Recent Decisions

The following is a summary of some recent OATH decisions decided in *April 2019*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Personnel

A correction officer was charged with using excessive force and submitting a false report concerning force used by officers in subduing a group of inmates. At trial petitioner presented testimony of an investigator and video of the incident. The officer testified on his own behalf, denying that his report was false. Following the officer’s testimony, petitioner withdrew the excessive force charge. ALJ John B. Spooner recommended dismissal of the false report charge, finding the video did not show that the officer was in the vicinity of where force was used against the inmate. Dep’t of Correction v. Smith, OATH Index No. 1001/19 (Apr. 2, 2019).

An emergency medical technician (“EMT”) was charged with leaving a patient in the care of persons who were not medically trained, refusing an order to undergo substance use testing, being absent without leave, falsely reporting that a patient had flagged down an ambulance so that he could eat his meal, creating a false patient care report for a nonexistent patient, forging his partner’s signature on the false patient care report, and testing positive for a controlled substance. Following a two-day trial where petitioner presented testimony from seven witnesses and documentary evidence, and the EMT testified on his own behalf, ALJ Astrid B. Gloade sustained the charges and recommended termination of the EMT’s employment. Fire Dep’t v. Gala, OATH Index No. 2772/18 (Apr. 16, 2019), adopted, Comm’r Dec. (May 7, 2019).

A medicolegal investigator was charged with negligently failing to take jurisdiction over one case, failing to perform adequate investigations of six other cases, and being discourteous during a phone conversation with a decedent’s daughter. ALJ Kevin F. Casey sustained the charge that the investigator negligently failed to take jurisdiction over a case involving a 12-year old boy with a dislodged tracheostomy tube, who died after he was transported from school to the hospital. He found that in four instances petitioner showed the errors were so serious that they amounted to misconduct and he sustained that charge in part. He dismissed the discourtesy charge. A 40-day suspension was recommended. Dep’t of Health & Mental Hygiene v. Yee, OATH Index No. 520/19 (Apr. 5, 2019).

A correction captain was found to have been excessively absent over a 17 month period. All but two days of absence were due to psychological disability caused by an inmate assault. The captain had returned to her post for three months, when petitioner ordered her out on leave for the next four months. The captain has since returned to work. Petitioner sought termination of the captain’s employment, but ALJ Casey found that would be unduly harsh. Noting that the available penalties under section 75 of the Civil Service Law are limited, he recommended a 30 day suspension, but he urged the parties to consider an alternative, appropriate remedy, such as a leave of absence, probation, or holding the penalty in abeyance. Dep’t of Correction v. Anonymous, OATH Index No. 348/19 (Apr. 29, 2019).

Human Rights

Respondents, restaurant owners, were charged with violating the City Human Rights Law by twice refusing to serve persons accompanied by service dogs. Respondents failed to appear for trial. A complainant testified that he went to one of respondent’s restaurants with his service dog and was refused service. Petitioner also presented testimony from a tester who called another restaurant owned by respondents seeking to plan an event for a friend who had a service animal. He was told that the friend could not bring the service animal because it would violate the health law. ALJ Spooner found respondent committed two violations of the City Human Rights Law. He recommended an award of $14,000 compensatory damages to the complainant, the imposition of a civil penalty of $28,000 against respondents, and that respondents and their staffs be ordered to undergo anti-discrimination training. Comm’n on Human Rights ex rel. Goldstein v. Limon Jungle, OATH Index No. 862/19 (Apr. 22, 2019).

Vehicle Retention

The Police Department seized a vehicle in connection with the owner’s arrest. The owner testified that he was not given the vehicle seizure form at the time of arrest and that the first time he learned of his right to a retention hearing was when he received the form in the mail. ALJ Faye Lewis noted that under the controlling federal court order, the Department must provide notice of the right to a retention hearing both at the time of the arrest and later by mail. Here, the Department failed to produce any evidence to rebut the car owner’s testimony that he was not served with the notice at the time of arrest. Thus, because the Department could not show compliance with the notice requirements after the owner raised the issue, ALJ Lewis dismissed the petition and ordered the Department to return the car. Police Dep’t v. Brandon, OATH Index No. 2062/19, mem. dec. (Apr. 17, 2019).

Licensing

A licensed taxi driver who was charged with testing positive for marijuana raised the affirmative defense of unknowing ingestion. The licensee testified that he told a friend that he suffered from pain and the friend gave him a brownie and told him it contained marijuana. The friend testified that he told the licensee that the brownie contained only CBD oil and not marijuana. ALJ Joycelyn McGeachy-Kuls credited the testimony of the friend and not the licensee’s testimony and she found the licensee did not establish that he innocently ingested marijuana. License revocation was recommended. Taxi & Limousine Comm’n v. Jalloh, OATH Index No. 1194/19 (Apr. 9, 2019).

A licensed taxi driver was charged with exposing his penis in public and sexually harassing the complaining witnesses on two occasions. The licensee did not appear on the scheduled trial date and the matter proceeded by inquest with both complainants testifying. ALJ Gloade found the testimony to be credible and sustained the charges. She recommended license revocation and a fine of $2,700. Taxi & Limousine Comm’n v. Pichardo-Diaz, OATH Index No. 1048/19 (Apr. 18, 2019).