Supreme Court, Queens County, October 10, 2017

Superior Law, PLLC, Flushing (James Scott Yoh of counsel), for petitioner.

Zachary W. Carter, Corporation Counsel, New York City (Sheryl Neufeld, Ave Maria Brennan and Yungbi Jang of counsel), for respondent.

The petitioner, Larry Tinsley, filed a petition for an order directing the respondent New York City Taxi and Limousine Commission (TLC), sued herein as "Taxi and Limousine Commission," to issue him a license to drive a taxi or a vehicle-for-hire. This petition brings up for review the decision of the Administrative Law Judge (ALJ), which denied the petition on behalf of the TLC. After analyzing the relevant law that governs this [*2]issue, the court annuls the decision of the ALJ and remands this matter back to the respondent agency to reopen the hearing in a manner not inconsistent with this decision. The reopened hearing shall take place on a date to be agreed upon by the TLC, and the attorneys, but no later than November 21, 2017. When the reopened hearing is completed, the matter shall be returned to this court for decision on the petition.

As an initial matter, this court, sua sponte, corrects the caption to reflect the respondent as "New York City Taxi and Limousine Commission," instead of "Taxi and Limousine Commission." The Clerk is directed to make such changes on the court's records.^[FN*]

The petitioner, Larry Tinsley, who is 68 years of age and has spent much of his adult life in prison, applied for a license with the Taxi and Limousine Commission to operate a taxi or a vehicle-for-hire. A hearing was held in this matter, whereupon it was revealed that, in 1986, he had been convicted of armed{**58 Misc 3d at 943} robbery with a firearm, for which he was sentenced to 28 years. The hearing also revealed that he had several weapons' convictions in the 1970s, when he was either in his early to late twenties or early thirties. Finally, the hearing evidence also revealed that the 68-year-old petitioner is destitute, documenting his papers with exhibits, and he lives only on a modest Social Security allowance. He is not computer literate and has no other skills needed for employment. The only means of livelihood he ever had before his troubles with the criminal justice system was in driving a taxi. Based on his rather extensive criminal record, his application for a TLC license was denied at the conclusion of the hearing. This CPLR article 78 proceeding ensued.

Under the relevant law, as interpreted by the Court of Appeals, the petitioner was entitled to a full and fair opportunity to present evidence at the hearing. That denial was crucial in the context of this case. As noted in Matter of Acosta v New York City Dept. of Educ. (16 NY3d 309, 314-315 [2011]):

"As a general matter, it is unlawful in this state for any public or private employer to deny any license or employment application 'by reason of the individual's having been previously convicted of one or more criminal offenses' (Correction Law § 752; see Executive Law § 296 [15]). This general bar was enacted to further certain goals that the Legislature has identified as among the 'general purposes' of the Penal Law, namely, 'the [*3]rehabilitation of those convicted' and 'the promotion of their successful and productive reentry and reintegration into society' (Penal Law § 1.05 [6]). As Governor Hugh L. Carey's memorandum approving the legislation that codified this general prohibition noted, 'the key to reducing crime is a reduction in recidivism,' and '[t]he great expense and time involved in successfully prosecuting and incarcerating the criminal offender is largely wasted if upon the individual's return to society his willingness to assume a law-abiding and productive role is frustrated by senseless discrimination' (Governor's Approval Mem, Bill Jacket, L 1976, ch 931, 1976 McKinney's Session Laws of NY, at 2459 ['Providing a former offender a fair opportunity for a job is a matter of basic human fairness, as well as one of the surest ways to reduce crime']).

{**58 Misc 3d at 944}"There are, however, two significant exceptions to this general prohibition. The first exception arises where 'there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual' (Correction Law § 752 [1]). The Legislature has clarified that a ' "[d]irect relationship" means that the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license, opportunity, or job in question' (Correction Law § 750 [3]) . . . .

"The second exception . . . [is] where 'the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public' (Correction Law § 752 [2])."

The law against such discrimination was expressed in the recent opinion by Chief Judge Janet M. DiFiore in Griffin v Sirva, Inc. (29 NY3d 174 [2017]). Chief Judge DiFiore, writing for the majority of the Court of Appeals, stated that, under Executive Law (Human Rights Law) § 296 (15), discrimination against individuals with prior criminal convictions is prohibited. Human Rights Law § 296 (15) provides, in pertinent part, that

" '[i]t shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his or her having been convicted of one or more criminal offenses . . . when such denial is in violation of the provisions of article twenty-three-A of the correction law.' " (Griffin v Sirva, Inc., 29 NY3d at 181, quoting Human Rights Law § 296 [15].)

Chief Judge DiFiore further elaborated that

"[a]rticle 23-A [of the Correction Law], in turn, instructs that '[n]o application for any license or employment, and no employment or license held by an individual, to which the provisions of this article are applicable, shall be denied or acted upon adversely by reason of the individual's having been{**58 Misc 3d at 945} previously convicted of one or more criminal offenses' (Correction Law § 752)." (Griffin v Sirva, Inc., 29 NY3d at 182.)

Human Rights Law § 296 (15), prohibiting discrimination against individuals with at least one prior criminal conviction from obtaining employment or a license, is not absolute. Chief Judge DiFiore, however, stressed that

"[t]wo exceptions to article 23-A's prohibitions, set out in Correction Law § 752, further clarify the scope of the statute. The first exception applies when 'there is a direct relationship between one or more of the previous [*4]criminal offenses and the specific license or employment sought or held by the individual' (Correction Law § 752 [1])." (Griffin v Sirva, Inc., 29 NY3d at 182-183.)

The second applicable exception is "when 'the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public' (Correction Law § 752 [2])." (Griffin v Sirva, Inc., 29 NY3d at 182-183.)

In determining, however, whether either or both of the exceptions applies, the ALJ is to consider, weigh, and balance the eight factors contained in Correction Law § 753 (1). (See Matter of Acosta v New York City Dept. of Educ., 16 NY3d at 315-316.) In Griffin, the Court of Appeals held that in order to determine whether either or both exceptions applies, " 'the public agency or private employer' shall consider eight . . . factors" enumerated in Correction Law § 753 (1). (Griffin v Sirva, Inc., 29 NY3d at 182-183.) In that regard, this court finds that the use of the word "shall" in Correction Law § 753 (1) is a mandatory modifier, not a discretionary one. (See e.g. Matter of Syquia v Board of Educ. of Harpursville Cent. School Dist., 80 NY2d 531 [1992].) After an examination of the eight factors enumerated in Correction Law § 753, if it is determined that neither of the exceptions contained in Correction Law § 752 are applicable, then such prior conviction may not be used to deny an individual employment. In that respect, the petitioner is entitled to a full and fair opportunity to present evidence as to each factor. (See Matter of Acosta v New York City Dept. of Educ., 16 NY3d at 314-315.)

The eight enumerated factors contained in Correction Law § 753 (1) are as follows:

"(a) The public policy of this state, as expressed in{**58 Misc 3d at 946} this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

"(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

"(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.

"(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

"(e) The age of the person at the time of occurrence of the criminal offense or offenses.

"(f) The seriousness of the offense or offenses.

"(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.

"(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public." (See e.g. Matter of Dellaporte v New York City Dept. of Bldgs., 106 AD3d 446 [1st Dept 2013]; Matter of Formica Constr. Inc. v Mintz, 65 AD3d 686 [2d Dept 2009]; Matter of Gallo v State of N.Y., Off. of Mental Retardation & Dev. Disabilities, 37 AD3d 984 [3d Dept 2007]; Matter of Dudley v City of New York, 56 Misc 3d 448 [Sup Ct, NY County 2017, Jaffe, J.]; Matter of Boone v New York City Dept. of Educ., 53 Misc 3d 380 [Sup Ct, NY County 2016, Moulton, J.]; Weidig v New York City Tr. Auth., 43 Misc 3d 1202[A], 2014 NY Slip Op 50448[U] [Sup Ct, Kings County 2014]; Exum v New York City Health & Hosps. Corp., 37 Misc 3d 1218[A], 2012 NY Slip Op 52078[U] [Sup Ct, Kings County 2012, Velasquez, J.]; Panessa v Limandri, 2011 NY Slip Op 32365[U] [Sup Ct, NY County 2011, Jaffe, J.]; Soto v New York State Off. of Mental Retardation & Dev. Disabilities, 26 Misc 3d 1215[A], 2010 NY Slip Op 50103[U] [Sup Ct, Kings County 2010]; accord Matter of King v New York State Div. of Parole, 190 AD2d 423, 431 [1st Dept 1993] [overturning the board's decision where "record clearly reveals that the denial of petitioner's (parole) application was a result of the Board's failure{**58 Misc 3d at 947} to weigh all of the relevant considerations"].)

The court fully recognizes the legislative goal of protecting the public against a person who wishes to drive a taxi or a vehicle-for-hire and who has been convicted of a specific type of offense. At common law, railroad and subway conductors, bus operators, and drivers of taxis and other for-hire vehicles have an enormous responsibility. Their "duty springs from the contract to carry safely." (Middleton v Whitridge, 213 NY 499, 510 [1915].) A fundamental public policy upholds the right of the City to screen drivers for the obvious safety of the public. "One purpose of licensing cabmen is to eliminate possible dangers to the public from riding in cabs driven by criminals. Accordingly, it is within the powers of the municipal licensing authority to refuse to grant a license to one previously convicted of a felony." (17 NY Jur 2d, Carriers § 84 [footnotes omitted].) Toward this policy of protecting the public, the New York City Council enacted provisions concerning the licensing of drivers of taxis and other vehicles-for-hire. (See Administrative Code of City of NY §§ 19-501, 19-512.1 [a].)

The goal of rehabilitating prisoners, on the other hand, is worthwhile and laudable. The Appellate Division, Second Department stated: "[T]he public policy of the state is to encourage the licensing and employment of persons previously convicted of one or more criminal offenses." (Matter of Levine v N.Y.C. Taxi & Limousine Commn., 136 AD3d 1037, 1039 [2d Dept 2016].) The court, in Miller v District of Columbia Bd. of Appeals & Review (294 A2d 365, 370 [DC 1972]), stated: "[T]he Department's apparent policy of denying vendors' licenses to ex[-]convicts . . . may frustrate entirely the legislative goal of vocational rehabilitation in our penal institutions. So, too, it may violate a general policy against unreasonable restrictions upon entrance into nonprofessional 'common callings,' such as street vending." One New York court, in Matter of Tanner v DeSapio (2 Misc 2d 130, 134 [Sup Ct, Cayuga County 1956]), similarly, observed:

"It would seem most inconsistent and improper to have one governmental department stress a vocational training in a correctional institution for convicts and have another governmental department deny the right to a reformed convict who has expiated her crime and paid her debt to society to enter upon such a vocation and become self-supporting after reformation and rehabilitation."

{**58 Misc 3d at 948}This administrative action is subject to mandamus to review and may not be disturbed unless the decision of the ALJ is, for example, arbitrary and capricious. (See CPLR 7803 [3]; compare CPLR 7804 [g].) In other words, it may be disturbed, in part, only if there is no rational basis for the exercise of discretion by the administrative agency. CPLR 7803 states that "[t]he only questions that may be raised in a proceeding under [article 78] are" contained in four subdivisions. Insofar as this case is concerned, CPLR 7803 (3) provides that "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" may be so raised. Pursuant to this section, a court may not substitute its judgment unless the decision of the board or body was arbitrary and capricious and constituted an abuse of discretion. On this record, not only did the ALJ incorrectly note that Tinsley, in 1986, caused serious injury to another person, she, otherwise, [*5]failed fully to consult, balance, and weigh all of the eight factors in Correction Law § 753 (1). Accordingly, the decision by the ALJ was arbitrary and capricious.

Briefly, the court acknowledges that Correction Law § 752 makes it illegal in New York for a public or private employer to deny any license or employment application because the person desiring the employment or license has previously been convicted of one or more criminal offenses. As noted, such license or employment may be denied when, as noted above, one of two exceptions exist. Tinsley does not deny that both exceptions are applicable in the present case. As discussed in the City's answer, Tinsley was convicted of various felonious weapons possession charges during the 1970s. In 1986, he was again convicted of weapons possession and other crimes, and was sentenced, as a persistent felon, to a term of 28 years in prison, serving from 1986 to on or about 2014.

Assistant Corporation Counsel Jang, in respondent's opposition, discusses extensively Rules of City of New York, title 35, chapter 55, governing "For-Hire Drivers." As Mr. Yoh correctly observes in petitioner's reply papers, the entire title quoted and discussed by respondent was repealed on September 22, 2016, effective October 22, 2016. The section was in effect when the petition was initially marked "Fully Submitted," but, as Mr. Yoh correctly notes, has been repealed.

The correct and current provision is found in Administrative Code § 19-501, making express legislative findings and stating:

{**58 Misc 3d at 949}"Legislative findings. It is hereby declared and found that the business of transporting passengers for hire by motor vehicle in the city of New York is affected with a public interest, is a vital and integral part of the transportation system of the city, and must therefore be supervised, regulated and controlled by the city."

Administrative Code § 19-501 is, indeed, a codification of the well-settled and classic common-law rule that the duty of a carrier is to carry safely. (See Middleton v Whitridge, 213 NY at 510.) So important is the responsibility of drivers of taxis and other vehicles for hire that the respondent TLC may

"for good cause shown relating to a direct and substantial threat to the public health or safety and prior to giving notice and an opportunity for a hearing, suspend a taxicab, for-hire vehicle license or a HAIL license issued pursuant to this chapter and, after notice and an opportunity for a hearing, suspend or revoke such license." (Administrative Code § 19-512.1 [a].)

The respondent TLC, even without engaging in an immediate suspension, subject to the due process guarantees, is further empowered by the codification "to seek suspension or revocation of such license and after notice and an opportunity for a hearing, suspend or revoke such license." (Id.)

Given that both exceptions applied, the respondent agency and the ALJ were required to consult, balance and weigh the eight factors contained in Correction Law § 753 (1). The court finds that they did not fulfill that responsibility. There were documents that Tinsley wished the ALJ to consider. This request, however, was rejected. As noted above, in a case similar to the facts of this case, Chief Judge Jonathan Lippman, writing for the majority in Acosta, stated the general rule that "it is unlawful in this state for any public or private employer to deny any license or employment application 'by reason of the individual's having been previously convicted of one or more criminal offenses' (Correction Law § 752; see Executive Law § 296 [15])." (Acosta, 16 NY3d at 314.) Two exceptions to the general rule need to be weighed. The first exception arises where "there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual (Correction Law § 752 [1])." (Acosta, 16 NY3d at 315.) Under the first exception, a " ' "[d]irect relationship" means that the nature of criminal {**58 Misc 3d at 950}conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license, opportunity, or job in question' (Correction Law § 750 [3])." (Id.) The "direct relationship" exception was not at issue in the case. (Acosta, 16 NY3d at 315.) The focus of the decision was whether the petitioner came within the second exception of there being an " 'unreasonable risk . . . to the safety or welfare of . . . the general public.' (Correction Law § 752 [2])." (Acosta, 16 NY3d at 315.)

Chief Judge Lippman, weighing each of the eight factors posited in Correction Law § 753 (1), stated: "We conclude that the New York City Department of Education (DOE) failed to comply with the requirements of the Correction Law and thus acted arbitrarily in denying petitioner's application for security clearance." (Acosta, 16 NY3d at 314.) The Court of Appeals, in pertinent part, observed:

"The Legislature has determined that, as a general rule, it is unlawful for a public or private employer to deny an application for a license or employment on the ground that the applicant was previously convicted of a crime. This general prohibition advances the rehabilitation and reintegration goals of the Penal Law. Furthermore, barring discrimination against those who have paid their debt to society and facilitating their efforts to obtain gainful employment benefits the community as a whole. The 'direct relationship' exception and the 'unreasonable risk' exception to this general rule may be resorted to only upon a consideration of each of the eight factors enumerated in Correction Law § 753." (Matter of Acosta v New York City Dept. of Educ., 16 NY3d at 320.)

Petitioner also requests that this court consider the documents submitted to the ALJ by Tinsley in favor of the application that the ALJ completely ignored in her decision. In Matter of Acosta v New York City Dept. of Educ. (16 NY3d 309, 319-320 [2011]), Chief Judge Lippman stated:

"The Correction Law requires the DOE to 'consider' '[a]ny information produced by the person, or produced on his [or her] behalf, in regard to his [or her] rehabilitation and good conduct' in determining whether the 'unreasonable risk' exception applies to an application (Correction Law § 753 [1] {**58 Misc 3d at 951}[g]). Yet, on this record, it is plain that, other than [*6]her personal statement, the DOE did not consider the documentation that petitioner submitted in support of her application. . . .

"[I]n light of the DOE's failure to comply with the statutorily mandated minimum requirement of reviewing all of the documentation petitioner submitted (see e.g. Correction Law § 753 [1] [g]), it is difficult to conclude on this record that the 'closer review' purportedly applied here amounted to anything more than a pro forma denial of petitioner's application on the basis of her prior criminal conviction. Such a denial, without consideration of each of the Correction Law § 753 factors, is precisely what the statute prohibits."

Based on the foregoing, the court finds that the decision of the ALJ was arbitrary and capricious and an abuse of discretion. (See CPLR 7803 [3].) First, in this case, the ALJ failed properly to apply, weigh, and balance the eight factors contained in Correction Law § 753 (1). Significantly, the ALJ failed to consider documents offered by Tinsley that would have an effect on the balancing and weighing of such factors. In addition, the ALJ should be aware that any admissible evidence that goes to a weighing and balancing of the eight factors should be considered. For example, factor (a) to Correction Law § 753 (1) provides that the public policy of this state, as expressed in this act, is to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. Given that this factor must be considered, any evidence such as that Tinsley has no other means of supporting himself must be taken into account. In addition, the safeguard provided in Administrative Code § 19-512.1, as noted in this decision, advances the public policy of this state, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. In other words, the hearing examiner should, within the confines of the rules of evidence, give Tinsley a fair degree of latitude in presenting his evidence.

Given the court's conclusion that Tinsley was deprived of his right to present his case fully at the hearing, the court orders this case returned to the ALJ, who is directed to reopen the hearing in a manner not inconsistent with this decision. The court notes that, as a general rule, "[i]t is, of course, improper for courts to 'engag[e] in essentially a re-weighing' of the {**58 Misc 3d at 952}Correction Law § 753 factors." (See Matter of Acosta v New York City Dept. of Educ., 16 NY3d at 318; see also Matter of Arrocha, 93 NY2d at 367.) The exception to this rule is where the hearing examiner or agency has failed to consider all eight of the factors. (Id. at 318.) Here, the ALJ considered all of the factors; the ALJ committed error by not allowing evidence as to all eight factors. For this reason, the court is not reweighing the eight factors of Correction Law § 753. It is well-settled that "[t]he 'direct relationship' exception and the 'unreasonable risk' exception to this general rule may be resorted to only upon a consideration of each of the eight factors enumerated in Correction Law § 753." (Matter of Acosta, 16 NY3d at 320; see also Matter of Arrocha, 93 NY2d at 364.) Thus, the ALJ is directed to consider all the evidence in the case before applying the factors to the two exceptions of Correction Law § 752 (1) and (2).

In that respect, ALJs and hearing examiners should recognize that the legislature and the Court of Appeals mandate hearings specifically to provide law offenders with a forum in which the opportunity is presented for them to justify the obtaining of employment that will make them [*7]self-supportive. Here, in the present case, competing with this vital public policy to protect the public, under the duty "to carry safely" (Middleton v Whitridge, 213 NY at 510), is the State's interest in rehabilitating, whenever possible, formerly incarcerated individuals, reintegrating them both into society and to productive jobs, and showing them different and better opportunities than their past experiences and histories unfortunately permitted. (See Griffin v Sirva, Inc., 29 NY3d 174 [2017]; Matter of Acosta v New York City Dept. of Educ., 16 NY3d at 314-315.)

An Appellate Division decision that should be reviewed by the respondent on remand is Levine v N.Y.C. Taxi & Limousine Commn. (2014 NY Slip Op 33089[U] [Sup Ct, Queens County 2014], revd 136 AD3d 1037 [2d Dept 2016]). There, the Second Department held that a denial of an application for a TLC license based on the applicant's criminal record was not arbitrary or capricious or irrational. Mr. Yoh, petitioner's pro bono counsel, commendably cited this decision, alerting this court's attention to what, at first glance, may seem adverse to petitioner. In Levine, a disbarred lawyer, who was convicted of stealing $432,000 from a client, was sentenced to an indeterminate sentence of 3 to 9 years in 2008, and was paroled in 2011. In 2013, he applied for a TLC license. During the course of his fitness interview, the applicant blamed the client for his theft{**58 Misc 3d at 953} of the $432,000. At the conclusion of the hearing, the application of the disbarred lawyer to drive a vehicle-for-hire was denied.

Justice David Elliot, a widely respected and thoughtful jurist, granted the petition to overturn the TLC's determination. (Levine, 2014 NY Slip Op 33089[U].) The Second Department reversed (136 AD3d 1037, 1039), stating:

"In this case, the petitioner's crimes were recent and serious, and bore a direct relationship to how he dealt with persons who hired him for services. Further, at his fitness interview, he minimized his culpability. Under the totality of circumstances, the determination under review was not arbitrary or capricious or irrational."

Justice Elliot found that the applicant's lack of remorse for stealing $432,000 was "not one of the relevant factors to be considered by the Correction Law." (2014 NY Slip Op 33089[U], *4-5.) The Second Department, however, disagreed and reversed, finding fault with the applicant's attempts and efforts to minimize his culpability, and to deflect the blame upon the victim of his theft. (136 AD3d at 1039.)

The task before a tribunal on an application for employment is to apply and weigh the eight factors contained in Correction Law § 753 (1). Correction Law § 753 (1) (a) states to consider "[t]he public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses." Governor Andrew M. Cuomo, in this regard, on July 18, 2017, announced that New York is the first state in the nation to launch an employer pledge to hire more persons with criminal records and to help turn them into productive citizens, rather than to allow them to fall back into recidivism. The official launch of the "Work for Success Pledge," an online pledge in which businesses commit to consider hiring qualified individuals with criminal convictions, reflects New York's progressive public policy. The government website articulating the "Work for Success Pledge" states:

"Nearly 1 in 3 American adults have a criminal record, and there are 2.3 million individuals with a prior New York State criminal conviction. Currently, only 47% of [*8]people able to work on NYS parole are employed. While New York State law requires companies to consider hiring people with criminal convictions, many of these individuals, meet resistance and discrimination when trying to{**58 Misc 3d at 954} reenter the workforce—one study found that, in New York City, a criminal record reduced the likelihood of a callback or job offer by nearly 50 percent. Governor Cuomo launched the Work for Success Pledge to encourage companies to hire those with previous criminal convictions and enable their smooth reentry after leaving prison." (See Governor Andrew M. Cuomo, Pressroom, Governor Cuomo Launches Work for Success Pledge to Encourage Businesses to Hire Qualified Individuals with Criminal Convictions [July 18, 2017], https://www.governor.ny.gov/news/governor-Cuomo-launches-work-success-pledge-encourage-businesses-hire-qualified-individuals; accord YouTube, Governor Cuomo launches the Work for Success pledge, https://www.youtube.com/watch?v=VPA8SFk4dk8; Alexandra Semenova, State implores businesses to hire ex-cons, CRAIN'S New York Business, July 19, 2017.)

This court, therefore, grants the article 78 petition, annuls the determination and decision of the ALJ, and remands the matter to the respondent agency to reopen the hearing in a manner not inconsistent with this opinion and order.

Sooner or later, the time will come, in the life of every individual, that a professed belief will be tested by some real circumstance that forces each of us either to make a choice or reevaluate our avowed principles. The challenges posed in those situations, whether large or small, are actually dramatic. Those life tests make us confront our beliefs and values with a real situation. The thoughtful and provocative facts of the present proceeding, with real life consequences for both the petitioner and society, place this court in such a challenging dilemma. Socrates once said, "Moral philosophy is hard thought about right action." In the present case, we all believe and salute the principle that the chief goal of incarceration is the rehabilitation of a convicted felon, and that productive employment makes recidivism less likely. Yet, even where the only work that the released former convict has had in his lifetime has been as a driver, should he be permitted, upon his reentry into society, a license to drive a taxi or vehicle-for-hire?

Given, for instance, the length of time spent in jail by such person, that such license will no [*9]longer make this person destitute, and that the Administrative Code has placed a secure safeguard over the decision granting a TLC license to a{**58 Misc 3d at 955} convicted felon (Administrative Code § 19-512.1), perhaps the answer can be yes.

Finally, this court commends James Scott Yoh, Esq., for his diligent, resourceful, and vigorous pro bono representation of the indigent petitioner. New York lawyer and author Henry Waters Taft, Esq. (1859-1945), in his book, Law Reform, Papers and Addresses by a Practicing Lawyer (The MacMillan Co. [1926]), noted the hardship faced by the poor in getting justice. Henry W. Taft, brother of United States President and Supreme Court Chief Justice William Howard Taft, dedicated a chapter of his aforementioned work entirely to the subject of "Justice and the Poor." (Henry W. Taft, Law Reform, Papers and Addresses by a Practicing Lawyer, ch V at 109-120 [1926].) "Today, profit often overshadows other goals of legal practice." (Howard A. Matalon, The Civil Indigent's Last Chance for Meaningful Access to the Federal Courts: The Inherent Power to Mandate Pro Bono Publico, 71 BU L Rev 545, 545 [1991].) The Honorable Jonathan Lippman, while serving as Chief Judge of the New York Court of Appeals, in implementing a controversial and mandatory system of pro bono representation by the bar, noted a wide schism in the United States between the type of superior legal representation available to the wealthy, while millions of poor persons are left to fend for themselves. (See New York State Unified Court System, Report to Chief Judge, The Task Force to Expand Access to Civil Legal Services in New York [Nov. 2012], available at https://www.nycourts.gov/accesstojusticecommission/PDF/CLS-TaskForceREPORT_Nov-2012.pdf.)

"There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (Griffin v Illinois, 351 US 12, 19 [1956, Black, J.].) In the instant proceeding, Mr. Yoh, who specializes in commercial litigation, generously donated his valuable time, talents, and efforts, in an area normally outside his practice, to help the destitute and elderly petitioner. Mr. Yoh's diligent, masterly, and superb contribution breathes life into the writings of Chief Judge Lippman and Mr. Taft, urging more attorneys to undertake pro bono publico representation of the poor. The duty of pro bono representation is what helps separate legal practice as a profession and calling, rather than a garden-variety, money-generating business.

Accordingly, the matter is remanded to respondent to reopen the hearing in a manner not inconsistent with this decision.{**58 Misc 3d at 956} After the ALJ files his or her decision, the Clerk of the Court shall refer the matter back to this court so it may properly determine the petition.

This court, moreover, cautions all counsel to avoid the pernicious or careless practice of sloppiness in the dating of litigation pleadings, affirmations, and documents. The court, however, accepts the excuse proffered by the Assistant General Counsel in the Office of Legal Affairs of the New York City Taxi and Limousine Commission.