Recent Decisions

The following is a summary of some recent OATH decisions decided in *April 2021*. To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

OATH News

City Council passes new press credential bill: On March 25, the City Council passed Introduction 2118 by a vote of 43-6. If signed by the Mayor or enacted into law without signature, the bill will reassign the responsibility for the management of press credentialing from the NYPD to the Mayor’s Office for Media and Entertainment, with challenges to credential application denials, suspensions, and revocations assigned to be heard in the OATH Trials Division.

COVID-19 update

Pursuant to an order of the Chief Administrative Law Judge, all hearings, trials, and other OATH operations are being conducted by telephone, videoconferencing, online, or mail, and OATH will only allow in-person appearances in limited, pre-approved circumstances. Individuals may only enter OATH offices if the agency has approved your or your representative’s request because there is a compelling need for an in-person proceeding and the proceeding can be conducted while providing sufficient social distancing and other public health protections to comply with state and local government public health guidelines. For more information, read OATH's public flyer.

OATH Trials Division

Worker Protection

An OATH ALJ recommended penalties against an employer for violating the City’s Earned Safe and Sick Time Act for firing an electrical assistant providing care for her son. The electrical assistant working for Reteg Electric, Inc., called in sick for one day to take care of her 12-year-old son, who was sick with a fever. The employee's son still felt sick the next day. When she called her employer to request a second day of sick leave to take her son to the doctor, she was told that she was already fired. Under the law, an employer in New York City with five or more employees must provide employees with paid sick time that may be used for absences from work needed to care for a family member who needs medical diagnosis, care, or treatment. ALJ Kara J. Miller found that Reteg Electric never notified the employee of her rights, never paid her for either of the two sick days that she took to care for her son and retaliated against her for taking sick leave by terminating her employment. Due to her retaliatory termination, the employee spent several months unemployed. ALJ Miller recommended that the Department of Consumer and Worker Protection impose $3,000 in fines and require a payment of $23,508 to the employee. Dep’t of Consumer and Worker Protection v. Reteg Electric Inc., OATH Index No. 1186/20 (Mar. 29, 2021).

Licensing

ALJ Faye Lewis rejected the Department of Buildings’ request for revocation of all of an architect’s filing privileges as excessive. ALJ Lewis found that the architect, who had over 20 years of experience, negligently made false statements related to two applications, knowingly made a false statement related to another application, and submitted one set of professionally certified plans that demonstrated negligence, incompetence, or lack of knowledge of applicable law and rules. Although the false filings were serious, DOB did not introduce any evidence that respondent previously submitted false or negligent filings or engaged in any professional misconduct. In addition, respondent had held leadership positions in multiple professional organizations and served on Code committees for DOB. ALJ Lewis concluded that respondent's limited review filing privileges and professional self-certification should be revoked, but that revocation of his all his filing privileges was unwarranted. Noting that the Appellate Division, First Department, has expressed concern about the effect of lifetime bans upon licensees, ALJ Lewis also recommended that the respondent be given the option of applying for reinstatement after one year. Dep’t of Buildings v. Han, OATH Index No. 1277/19 (Mar. 19, 2021).

ALJ Astrid B. Gloade recommended that suspension of a taxi driver’s license be lifted because TLC failed to establish that the licensee, who had been arrested for assault, posed a continuing direct and substantial threat to public health or safety. The driver was arrested based on a complaint by his wife that he had pulled her hair and smacked her face with an open hand at a Starbucks. The incident resulted in no major injuries. The licensee denied assaulting his wife and contended that she was the initial aggressor in the encounter when she threw a cup of coffee at him, which was supported by security video footage from the Starbucks store. ALJ Gloade found that the licensee’s wife changed her account in several interviews with police officers and heard evidence that the licensee had supported the family by driving a taxi since 1999 and had never been the subject of complaints. ALJ Gloade determined that the incident seemed to be an isolated incident and, considering the licensee’s overall record and character, she recommended that the license suspension be lifted. Taxi & Limousine Comm’n v. Kamal, OATH Index No. 1495/21 (Mar. 16, 2021).

Vehicle Retention

ALJ Kevin F. Casey determined that the NYPD was not entitled to retain a seized vehicle where police officers failed to properly notify the vehicle’s owner about the seizure. In addition, the evidence offered at the hearing failed to prove that there was a lawful inventory search or that returning the vehicle to its owner would pose a heightened risk to the safety of the public. Police Dep’t v. Cole, OATH Index No. 1428/21, mem.dec. (Mar. 15, 2021).

Real Property

ALJ Astrid B. Gloade recommended denial of a building owner’s application for “certification of no harassment” required before alterations can be approved, finding that tenants had been harassed. The Department of Housing Preservation and Development adopted ALJ Gloade’s recommendation in the tribunal’s first case under a law enacted in 2018 that created a new pilot program intended to protect tenants at risk of displacement. In this case, HPD alleged that the building owner had harassed tenants by: failing to provide consistent heat and hot water, failing to correct conditions for which violations remained open (in some cases resulting in HPD performing emergency repairs), and substantially interfering with the comfort of lawful occupants, intending to cause them to surrender their occupancy rights. ALJ Gloade ruled that the building owner had failed to timely challenge HPD’s determination that it was subject to the new law. She rejected the owner’s argument that the building was maintained properly and recommended that HPD deny the application for certification of no harassment. Dep’t of Housing Preservation & Development v. Barbanel, OATH Index No. 2652/19 (Mar. 5, 2021), adopted, Comm’r Dec. (Mar. 9, 2021).

ALJ Kara J. Miller recommended denial of a single room occupancy building owner’s application for a certificate of no harassment, finding that the owner, the former owner, and their agents committed acts of harassment against single room occupancy tenants. The harassment included causing a reduction in services by removing a communal kitchen; failing to properly repair broken locks; failing to provide electricity; illegally converting the premises to hotel rooms; failing to provide heat; and failing to provide emergency egress by blocking the fire escapes. ALJ Miller recommended denial of the certificate of no harassment because those acts were conducted with the intent to cause the tenants to vacate the building. Dep’t of Housing Preservation & Development v. Kaplan, OATH Index No. 1246/19 (Mar. 18, 2021).

Appeals Division
(appeals from the Hearings Division)

The Appeals Division vacated five decisions by a Hearing Officer finding a building owner had illegally created single room occupancy subleases within an apartment. The Appeals Division remanded the cases for a new hearing to determine whether three subtenants sharing one of the subleased spaces meet the definition of “family” in the Building Code by blood, adoption, legal guardianship, marriage, or domestic partnership. If so, the building owner would only be found to have created two living spaces in violation of the Code, whereas if the three subtenants are not related as family then the building owner would be found to have created four illegal living spaces. Dep’t of Buildings v. 50 MacDonough Street Property Owner LLC, Appeal No. 2001296 (March 17, 2021).

The Appeals Division reversed a hearing officer’s decision sustaining a charge against an individual of failing to comply with a DOB Commissioner’s order that a site safety manager be engaged at a construction site. The Commissioner’s order was issued to a limited liability company. The Division credited the respondent’s evidence that he was merely an employee of the LLC, and not a member or owner of it. As the Commissioner’s order was issued to the LLC and not the respondent, he was not responsible for the LLC’s alleged failure to comply with the order. Dep’t of Buildings v. Anthony Argento, Appeal No. 2001426 (March 17, 2021).

The Appeals Division reversed a hearing officer’s decision for improper waste disposal/receptacles because the summons cited to the wrong subsection of law. The issuing officer observed trash bags being placed at the curb on a non-collection day. The Appeals Division noted that while placing trash or recycling out for collection on a non-collection day is a violation of section 16-120(c) of the Administrative Code, the summons charged section 16-120(a), which governs improper receptacles or disposal of refuse. As the law charged was facially inapplicable to the violating condition alleged, the Department of Sanitation failed to make out a prima facie case and dismissal was warranted. Dep’t of Sanitation v. 118-16-18 C&D, LLC, Appeal No. 2100095 (March 17, 2021).