Recent Decisions

The following is a summary of some recent OATH decisions decided in *June 2020*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Trials Division – COVID-19 Update

COVID-19 Update

Pursuant to an order of the Chief Administrative Law Judge, all conferences and trials before the OATH Trials Division are being conducted by telephone or video conference call, except that a conference or trial may be conducted in-person if the assigned Administrative Law Judge determines that 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. Parties with questions or concerns about scheduling and phone and video-conferencing should email OATHCalunit@oath.nyc.gov and continue to check the OATH website at nyc.gov/oath for more information and updates.

Personnel

Three correction officers were charged with submitting false or misleading reports concerning retaliatory force used by a captain against an inmate in a bathroom. ALJ Astrid B. Gloade found two of the officers were in position to observe the use of force and did not credit their claims that they did not see it. The third officer testified that he did not include the captain's use of force in his report because the inmate was able to prevent her blows from landing. ALJ Gloade rejected this argument, finding that the Department of Correction’s Use of Force Directive requires that attempted use of force by another officer be reported, regardless of whether the attempted force hit its intended target. ALJ Gloade found that respondents’ failure to include the captain’s retaliatory use of force in their reports rendered the reports incomplete and inaccurate. She recommended that each officer be suspended for 15 days without pay. Dep’t of Correction v. Royster, OATH Index Nos. 156/20, 157/20, 460/20 (June 26, 2020).

Licensing

A Taxi & Limousine Commission (“TLC”) driver was found to have refused to transport a passenger without justification, told the passenger that the refusal was because of her race, harassed her, and hit her when she recorded him using her cell phone camera. ALJ. Gloade recommended revocation of respondent’s TLC driver license and a fine of $2,500. Taxi & Limousine Comm’n v. Saleem, OATH Index No. 976/20 (June 4, 2020), adopted, Comm’r Dec. (June 16, 2020).

Respondent's TLC Driver License was suspended after his arrest for criminal possession of a weapon and menacing. At a post suspension hearing, conducted remotely due to the COVID-19 pandemic, ALJ Susan J. Pogoda held that even if the charges underlying respondent's arrest were true, TLC failed to prove respondent posed a " direct and substantial threat " to the public's health or safety. ALJ Pogoda found that the arrest documents relied upon by pettioner contained multiple levels of hearsay, raised questions as to the reliability of statements contained in them and were not persuasive. Respondent presented compelling evidence of his good character, admirable work history, favorable driving record and an absence of a criminal history. ALJ Pogoda recommended lifting the suspension. Taxi & Limousine Comm’n v. Bah, OATH Index No. 1927/20 (June 1, 2020), adopted, Comm’r Dec. (June 9, 2020).

The TLC sought to revoke a driver's license after he tested positive for the use of marijuana. At a trial conducted remotely, respondent raised the affirmative defense of innocent ingestion, and surmised that the positive result might have been due to his presence at a graduation party in February. However, respondent provided no specific details as to how he might have unknowingly ingested marijuana at that party. ALJ Gloade found that respondent failed to present credible evidence to establish that he unknowingly ingested marijuana, and recommended revocation of his license. Taxi & Limousine Comm’n v. Hyman, OATH Index No. 1865/20 (June 23, 2020), adopted, Comm’r Dec. (July 6, 2020).

Respondent’s TLC license was suspended after he was arrested on charges of harassment in the second degree, criminal obstruction of breathing or blood circulation, and acting in a manner injurious to a child less than 17-years old for allegedly attacking complainant, his daughter, at home. At a summary suspension trial conducted remotely before ALJ Noel R. Garcia, respondent and his wife, a witness to the incident, provided credible testimony that respondent had not struck, grabbed, or otherwise injured complainant, and showed that the police report of the incident noted no injuries or even claims of injury. Respondent and his spouse spoke candidly about how an attempt to question their daughter over money she had received from a stranger greatly upset her, causing her to leave home and call the police. Respondent also had no prior arrests or criminal convictions. Lifting of suspension recommended. Taxi & Limousine Comm’n v. King, OATH Index No. 2043/20 (June 9, 2020) adopted, Comm’r Dec. (June 22, 2020).

Respondent’s TLC license was suspended after he was arrested on charges of assault in the third degree and harassment in the second degree. At a summary suspension trial conducted remotely before ALJ Joycelyn McGeachy-Kuls, respondent provided credible testimony and presented corroborating testimony from Ms. Robles, who was involved in the incident, lives with respondent, and has children with him. The two testified that upstairs neighbors attacked Ms. Robles during a dispute over noise late at night. Respondent heard Ms. Robles screaming and came to her defense, brought her back downstairs, and quickly called the police. Lifting of suspension recommended. Taxi & Limousine Comm’n v. Mota, OATH Index No. 2010/20 (June 17, 2020), adopted, Comm’r Dec. (June 29, 2020).

Respondent’s TLC license was suspended after he was arrested on charges of criminal obstruction of breathing or blood circulation and endangering the welfare of a child. At a remote summary suspension trial before ALJ Faye Lewis, respondent admitted pushing complainant, his teenage son, onto his bed during a dispute over homework, but denied ever choking or threatening him. Respondent also testified to participating in anger management and parenting classes since the arrest, presented an exemplary driving record, and provided a credible character witness. ALJ found that the respondent gave compelling testimony about the circumstances underlying his arrest. Moreover, even taking the arrest charges as “true,” ALJ concluded that the incident with respondent’s son was an aberrational incident, which did not warrant his continued suspension. Lifting of suspension recommended. Taxi & Limousine Comm’n v. Askari, OATH Index No. 1960/20 (June 16, 2020), adopted, Comm’r Dec. (June 22, 2020).