OATH Recent Decisions

To subscribe to receive the monthly BenchNOTES newsletter by email, click here.

Personnel

ALJ Julia H. Lee recommended termination of employment for a patient care associate who has been excessively absent since November 2020 and absent without leave (“AWOL”) since May 2022. Respondent did not dispute that she has been absent without leave from May 2022 to the present but argued that her absence was due to petitioner reassigning her to the operating room in retaliation for her taking Paid Family Leave and petitioner’s failure to grant her reasonable accommodation request. The ALJ found that respondent’s absence from work since May 2022 was not obviated by her submission of a reasonable accommodation request and that she was not entitled to an accommodation where she would not be performing the essential functions of her job. The ALJ also found that petitioner proved respondent was excessively absent on 34 dates from November 2020 through February 2022, and was AWOL on numerous occasions. However, the ALJ dismissed an AWOL charge for respondent’s absence from September 2, 2021 through November 5, 2021, finding that petitioner cannot prove that respondent was AWOL if petitioner placed her on leave for failure to comply with the COVID-19 vaccine requirement and then charged her with being AWOL for the same period of time. Health & Hospitals Corp. (Elmhurst Hospital Ctr.) v. Hewitt, OATH Index No. 2135/23 (Feb. 15, 2024).

Licensing

ALJ Tiffany Hamilton recommended dismissing a fitness proceeding against a TLC driver who in 2015 was convicted in Pennsylvania of a misdemeanor sex offense. Petitioner brought the fitness proceeding under 68-14(a)(3), which authorizes TLC to revoke a license based upon respondent’s conviction of certain non-felony criminal offenses under New York law, including sexual abuse in the third degree. In finding that the rule was inapplicable to out of state convictions, the ALJ rejected petitioner’s argument that revocation is warranted because respondent’s Pennsylvania conviction was the “functional equivalent” of sexual abuse in the third degree. The ALJ found that 68-14(a)(3) specifically limited qualifying non-felony convictions to those that occur in New York and the drafters could have included express language referencing convictions in other jurisdictions, as they did with the provision pertaining to felony convictions, but they did not. The ALJ also noted that under 68-14(a)(1), petitioner may revoke a license based on any act which implicates the licensee’s ability to safely interact with the public, but petitioner did not charge respondent with that and the ALJ declined to amend the charges sua sponte. Taxi & Limousine Comm’n v. Saini, OATH Index No. 1193/24 (February 8, 2024).

ALJ Jonathan Fogel recommended dismissing a fitness proceeding against a TLC driver charged with failing to yield to a pedestrian and causing critical injury to a pedestrian while operating a taxicab. The ALJ recommended dismissal, finding petitioner failed to prove the charges because it primarily relied on multiple levels of hearsay in the arrest and complaint reports, and did not offer any corroborating evidence. The ALJ also credited respondent’s testimony, corroborated by arrest and complaint reports, and found that complainant was required to yield right of way to vehicles on the roadway (defined as outside the crosswalk), and that complainant was not in the crosswalk when the accident occurred. Although respondent was still required to exercise due care to avoid a collision, petitioner did not allege, nor provide any evidence to show, that respondent failed to exercise due care. Petitioner also failed to prove that the accident caused “critical injury” as defined under TLC rules. Taxi & Limousine Comm’n v. Fazal, OATH Index No. 1769/24 (Feb. 16, 2024), adopted, Comm’r Dec. (Feb. 26, 2024).

Vehicle Seizure

ALJ Kevin F. Casey ordered the release of a vehicle seized by the Police Department as an instrumentality of crime because petitioner failed to show its search of the vehicle was lawful. Petitioner alleged that during a traffic stop respondent consented to a search of his vehicle, which led to the recovery of a weapon and respondent’s arrest. The ALJ found that a police officer’s body camera video established respondent had consented to the search of an armrest but the police exceeded the scope of that consent by searching underneath a cake in a box on the front passenger floor. Finding that petitioner failed to prove that it had probable cause to make the arrest that resulted in the seizure of respondent’s vehicle, the ALJ directed petitioner to release respondent’s vehicle. Police Dep’t v. Isaacs, OATH Index No. 1781/24, mem. dec. (Feb. 13, 2024).

ALJ Seon Jeong Lee ordered the release of a vehicle seized by the Police Department as an instrumentality of crime because petitioner failed to comply with the Krimstock Order’s notice requirement and because respondent established that he is an innocent owner of the vehicle. Petitioner seized respondent’s vehicle following the arrest of respondent’s son, the vehicle driver, for patronizing a prostitute and other charges. The Krimstock Order requires petitioner to mail a copy of the vehicle seizure notice to the registered and/or titled owner of the vehicle within five business days of the seizure. Respondent argued that petitioner failed to comply with this requirement because it had mailed the notice to a Brooklyn address provided by respondent’s son instead of respondent’s home in Orange County, where the vehicle is registered. At trial, respondent testified that he did not receive the notice in the mail and that although he had been staying at the Brooklyn home in recent months while receiving medical treatment, he has not lived there since 2008. The ALJ found respondent’s presence at the Brooklyn address was coincidental, and petitioner failed to establish that mailing the notice to the Brooklyn address was reasonably calculated to achieve actual notice to respondent. Further, the ALJ found respondent established an innocent owner defense, crediting respondent’s testimony that the car was kept locked in the garage and he did not know his son was using the car. Police Dep’t v. R.G., OATH Index No. 2286/24, mem. dec. (Feb. 27, 2024).

Health Code

ALJ Seon Jeong Lee recommended dismissing a permit revocation proceeding against respondent, the holder of a food establishment permit, based on petitioner’s failure to schedule a timely hearing. Respondent is the owner of a café which sells tea made with Kava powder and Kratom leaves, which petitioner determined was adulterated and not permitted to be offered for human consumption at food service establishments. Petitioner issued multiple summonses to respondent, which were adjudicated before the OATH Hearings Division, and subsequently ordered the closure of the cafe on November 2, 2023. Petitioner filed a petition with the OATH Trials Division on November 17, 2023, seeking to revoke the café owner’s food establishment permit, and the trial took place on December 13, 2023. In granting respondent’s motion to dismiss, the ALJ found that the Health Code and the Sanitary Code required petitioner to provide respondent with a hearing within 15 days of the closure which it did not meet by the filing of the petition. The ALJ also rejected petitioner’s argument that respondent had been provided a timely hearing because one of the summonses had been adjudicated before the Hearings Division on November 17, 2023. The ALJ found that petitioner’s rules required that respondent be provided with an opportunity to dispute the closure order before an administrative law judge. The ALJ determined that this requirement was not satisfied by a hearing before a judicial hearing officer where the closure order was not at issue. Dep’t of Health & Mental Hygiene v. Root 4 You LLC d/b/a Here & Now, OATH Index No. 1460/24 (Feb. 16, 2024).