OATH Recent Decisions

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Personnel

ALJ Jonathan Fogel recommended a five-day suspension for a project manager who used improper language in an email to her supervisors. The agency had brought numerous disciplinary charges against respondent, including using profane language in an email, falsifying timesheets and field reports, failing to accurately record her time, disobeying lawful orders, misusing her city position, and recklessly endangering co-workers. The ALJ sustained the charge for using profane language in an email to her supervisors but found that the agency failed to provide sufficient evidence to support the remaining charges. For the falsifying timesheets allegation, the agency relied on a badge access report listing each time respondent used her employee identification to enter the office, which suggested that respondent was not at the office when she reported to work on 73 dates. The ALJ found that respondent provided three credible explanations for the lack of employee identification swipes that were consistent with the badge access report: a co-worker opened the door for her, she worked remotely for a period of time, and she conducted field inspections in the morning before reporting to the office later in the day. Noting that petitioner did not charge respondent with failing to report to the office, the ALJ held that there was insufficient evidence to establish respondent falsified her timesheets and recommended dismissal. Because petitioner did not prove most of the charges, the ALJ recommended a five-day suspension in lieu of the agency’s requested penalty of termination. Dep’t of Environmental Protection v. Layman, OATH Index No. 2096/23 (Apr. 12, 2024).

Licensing

ALJ Kevin F. Casey recommended dismissing a fitness proceeding against a TLC driver who tested positive for oxymorphone, finding that the driver had unknowingly ingested a controlled substance. The ALJ credited respondent’s testimony that he was in pain following shoulder surgery and took two pills that his mother had brought him for his pain without knowing what they were. Respondent’s testimony was corroborated by his mother’s and aunt’s testimony and documentary evidence. Finding that respondent established a defense of innocent ingestion, the ALJ recommended dismissal of the charges, which the agency adopted. Taxi & Limousine Comm’n v. Guzman, OATH Index No. 2385/24 (Apr. 8, 2024), adopted, Comm’r Dec. (Apr. 9, 2024).

Real Property

ALJ Michael D. Turilli recommended denying the protected occupancy application of a tenant residing in a building covered under the Loft Law, finding that the applicant’s unit was deregulated by a former tenant’s sale of improvements. The ALJ found that the building owner had purchased the unit’s improvements from a former tenant for $20,000 pursuant to a stipulation of settlement which referenced the Loft Law, designated the payment as a “fixture fee,” and was signed by the tenant’s attorney. Although the former tenant had been subletting the unit and did not reside in the unit at the time of sale, the ALJ found that a tenant is not required to maintain primary residency in the unit in order to sell their improvements. Since the building had fewer than six residential units, did not receive any real estate tax exemption or abatement benefits, and was subject to rent regulation solely under the Loft Law, the ALJ found that the former tenant’s valid sale of improvements deregulated the unit. Matter of Angelo, OATH Index No. 881/24 (Apr. 23, 2024).

Vehicle Seizure

ALJ Kara J. Miller determined that the Police Department may retain a vehicle seized as an alleged instrumentality of crime. The ALJ found that probable cause existed for the arrest. The arresting officer had reasonable suspicion to conduct the traffic stop because there was a plastic cover over the vehicle’s license plate, which is prohibited by law. During the stop, respondent was arrested for driving with a suspended license and having two active warrants. Although it was subsequently discovered that respondent did not have any active warrants, the ALJ held that respondent’s unlicensed operation of a motor vehicle was sufficient probable cause for the arrest. The ALJ determined that a lawful inventory search was conducted, which resulted in the recovery of a loaded handgun and ammunition. Finding that possession of a loaded firearm in a vehicle has been repeatedly held to demonstrate a heightened risk to public safety and considering respondent’s past convictions of crimes associated with a motor vehicle, the ALJ held that petitioner established release of the vehicle presented a heightened risk to public safety. Police Dep’t v. Langlaise, OATH Index No. 2668/24, mem. dec. (Apr. 17, 2024).

Procedure

ALJ Kevin F. Casey granted the New York City Transit Authority’s (“NYCTA”) motion to intervene as a respondent in a prevailing wage case brought by the Office of the Comptroller. The Office of the Comptroller filed a petition against respondents Fleetwash, Inc. and Anthony DiGiovanni, alleging that they failed to pay prevailing rate of wages and benefits to employees working under a contract with NYCTA to clean and disinfect subway cars during the COVID-19 pandemic. The ALJ found that NYCTA has a direct and substantial interest in the outcome because it faces potential liability to Fleetwash if this tribunal finds that prevailing wage rates apply, and granting the motion will not unduly broaden the issues or delay the trial. Office of the Comptroller v. Fleetwash, Inc. & Anthony DiGiovanni, OATH Index No. 2377/24 (Apr. 4, 2024).