Recent Decisions

The following is a summary of some recent OATH decisions decided in *January 2019*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Licensing

The Department of Consumer Affairs ("DCA") brought a license revocation proceeding against respondents, affiliated car dealers, alleging that they engaged in deceptive and illegal practices designed to profit from low-income and non-English speaking consumers, while saddling them with overpriced loans and defective cars. DCA sought license revocation and over $30 million in fines. Following a 21-day trial ALJ Zorgniotti sustained some of the charged violations and dismissed others. A civil penalty of $3,164,875 was imposed. ALJ Zorgniotti did not find that the individual respondents were unfit or that respondents' licenses should be revoked, finding mitigation in respondents' willingness to pay restitution to harmed consumers and the efforts they have made to reform their business practices. Dep't of Consumer Affairs v. Major World, OATH Index No. 1897/17, mem. dec.(Jan. 24, 2019).

Respondent, a professional engineer and special inspector, was charged with making false statements to the Department of Buildings ("DOB"), assuming responsibility for special inspections without qualifications, and failing to maintain and produce records as directed. Respondent admitted that he submitted forms to DOB which falsely certified that he completed welding special inspections even though he was not qualified to do so and the inspections were performed by a subcontractor. Respondent also failed to maintain and produce requested records of special inspections for excavation, site storm drainage, masonry and soil site preparation. Noting that DOB depends upon special inspectors to ensure safety at construction sites, ALJ Kevin F. Casey recommended revocation of respondent's filing privileges and disqualification from performing special inspections. Dep't of Buildings v. Thomas, OATH Index No. 1898/18 (Jan. 28, 2019), adopted, Comm'r Dec. (Jan. 30, 2019).

Real Property

Under the single room occupancy ("SRO") anti-harassment law, the owner of an SRO building must obtain a certificate of no harassment ("CONH") before it may legally renovate the building. A two-day trial was held by Supervising ALJ John W. Burns to decide whether respondent SRO building owner harassed any of the occupants during the three year look-back period. The definition of harassment in the City Housing Maintenance Code was amended in 2015 to include the initiation buyout discussions with tenants without providing them with a written statement of rights, or the offering of money to induce tenants to leave their units while making misrepresentations as their rights. ALJ Burns rejected the owner's argument that the Code definition of harassment does not apply to cases brought under the SRO anti-harassment law. He found that the owner committed harassment when he initiated buyout discussions with tenants without providing the proper written notices. The owner also made inaccurate representations to the tenants about their rights, including when he did not tell a tenant that he was agreeing to surrender a rent stabilized unit to move to a non-rent stabilized unit at another building owned by respondent. Denial of the CONH application was recommended. Dep't of Housing Preservation & Development v. Stavrou, OATH Index No. 2226/18 (Jan. 15, 2019), adopted, Comm'r Dec. (Jan. 29, 2019).

Personnel

Petitioner sought to terminate the employment of a captain for medical incompetence under section 75 of the Civil Service Law due to excessive use of sick leave based upon job-related injuries. The captain contended that the disciplinary charges should be dismissed and that the case should be converted to a disability proceeding under section 71 of the Civil Service Law. Section 71 provides that where an employee has been separated from the service because of a disability arising from an assault sustained in her employment, she shall be entitled to a leave of absence for at least two years, unless her disability was permanently incapacitating. Here, the captain had been absent from work for less than two years. Moreover, she had filed for permanent disability retirement. ALJ Lewis concluded that section 71 leave was not an available option and that petitioner could proceed under section 75. The proof showed that the captain used almost 300 sick days over a 21 month period, which was sufficient to establish an excessive use of sick leave. ALJ Lewis sustained the charges and recommended termination of employment. Dep't of Correction v. Knupp, OATH Index No. 1774/18 (Jan. 4, 2018).

A city planner was charged with multiple instances of insubordination, incompetence, and calling 911 to have police respond to an incident with her supervisor. ALJ John B. Spooner sustained most of the insubordination charges and the incompetence charge. During a four- month period the planner failed to complete three successive assignments, although she was provided with several weeks to do so. As to the 911 call, ALJ Spooner credited the supervisor's account that she unplugged the employee's earphones without touching her and that this provided no justification for the worker to summon the police. Termination of employment was recommended. Dep't of City Planning v. Kelly, OATH Index No. 516/19 (Jan. 7, 2019), adopted, Comm'r Dec. (Jan. 30, 2019).

A claims specialist was charged with three instances of discourtesy and threatening co-workers. ALJ Noel R. Garcia sustained two discourtesy charges because the specialist admitted that she had made the insulting remarks. He dismissed the threat charges because petitioner offered only an uncorroborated hearsay account from a supervisor, and the specialist denied that she engaged in threatening behavior. ALJ Garcia recommended dismissal of charges relating to another incident where there were material inconsistencies between the co-worker’s testimony and her prior statements. For the misconduct proven, a ten-day suspension without pay was recommended. Law Dep't v. Moore, OATH Index No. 498/19 (Jan. 28, 2019).

Vehicle Retention

Petitioner, the Police Department, sought to retain a car that it had seized in connection with the driver's arrest for criminal possession of a weapon and criminal possession of marijuana. The weapon, along with marijuana packaged in plastic wrap, was discovered by the arresting officer when she searched the trunk of the car. The driver was later indicted on multiple felony and misdemeanor counts of criminal possession of a weapon. However, he was not indicted for criminal possession of marijuana, a crime, but only unlawful possession of marijuana, a violation. In order to retain a car until a civil forfeiture action is completed, petitioner must prove that it had probable cause for the arrest, that it is likely to prevail in the forfeiture action, and that it is necessary to keep the car until final judgment in the forfeiture action. ALJ Faye Lewis found that the petitioner did not prove that it had probable cause for the arrest because the officer did not have probable cause to search the trunk. The statement in the arrest and complaint reports that the arresting officer smelled marijuana emanating from the car, without more, was insufficient to give rise to probable cause to search the trunk. The defendant's indictment does not by itself establish probable cause to arrest in a vehicle retention hearing. Release of the car to its owner was ordered. Police Dep't v. Arthurs, OATH Index No. 1261/19, mem. dec. (Jan. 30, 2019).

Bench News

Alessandra F. Zorgniotti retired from OATH this January, after 13 years of distinguished service as an administrative law judge with the OATH Trials Division. During her time at OATH, Judge Zorgniotti issued several notable decisions, including Department of Consumer Affairs v. Major World,et al., OATH Index No. 1897/17, mem. dec. (Jan. 24, 2019), which is featured in this issue of BenchNotes, Fire Department v. Buttaro, OATH Index No. 2430/14 (Jan. 13, 2015), which addressed the issues of First Amendment free speech rights of public employees in the workplace, and Office of the Comptroller ex rel. Local 1320 v. Office of Labor Relations, OATH Index No. 1522/09 (Sept. 10, 2009), which involved setting the prevailing wage for sewage treatment workers who work for the city. In recent years, Judge Zorgniotti was a leading contributor and editor of BenchNotes. Best wishes to her in retirement.