OATH Recent Decisions and News

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OATH News

New ECB appointee approved: Mayor de Blasio’s nomination of Matthew Schneid for appointment to the ECB, as the real estate specialist, was approved by the City Council on May 27. Mr. Schneid is a partner with the law firm Cole Schotz P.C., and a member of the advisory board of the Benjamin N. Cardozo School of Law’s Center for Real Estate Law & Policy. He previously worked for the international law firm DLA Piper, served on Manhattan Community Board 5, and worked as a senatorial aide in the New York State Senate. Mr. Schneid is a graduate of the Benjamin N. Cardozo School of Law.

Members named to the Advisory Committee on Creative Conflict Resolution: On June 9, OATH announced the inaugural members of the Advisory Committee on Creative Conflict Resolution, which will guide the work of OATH’s Center for Creative Conflict Resolution as it expands it work throughout the city. Read the press release.

City Council passes laws on civil enforcement and ECB debt amnesty: On June 17, the City Council passed Introduction 2233, altering civil penalties and enforcement rules for certain sanitation, health, transportation, consumer affairs, noise control and buildings violations by reducing fine amounts and expanding the availability of cures, among other changes, and Introduction 2234, requiring the City to launch a temporary amnesty program to resolve outstanding judgments imposed by the Environmental Control Board.

OATH Hearings Division launches call-back option: On May 17, OATH announced a new, convenient call-back feature for respondents using its Hearing by Phone option. Hearings by Phone remain the predominant method for appearing for hearings on civil summonses as OATH offices remain closed to the general public. Read the press release.

COVID-19 update

Pursuant to an order of the Chief Administrative Law Judge, 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. For more information, visit OATH’s website at www.nyc.gov/oath.

OATH Trials Division

Licensing

ALJ Astrid B. Gloade recommended lifting the suspension of a Taxi and Limousine Commission driver’s license, finding that while recovering from COVID-19, he consumed oxycodone believing that it was similar to codeine, which his doctor had instructed him to take. TLC suspended the driver’s license after his urine tested positive for oxymorphone during his annual drug test. The driver did not contest the test result, but maintained it was caused by his ingestion of oxycodone after he developed a persistent cough and difficulty breathing. The driver explained that his doctor recommended that he take codeine and submitted medical documentation to corroborate his account. He testified that he took oxycodone instead because that was all his mother, who is a licensed neurologist, had in her possession. His mother also testified that oxycodone was an appropriate substitute for codeine. ALJ Gloade found this to be a credible explanation, and, when combined with the driver’s unblemished record of clean drug tests, recommended dismissal of the charge. Taxi & Limousine Comm’n v. Zurashvili, OATH Index No. 1905/21 (May 27, 2021).

ALJ Susan B. Pogoda recommended lifting the suspension of a Taxi and Limousine Commission driver’s license following an arrest for assault in the third degree based upon a passenger complaint that the driver punched her in the face when the passenger refused to pay the fare. ALJ Pogoda found inconsistencies in the TLC evidence and concluded that the driver presented a credible, detailed, and compelling explanation of the facts leading to his arrest. The driver called the police when the passenger failed to pay the fare, presented evidence of the 911 call, met with police at the passenger’s drop off address and pointed her out. ALJ Pogoda held that the TLC failed to establish that the driver’s continued licensure would pose a direct and substantial threat to public health or safety, and recommended the suspension be lifted. The TLC adopted the recommendation and lifted the suspension. Taxi & Limousine Comm’n v. Zagre, OATH Index No. 1934/21 (May 25, 2021), adopted, Comm’r Dec. (May 25, 2021).

Vehicle Retention

ALJ Joan R. Salzman ordered the NYPD to release a car that it seized as the alleged instrumentality of a crime. The owner-driver was arrested for felony criminal possession of a loaded firearm and a marijuana violation. The police reports showed that the police stopped the car for being double-parked and searched the owner based on the smell of marijuana emanating from his car. ALJ Salzman found that the police did not exceed the proper scope of a permissible search under New York law at the time of the search according to the “automobile exception,” which allows certain warrantless car searches where the police have probable cause to believe that the car includes evidence of a crime or contraband. However, ALJ Salzman held that state law had changed since the arrest and car search and, following enactment of the Cannabis Law on April 1, no longer allows the use of the odor of marijuana 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, the officers would not have found the gun, and ordered the car to be returned to the owner. Police Dep’t v. Young, OATH Index No. 2033/21, mem. dec. (May 26, 2021).

Personnel

ALJ Noel R. Garcia recommended termination of a firefighter’s employment for offering an $800 bribe to an investigator to take a urine test required prior to returning to duty after a voluntary alcohol use treatment program. ALJ Garcia found the firefighter’s completion of the treatment program did not provide reasonable suspicion for the drug test order and recommended dismissal of the drug test charge under the exclusionary rule of the Fourth Amendment. However, ALJ Garcia recommended sustaining the attempted bribe charge over the firefighter’s asserted defense that his offer was not serious and that he had acted irrationally due to his PTSD. ALJ Garcia recommended that the firefighter be terminated from his employment. Fire Dep’t v. Anonymous, OATH Index No. 1318/20 (May 25, 2021), adopted, Comm’r Dec. (June 9, 2021).

ALJ Kevin F. Casey recommended dismissal of charges against an environmental police sergeant accused of retaliating against two other employees in violation of the Department of Environmental Protection’s Equal Employment Opportunity policy. ALJ Casey found that the agency had failed to prove that the sergeant’s accusations against another employee for sleeping on the job were made in retaliation for filing an EEO claim against her, or that the sergeant had threatened or intimidated a second employee who had assisted in the investigation of that EEO claim. Dep’t of Environmental Protection v. Moore, OATH Index No. 314/21 (May 26, 2021).

ALJ Kara J. Miller recommended dismissal of charges against a patient care technician charged with participating in a physical altercation with a Bronx public hospital co-worker. ALJ Miller concluded that the technician could not have foreseen that an argument with her co-worker in the locker room about shopping in a department store would escalate into a violent altercation in the parking lot as she exited the hospital, and found that the co-worker attacked the technician and repeatedly hit her in the face with a metal object, causing severe facial injuries which required surgery and a metal plate to be installed in her face. ALJ Miller found that the technician’s conduct was in self-defense and recommended that her pre-trial suspension time be returned to her. Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v. Linton, OATH Index No. 575/20 (May 7, 2021).

In a disciplinary proceeding filed by the Department of Education, ALJ Joycelyn McGeachy-Kuls recommended that an employee be terminated for failure to comply with her supervisor’s instructions, refusing to work cooperatively with co-workers, and excessive use of the internet during business hours for non-work related matters. DOE proved that the employee browsed the internet for non-work-related matters for over 33 hours over a period of less than a month, failed to clock out for lunch, made false time-card entries, and spoke to a co-worker in a rude and insulting manner. Taken together, ALJ McGeachy-Kuls recommended that the penalty of termination sought by the DOE was appropriate. Dep’t of Education v. Kherbouche, OATH Index No. 266/20 (May 14, 2021).

ALJ Faye Lewis recommended a 60-day suspension for a Department of Transportation employee who submitted fraudulent medical notes regarding a seven-day absence from work. The employee acknowledged that he altered medical notes to show doctor’s appointments on some of the dates that he was absent from work. ALJ Lewis credited the employee’s testimony that he fabricated the notes using Wite-Out in a panicked, emotional state after his supervisor denied his request for emergency personal leave, which respondent sought because his wife was suicidal and he needed to be home to care for his young daughter. Although termination is often the penalty imposed for the submission of fraudulent medical notes, ALJ Lewis found that in this case it would be excessive. ALJ Lewis noted that although the employee’s conduct was a serious error in judgment, his otherwise flawless 16-year record and the extraordinary mitigating circumstances made her recommendation of a penalty of 60 days suspension more appropriate. Dep’t of Transportation v. A.H., OATH Index No. 1478/20 (May 11, 2021).

ALJ Ingrid M. Addison recommended that an NYPD place a traffic enforcement agent on an involuntary leave of absence because she is unfit to perform her job duties due to a medical disability. She did not dispute that she could not stand or walk for long periods, due to side effects from a 2016 cancer surgery, preventing her from performing her job duties as a traffic enforcement agent. Although she was temporarily assigned to a clerical job as a reasonable accommodation, the NYPD determined that she was unfit to perform the duties of her title. ALJ Addison determined that the NYPD proved the employee is currently unfit to perform the essential duties of her position due to her disability and recommended involuntary leave. The Police Commissioner subsequently elected not to impose involuntary leave while the NYPD sought to reclassify the employee as a Clerical Associate. Police Dep’t v. J.W., OATH Index No. 1168/21 (May 28, 2021), Comm’r Dec. (June 7, 2021).

Appeals Division
(appeals from the Hearings Division)

The Appeals Division affirmed a hearing officer’s decision finding a tobacco retail dealer committed three violations for selling flavored electronic cigarettes and imposing a $1,000 fine for each violation. The tobacco retail dealer argued that the hearing officer was authorized to impose a lesser fine for each violation under the Administrative Code but erroneously believed she lacked such discretion. The Appeals Division noted that while the Administrative Code provides for a fine “of not more than one thousand dollars” for each violation, it also empowers the Commissioner of the Department of Consumer and Worker Protection to promulgate any rules as necessary for the purpose of carrying out its provisions. Here the Commissioner had promulgated a rule mandating a fixed penalty of $1,000 for each first-offense violation of selling flavored electronic cigarettes. The Appeals Division therefore found that the hearing officer imposed the correct penalties. Dep’t of Consumer and Worker Protection v. New York's Best Deli, Inc., Appeal No. 20T00502 (June 4, 2021).

The Appeals Division reversed a hearing officer’s decision and decided to dismiss a charge against the owner of a Taxi and Limousine Commission licensed vehicle for failing to comply with a TLC directive to prove insurance coverage. The Appeals Division found that the TLC had relied on an unsworn summons and business records that were not probative of non-compliance and therefore failed to establish a prima facie case. Taxi & Limousine Comm. v. CRS Luxury Limousine Inc., Appeal No. INR022467 (May 26, 2021).

The Appeal Division reversed a hearing officer’s decision and decided to dismiss a charge against a building owner for work without a permit. While the issuing officer’s affirmed statement on the summons describing unpermitted work (consisting of a partially erected metal structure on the roof) was sufficient to establish the case, the building owner’s evidence showed that a permit for the work was in fact issued in 1990 and that the Department of Buildings signed off on the work prior to the owner’s acquisition of the premises in 2001. While DOB argued the owner had still performed work without a permit by removing a plywood sign from the metal structure, that claim was not alleged in the summons and therefore not properly before the hearing officer. Dep.t of Buildings v. Flushing Corner Associates, Inc., Appeal No. 2001543 (May 20, 2021).