Recent Decisions

The following is a summary of some recent OATH decisions decided in *July 2019*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Earned Safe and Sick Time Act

A law firm and its founding partner were charged with violating the Earned Safe and Sick Time Act (“ESSTA”), when it fired an employee allegedly for exercising his rights under ESSTA, required him to provide details of his medical condition, and failed to maintain a sufficient sick leave policy. ALJ Kevin F. Casey found that the employee’s use or attempted use of his sick time was one of the motivating factors for his firing and he did not credit the firm’s claim that the termination was for non-medical reasons. The firm’s founding partner was found to be jointly liable for the violations. Respondents were ordered to pay a fine of $1,500 and $172,215.30 relief to the ex-employee. Dep’t of Consumer and Worker Protection v. Brewer, Attorneys & Counselors, OATH Index No. 514/19, mem. dec. (July 9, 2019).

Licensing

A pedicab driver was charged with soliciting passengers in an unauthorized area and with recklessly operating his pedicab. Two officers testified that when they approached respondent, he ignored an order to stop and started to pedal away. One officer’s equipment became entangled with the pedicab’s wheel. Respondent continued to pedal and dragged the officer. Respondent claimed that he did not notice that his pedicab dragged the officer. ALJ Casey found that the pedicab driver operated his pedicab recklessly and endangered the officer. He ordered a revocation of respondent’s pedicab license and respondent to pay a $375 fine. Dep’t of Consumer and Worker Protection v. Greenberg, OATH Index No. 1309/19, mem. dec. (July 19, 2019).

A taxi driver tested positive for the use of marijuana and petitioner sought to revoke his license. Respondent raised the affirmative defense of innocent ingestion, claiming that he ate a piece of cake from his friend’s refrigerator and did not know that the cake contained marijuana until after he failed the drug test. ALJ Susan J. Pogoda found that respondent failed to present credible and sufficient evidence to establish that he unknowingly ingested marijuana, a controlled substance, and recommended revocation of his license. Taxi & Limousine Comm’n v. Bangre, OATH Index No. 1265/19 (July 12, 2019).

A taxi driver who was tested positive for marijuana use successfully raised innocent ingestion defense. At trial, respondent’s cousin testified and admitted to have given respondent marijuana-laced candy without informing respondent. Based on the corroborated testimony and strong supporting evidence, ALJ Joycelyn McGeachy-Kuls found that respondent established he unknowingly ingested marijuana and recommended dismissal of the charge. Taxi & Limousine Comm’n v. Jiang, OATH Index No. 2102/19 (July 17, 2019).

Holders of taxi base license, street-hail permit, and for-hire vehicle licenses were found to have employed a driver with a suspended drivers’ license and no valid chauffeur’s license. Based on the undisputed evidence from an undercover investigator, ALJ John B. Spooner recommended revocation of the licenses and an aggregated fine of $3,050. Taxi & Limousine Comm’n v. Columbia Street Limousine Service, Inc., OATH Index No. 2279/19 (July 31, 2019).

Real Property

A number of tenants filed several applications for Loft Law coverage and protected occupancy. The building owner opposed the applications, arguing the building contains an incompatible commercial use which precluded coverage. After a lengthy trial, the Loft Law was amended. The amended law, which significantly restricted the circumstances under which a commercial use may be found to be incompatible, was retroactive to all pending applications. Applying the amended Loft Law, ALJ Faye Lewis found that the building did not contain an incompatible commercial use. She concluded that the applicants qualified for coverage and protected occupancy, and recommended that their applications be granted. Tenants of 100 Metropolitan Avenue, OATH Index Nos. 2346/13, 1151/16, 1542/16, 596/17 (July 8, 2019).

The owner of an interim multiple dwelling was found to have violated the Loft Law by failing to provide adequate heat to one unit for eight days. Petitioner requested the maximum fine of $17,500. ALJ Lewis imposed a lower fine of $2,750, finding that: the lack of heat was a result of gas shutdown by Con Edison because of a gas leak; respondent immediately sought to hire a plumber and bought space heaters for the unit; respondent was not able to repair the leak because of the requirement that the entire gas line be changed; and respondent continued to address the lack of adequate heat by purchasing large heat pumps. Loft Bd. v. 331 Greenwich Street, LLC, OATH Index No. 1816/19, mem. dec. (July 23, 2019).

Personnel

A sanitation worker, who was found unconscious at work, was charged with possessing and being under the influence of drugs while on duty and being absent without leave. ALJ Ingrid M. Addison sustained the charges that respondent was under the influence while on duty but dismissed the absence charge. Termination of respondent’s employment was recommended, but because respondent’s problems appeared to have started following a line of duty injury, ALJ Addison suggested petitioner consider placing respondent on a leave of absence to allow him to return when fully rehabilitated. Dep’t of Sanitation v. J.S., OATH Index No. 1530/19 (July 15, 2019), adopted, Comm’r Dec. (July 23, 2019).

A special officer was charged with using excessive force against a client at a City job center. Petitioner alleged that respondent kicked the client hard in the face and pulled the client’s arm when the client was already held in a prone position on the floor by several other officers. During a four-day trial, petitioner offered seven witnesses and respondent offered three. Respondent denied the allegations. ALJ Noel R. Garcia credited petitioner’s witnesses, found that respondent committed serious misconduct, and recommended termination of his employment. Dep’t of Social Services (Human Resources Admin.) v. Greenfield, OATH Index No. 2742/18 (July 26, 2019).

An associate laboratory microbiologist was charged with twice accosting a fellow microbiologist and using inappropriate, aggressive and threatening language to the co-worker. During trial, petitioner presented the testimony of four employees. Respondent testified on her own behalf and denied having used any inappropriate or aggressive language. ALJ Addison found petitioner’s witnesses credible and sustained the charges. Taking into consideration respondent’s long service with the Department, ALJ Addison recommended a penalty of 40 days’ suspension without pay and with credit for time served, pre-trial. Dep’t of Health & Mental Hygiene v. DeGrasse, OATH Index No. 1863/19 (July 29, 2019).