Recent Decisions

The following is a summary of some recent OATH decisions decided in *February 2021*. To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

OATH News

OATH announced 100,000 cases heard remotely during the COVID-19 pandemic: On February 12, OATH announced that the agency has conducted hearings in over 100,000 cases by phone since its offices were closed to the public in March 2020 due to the COVID-19 public health emergency. With 100,000 cases heard, OATH has heard more cases in real-time with all parties appearing remotely than any other municipal or state court in the country. Read the press release.

OATH Commissioner joined Council Member Koo in Flushing to speak to small businesses: On February 16, OATH Commissioner and Chief Administrative Law Judge Joni Kletter joined Council Member Peter Koo and members of the community in Flushing, Queens, to educate small business owners about how to respond to City-issued summonses, and about other OATH services such as the Help Center and the MEND NYC mediation program. Read news coverage here.

Mayor de Blasio signed Executive Order establishing the Center for Creative Conflict Resolution within OATH: On February 18, Mayor Bill de Blasio signed Executive Order 63, officially establishing the Center for Creative Conflict Resolution (CCCR) within OATH as the City government's central dispute resolution resource. The order also directs all agencies to consult with CCCR to incorporate restorative justice principles into their workplaces and missions. The Mayor signed the Executive Order at a restaurant at the same time as the restaurant owner and a long-time neighborhood resident signed a mediation agreement as part of the MEND NYC program. Read the press release and Executive Order 63.

COVID-19 update
Pursuant to an order of the Chief Administrative Law Judge, all hearings, trials, and other OATH operations are being conducted by telephone, videoconferencing, online, or mail, and OATH will only allow in-person appearances in limited, pre-approved circumstances. Individuals may only enter OATH offices if the agency has approved your or your representative’s request because there is a compelling need for an in-person proceeding and the proceeding can be conducted while providing sufficient social distancing and other public health protections to comply with state and local government public health guidelines. For more information, read OATH's public flyer.

Appeals Division

The Appeals Division reversed a hearing officer's decision finding that a charge of failure to maintain a premises in a code-compliant manner could not be based on a violation of the City's zoning laws. The Appeals Division relied on a rule that the City's construction laws "should be liberally construed to secure its beneficial purposes thereof" and that code compliance is not restricted to the Building Code and Construction Codes where the context or subject matter requires otherwise. Dep't of Buildings v. Murad Sardar, Appeal No. 2001059 (Jan. 14, 2021).

The Appeals Division reversed a hearing officer's dismissal of a charge of unreasonable noise from a construction device based on a finding that steel plates placed in the roadway did not constitute a "construction device." The Appeals Division noted that under the Noise Control Code, a "construction device" is any device that is intended for "use in" construction, and that the devices listed as examples are not exhaustive or limited only to power-driven or mechanical devices. It further found that the steel plates are considered "stationary construction devices" requiring additional noise mitigation under the City Department of Environmental Protection's rules. Dep't of Environmental Protection v. MFM Contracting Corp., Appeal No. 2001271 (Jan. 14, 2021).

The Appeals Division reversed a hearing officer's decision finding that a respondent failed to comply with a lawful directive of a Department of Parks and Recreation officer by continuing to play a musical instrument in a "loud manner" when previously warned not to do so. At the hearing the respondent testified he was playing his saxophone without any amplification device, stopped playing to speak to the officer, and then resumed after the conversation. The Appeals Division noted that the officer did not claim that the respondent was using a sound reproduction device which would have required a permit, and found the officer's allegation that he was playing in a "loud manner" insufficient to justify the order. While the Parks Department rules prohibits any person from making "unreasonable noise in any park so as to cause public inconvenience, annoyance or harm," the officer gave no indication that the music disturbed the peace, comfort, or repose of a reasonable person or was otherwise unusually or excessively loud. Dep't of Parks & Recreation v. J. Doe, Appeal No. 2001286 (Jan. 14, 2021).

OATH Trials Division

Featured agency decision

The New York City Conflicts of Interest Board ("COIB") adopted ALJ Faye Lewis' findings of fact and conclusions of law but imposed a lower penalty against a former Community Coordinator at the Department of Parks and Recreation charged with violation of the City's conflicts of interest law. ALJ Lewis found that respondent used City time and resources to operate a private travel business, sometimes referred to as "Al and Margie's Roadshow" . ALJ Lewis observed that this case differed from the "typical case" involving the misuse of City time and resources for private business, in that the Roadshow had for many years been a City program, with a corresponding City purpose, before the Parks Department withdrew its approval and ordered the former employee to discontinue it. At the close of the OATH trial, COIB requested a $25,000 fine, but ALJ Lewis found that to be excessive given the unusual nature of the violation, and she recommended a $10,000 fine.

In its decision, COIB agreed with ALJ Lewis' characterization of the violation as "peculiar" and it noted that "the Roadshow was, for a time, a Parks program and that, for three full years, Parks took little, if any, concrete action to enforce its directive that former employee halt the Roadshow." Given the totality of the circumstances, and the fact that the Parks Department could have acted sooner but did not, the Board found that the appropriate penalty was a $2,500 fine. Conflicts of Interest Bd v. Peterson., Conflicts of Interest Bd. Case No. 2016-126 (Jan. 29, 2021), adopting, OATH Index No. 2275/19 (May. 14, 2020).

Human Rights

The New York City Commission on Human Rights brought claims on behalf of a former laundry attendant who alleged that she was discriminated against in violation of the Human Rights Law by her employer, the owner of Park Slope Laundry Corporation ("PSL"). Specifically, the complainant alleged that over the course of her 18-month employment, the laundromat owner, Mr. Lugo, made sexual advances and inappropriate comments to her, and that he physically assaulted her. After filing a complaint with the Commission on Human Rights in 2015, the complainant was confronted by Mr. Lugo and his wife who pressured her to withdraw the complaint and continued to harass her.

In response to the complaint, Mr. Lugo argued that the Human Rights Law did not apply to him because his company is not an employer under the law, given that they had fewer than four employees at the time that the alleged harassment occurred. However, in 2018, the Human Rights Law was amended to expand the definition of employer in gender-based discrimination cases to include any employer, including those with fewer than four employees. ALJ Joycelyn McGeachy-Kuls found that because of the remedial intent of the law, the new expanded definition of employer set forth in the 2018 amendment, went into effect immediately and applied retroactively to the claims of discrimination and harassment.

ALJ McGeachy-Kuls recommended emotional distress damages in the amount of $125,000, a civil penalty of $75,000, and affirmative measures to prevent further discrimination. The affirmative measures required that Mr. Lugo and his company's employees to attend anti-sexual harassment training and also institute a written discrimination policy referring complaints to the Commission on Human Rights, and that this policy be distributed to all employees as well as posted publicly. Further, ALJ McGeachy-Kuls also recommended that the company be required to also post, in English and Spanish, policies about employees' rights, including the rights to be free of discrimination on the basis of pregnancy and be free of sexual harassment. Comm'n on Human Rights ex rel. McGinn v. Park Slope Laundry and Ambioris Garcia Lugo, OATH Index No. 1021/19 (Jan. 27, 2021).

Personnel

ALJ Susan J. Pogoda recommended termination of a Sanitation Department employee charged with making unauthorized payments to 25 sanitation workers for overtime or differential work not performed, and failing to maintain accurate records. An investigation revealed that over an 18-month period, respondent approved a total of $44,359.17 in payments, of amounts ranging from $100.10 to $15,165.33, by entering unauthorized payroll and time adjustments. Based on these charges and the respondent's history of prior suspensions, ALJ Pogoda recommended termination of his employment. The Sanitation Commissioner adopted ALJ Pogoda's findings in their entirety but did not impose a penalty since the respondent has since retired. Dep't of Sanitation v. Perez, OATH Index No. 1479/19 (Jan. 22, 2021), adopted, Comm'r Dec. (Jan. 25, 2021).

Licensing

ALJ Astrid B. Gloade recommended that suspension of a Taxi and Limousine Commission driver's license be lifted, finding continued licensure pending the outcome of criminal charges did not pose a direct and substantial threat to public health or safety. TLC suspended the respondent's license after it received notice that he had been arrested for assault and harassment. At the trial, TLC offered evidence relating to the respondent's licensing history, including records relating to a prior suspension based upon respondent's arrest for criminal possession of a weapon, menacing and harassment. Counsel for the respondent objected to the admission of the documents, citing to the provision in the New York State Criminal Procedure Law for sealing records when the criminal action is terminated in favor of the accused. ALJ Gloade denied the objection and admitted the documents. She found counsel for the respondent provided no basis to conclude that TLC falls within the entities required to seal criminal court records, nor did counsel show that the criminal proceeding had in fact been resolved in respondent's favor. However, ALJ Gloade found the driver offered compelling mitigating evidence about the circumstances leading up to the arrest that weighed heavily in his favor and she recommended that the suspension be lifted. Taxi & Limousine Comm'n v. Camara, OATH Index No. 1015/21 (Jan. 12, 2021), adopted, Comm'r Dec. (Jan. 14, 2021).

ALJ Noel Garcia recommended against TLC's revocation of a driver's license due to a positive drug test for marijuana caused by consumption of drug-laced chocolate. The respondent testified that he does not use illegal drugs. Instead, he explained that on the day he received the news that his second granddaughter had been born, his brother came to his residence to celebrate and brought chocolate. The respondent's brother told him that it was quality chocolate that was made by a friend but did not tell him that it contained marijuana. The respondent ate the chocolate, and the next day failed his TLC drug test. When he informed his brother of the positive test result, his brother confessed that the chocolate contained marijuana. Crediting testimony from respondent and his brother, ALJ Garcia found respondent established an unknowing ingestion defense and recommended dismissal of the charges. Taxi & Limousine Comm'n v. Berlin, OATH Index No. 947/21 (Jan. 5, 2021), adopted, Comm'r Dec. (Jan. 8, 2021).

Vehicle Retention

ALJ Faye Lewis determined that the Police Department was not entitled to retain a seized vehicle pending the outcome of a forfeiture proceeding, and ordered the vehicle released because the respondent was an "innocent owner." In December 2020, respondent's son was arrested for criminal possession of a weapon while driving her car, and police officers seized the car. ALJ Lewis found that there was no evidence that respondent knew or should have known that either of her sons would use her car to commit a crime.

Although she found in favor of the respondent, ALJ Lewis noted that she rejected the respondent's contention that the NYPD did not comply with the Krimstock Order's requirements regarding service of the notice of right to a retention hearing. The respondent was present at the precinct on the day of the arrest but was not served with notice until she received it much later in the mail. ALJ Lewis found that although the spirit of Krimstock would suggest that the police should have served the respondent with notice at the precinct, the language of the Order requires service of the notice at the time of seizure to "the person from whom" the vehicle was seized. This refers to the respondent's son, the person who was arrested, and not the respondent. The NYPD fulfilled its separate obligation of notice to the respondent by timely mailing her the required notice within five business days after seizure. Although the NYPD did not prove service of the notice upon respondent's son at the time of seizure, ALJ Lewis held that lack of notice is an affirmative defense and the respondent did not testify about whether her son was given the retention notice upon arrest. Police Dep't v. Clark, OATH Index No. 1101/21, mem. dec. (Jan. 8, 2021).

ALJ Kevin F. Casey ruled that the Police Department was entitled to retain a seized vehicle pending a civil forfeiture proceeding. The NYPD seized the respondent's vehicle, a 2012 BMW, following his arrest for criminal possession of a weapon and other charges. ALJ Casey found that the police may retain the vehicle because they had probable cause to arrest respondent, they were likely to prevail at a forfeiture action, and release of the vehicle may present a heightened risk to the public. The respondent possessed a loaded firearm in his car while he was smoking marijuana and did not offer any mitigating evidence. Police Dep't v. Cheristin, OATH Index No. 888/21, mem. dec. (Jan. 13, 2021).

Real Property

ALJ Faye Lewis recommended that the Loft Board dismiss most of the applications filed by a building occupant, but recommended a decision in the occupant's favor related to gaps in a skylight. ALJ Lewis found that applications related to harassment, the legalization timetable, and other diminutions of services should be dismissed. The building is an interim multiple dwelling ("IMD"), the tenant's unit is an IMD unit, and she is the protected occupant. Until June 2019, the building housed a retail store known as Topshop/Topman (also referred to as "Topshop") in the first four floors and basement. ALJ Lewis found that the diminution charges relating to the retail store are moot because Topshop was no longer in business at the location.

ALJ Lewis found that the alleged legalization timetable violation was not proven, in part because the building in fact has a valid temporary certificate of occupancy and legalization work appears to be over 98% complete, with contracts in place to finish the remaining work. ALJ Lewis also recommended dismissal of the harassment allegation, but recommended an order requiring the owner to restore the defective skylight. Matter of Chapin, OATH Index Nos. 237/18, 2114/18, 2115/18 (Jan. 21, 2021).