Recent Decisions

The following is a summary of some recent OATH decisions decided in *May 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.

Personnel

ALJ Alessandra F. Zorgniotti recommended dismissal of incompetence charges where long-term absence was due to delay in worker’s compensation process and petitioner’s failure to restore respondent to duty upon a showing that he is currently fit, not a dereliction or neglect of duty. Respondent offered credible evidence that he followed the Workers Compensation Law and had not delayed the process. ALJ Zorgniotti recommended that respondent be reinstated with back-pay from when he was authorized by his doctor to return to work.  Dep’t of Environmental Protection v. D’Amore, OATH Index No. 1307/17 (May 4, 2017).

ALJ Astrid B. Gloade found that a correction officer used impermissible and unnecessary force when he sprayed an inmate twice with OC from close range and struck the inmate more than 20 times after the inmate struck him in the face. The officer punched the inmate multiple times in the head and upper body after the inmate ceased resisting and no longer posed a threat. In a separate incident, the officer was insubordinate and threatened a captain. A penalty of 45 days’ suspension was recommended.   Dep’t of Correction v. Smith, OATH Index No. 617/17 (May 4, 2017).

ALJ Gloade recommended dismissal of charges that sanitation workers used department equipment without authorization to collect refuse from a home not on their assigned route. The home was across the street from respondents’ assigned route and they were scheduled to service it the next day. Respondents collected refuse from the home after they completed their assigned work and there was no evidence that the refuse they collected was trade waste. That respondents failed to obtain authorization before collecting the refuse was too minor to warrant a sanction.   Dep’t of Sanitation v. Digirolamo, OATH Index Nos. 1417/17 & 1418/17 (May 23, 2017).

Petitioner proved that hospital dietician failed to competently perform nutrition assessments for several patients over a six-month period, including recommending oral diets for patients who were on “nothing by mouth” status, recommending a tube feeding formula with insufficient calories for a patient who was severely malnourished, and failing to complete accurate assessments for high risk patients, placing patients’ health at risk. Respondent’s attempt to justify his conduct due to a high volume of work was unavailing. ALJ Noel R. Garcia recommended termination of employment.   Health and Hospitals Corp. (Harlem Hospital Ctr.) v. Triana, OATH Index No. 282/17 (May 30, 2017).

Licensing

ALJ Kevin F. Casey found that respondent, a licensed engineer and special inspector, failed to maintain and make available required records, assumed responsibility for special inspections that he was not qualified to conduct, did not perform required verification and testing, and failed to report hazardous conditions. At trial, petitioner relied on recorded statements from an interview, credible witness testimony and documentary evidence, including photos. Disqualification of respondent from performing special inspections was recommended.   Dep’t of Buildings v. Schneider, OATH Index No. 696/17 (May 25, 2017).

ALJ Ingrid M. Addison sustained charges that respondent drove his vehicle in the wrong direction on a one-way street in an attempt to follow his passengers who had exited the vehicle without paying; stopped his car on an active roadway; shouted at and threatened to use physical force against the passengers. Contemporaneous online complaint to 311 by the passenger lent credibility to her testimony. The charge that respondent possessed a weapon, to wit, a metal pipe, in his vehicle was not sustained. Independent witness testimony made the odds of respondent having a metal pipe in his car and him picking up it up in the street evenly balanced. The judge recommended a six-month suspension of respondent’s TLC licenses and $2,500 penalty.   Taxi & Limousine Comm’n v. Pena, OATH Index No. 1771/17 (May 23, 2017).