Recent Decisions

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

Human Rights

A realty company and its agent were charged with violating the City Human Rights Law by refusing to rent an apartment to a transgender woman. Respondent did not appear at trial and was declared in default. The complainant testified that the agent invited her to his office to discuss available apartments. However, once she arrived, he stated that her being transgender “changed everything” and he said he could not possibly rent her an apartment "around people and children." ALJ John B. Spooner found the complainant’s testimony to be credible and he recommended that she be awarded $15,000 in compensatory damages, he also assessed respondents with a civil penalty of $10,000, and he recommended that they be ordered to undergo anti-discrimination training and submit to an anti-discrimination audit. Comm’n on Human Rights ex rel Desir v. Walter, OATH Index No. 1253/19 (May 31, 2019).

Personnel

An eligibility specialist was found guilty of violating time and leave policy when she left work 5-7 minutes early on 215 occasions over the course of one year. At trial, it was shown that the respondent had been ordered to cease and desist from the practice of leaving early, but had failed to comply with supervisor warnings on multiple occasions. ALJ Ingrid M. Addison recommended termination of respondent’s employment, since respondent had previously been disciplined for similar misconduct. Dep’t of Social Services (Human Resources Admin.) v. Greene, OATH Index No. 1620/19 (May 15, 2019).

A Lieutenant and Emergency Medical Technician (“EMT”) was charged with failure to render appropriate patient care by accepting a refusal of medical aid from a patient with unclear decisional capacity, making false statements and walking the patient home. The EMT responded to a restaurant based on a report that a woman had fallen backwards off a stool and hit her head. ALJ Susan J. Pogoda found the Fire Department failed to prove the charges and credited the EMT’s testimony that the patient had the decisional capacity to refuse medical attention, that a full trauma assessment of the patient was conducted not once but twice; the patient showed no signs of any injury from a fall; she was not intoxicated or impaired; her vital signs were normal and she understood her options and knowingly refused medical attention. ALJ Pogoda also found the EMT’s decision to walk the patient home did not rise to the level of misconduct and recommended that all the charges be dismissed. Fire Dep’t v. Muller, OATH Index No. 1090/17 (May 1, 2019).

A firefighter was charged with violating the Fire Department’s substance policy after he was arrested for criminal possession and sale of a controlled substance. The respondent requested that the disciplinary charge regarding sale of a controlled substance be dismissed because the criminal charges were resolved with a reduced plea of criminal possession. ALJ Kara J. Miller found that respondent’s guilty plea to a reduced criminal charge does not preclude the Department from charging respondent and presenting evidence of the underlying criminal conduct that led to the arrest. ALJ Miller recommended that respondent be terminated from his position as a firefighter after finding him guilty of both criminal possession and sale of a controlled substance. Fire Dep’t v. Halderman, OATH Index No. 569/19 (May 22, 2019).

Three Correction Officers were charged with being disrespectful to a co-worker and making misleading statements regarding a physical altercation that took place in the canine unit trailer on Riker’s Island. Initially, the complainant alleged that respondents slammed him against a wall, punched him in the face, and put him in a choke hold. At trial, however, the complainant backtracked and said that two of the officers did not use force in excess of self-defense. Witnesses to the altercation presented wildly different factual accounts, and there was no clear video evidence. ALJ Kevin F. Casey found one officer was disrespectful and made misleading statements and another officer made misleading statements and he dismissed all other counts. He recommended 20 days’ suspension for the officer who was found to have been disrespectful and 10 days for the other officer. Dep’t of Correction v. Dominguez, Hernandez, and Christie, OATH Index Nos. 615/19, 731/19, and 770/19 (May 21, 2019).

Real Property

A group of tenants filed an application seeking findings that their building is an interim multiple dwelling (“IMD”) covered under the Loft Law, and that they are the protected occupants of their units. ALJ Spooner found that the building is an IMD with seven IMD units and that the occupants of those units are protected. He found that one unit was not covered because it did not meet the minimum size requirement for coverage, 400 square feet. Matter of 281 North 7th Street Tenants, OATH Index No. 2567/14 (May 13, 2019).

The owner of an interim multiple dwelling petitioned for a unit to be found abandoned based upon the death of the protected occupant. The unit was left vacant with no claims by the deceased’s estate, but the owner compensated the estate for the costs of improvements made by the decedent. ALJ Astrid B. Gloade found that payment to the estate for the value of improvements did not preclude a finding that the IMD unit was abandoned upon the death of the protected occupant. Matter of 26 BNDO LLC, OATH Index No. 1119/19 (May 24, 2019).

Vehicle Retention

The owner of a vehicle which was seized following his arrest and who remains incarcerated since that time, filed a demand for a trial for the return of his car. At the trial, which was conducted by video, the owner, who was unrepresented by counsel, testified that at the time of his arrest, he was not given the vehicle seizure form informing him of his right to a hearing. The Police Department submitted proof that the notice had subsequently been sent to respondent by mail but was unable to produce documentation to refute the owner’s testimony. ALJ Addison noted that under the controlling federal court order, the form must be provided at the time of the arrest. The Police Department had therefore failed to comply with notice requirements, and was ordered to return the vehicle to its owner. Police Dep’t v. Taylor, OATH Index No. 1904/19, mem. dec. (May 6, 2019).

Worker Protection

Respondents, a business which provided janitorial services and its sole owner, were held jointly liable for failure to provide the complainant with paid sick leave. The complainant had been out of work due to a scheduled surgery, and did not receive pay. She was terminated from the position after she missed a day of work due to complications arising from the surgery. ALJ Faye Lewis found that respondents had violated the Earned Safe and Sick Time Act and ordered payment of $6,855 in relief to the employee and $3,500 in civil penalties to petitioner. Dep’t of Consumer Affairs v. AQP General Services Corp., OATH Index No. 236/19, mem. dec. (May 10, 2019).