OATH Recent Decisions and News

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OATH News

Former Mayor de Blasio signed special education executive order: On December 27, former Mayor de Blasio signed an executive order to assign OATH jurisdiction to adjudicate special education impartial hearings, following the agreement between OATH, the NYC Department of Education, and the NYS Education Department in early December.

New law on press credentials: In January, Local Law 46 of 2021 goes into effect. Under this law, the Mayor’s Office of Media and Entertainment will assume responsibility for handling press credential applications, taking over a system that has been run by the NYPD. The law provides for disputes about application denials, suspensions, and revocations to be heard by OATH Administrative Law Judges.

COVID-19 update

Pursuant to an order of the Chief Administrative Law Judge, hearings, trials, and other OATH operations are being conducted by telephone, videoconferencing, online, or mail, and in-person appearances are also available. For more information, visit OATH’s website at www.nyc.gov/oath.

OATH Trials Division

Featured agency decision

The Conflicts of Interest Board adopted in full ALJ Susan J. Pogoda’s recommendation that a former Special Officer with the NYC Health and Hospitals Corporation North Central Bronx Hospital receive a $2,500 fine for using fake City parking placards. The officer had used the fake placards to avoid receiving tickets while parked illegally both near his home and work. Conflicts of Interest Board v. Aponte, OATH Index No. 2218/20 (June 10, 2021), adopted, COIB Case No. 2018-108b (Nov. 23, 2021).

Personnel

ALJ Faye Lewis recommended a ten-day suspension for a correction officer who discharged chemical spray at an inmate in the absence of exigent circumstances without first using other de-escalation techniques. ALJ Lewis did not, however, find that the correction officer had submitted a false and inaccurate report, or that he should be disciplined for the type of chemical agent used. A seven-day suspension was recommended for another correction officer present and tasked with video-recording the incident with a hand-held camera finding he failed to make reasonable efforts to capture the full use of force incident with his handheld video camera. Dep’t of Correction v. Estevez, OATH Index Nos. 1568/21 & 1569/21 (Nov. 3, 2021).

ALJ Joycelyn McGeachy-Kuls recommended termination for a Department of Finance accountant who commented on his personal Facebook account “[t]his is the only work suitable for those ghetto rats,” referring to Guyanese people, in response to an article posted from a Guyanese newspaper. Judge McGeachy-Kuls determined the employee, who listed his professional affiliation on Facebook, had engaged in speech that “might arouse ill will against an individual or group because of… national origin” in violation of the Department’s social media policy. The misconduct revealed the employee’s disregard for the public and the agency for which he worked. ALJ McGeachy-Kuls also determined that the employee failed to cooperate with the Department’s investigation. Dep’t of Finance v. Persaud, OATH Index No. 900/21 (Nov. 12, 2021).

ALJ Joan R. Salzman recommended 30-day suspensions for each of three correction officers for filing false use of force reports regarding an incident in which another officer struck an inmate so hard in the face that he floored the inmate, upsetting his food tray in a mess hall. The three officers falsely reported that the contact was a mere push to the upper body. Dep’t of Correction v. Goldener, Molina, and D’Amico, OATH Index Nos. 693/21, 695/21, 1278/21 (Nov. 10, 2021).

Licensing

ALJ Noel R. Garcia recommended lifting the suspension of a driver’s TLC license. The driver was arrested following an incident in which he attempted to throw his dinner plate at the ground in frustration, but the plate slipped from his hand, striking his spouse. The driver credibly testified that he had not meant for the plate to strike his spouse and that he had attended various workshops related to anger-management, parenting skills, and domestic violence issues. Taxi & Limousine Comm’n v. Mamun, OATH Index No. 769/22 (Nov. 17, 2021).

ALJ Kevin F. Casey recommended lifting the suspension of a driver’s TLC license where the driver had been arrested following an alleged assault on an individual at his mosque. Two other TLC licensees were also arrested, and it was alleged that they pushed and kicked the individual. The driver admitted that he had grabbed the individual’s hands to prevent him from blocking a stairway, but there was no specific claim that the driver participated in pushing or kicking the individual. The driver credibly testified that the incident was the result of a longstanding dispute between two groups at the mosque and he expressed remorse about having been involved. Taxi & Limousine Comm’n v. Islam, OATH Index No. 770/22 (Nov. 18, 2021).

Vehicle retention

ALJ Julia H. Lee ordered the NYPD to release a car that it seized as the alleged instrumentality of a crime. ALJ Lee found that the NYPD failed to prove it served the car owner with notice of his right to a hearing in person at the time of arrest and by mail within five days after the arrest and seizure of the vehicle. Failure to comply with dual notice requirement is a basis for ordering release of the vehicle. Police Dep’t v. Ridges, OATH Index No. 661/22, mem. dec. (Nov. 3, 2021).

Appeals Division
(appeals from the Hearings Division)

The Appeals Division reversed a hearing officer’s decision that had found a building owner liable for a recycling violation as a repeat offender. The summons incorrectly indicated a higher penalty is applicable only to third or additional offenses. The Appeals Division noted that the summons therefore did not comply with OATH rules requiring that it contain information adequate for a respondent to calculate the maximum penalty it may face. Dep’t of Sanitation v. 51 Buchanan Associates LLC, Appeal No. 2100929 (November 18, 2021).

The Appeals Division reversed a hearing officer’s decision that had dismissed a summons charging a for-hire vehicle driver with speeding. The hearing officer had found that the TLC failed to present sufficient evidence establishing the lawful speed limit. The Appeals Division noted that OATH rules provide that the issuing officer’s affirmed statement in the summons is sufficient to establish a charge that the posted speed limit was 15 miles per hour in the area where the driver’s vehicle was observed. The driver did not dispute the speed limit at the hearing, only testifying that he did not see the posted speed limit, which was not a defense to the violation. Taxi & Limousine Comm. v. Karma Thinley, Appeal No. 73380132A (November 29, 2021).

The Appeals Division affirmed a hearing officer’s decision that had found a business was running an unlicensed car wash. The hearing officer determined that the business engaged in unlicensed activity for 761 days and fined them $100 per day, for a total fine of $76,100. On appeal, the business argued the fine should be reduced. The Appeals Division noted that the business did not deny it was running an unlicensed carwash and that unlicensed activity is presumed to continue every day, without interruption, from the date specified in the summons to the hearing date. The business failed to submit any evidence at the hearing that they were not operating on any specific dates during the 761-day period, and financial hardship is not a basis to dismiss the charge or reduce the penalty imposed. Dep’t of Consumer and Worker Protection v. Crystal Clear NYC Corp., Appeal No. 21N00466 (November 5, 2021).