OATH Recent Decisions

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Personnel

ALJ Kevin F. Casey recommended termination of employment for a public health nurse charged with discourtesy and falsifying timekeeping records. The ALJ found that the nurse was discourteous to a co-worker when she closed a door on the co-worker to prevent her from leaving a room. The evidence failed to prove that respondent made uncivil remarks or that she pushed the co-worker. Petitioner also failed to prove that respondent slept on duty. The ALJ found that the nurse falsified her timesheet on 15 occasions by recording her arrivals as on-time when she was late to work. The ALJ held that the nurse’s repeated and deliberate dishonesty is a fundamental form of misconduct that demonstrates her unreliability. Dep’t of Health & Mental Hygiene v. Wu, OATH Index No. 588/23 (June 26, 2023).

Licensing

ALJ Christine Stecura recommended lifting the license suspension of a taxi driver arrested for assault after an off-duty altercation. The driver denied assaulting complainant, testifying that after getting into a verbal dispute, complainant showed him a gun, threatened to shoot him, then punched him. The ALJ found the driver’s testimony credible and corroborated by a criminal complaint against the complainant which alleges that a gun was recovered from the scene. The driver also has a stellar work history and licensing record, tending to show that he would not pose a direct and substantial threat to public health or safety. TLC adopted the ALJ’s recommendation and lifted the suspension. Taxi & Limousine Comm’n v. Fermin De La Cruz, OATH Index No. 3576/23 (July 5, 2023), adopted, Comm’r Dec. (July 6, 2023).

ALJ Orlando Rodriguez recommended lifting the license suspension of a taxi driver arrested for assault following a dispute with his neighbors. The driver denied assaulting complainant and testified that on the day of the incident, he was watering his garden when complainant entered his driveway, cursing and behaving aggressively. The driver’s daughter provided a video from three days before respondent’s arrest, which showed her standing in her father’s driveway as complainant and his family approached aggressively, shouted racist remarks, and grabbed her wrist. The ALJ found that the circumstances indicate this was an isolated incident, apparently instigated by complainant, in the driver’s otherwise spotless record. TLC adopted the ALJ’s recommendation and lifted the suspension. Taxi & Limousine Comm’n v. Bourrich, OATH Index No. 3479/23 (June 29, 2023), adopted, Comm’r Dec. (July 5, 2023).

Human Rights

ALJ Michael D. Turilli recommended assessing $50,000 in emotional distress damages and $100,000 in civil penalties against the owners of a residential building for failing to provide an 85-year-old disabled tenant with a reasonable accommodation. The complainant required the use of a walker and could not enter or exit the building independently due to two sets of stairs at the main entrance. Respondents were aware of complainant’s disability and his request for a reasonable accommodation since they acquired the building in 2019 but refused to install a ramp or a lift. The ALJ found that the installation of ramps or lifts at the main entrance would enable or help complainant’s use and enjoyment of his apartment and that respondent failed to prove that providing such accommodation would cause an undue hardship or be architecturally infeasible. The ALJ further found that the owners failed to engage in a cooperative dialogue with complainant concerning the accommodation needed, as required by 2018 amendments to the Human Rights Law. As affirmative relief for the discrimination, the ALJ recommended the installation of ramps or platform lifts at the building’s entrance. Comm’n on Human Rights v. DiFiore Realty, LLC, OATH Index Nos. 2386/22 & 1732/23 (July 26, 2023).