RECEIVED 

m 2 8 2010 

UNITED STATES OF AMERICA H F A RI MP HOr kTT 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

In the Matter of 

EMPIRE AIRWAYS 

FAA Docket No. 2009EA110039 

CP10EA0002 

'"J . 

/ / • 

(Civil Penalty Proceeding) o *. m -* 0 1 9 | 

Honorable Isaac D. Benkin ^ 

Administrative Law Judge 

- 'C D 

C 5 

RESPONDENTS* MOTION FOR DECISION ON THE PLEADINGS 

COMES NOW, Empire Airways, Respondent herein, by and through 

undersigned coimsel, pursuant to Rules 13.215 and 13.218(f)(5) of the Procedural Rules 

(14 C.F.R. Part 13), and hereby moves for a decision on the pleadings and a dismissal of 

the Complaint, with prejudice. 

The pleadings alone establish that there are no genuine issues of material fact to 

be resolved regarding the alleged violations. Therefore, Empire Airways is entitled to a 

decision as a matter of law on the pleadings, and a dismissal with prejudice. In support 

thereof, Respondent states the following: 

MATERIAL FACTS NOT IN DISPUTE 

1. On February 16, 2010, Complainant, Federal Aviation Administration (hereinafter 

"FAA"), served the Complaint upon the Respondent, Empire Airways. 

2. In the Complaint, the FAA alleged that "[a]t all times relevant herein, Empire 

Airways was the operator of a Diamond DA-20 aircraft, identification number N383CA." 

See FAA Complaint at Paragraph No. 1. 
3. On March 12, 2010, Empire Airways filed an Answer to the FAA's Complaint 

pursuant to 14 C.F.R. §13.209, asserting, as an affirmative defense, that "Empire 

Airways, at all relevant times herein, was not the owner or operator of a Diamond DA-20 

Aircraft, identification number N383CA ("the aircraft")." See Respondent's Answer to 

Complaint at Affirmative defense No. 1 (Exhibit 1 attached hereto). 

4. Furthermore, Respondent, Empire Airways, denied performing maintenance on 

the Diamond DA-20 Aircraft, identification number N383CA. See Respondent's Answer 

to Complaint at Paragraph Nos. 11 & 12 (Exhibit 1 attached hereto). 

5. On June 21,2010, more than three (3) months after Complainant was notified that 

Empire Airways was not the properly named Respondent, Agency Counsel, Zachary 

Berman, Esq., filed a "Motion to Withdraw Complaint Without Prejudice." 

6. Specifically, Complainant's motion states that "[u]pon fiirther consideration of the 

evidence in this case, the Agency acknowledges that the company that committed the 

alleged violations was not Empire Airways ... " See Complainant's Motion to 

Withdraw Complaint Without Prejudice at Paragraph 3 (Exhibit 2 attached hereto) 

(emphasis added). 

LEGAL STANDARD 

Rule 13.215 of the Rules of Practice dictates that: 

At any time before or during a hearing, an agency attorney may v^thdraw a 

complaint or a party may withdraw a request for a hearing without the consent of 

the administrative law judge. If an agency attorney withdraws the complaint or a 

party withdraws the request for a hearing and the answer, the administrative law 

judge shall dismiss the proceedings under this subpart with prejudice. 

14 C.F.R. § 13.215 (emphasis added). 
Accordingly, pursuant to Rule 13.215, the Honorable Isaac D. Benkin, 

Administrative Law Judge shall dismiss the proceedings with prejudice. 

Furthermore, the Rule of Practice allow a party to make a motion for decision, 

regarding all or any part of the proceedings, at any time before the administrative law 

judge has issued an initial decision in the proceedings. More specifically, 14 C.F.R. 

§13.218(0(5) states the following, in part; 

The administrative law judge shall grant a party's motion for decision if the 

pleadings, depositions, answers to interrogatories, admissions, matters that the 

administrative law judge has ofRcially noticed, or evidence introduced during the 

hearing show that there is no genuine issue of material fact and that the party 

making the motion is entitled to a decision as a matter of law. The party making 

the motion for decision has the burden of showing that there is no genuine issue 

of material fact disputed by the parties. 

14C.F.R. §I3.2I8(f)(5). 

ARGUMENT 

The FAA's Complaint against Empire Airways must be dismissed with prejudice 

because the pleadings show that there is no genuine issue of material fact to be resolved 

concerning whether Empire Airways committed the alleged violations. 

NO MATERIAL ISSUE OF FACT EXISTS CONCERNING WHETHER 

EMPIRE AIRWAYS COMMITTED THE ALLEGED VIOLATIONS. 

In light of Complainant's Motion to Withdraw Complaint Without Prejudice, 

which explicitly states that "the Agency acknowledges that the company that committed 

the alleged violations was not Empire Airways", the pleadings alone establishes that there 

are no genuine issues of material fact to be resolved regarding the alleged violations. 
CONCLUSION 

The Complainant has not and cannot set forth specific facts showing that there is a 

genuine issue of material fact for trial concerning whether Empire Airways committed 

the alleged violations of 14 C.F.R. §§ 43.13(a), 43.13(b), 91.405(a), 91.407(a)(1), 

91.407(a)(2) and 91.7(a). Accordingly, Empire Airways is entitled to a decision as a 

matter of law on the pleadings, and the Complaint must be dismissed with prejudice. 

WHEREFORE, Respondent respectfully requests tiiat the Honorable Isaac D. 

Benkin, Administrative Law Judge, dismiss the Complaint with prejudice. 

Dated: June 22,2010 

Respectfirfjy-Submitted, 

iGQg>^. WINTON, ESQ. 

^The Aviation Law Firm 

One Research Court, Suite 450 

Rockville, MD 20850 

Tel: (301) 294-8550 

Fax: (301) 294-2525 

Greg@AviationLawExpert.com 
EXHIBIT 1 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.G. 

In the Matter of Empire Airways 

2009EAI10039 

Hon. Isaac D. Benkin 

Administrative Law Judge 

ANSWER 

EMPIRE AIRWAYS, by its Counsel, Casolaro Sussman, LLP, hereby files its 

Answer pursuant to Rule 209 of the Rules of Practice (14 C.F.R. 13.209) and states the 

following: 

1. Denies 

2. Admits 

3. Admits 

4. Admits that the wheel assembly on the aircraft was re-assembled on or about 

April 8,2009. 

5. Admits 

6. Denies 

7. denies 

8. Denies, except admits that the aircraft was involved in an incident on June 1, 

2009. 

9. Admit 
10. Admit 

11. Denies 

12. Denies 

13. Denies 

AFFIRMATIVE DEFENSES 

1. Empire Airways, at all relevant times herein, was not the owner or operator of a 

Diamond DA-20 aircraft, identification number N383CA ("the aircraft"). 

2. No causal relationship exists between the repair performed on or about April 8, 

2009 and the incident which occurred on June 1,2009. 

If it is determined that any of the alleged violations occurred, it is submitted that a 

civil penalty in the amount of $20,000.00 is unwarranted. 

Dated: Garden City, New York 

March 12,2010 

CASOLARO SUSSMAN J.LP 

By: Charles J. Cagojaro, Esq. 

1050 Franklin Avenue, Suite 402 

Garden City, New York 11530 

(516)-248-1399 
CERTIFICATE OF SERVICE 

I hereby certify that the forgoing Answer has been placed this date m the United 

States mail, postage prepaid, first class mail, to: 

Zachary Berman, Esq. 

Federal Aviation Adininistration 

1 Aviation Plaza 

Jamaica, New York 11434 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C 20591 

Attn: Hearing Docket Clerk, AGC - 430 

Wilbur Wright Building - Room 2014 

Hon. Isaac D. Benkin, Administrative Law Judge 

Office of Hearings, M-20 

US Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washingtoii, D.C, 20590 

Dated: March 24,2010 

ChMles J. Casolvj»,^sq, 

Attorney for Empire Airways 

1050 Franklin Avenue, Suite 402 

Garden City, New York 11530 
EXHIBIT 2 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISIKATION 

OFFICE OF HEABJNGS 

WASHINGTON, D.C. 

la the Matter of Emirire Airways 

2009EA110039 

CP10EAD002 

The Honorable Isaac D. Benkin 

COMPLAINANTS MOTION TO WpHDRAW CQMPLAINT WTTHOUT PREJUDICE 

COMES NOW the Agency, ]jy and through his designated rqpresentative, the Re^onal Counsd 

fbr the Eastern R^o n and his ^^iy designated agents, and moves to withdraw its Complaint in the 

instant proceeding without prejudice, for putposes of initiating the case anew against the correct party. 

The hdm for tlus motion is as Mows: 

(1) The named Respondent in the Complaint is Empire Airways. 

(2) In its Answer to the Complaint, howeva:, it is asserted as an afSrmative defense that Empire 

Airways did not maintain or operate the ^rcraft in question. 

(3) Upon further consideration of the evidence in this case, the Agency acknowledges that the 

c<»npany that cotmnitted the alleged violations was not Empire Airways, but EmjMre Flight 

Academy. Counsel for Empire Airways has represented to counsel for the Agency that they 

are two separate and disdnct entities. 

(4) Therefore, the Agency seeks to withdraw the Complainant without prgudice for purposes of 

Wl 'd .J6a'0N [-VBV 'liSNnoo ivN0i93y V V i mr- i MIMM ? 
initiating the case anew against Empire Flight Academy. 

WHEREFORE^ tiie Agtaity requests that its motion be granted in all respects and that it be peraiitted 

to withdraw the Complaint without prejudice for purposes of initiating the case against the correct 

corporate entity. 

RespectftjUy submitted, 

AlfredR Johnson, Jr. 

Re^onal Counsel 

By: p) " V ^ Date: June21,2010 

ZacharyM,: 

Attorney 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

Telephone: 718 553-3258 

Facsinule: 718 995-5699 

_ _ wi 'd ULim L-w 'i3SNnoD moim v v j mr d oions 
CERTGCTCATF. OF .SERVICE 

I hereby certify that on this day copies of the foregoing COMPLAINANT'S MOHON TO 

WTTHDRAW CQMPLAINT WTTHQUT PREJUDICE were sent via first class mail and via 

facsimUe to each of the followiiig: 

The Honorable Isaac D. Benkin 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Buildmg Ground Floor 

RoomE12-320 

Washii^oa, D.C. 20590 

Telefax; (202)366-7536 

Gregory S. Wmton, Esq. 

330 Aviation Way 

2dHoor 

Frederick, MD 21701 

Telefex: (301)294-2525 

I hereby certify that on this day copies of tiie forgoing COMPLAINANTS MOTION TO 

WITHDRAW qOMPLAINT WITHQUT PREJUDICE were sent via first class maU to: 

Federal Aviation Administration (Original and one copy) 

800 dependence Avenu^ S.W. 

Washington, D.C. 20591 

Atta: Hearing Docket Clerk, AGC-430 

Wilbur Wr(ght Building - Room 2014 

Date: ^^^ 2 1 20JO ci^f--^ ' 

sa Hooks 

Paralegal Specialist 

Office of Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

^A "d UL\ m L'W 'iimoo imim ^ ^ i mn-'i oionrNnr 
CERTIFICATE OF SERVICE 

I hereby certify that I have this date served by regular U.S. mail, postage prepaid, an 

original and one (1) copy of the foregoing addressed to: 

Attention: Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Room 924A 

Washington, D.C. 20591 

And, fiirther, that I have this date served by regular U.S. mail, postage prepaid, a copy of 

the foregoing addressed to: 

Honorable Isaac D. Benkin 

Office of Hearings, M-20 

Room 5411 

U.S. Department of Transportation 

400 Seventii Street, S.W. 

Washington, DC 20590 

Tel: (202) 366-2132 

Fax:(202)366-7536 

And, further, that I have this date served by regular U.S. mail, postage prepaid, a copy of 

the foregoing addressed to: 

Zachary M. Berman, Esq. 

Office of Assistant Chief Counsel 

FAA Eastern Region, AEA-7 

1 Aviation Plaza, Room 561 

Jamaica, NY 11434 

Tel: 718-553-3258 

Fax: 718-995-5699 

Dated: June 22,2010 

GREGCg):^. WINTON, ESQ. 

The Aviation Law Firm 

One Research Court, Suite 450 

Rockville, MD 20850 

Tel: (301) 294-8550 

Fax: (301) 294-2525 

Greg@AviationLawExperts.com