OATH Recent Decisions

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Personnel

ALJ Tiffany Hamilton recommended termination of employment for a correction officer who struck a restrained person in custody. Respondent and another correction officer were escorting a rear-cuffed person in custody when that person in custody spat at respondent’s face. Respondent responded by punching the person in custody three times in the face with a closed fist. The ALJ rejected respondent’s argument that the use of force was necessary to protect himself against imminent bodily harm, finding there was no evidence that the person in custody was about to attack respondent and respondent’s use of three facial strikes was retaliatory and punitive. Noting the egregiousness of the misconduct, coupled with respondent’s extensive disciplinary record that included two prior uses of force, the ALJ determined that continued employment would be a threat to the good order of the Department. Dep’t of Correction v. Lovelace, OATH Index No. 3501/24 (July 30, 2024).

Licensing

ALJ Orlando Rodriguez recommended dismissing, on collateral estoppel grounds, the second of two fitness proceedings brought by TLC against a licensee for his conviction of indecent assault in Pennsylvania in 2015. In the prior proceeding, ALJ Tiffany Hamilton recommended dismissal because TLC had brought the case under 68-14(a)(3) of its rules, which authorizes TLC to revoke a license based on criminal convictions but does not include out-of-state non-felony convictions such as the licensee’s 2015 conviction. TLC lifted the licensee’s suspension on February 9, 2024, but brought a second fitness proceeding under 68-14(a)(1), which authorizes TLC to revoke a license based on any act that implicated the licensee’s ability to safely interact with the public. TLC reimposed the suspension in advance of the second proceeding. ALJ Rodriguez found that TLC was collaterally estopped from relitigating the issue of respondent’s fitness to hold a TLC license based on his out-of-state criminal conviction. ALJ Rodriguez determined that although TLC had yet to issue a final decision on the prior proceeding, ALJ Hamilton’s recommendation had preclusive effect, and the public and the parties should have a reasonable expectation of finality once an adjudicatory hearing has been held. Taxi & Limousine Comm’n v. Saini, OATH Index No. 2260/24 (July 25, 2024), rejected, Comm’r Dec. (Aug. 5, 2024) (TLC concluded that “the subsequent action is not barred by the doctrine of collateral estoppel” because ALJ Hamilton did not issue “a determination on the merits” and the issue of respondent’s fitness to retain his “TLC license was not actually litigated, squarely addressed, and specifically decided during the previous hearing.” TLC revoked respondent’s TLC license, finding that his “continued licensure would pose a threat to the health and safety of the public” because he was “convicted of an egregious crime” which directly implicated his “ability to safely interact with the public”).

Human Rights

ALJ Michael D. Turilli denied petitioner’s request to preclude self-represented respondents, a real estate brokerage firm and its owner, from participating in the trial due to their failure to file an answer to the complaint, and recommended dismissal of the complaint based on petitioner’s failure to establish that respondents discriminated against complainant based on lawful source of income. Complainant, the recipient of a housing subsidy voucher, met with respondent owner for assistance in finding an apartment. During this meeting, owner informed complainant that he did not want to work with CAMBA, the nonprofit organization responsible for completing the paperwork for the voucher and submitting to HRA, and called another nonprofit organization to see if complainant’s voucher could be transferred. Complainant testified that the meeting ended on a good note but despite her subsequent attempts at following up, respondents never called her back or helped her locate an apartment. The ALJ found that petitioner did not establish that the lawful source of income provisions of the Human Rights Law applied to respondents because the law in effect at the time of the incident contained an exemption based upon the number of housing units and there was no evidence that respondents had the right to sell, rent, lease, or approve the sale or rental of a housing accommodation that contains six or more housing units. Further, the ALJ determined there was insufficient evidence that respondents intentionally discriminated against complainant because of her voucher. The ALJ also found that petitioner failed to prove that respondents discriminated against complainant based on gender, pregnancy, marital status, or presence of children in the household. Comm’n on Human Rights ex rel. Miller v. New American Realty Corp., OATH Index No. 2253/24 (July 31, 2024).

Procedure

ALJ Kevin F. Casey denied a request to postpone a prevailing wage proceeding pending the outcome of a related state court action. Petitioner brought this case against respondents for failing to pay prevailing wages and supplements to employees who conducted deep cleaning and disinfecting work of subway cars in 2020 and 2021 during the COVID pandemic. Respondents and intervenor the NYC Transit Authority jointly sought to hold the matter in abeyance pending the resolution of a related state court case brought by the NYC Transit Authority against the Office of the Comptroller for a declaration that the cleaning work did not require payment of prevailing wages and benefits. The ALJ found that petitioner has primary jurisdiction and should be allowed to develop a complete record. Further, it appears that the state court action may have been filed as a pre-emptive measure after petitioner served respondent Fleetwash with a notice of violation. Noting that there is a pending motion to dismiss and a motion for intervention in the state court action, the ALJ concluded that the proceeding at OATH may be able to address the fact-intensive issues more expeditiously. Office of the Comptroller v. LN Pro Services, LLC & Fleetwash, Inc., OATH Index Nos. 2376/24, 2377/24 (July 11, 2024).