Recent Decisions

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

Human Rights

A landlord was charged with violating the City Human Rights Law when she sent her tenant a series of hostile text messages and e-mails stating that the tenant was an illegal immigrant and threatening to contact immigration enforcement in response to the tenant’s failure to pay rent. ALJ John B. Spooner held that the landlord discriminated against the tenant because of her citizenship status. He recommended damages of $12,000 for emotional distress and a civil penalty of $5,000. Comm'n on Human Rights ex rel. Ondaan v. Lysius, OATH Index No. 2801/18 (Sept. 12, 2019).

Personnel

A sewage treatment worker was charged with failure to make required checks at the treatment plant and neglect of duty by sleeping in his car. The plant manager credibly testified that it was plant practice to fill out the log sheet at the end of the shift and he believed that the worker completed his checks at the required time. Further, the manager corroborated the worker’s testimony that he was on meal break and not required to be working when he was found sleeping in his car. ALJ Joycelyn McGeachy-Kuls found that the petitioner failed to establish respondent engaged in the charged misconduct and recommended dismissal of the charges. Dep't of Environmental Protection v. Brennan, OATH Index No. 1451/19 (Sept. 12, 2019).

A caseworker was charged with being disrespectful and aggressive towards his supervisor and causing disruption to the workplace. The worker denied any wrongdoing. Petitioner offered three witnesses who were present at the scene and credibly testified as to respondent’s misconduct. ALJ Noel R. Garcia found that petitioner proved that respondent behaved in a discourteous manner towards his supervisor and caused disruption to the workplace. A suspension of 10 days was recommended. Dep't of Social Services (Human Resources Admin.) v. Hamzat, OATH Index No. 2248/19 (Sept. 11, 2019).

Vehicle Retention

Petitioner, who seized respondent’s vehicle following his arrest for criminal possession of a weapon in the second degree, sought to retain the vehicle as the instrumentality of a crime. ALJ Susan J. Pogoda found that petitioner failed to satisfy the first prong under the Krimstock analysis by failing to establish that reasonable suspicion existed for the initial car stop and that probable cause did not exist for respondent's arrest. ALJ Pogoda held there were notable differences between the arrest report and the criminal complaint, which were not explained by petitioner. Therefore petitioner was not entitled to retain custody of the seized vehicle. Police Dep't v. Chase, OATH Index No. 354/20, mem. dec. (Sept. 4, 2019).

Licensing

A master electrician was found to have negligently disregarded the electrical code, including repeatedly failing to send employees under his supervision to electrical inspections, failing to inspect electric signs and oversee installation, and allowing unsupervised non-employees to perform electrical work, and making material false or misleading statements in permit applications by allowing electrical work to be performed prior to issuance of electrical permits. ALJ Kevin F. Casey found respondent's misconduct disregarded the safety of workers and the public and recommended that his license be revoked. Dep't of Buildings v. Covello, OATH Index No. 2290/18 (Sept. 3, 2019), adopted, Comm'r Dec. (Sept. 9, 2019).

A licensed architect was charged with submitting seven professionally certified applications that demonstrated negligence, incompetence, or lack of knowledge of the Building Code, the Zoning Resolution, and the Department of Building's regulations, submitting two certified applications within 12 months containing errors that resulted in revocation of an associated permit, and failing two audits within six months. ALJ Astrid B. Gloade sustained most of the charges and recommended twelve-month suspension of the architect’s professional certification privileges. Dep't of Buildings v. Caliendo, OATH Index No. 733/18 (Sept. 25, 2019), adopted, Comm'r Dec. (Oct. 4, 2019).

Practice and Procedure

At the close of a disciplinary trial, a correction officer moved to prohibit publication of the OATH report and recommendation, citing to section 50-a of the Civil Rights Law, which required personnel records under the control of the Department of Correction be kept confidential. ALJ Kevin F. Casey denied the motion as untimely, and because OATH, as an autonomous agency and independent tribunal, is not under the control of Department of Correction. He also found that respondent has failed to overcome the broad presumption under the First Amendment in favor of public access to OATH proceedings. Dep't of Correction v. Johnson, OATH Index No. 1663/19, mem. dec. (Sept. 12, 2019).