OATH Recent Decisions

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Personnel

ALJ Charlotte Davidson recommended termination of employment for an investigator who, from December 30, 2019 to January 15, 2024, violated the Department’s policies by using sick leave while out on annual leave to extend his vacations. Respondent is entitled to unlimited sick leave but has a finite amount of annual leave, and any unused annual leave would be paid out to him upon leaving the Department’s employment. Although some of the charged dates were beyond the 18-month statute of limitations for bringing disciplinary charges, the ALJ determined that the charges fell under the crimes exception. The misconduct, if proven true, would constitute the crime of official misconduct because respondent received a benefit by knowingly failing to accurately report his sick time. The ALJ found that respondent violated the Department’s rules by failing to obtain approval to use sick leave in place of annual leave and by falsely reporting to the Department that he was home when he was in Puerto Rico. Noting respondent’s position as a uniformed investigator entrusted with highly confidential information and investigations of potentially criminal matters, the ALJ held that respondent must be held to a high standard of integrity. Therefore, his lack of disciplinary record and strong job performance were insufficient to mitigate his dishonesty and abuse of sick leave. Dep’t of Correction v. Salinas, OATH Index No. 1375/24 (May 17, 2024).

ALJ Michael D. Turilli recommended termination of employment for a custodian engineer found to have sexually harassed three female members of staff. The ALJ denied the self-represented respondent’s motion to dismiss for lack of jurisdiction and found that respondent sexually harassed two nurses and one per diem teacher in multiple incidents over the course of a year by making offensive remarks and obscene gestures, displaying a sexually explicit photograph, and making unwanted advances. The complainants provided credible and compelling testimony, which was corroborated by contemporaneous reports and consistent with previous statements. Respondent’s own witness provided further corroboration, testifying that two complainants had reported respondent’s behavior to her. Although respondent submitted an affidavit denying the allegations, the ALJ gave respondent’s uncorroborated hearsay denials little weight since respondent declined to provide testimony subject to cross-examination at trial. Despite respondent’s 20-plus years of service and lack of disciplinary history, the ALJ determined that termination would be appropriate. Dep’t of Education v. Vereen , OATH Index No. 1643/24 (May 31, 2024).

Licensing

ALJ Julia H. Lee recommended continuing the license suspension of a taxi driver arrested for grand larceny. According to the complaint report, complainant accidentally left her phone with an Uber driver and money was subsequently taken out of her bank account, which was accessible from her phone. The police later identified the Uber vehicle and license plate number, and arrested respondent. At trial, respondent denied the charges, and offered screenshots taken from his Uber app to support his testimony that he was driving in other locations in Manhattan at the time of the incident. Noting that in a summary suspension proceeding, the facts underlying the arrest must be assumed to be true, the ALJ held that the alleged conduct involving theft from a passenger is serious and directly implicates respondent’s duties as a licensed TLC driver. The ALJ determined that respondent’s seven-year tenure as a TLC licensee and lack of criminal record was insufficient mitigation. Taxi & Limousine Comm’n v. Abubakkar, OATH Index No. 3118/24 (May 24, 2024), adopted, Comm’r Dec. (May 29, 2024).

Real Property

ALJ Julia Davis recommended granting a tenant’s application for protected occupancy and the owner’s application for access to the unit, and denying the tenant’s applications for a rent adjustment and a finding that the owner unreasonably interfered with her enjoyment of the unit. The ALJ found the tenant qualified as a protected occupant, rejecting owner’s argument that the unit had been deregulated by the prior occupant’s sale of rights. The ALJ determined the sale of rights was invalid because the prior occupant no longer resided at the unit at the time of sale. However, the ALJ recommended dismissal of tenant’s application for rent adjustment because she failed to provide sufficient evidence to establish the legal rent or the rent actually paid. The ALJ also rejected tenant’s argument that owner should not be granted access to her unit because the legalization work would unreasonably interfere with her enjoyment of the unit, finding that the tenant is not entitled to challenge legalization work that had been approved before she moved into the building. Matter of Williamson, OATH Index Nos. 1753/22, 0796/22, 1347/22 & 2365/22 (May 23, 2024).

ALJ Christine Stecura recommended denying a tenant’s application for coverage of his building under the Loft Law, finding there was insufficient proof the building was residentially occupied by three families for 12 consecutive months during the 2015 – 2016 window period. Applicant leased three units in the building, on the third, fourth, and fifth floors. Applicant alleged he leased the third-floor unit to another person who resided there. Applicant further alleged he resided in the fourth-floor unit from 2008 until January 2016, when he moved to the fifth-floor unit. The ALJ did not credit applicant’s testimony regarding his residential occupancy of the fifth-floor unit from January to June 2016, finding that the record established that the fifth-floor unit lacked indicia of residential occupancy and applicant’s testimony that he lived in the fifth-floor apartment was undermined by documentary evidence and by his admitted use of other apartments in the building. Further, the ALJ found that applicant had failed to establish that the building was residentially occupied by three families living independently. Although applicant established that the third-floor unit was residentially occupied by another family during the window period, even if applicant had occupied the fourth-floor unit and fifth-floor unit for 12 consecutive months each, he cannot be counted twice as a family of two different units. Since applicant failed to establish that the building qualifies for coverage, his application for protected occupancy also fails. Matter of Cohen, OATH Index No. 2965/22 (May 20, 2024).