Recent Decisions

The following is a summary of some recent OATH decisions decided in *March 2020*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Trials Division – COVID-19 Update

COVID-19 Update

The OATH Trials Division located at 100 Church Street, NY, NY 10007 is closed until further notice but is still holding conferences and trials by phone. If interested in taking advantage of this option, please email OATHCalunit@oath.nyc.gov

Licensing

The City Clerk denied a marriage license application after discovering two licenses had been issued in 1990 and 1995 to an individual using the same name and birth date as the applicant. On appeal, the applicant denied that she was the same person who applied for the prior licenses. The applicant submitted documentary evidence showing she resided in a different location than that listed in the former marriage license applications. ALJ Noel R. Garcia recommended that the marriage license be accepted and processed expeditiously. Office of the City Clerk v. Marcial, OATH Index No. 1044/20 (Mar. 12, 2020)

Petitioner established that a licensed taxi driver tested positive for marijuana metabolite. The licensee testified that he had unknowingly consumed cake that contained marijuana at his sister's birthday party. His sister testified that her friend had brought a cake that contained marijuana to her party without her knowledge and produced contemporaneous texts messages showing that the person who brought the cake had been invited to the party. ALJ Astrid B. Gloade credited the testimony of the driver, who held a lengthy and unblemished record as a licensee who has passed multiple drug tests, and found that he credibly established that he had innocently ingested marijuana. Dismissal of the charges recommended. Taxi & Limousine Comm’n v. Nusret, OATH Index No. 1223/20 (Mar. 13, 2020), adopted, Comm’r Dec. (Apr. 14, 2020).

Petitioner suspended respondent’s taxi driver license after receiving notice of his arrest for unlawful surveillance by use of an imaging device under clothing, a felony. Petitioner asserted that respondent’s continued licensure during the pendency of his criminal case would pose a direct and substantial threat to the public health and safety and sought a finding that his license suspension should be continued pending the outcome of the criminal case. Prior to arraignment, the district attorney’s office declined to prosecute respondent for the arrest charge and excluded it from the criminal complaint. At the summary suspension hearing, respondent moved to dismiss the petition because the prosecutor had disposed of the criminal charge that was the basis for the suspension. ALJ Joycelyn McGeachy-Kuls found that TLC could not continue a driver’s suspension based on a charge that was no longer pending and recommended dismissal of the petition. Taxi & Limousine Comm’n v. Bajwa, OATH Index No. 1603/20 (Mar. 27, 2020), adopted, Comm’r Dec. (Apr. 15, 2020).

Personnel

Respondent, a hospital housekeeping aide, was charged with dereliction of duty, insubordination, and engaging in disruptive behavior. ALJ Noel R. Garcia sustained the dereliction of duty charge, finding the hospital proved respondent failed to clean two pharmacies as directed. ALJ Garcia found that while respondent's questioning of his assignment could be deemed discourteous behavior, such conduct was not insubordination. To the extent the insubordination charge was meant to encompass respondent’s refusal to clean the pharmacies, it was duplicative. Petitioner did not prove that respondent's conduct disrupted hospital operations, as alleged. In line with the principles of progressive discipline, ALJ Garcia recommended a 30-day suspension, taking into consideration respondent’s prior similar conduct. Health and Hospitals Corp. (Queens Hospital Center) v. Khan, OATH Index No. 0001/20 (Mar. 23, 2020).

Vehicle Retention

Petitioner sought to retain, pending the forfeiture proceeding, a car seized in connection with an arrest as the alleged instrumentality of a crime. During a traffic stop, respondent was ordered by a police officer to step out of his vehicle. Respondent instead drove away and allegedly drove over the officer’s foot causing injury. Respondent was thereafter arrested and charged with assault in the second degree, but pled guilty to unlawful fleeing from a police officer in the second degree. ALJ Noel R. Garcia found that the police had probable cause to arrest respondent, that petitioner was likely to prevail in a civil forfeiture proceeding given respondent’s admission that he defied the officer’s orders to step out of the vehicle and instead drove away, and finally that he presented a risk to public safety with his sudden and alarming actions. ALJ Garcia ruled that petitioner may retain the car pending the forfeiture proceeding. Police Dep’t v. Ntuli, OATH Index No. 1331/20, mem. dec. (Mar. 3, 2020).

Contracts

In a case brought before the Contract Dispute Resolution Board (“CDRB”), a subcontractor claimed that it was entitled to additional compensation to repair damage caused by another subcontractor in constructing the new Police Academy in Queens. The CDRB, chaired by ALJ John B. Spooner, denied the $17,000 claim as time-barred and unsupported by the contract, which required that the contractor protect its work prior to completion of the project. The CDRB noted that the contract contained no provision under which the City was obliged to pay for additional repair work. Turner/STV v. Dep’t of Design and Construction, OATH Index No. 2474/19, mem. dec. (Mar. 9, 2020).

The CDRB, chaired by ALJ Kara J. Miller, denied a contractor’s claim for over $94,000 for additional work to a pedestrian bridge located over the FDR Drive. The Board found that the claim was time barred and the contractor had waived the claim by failing to reserve it in the partial time extension requests, as required by the contract. Primer Construction Corp. v. Dep’t of Design & Construction, OATH Index No. 2578/19, mem. dec. (Mar. 12, 2020).