Recent Decisions - April 2017

The following is a summary of some recent OATH decisions decided in *April 2017*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

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Personnel

ALJ Alessandra F. Zorgniotti recommended dismissal of charges alleging that sanitation workers allowed a civilian to throw garbage in the hopper, collected trade waste, and made false statements. Superintendent’s testimony in support of trade waste and false statement charges was inconsistent with prior statements and with video footage. Moreover, there was insufficient evidence to show that two black bags taken from a mixed use building came from the commercial establishment. Finally, while the video showed a civilian throw one bag of garbage into the hopper, it also showed that the man’s actions were sudden and unexpected and that respondents could not have stopped it.  Dep’t of Sanitation v. Henriquez, OATH Index Nos. 1398/17 & 1400/17 (Apr. 24, 2017).

ALJ John B. Spooner found that a special officer violated agency rules when he took seven sick leave days to attend paid training sessions for a private security company. The judge also sustained charges that the officer disobeyed instructions to begin outside work only with agency approval. ALJ Spooner rejected the officer’s claim that he was not working for the private company when he attended the training because the officer’s signature on a letter accepting the job and his appearance at paid training constituted the commencement of an employment relationship with the company. Termination of employment recommended.   Human Resources Admin. v. Archange, OATH Index No. 1468/17 (Apr. 6, 2017).

A Department of Environmental Protection police officer was charged with making threats and invoking his status as an officer during a meeting at his son’s school. The officer and his wife met with a parent coordinator and an assistant principal to discuss bruises discovered on their son. The coordinator testified that the officer angrily stated that he is a cop and when he finds out who did it he would beat that person and would tell his commanding officer. The assistant principal testified that the officer did not yell, but that he did invoke his status as a police officer during the meeting. The officer, his wife and another witness denied threats were made. Finding the testimony of petitioner’s witnesses to be inconsistent and less credible than respondent and his witnesses, ALJ Ingrid M. Addison recommended dismissal of the charges.   Dep’t of Environmental Protection v. Jordan, OATH Index No. 1184/17 (Apr. 7, 2017).

Licensing

For-hire vehicle driver was charged with transporting a passenger with suspended for-hire vehicle and drivers licenses, without prearrangement through a licensed base. He was also charged with threatening and striking the passenger. Respondent failed to appear and the trial proceeded in his absence. ALJ Zorgniotti credited the complainant’s testimony that respondent approached and asked her if she wanted a ride while she was at a bus stop. During the ride the complainant noticed that the for-hire vehicle license and name of the base were not displayed. Upon arrival, respondent argued with the complainant about the fare. He cursed, threatened to beat the complainant, and tried to hit her in the face but she blocked the blow. When the complainant took a picture of his license plate, respondent tried to take her phone from her. ALJ Zorgniotti recommended revocation of respondent’s for-hire vehicle and driver’s licenses and a $3,500 fine.  Taxi & Limousine Comm’n v. Portessoriano, OATH Index No. 1508/17 (Apr. 4, 2017), adopted, Comm’r Dec. (May 1, 2017).

Respondent, a mobile food vendor permit holder and licensee, was charged with leasing her permit in violation of the Health and Administrative Codes. The lessee testified that he has a license but he needed a permit to operate a food cart. He leased respondent’s permit for a "long term right of use" with an option to renew for $8,000 every two years. The lessee sued respondent, alleging that she demanded $25,000 for the second lease renewal. ALJ Susan J. Pogoda found respondent unlawfully leased the permit and recommended revocation of her permit and license.   Dep’t of Health & Mental Hygiene v. Wu, OATH Index No. 1258/17 (Apr. 10, 2017).

Practice and Procedure

Mobile food vendor who did not appear at his scheduled license revocation trial filed a motion to vacate the default, which was opposed by petitioner. ALJ Astrid B. Gloade granted the motion, finding that the vendor showed good cause for not appearing (he produced evidence showing that he left the country two days before petitioner served the notice of trial) and presented legally viable defenses to the charges.   Dep’t of Health & Mental Hygiene v. Abouomar, OATH Index No. 1157/17, mem. dec. (Apr. 14, 2017).