Recent Decisions

The following is a summary of some recent OATH decisions decided in *July 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.

Practice and Procedure

In two recent letter decisions, ALJ Astrid B. Gloade and ALJ Faye Lewis denied applications by respondents to hold in-person trials, rather than trials through videoconferencing. ALJs Gloade and Lewis both noted that OATH has long recognized that testimony may be taken by videoconferencing when there is a compelling need to do so. They also noted that the constitutional right to confrontation is limited to criminal proceedings. Both ALJs found that the COVID-19 pandemic establishes compelling circumstances for holding remote trials, and described OATH's current practice of conducting all trials remotely except when an ALJ determines upon motion that there is a particularized, compelling need for an in-person trial that can be conducted in compliance with applicable health and safety guidelines. See Order of Chief Administrative Law Judge (July 20, 2020), https://www1.nyc.gov/assets/oath/downloads/pdf/Trials-Div-Order.pdf. ALJs Gloade and Lewis found that respondents in these cases failed to demonstrate a particularized, compelling need for in-person trials as videoconferencing would permit parties to submit evidence electronically and conduct direct and cross-examination of witnesses whose demeanor would be readily observable on the video platform, and denied both applications. Dep't of Sanitation v. Gilchrist, OATH Index No. 1897/20, letter to counsel (July 27, 2020); Dep't of Sanitation v. Garcia, OATH Index No. 2051/20, letter to counsel (July 20, 2020).

In a proceeding filed by petitioner, the Department of Housing Preservation and Development, to remove the members of the Board of Directors of a housing corporation, for failure to make the necessary payments and repairs to the property, ALJ Kevin F. Casey denied a third party's motion to intervene. The movant, the owner of a majority interest in the Limited Partners of Bridgeview III Housing Corp., moved to intervene. Petitioner opposed the motion. ALJ Casey found that the movant lacked standing to intervene, holding that it failed to show a real and substantial interest in the outcome of the proceeding because its partnership agreement did not provide for authority to select the members of the Board of Directors. ALJ Casey also found that allowing the movant to intervene would broaden the scope and further delay the proceeding. Dep't of Housing Preservation & Development v. Bridgeview III Housing Corp., OATH Index No. 1206/20, mem. dec. (July 7, 2020).

Licensing

Petitioner, the Department of Buildings, sought revocation of respondent's hoist machine operator license and registrations alleging that he was negligent, lacked knowledge of or disregarded applicable laws by leaving a crane unattended and unsupervised. Petitioner also alleged that respondent failed to cooperate with an investigation. At trial, ALJ Joycelyn McGeachy-Kuls found that petitioner's proffered evidence purporting to show that respondent was at the jobsite or operating the crane at the time was not credible and was based on assumptions rather than direct identification of the respondent, and thus did not establish that respondent left an operating crane unattended and unsupervised. Additionally, ALJ McGeachy-Kuls found that petitioner had not sufficiently supported its allegation of noncooperation, because respondent appeared with his attorney ready to answer questions at a subsequently scheduled interview and the interview transcript shows that respondent was not asked about the unattended crane. ALJ McGeachy-Kuls recommended dismissal of the charges. Dep't of Buildings v. Kunkel, OATH Index No. 2113/18 (July 28, 2020).

The Taxi and Limousine Commission (“TLC”) summarily suspended a taxi driver's TLC license after being notified of his arrest for assault and harassment. At trial, the driver and his girlfriend testified that the driver's arrest followed a verbal argument in which she called 911 and falsely reported that the driver assaulted her. This account was corroborated by a video taken by the driver. ALJ John B. Spooner found that the evidence failed to demonstrate that the driver posed a direct threat to public safety and recommended lifting the suspension. Taxi & Limousine Comm'n v. Islam, OATH Index No. 2085/20 (July 6, 2020), adopted, Comm'r Dec. (July 8, 2020).

The TLC summarily suspended respondent's TLC driver license after being notified of his arrest for assault and criminal mischief following a dispute between respondent, his sister, and his spouse. According to the arrest report, during a dispute between respondent and his spouse regarding divorce paperwork, he grabbed her, causing bruising and scratching, and took her phone away from her while she attempted to call 911. At trial, respondent and his sister, who witnessed the events, testified that those allegations were untrue, and that instead his spouse had grabbed his sister's phone and his sister had grabbed and scratched his spouse in an attempt to retrieve her phone. ALJ Noel R. Garcia found that petitioner failed to prove that respondent poses a direct and substantial threat to public health and safety. He recommended that the suspension of respondent's license be lifted. Taxi & Limousine Comm'n v. Ayala-Casado, OATH Index No. 2236/20 (July 16, 2020), adopted, Comm'r Dec. (July 31, 2020).

The TLC summarily suspended respondent's TLC driver license after being notified of his arrest for assault, obstruction of breathing and acting in a manner injurious to a child, following a domestic dispute. According to the arrest report, respondent accused his wife of talking to other men, punched her, put his hands around her neck and squeezed, and took an iPad from her daughter before leaving the scene. ALJ Susan J. Pogoda found respondent's explanation of the events leading to his arrest, describing a dispute about his wife taking his money, to be not credible. This, together with respondent's numerous serious driving violations, multiple driver's license suspensions, and previous TLC license revocation following a failed drug test, demonstrated a disregard for the law and public safety. ALJ Pogoda recommended continuation of the suspension. Taxi & Limousine Comm'n v. Alhuraibi, OATH Index No. 1976/20 (July 7, 2020), adopted, Comm'r Dec. (July 17, 2020).

Vehicle Retention

Petitioner, the New York City Police Department, sought to retain a vehicle seized as the alleged instrumentality of a crime. Respondent, who was not the arrestee, asserted that she was an innocent owner and petitioner should not retain her vehicle. ALJ Ingrid M. Addison found that the arrestee, who was respondent's boyfriend and the father of her children, was the beneficial owner of the vehicle. ALJ Addison found that the circumstances of the arrest and the arrestee's track record with the vehicle indicated that returning the vehicle would present a heightened risk to public safety. ALJ Addison ruled that petitioner may retain possession of the vehicle pending a civil forfeiture action. Police Dep't v. Francis, OATH Index No. 2210/20, mem. dec. (July 6, 2020).