alone supports denial of his application. Petitioner’s argument that the journeyman registration requirement itself is irrational is unpreserved, since petitioner did not raise it before the agency or in his article 78 petition (see Gregory v. Town of Cambria, 69 NY2d 655, 656-657 [1986]), and, in any event, is unavailing.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Richter, Kapnick, JJ.5852. Kelly Cabral plf-res, v. Joshua Stern, M.D. def, Anthony Aizer,M.D. def-ap — Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for ap — Frekhtman & Associates, Brooklyn (Eileen Kaplan of counsel), for res — Order, Supreme Court, New York County (Joan B. Lobis, J.), entered June 6, 2016, which, to the extent appeal from, denied the motion of defendants Anthony Aizer, M.D. and New York University Medical Center (Hospital) for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to dismiss the claim for lack of informed consent, and otherwise affirmed, without costs.Defendants established entitlement to judgment as a matter of law by submitting evidence showing that Dr. Aizer did not depart from good and accepted medical practice in the performance of two cardiac ablation procedures on plaintiff Kelly Cabral. Plaintiffs’ opposition, including the opinions of experts, raised triable issues of fact as to whether Kelly’s preexisting condition of Factor v. Leiden required a smaller catheter than was used during the procedure, whether post-procedure Doppler studies should have been conducted to rule out deep vein thrombosis, and whether there should have been a longer time frame with greater physical activity between procedures (see Diaz v. New York Downtown Hosp., 99 NY2d 542, 544 [2002]; Cregan v. Sachs, 65 AD3d 101, 108-109 [1st Dept 2009]). Triable issues also exist as to Dr. Aizer’s employment status at the hospital and whether the Hospital could be vicariously liable for Dr. Aizer’s actions.Defendants are, however, entitled to summary judgment dismissing plaintiffs’ claim for lack of informed consent, as plaintiffs did not show that there is any issue of fact in this regard.We have considered defendants’ remaining contentions and find them unavailing.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Richter, Kapnick, JJ.5853. In re Baldev Singh, pet, v. NYC Taxi & Limousine Commission, res — Chhetry & Associates, P.C., New York (Khagendra Gharti-Chhetry of counsel), for pet — Zachary W. Carter, Corporation Counsel, New York (Arron M. Bloom of counsel), for res — Determination of respondent New York City Taxi and Limousine Commission (TLC), dated December 8, 2016, which, after a hearing, revoked petitioner taxicab driver’s license upon a finding that he threatened a passenger following a fare dispute, and imposed a $1,350 fine, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Arlene P. Bluth, J.], entered on or about April 4, 2017), dismissed, without costs.Substantial evidence supports a finding that petitioner threatened and harassed a passenger where the passenger’s testimony and security video footage demonstrated that petitioner shouted sexual threats at the passenger, and chased her through the building’s lobby while screaming obscenities, forcing her to hide in fear. The hearing officer credited the complaining witness’s documentary evidence and testimony, and such determination is “largely unreviewable because the hearing officer observed the witnesses and was able to perceive the inflections, the pauses, the glances and gestures—all the nuances of speech and manner that combine to form an impression of either candor or deception” (Matter of Asch v. New York City Bd./Dept. of Educ., 104 AD3d 415, 420 [1st Dept 2013] [internal quotation marks omitted]).Petitioner contends that the complaining witness did not pay his fare; however, regardless of payment, the facts of his conduct, standing alone, support a finding that petitioner engaged in acts of harassment and “against the best interests of the public” (35 RCNY §54-12(e) and (f)).1 Under these circumstances, and the fact that in two unrelated 2015 incidents, petitioner also cursed at a passenger over a fare disagreement, all of which demonstrate a threat to public safety or breach of the public trust, the penalty of revocation does not shock the conscience (see Matter of Bautista v. City of New York, 81 AD3d 472, 473 [1st Dept 2011] [lewd behavior]; Matter of Mankarios v. New York City Taxi & Limousine Commn., 49 AD3d 316, 317 [1st Dept 2008] [verbal abuse and use of physical force]; Matter of Arif v. New York City Taxi & Limousine Commn., 3 AD3d 345, 346 [1st Dept 2004] [refused service]; Matter of Fernandez v. New York City Taxi & Limousine Commn., 193 AD2d 423, 423 [1st Dept 1993] [harassment, sexual comments, grabbed the breast of passenger]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
