Recent Decisions

The following is a summary of some recent OATH decisions decided in *February 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

A master plumber was alleged to have submitted fraudulent certificates of insurance and failed to have displayed a sign and plate identifying his license. Petitioner presented testimony from an investigator and the plumber’s insurance broker, and affidavits from two state insurance fund underwriters. The plumber testified that the false certificates were produced by his insurance broker. He admitted that he did not have a “licensed plumber” sign or a plate at his business address, but claimed petitioner delayed in issuing a new plate when his business relocated. ALJ John B. Spooner sustained the charges, finding the plumber was the one with a motive to alter the certificates to avoid paying for insurance and to retain his license. License revocation recommended. Dep’t of Buildings v. Tsamos, OATH Index No. 1613/18 (Feb. 6, 2019), adopted, Comm’r Dec. (Feb. 11, 2019).

A taxi driver was charged with using force against a pedestrian, parking in a bus stop and making a U-turn in a business district in violation of traffic rules. Finding the complainant unreliable due to discrepancies and embellishments in her testimony, ALJ Astrid B. Gloade found that petitioner failed to meet its burden of proof and recommended dismissal of the use of force charge. ALJ Gloade found that the driver had committed the two traffic infractions and recommended a $500 fine. Taxi & Limousine Comm’n v. Carter, OATH Index No. 813/19 (Feb. 20, 2019).

Personnel

A caseworker was placed on pre-trial involuntary leave under section 72 of the Civil Service Law based upon complaints that she failed to perform assigned tasks and engaged in disruptive behavior, including spraying a chemical substance in the air, playing loud music, and singing in her cubicle. The worker was subsequently examined by a psychiatrist who found her unfit to perform the job due to a mental disability. The caseworker challenged the finding of unfitness and the need to place her on pre-trial involuntary leave. Following a three-day trial, ALJ Gloade found that petitioner did not prove that the worker was currently unfit to perform her duties or that there was a sufficient basis to place her on pre-trial leave. The doctor’s report and testimony failed to provide the basis for her conclusion that the worker suffers from a mental disability which precludes her from performing her duties. Regarding the worker’s placement on pre-trial leave, section 72 allows such leave only in emergency situations where the agency has probable cause to believe the employee’s continued presence on the job represents a potential danger to persons or property or would severely interfere with operations. Here, the agency did not prove either justification. ALJ Gloade recommended the petition be dismissed and the worker be restored any salary or leave balances used during the period of pre-trial leave. Human Resources Admin. v. S.J., OATH Index No. 0074/19 (Feb. 13, 2019).

A clerical associate was charged with two days of absence without leave (“AWOL”), taking an unauthorized break from the jobsite, sleeping in the main office during a lunchbreak, and failing to comply with her supervisor’s directives. ALJ Joycelyn McGeachy-Kuls sustained the AWOL and unauthorized break charges. She dismissed the sleeping and refusal to work charges and a charge that the employee disobeyed an order to go the Office of Disciplinary Proceedings (“ODP”). Under section 75(2) of the Civil Service Law, an employee is entitled to have their union representative present, if at the time of questioning the employee appears to be a potential subject of disciplinary action. The employee tried to get a union representative to accompany her to ODP but was unable to do so. Under the circumstances, her refusal to report to ODP was not misconduct. The recommended penalty was a ten-day suspension without pay, with credit for the 14-day pre-trial suspension already served. Dep’t of Citywide Administrative Services v. Moe, OATH Index No. 2741/18 (Feb. 25, 2019).

A job opportunity specialist was charged with pushing a co-worker’s hand away from the time clock, bumping the co-worker out of the way, cursing at the co-worker, later making an obscene gesture at the co-worker and another colleague while they waited for the bus, and disrupting work the next day by pointing at the co-worker. ALJ Kevin F. Casey sustained the charges that the worker cursed at and made an obscene gesture towards her co-workers while they were waiting for the bus, but he dismissed the other charges. The recommended penalty was four days’ suspension without pay. Human Resources Admin. v. Obilor, OATH Index No. 693/19 (Feb. 22, 2019).

Real Property

A Loft Law coverage application was filed by 30 tenants living in two contiguous structures in Brooklyn. ALJ Spooner found that the two structures constituted a single building for purposes of the Loft Law. Nevertheless, he recommended denial of the application based upon his finding that the commercial use on the first floor constituted an incompatible use actively and currently pursued under the Loft Law and the Loft Board’s rules. ALJ Spooner found that the use, a metal coating operation, a use group 17 manufacturing process under the Zoning Resolution, with an environmental rating of “B”, was in existence from 2010 to the date of the application. Matter of Higbee, OATH Index Nos. 222/14, 385/14, 2744/15, 1997/16, 573/18 (Feb. 5, 2019).