OATH Recent Decisions and News

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OATH News

City Council passes multiple bills assigning adjudications to OATH: On April 29, the City Council passed Introductions 888 and 901, establishing a mandatory auto-enrollment payroll deduction IRA program for certain private-sector employees whose employers do not offer a retirement plan and creating a NYC Retirement Savings Board to administer the program. The laws provide for enforcement of employer violations by an agency to be designated by the Mayor, with adjudications to be performed by OATH. Both bills were signed into law by the Mayor on May 11 and will go into effect within two years unless an extension is required.

On May 12, the City Council passed Introduction 2061 and Introduction 936. Introduction 2061 would prohibit moped share systems from operating in New York City without approval from the Department of Transportation and compliance with City rules. Alleged violations of both bills’ prohibitions would be adjudicated by OATH. Introduction 936 would prohibit restaurants and bars from providing single-use non-compostable plastic straws unless specifically requested by a customer. The bill would also indicate that a business’ failure to provide a plastic straw on request could violate the City’s Human Rights Law. Both bills await the Mayor’s signature or enactment without signature.

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

Vehicle Retention

ALJ Joan R. Salzman ordered the Police Department to release a car it seized pursuant to an arrest. The case involved a novel issue concerning the application of the new Cannabis Law to an arrest that occurred before that law was enacted. The car owner was charged upon arrest with felony criminal possession of a loaded firearm, resisting arrest, a marijuana violation, and a safety glass infraction under the Vehicle and Traffic Law. ALJ Salzman found that the police here did not exceed the proper scope of a permissible search under the “automobile exception” that allowed certain warrantless car searches under New York law at the time of the search, in that the arresting officer here found the pistol in an area readily accessible to the driver, in a fanny pack on his person. However, the recently enacted state Marihuana Regulation and Taxation Act changed state law such that it does not allow the use of the odor of marijuana or the visible presence of permissible, small quantities of marijuana for personal use to form the sole basis for a warrantless search in prospective, pending, or completed criminal proceedings. ALJ Salzman determined that without the search based on the odor of marijuana and the presence of a small quantity of marijuana, the officers would not have found the weapon. Accordingly, the NYPD was not entitled to retain the seized vehicle. Police Dep’t v. Williams, OATH Index No. 1623/21, mem. dec. (Apr. 30, 2021).

Worker Protection

ALJ Ingrid M. Addison found that the Department of Consumer and Worker Protection failed to prove its charges against a debt collection agency for deceptive trade practices. DCWP had charged the debt collection agency with sending debt collection letters to consumers which contained balance statements that contradicted and overshadowed the validation notices which the letters also contained. Applying case law dealing with the protection of the “least sophisticated consumer” which the Fair Debt Collections Practices Act and the Department’s rules are intended to protect, ALJ Addison found that respondent’s letters did not contain false statements that would discourage consumers of availing themselves of their legal rights. Likewise, the judge did not find that respondent’s letter discouraged even the “least sophisticated consumer” from making inquiries into the debts identified in the letters. ALJ Addison further disagreed with petitioner that respondent assumed the debt to be valid before the consumer had an opportunity to dispute it. Accordingly, ALJ Addison found that petitioner failed to establish its charges against respondent and recommended dismissal of the charges in their entirety. Dep’t of Consumer and Worker Protection v. Professional Claims Bureau, Inc., OATH Index No. 1311/20 (Apr. 19, 2021).

Personnel

ALJ Faye Lewis recommended that disciplinary charges against a Human Resources Administration employee be dismissed for failure to establish that the employee used his agency position for personal or financial gain. HRA contended that the employee, a case manager assigned to a center in the Bronx, violated HRA rules and the City Charter by asking former colleagues to give his phone number to public assistance clients who might be interested in renting an apartment from him. However, HRA employees are permitted to rent property that they own or manage to public assistance recipients if they first submit a questionnaire for approval and that they do not work at the center providing the client’s benefits. Respondent followed the procedure, he does not work at the center providing the client's benefit, and HRA approved his request. In addition, respondent presented unrefuted evidence that landlords who are not HRA employees have regular contact with case managers and could tell a case manager that they have available apartments to rent. Accordingly, ALJ Lewis determined that HRA did not establish a violation of its rules or the City Charter. Dep’t of Social Services (Human Resources Admin.) v. Kassem, OATH Index No. 1456/20 (Apr. 14, 2021).

ALJ Kevin Casey recommended that a laboratory supervisor at Harlem Hospital’s Pathology Department be terminated from employment. Evidence showed that the employee committed more than 50 acts of misconduct over the span of 16 months. The charges included repeatedly refusing to perform assigned tasks; falsifying timesheets; sending discourteous emails to supervisors; excessive absence and lateness; ignoring orders; failing to attend scheduled meetings; changing shifts without approval; and being absent without leave. In recommending termination of employment, ALJ Casey noted that employee had recently been penalized for similar misconduct. Health & Hospitals Corp. (Harlem Hospital Ctr.) v. Stephens, OATH Index No. 2053/20 (Apr. 21, 2021).

ALJ Ingrid M. Addison recommended a 60-day suspension without pay for a Department of Correction officer charged with using excessive force against an inmate whom he struck in the face and head on multiple occasions, submitting a false and misleading use of force report regarding the incident, and having another officer who was not his supervisor complete his report. ALJ Addison found respondent’s defense that he felt himself in imminent danger of serious bodily injury to be incredible, making his use of deadly force unjustified. Respondent also mischaracterized the inmate’s posture, in his report and at his interview, in an attempt to justify his own reaction. ALJ Addison recommended that respondent be suspended for 60 days without pay in lieu of termination because of numerous accolades from current and former supervisors at the Department as well as from his former supervising Coast Guard official, suggesting that respondent’s behavior in this case was a significant departure from his norm. Dep’t of Correction v. Ash, OATH Index No. 397/21 (Apr. 12, 2021).

Real Property

ALJ Kara J. Miller recommended denial of a building owner’s access application for failure to properly serve the occupant with written notice of the visit, as required by the Loft Board’s rules. The rules require that the notice include the approximate start date, duration, and scope of the work to be performed. This notice must be served on the occupant by personal service, first class mail, registered mail return receipt requested or certified mail, return receipt requested. Evidence was presented that the access notice was mailed to occupant by registered mail, but the box for “return receipt requested” was not checked. Taking into consideration that the Loft Board’s notice requirement is designed to avoid miscommunication, unnecessary disputes, and needless litigation, ALJ Miller recommended that the owner’s application for access to the unit should be denied. Matter of SMCB Associates, LLC., OATH Index No. 2040/20 (Apr. 21, 2021).

Appeals Division
(appeals from the Hearings Division)

The Appeals Division affirmed the dismissal of price gouging charges for selling 121-oz. bottles of Clorox bleach at an excessive price during a public health crisis. Under the Department of Consumer and Worker Protection’s rules, a price is “excessive” if it is 10 percent or more above the price at which it could have been obtained in the New York City from January 15, 2020 through February 14, 2020. Here, DCWP offered evidence of a similar 121-oz. bottle of bleach retailing for $4.48 on January 21, 2020. The Appeals Division found that this single example was insufficient to establish that the respondent sold the bleach at an “excessive price increase,” as defined by DCWP rules. The Appeals Division found further that because the respondent’s price was only 8.6% more than the highest price found by DCWP for bleach in March and April 2020, no reasonable inference could be drawn that it was 10% or more above the prices at which the same or similar goods could have been obtained during the relevant timeframe. DCWP v. Moonlite Discount Inc., Appeal No. 05448772 (April 22, 2021).

The Appeals Division reversed a decision that Respondent permitted another entity to use its fire suppression license without disclosing the identity of the other entity to the Department of Buildings in violation of the City Construction Code. At the hearing, DOB presented evidence that employees of the undisclosed company (the cited company) performed fire suppression work at a job site. Respondent presented evidence that the cited company was not a separate business entity but merely an assumed name or dba, registered with the New York State Department of State, of a corporation whose name was, in fact, disclosed to DOB in the license details. The Appeals Division dismissed the charge. DOB v. Pace Plumbing Corp, Appeal No. 2001494 (April 22, 2021).

The Appeals Division reversed a decision dismissing a charge of operating a car wash without a license. At the time of inspection, the issuing officer personally served a summons that did not contain an allegation of recidivism, which summons was subsequently withdrawn and reissued with the missing information. The hearing officer dismissed the reissued summons, finding that because it was mailed, rather than personally delivered, service was improper. The hearing officer also found that the reissued summons had been “materially altered after service.” The Appeals Division found that the reissued summons was not altered, as it was an entirely new charging instrument. The Appeals Division found further that the reissued summons was properly served by mail. DCWP v. Guamex, Inc., Appeal No. 05456969 (April 22, 2021).