Recent Decisions

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

OATH BenchNOTES Newsletter Expansion

Starting this month, the BenchNOTES newsletter is expanding to include news about new initiatives at OATH and notable decisions issued by the Hearings Division Appeals Unit, in addition to the Trials Division summaries and decisions BenchNOTES is known for.

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OATH News

• OATH and Office of Nightlife launch new MEND NYC mediation program: On August 14, Mayor Bill de Blasio announced the launch of MEND NYC, a new joint initiative of OATH and its Center for Creative Conflict Resolution and the Office of Nightlife. MEND NYC provides mediation to New Yorkers and hospitality businesses across the city who are in disputes over quality-of-life issues. The initiative is a free, innovative alternative that can bring lasting solutions to longstanding local issues that have been laid bare by the COVID-19 crisis, which has caused an increase in complaints to 311. "The success of our neighborhood establishments is central to our entire city's success," said Mayor de Blasio. "When complaints arise, MEND NYC will bring people together to creatively solve problems, helping us save deployment of our enforcement agencies for the most serious violations." For more information, visit www.nyc.gov/mendnyc.


• OATH launches citywide text-messaging reminder system for all civil summonses: On September 4, OATH announced a citywide launch of a text-messaging reminder system to remind respondents about their Hearings Division hearing dates. Respondents can register by simply texting "OATHreminder" to 474747, and then responding to the prompt with their summons number. "Every person who receives a summons should know that OATH's goal is to make it as convenient as possible for them to respond to that summons and direct text messages that explain our hearing process, the consequences for not responding to summonses, and remind people of important deadlines is just one way OATH is doing that," said Commissioner and Chief Administrative Judge Joni Kletter. For more information, read OATH's press release.


• OATH joins Twitter: Beginning this month, OATH is now on Twitter. For updates about OATH initiatives and events, follow @oathnyc.

COVID-19 Update

Pursuant to an order of the Chief Administrative Law Judge, all hearings, trials, and other OATH operations are being conducted by telephone, videoconferencing, online, or mail, and OATH will only allow in-person appearances in limited, pre-approved circumstances. Individuals may only enter OATH offices if the agency has approved your or your representative's request because 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. For more information, read OATH's public flyer.

Appeals Division (appeals of Hearings Division decisions)

The Appeals Division sustained a hearing officer's imposition of recidivist penalties against a tobacco retail dealer for selling tobacco products to a person under 21 years of age. Respondent argued that the prior violation (on which the recidivist charge was based) had been issued to a prior owner, the Appeals Division noted that the burden was on the subsequent licensee (the respondent) to prove that it acquired the business through an arm's-length transaction, and no such evidence was submitted here. Dep't of Consumer Affairs v. Zil Zal, Inc, Appeal No. 80036796 (Aug. 11, 2020).

The Appeals Division reversed a hearing officer's dismissal of a charge against the owner of a one-family dwelling for illegally converting the dwelling to transient use for short-term stays of less than 30 days. The hearing officer had dismissed the charge, finding transient occupancy was only prohibited in Class "A" multiple dwellings and not in one-family dwellings. In reversing, the Appeals Division found that the presence of multiple guests without the tenant for less than 30 days is contrary to the occupancy as a one-family dwelling authorized by the certificate of occupancy. The Appeals Division also noted that a recent New York State Supreme Court decision excusing one-family dwellings from the laws barring transient occupancy is contrary to the City's laws and is under appeal. Dep't of Buildings v. 13-15 Christopher Street, LLC, Appeal No. 2000524 (Aug. 13, 2020).

The Appeals Division reversed the dismissal of a citizen-complainant-issued summons charging a vehicle owner with idling in excess of three minutes. At the hearing, the citizen-complainant testified that he observed the cited vehicle idling for more than three minutes, and additionally submitted a video he took of the incident. While the hearing officer specifically credited the citizen-complainant's testimony, she nonetheless dismissed the charge, finding that the video was not credible because there was a break in its time-stamp. The Appeals Division held that the hearing officer's credibility finding regarding the citizen-complainant's testimony was sufficient to establish the charge without the video. Basinski v. A & L Service, Appeal No. 2000670 (Aug. 13, 2020).

Trials Division

Licensing

In a Taxi and Limousine Commission license revocation case, the driver objected to petitioner's reliance on an affidavit from a testing laboratory and a chain of custody verification to establish that he tested positive for marijuana, without producing a witness to be cross-examined, and argued that his test sample equaled, but did not exceed, the federal cutoff for a positive test. ALJ Astrid B. Gloade overruled the driver's objections. However, ALJ Gloade found the driver established a credible explanation for his positive drug test and met his burden of proving that he did not knowingly ingest marijuana. The driver contended that he unwittingly consumed homemade marijuana-infused chocolate chip cookies while visiting a friend. He admitted that he had helped himself to the cookies although his friend had not offered them to him. The friend corroborated his account and convincingly described how he prepared the cookies, which had no distinct taste from the marijuana, and inadvertently left them available for the driver to take. Dismissal of the charge recommended. Taxi & Limousine Comm'n v. Genco, OATH Index No. 2147/20 (Aug. 20, 2020), adopted, Comm'r Dec. (Aug. 21, 2020)

The Taxi and Limousine Commission ("TLC") brought a license revocation proceeding against a taxi driver, alleging that he solicited passengers illegally, refused to cooperate with Port Authority officers, and used physical force, injuring one of the officers as he resisted being handcuffed. ALJ John B. Spooner recommended dismissal of the solicitation charge because TLC had already fined the driver for that conduct and could not penalize him again. However, the ALJ recommended that respondent's license be revoked based on credible accounts of the Port Authority officers involved in the incident related to the noncooperation and physical force charges. Taxi & Limousine Comm'n v. Singh, OATH Index No. 1574/20 (Aug. 4, 2020), adopted, Comm'r Dec. (Aug. 17, 2020).

The TLC summarily suspended respondent's TLC driver's license following his arrest for assault. The criminal charges were subsequently amended to include harassment and acting in a manner injurious to a child. Respondent presented credible evidence that his ex-wife was the initial aggressor when she scratched him on his elbow and arm as he attempted to prevent her from destroying his mail. ALJ Ingrid M. Addison found that, though regrettable because it occurred in the presence of his minor child, respondent's defensive act of pushing his ex-wife, which resulted in his arrest, was not unreasonable given the circumstances. ALJ Addison further noted that there was no evidence of prior domestic violence by respondent. ALJ Addison found that respondent did not pose a continuing direct and substantial threat to public health or safety and recommended that his license suspension be lifted. Taxi & Limousine Comm'n v. Feliz Ruiz, OATH Index No. 0045/21 (Aug. 11, 2020), adopted, Comm'r Dec. (Aug. 12, 2020).

Practice and Procedure

Petitioner brought a registration revocation proceeding against respondent, a registered construction superintendent, alleging that on three separate occasions the respondent gave a Department of Buildings inspector money after an inspection. During trial, respondent objected to petitioner's witness testifying about the content of the audio recordings that were not admitted in evidence. Petitioner produced transcripts of the audio recordings, but not the actual recordings, which petitioner admitted it possessed. Respondent argued that the audio recordings were the best evidence and counsel could not confirm the accuracy of the transcriptions without having the opportunity to listen to the recordings. After conducting an in-camera review of the audio recordings and transcripts, ALJ Susan J. Pogoda ruled that the audio recordings constitute the best evidence and must be introduced, though properly authenticated transcripts may also be provided, at the judge's discretion, as an aid to understanding the recordings. Dep't of Buildings v. Chaskelson, OATH Index No. 738/19, mem. dec. (Aug. 12, 2020).

Personnel

A Triborough Bridge and Tunnel Authority officer was charged with engaging in threatening behavior towards a motorist, including displaying his service weapon, and making false statements, among other charges. Petitioner presented credible documentary and video evidence, and witness testimony. ALJ Noel R. Garcia credited the motorist testimony that as he attempted to merge into traffic, respondent pulled up alongside the motorist, pulled out his gun, aimed it at the motorist and threatened to shoot him. Following the incident, the motorist called the police, followed respondent and recorded much of the incident and his subsequent interaction with respondent. ALJ Garcia found that respondent failed to accept responsibility and lacked remorse as he denied displaying a gun and had violated agency policy by failing to notify the agency of his arrest or provide case documents. ALJ Garcia held that respondent's conduct was reckless, dangerous and unsuitable for someone that is in possession of a deadly weapon as part of his job. Termination recommended. Triborough Bridge & Tunnel Auth. v. Allston, OATH Index No. 2689/19 (Aug. 25, 2020), adopted, Pres. Dec. (Sept. 9, 2020).

Real Property

In an Interim Multiple Dwelling ("IMD") covered by the Loft Law, a group of loft tenants filed an application seeking a finding that the owner improperly diminished parking services that the previous owner agreed to provide. The tenants showed that they had previously enjoyed unrestricted use of their indoor parking space via remote controlled gate. One month after the owner acquired the building, the owner informed the tenants that they would no longer be permitted to park inside the building. The owner argued that parking is not a legally required service and that the occupants waived their rights by agreeing to legalization plans. ALJ Kevin F. Casey held that the Loft Board has the authority to regulate parking that is ancillary to an occupants' right to a regulated unit, and rejected the owner's arguments that the tenants waived their claims. ALJ Casey also found the owner improperly reduced the tenants' access to parking with construction, barriers, and the use of the location for a film shoot. He recommended that the application be granted. Matters of Tenants of 475 Kent Avenue, OATH Index No. 740/19 (Aug. 19, 2020).