OATH Recent Decisions and News

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OATH News

MEND NYC webinar: On July 21, Commissioner and Chief Administrative Law Judge Joni Kletter co-hosted an online presentation and Q&A session on the MEND NYC mediation program, in partnership with OATH Administrative Law Judge and director of the Center for Creative Conflict Resolution Ray Kramer and NYC Office of Nightlife executive director Ariel Palitz. The panelists discussed the MEND NYC program, which provides free mediation services to New Yorkers and nearby hospitality businesses regarding quality-of-life issues, as well as to small businesses in conflict with one another or with their landlords. A recording of the event is available here.

COVID-19 update

Pursuant to an order of the Chief Administrative Law Judge, 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. For more information, visit OATH’s website at www.nyc.gov/oath.

OATH Trials Division

Vehicle Retention

ALJ Julia H. Lee ordered the NYPD to release a car that it seized as the alleged instrumentality of a crime because it did not prove that the car owner was served with notice of the right to a retention hearing at the time of the seizure or by mail within five business days of the seizure. The car owner did not learn of his right to a hearing until five months after his arrest when he received a vehicle release notice from the District Attorney, went to the impound lot, and was told he must request a hearing before he could get his car back. Although the NYPD showed that the car owner was presented with vouchers for other personal belongings at the time of his arrest, those vouchers did not include notice of the right to a vehicle retention hearing. Police Dep’t v. Bull, OATH Index No. 2231/21, mem. dec. (July 14, 2021).

Licensing

ALJ Lee recommended continuation of the suspension of a driver’s Taxi and Limousine Commission license following an arrest for conspiracy to commit money laundering in a scheme allegedly targeting businesses in Texas. Despite finding that the driver maintained a good driving record, Judge Lee noted that the seriousness of the accusations call into question the respondent’s honesty which is directly related to her willingness to follow rules and her interactions with customers. Accordingly, ALJ Lee recommended continued suspension of the driver’s license pending the resolution of the criminal case.Taxi & Limousine Comm’n v. Ault, OATH Index No. 2261/21 (July 15, 2021).

ALJ Kevin F. Casey recommended that the suspension of a TLC driver’s license be lifted following his arrest for willful evasion of cigarette and tobacco product taxes on 15,000 cigarettes. The driver testified that he did not knowingly break the law as he bought the cigarettes legally in a duty-free shop in Haiti before flying to the United States to get vaccinated. Based on the driver’s testimony and his clean driving record, ALJ Casey found that the driver did not pose a direct and substantial threat to public safety while the charges are pending and recommended reinstatement of his license. Taxi & Limousine Comm’n v. Cherubin, OATH Index No. 2345/21 (July 19, 2021).

Personnel

ALJ Joan R. Salzman recommended termination of employment for a medicolegal investigator at the City’s Office of the Chief Medical Examiner who was found to have engaged in “double dipping” when he worked a second job for the Nassau County Medical Examiner’s Office while he was on paid sick leave from his City job. The employee did not present any evidence or testify, but instead claimed that he “forgot he had called in sick” and that he did not have any malicious intent when he worked at the Nassau County job. ALJ Salzman wrote that she found that argument implausible. Despite the employee’s long, unblemished employment record with the City, ALJ Salzman recommended termination of employment given the seriousness of the misconduct. Dep’t of Health & Mental Hygiene/Office of Chief Medical Examiner v. Czvekus, OATH Index No. 1558/21 (July 22, 2021).

ALJ Casey recommended a 40-day suspension without pay for a correction officer who was found to have used excessive and unnecessary force against an inmate. The officer dispersed a chemical agent from less than three feet away, in violation of agency rules, at an inmate and then submitted a false report claiming that he had first stepped back. Video evidence showed that during a struggle with an inmate, the officer reached forward and deployed the spray from less than one foot away from the inmate. Based on the officer’s personnel history and the misconduct proven at trial, ALJ Casey recommended a penalty of a 40-days suspension without pay. Dep’t of Correction v. Jackson, OATH Index No. 160/21 (July 2, 2021).

ALJ Faye Lewis found that a correction officer used excessive force against an inmate. Video evidence showed that the officer, an investigator with the Investigation Division, punched the inmate with a closed fist after other investigators had already restrained the inmate and were in the process of taking him to the ground. ALJ Lewis also found that the officer made false and misleading statements about the incident, and she recommended a 50-day suspension without pay. Dep’t of Correction v. Blackett, OATH Index No. 274/21 (July 13, 2021).

ALJ Ingrid M. Addison recommended a three-day suspension for a supervising fire prevention inspector whom the ALJ found to be disruptive at a Fire Department meeting, when he cupped his hands around his mouth and raised his voice to air grievances, after the meeting’s chair opened the floor for questions, causing the meeting to abruptly end. Because he did not use profanity or derogatory terms, ALJ Addison dismissed a charge that the inspector used discourteous, disrespectful and offensive language at the meeting. Petitioner’s request for a five-day suspension was reduced since it proved only one of the two charges. ALJ Addison rejected the inspector’s argument that he had been sufficiently penalized because the Department had removed him from the very inspections which were the source of his angst, and thereby deprived him of the associated overtime, since respondent did not establish that he was entitled to overtime as a matter of right. Fire Dep’t v. McClary, OATH Index No. 1299/21 (July 27, 2021).

Appeals Division
(appeals from the Hearings Division)

The Appeals Division reversed a hearing officer’s decision dismissing a summons charging a for-hire vehicle driver with making an illegal U-turn in a business district and remanded the matter for a new hearing. The hearing officer found the summons defective because it did not specifically allege that the driver made the illegal U-turn in a business district. The Appeals Division noted that the summons set forth the address where the violation allegedly occurred, and the TLC offered documentary evidence at the hearing, refused by the hearing officer, showing the address was located in a business district. The Appeals Division found that the summons provided the driver sufficient notice of the essential facts of the charge, and that both sides should have been given the opportunity to submit evidence at the hearing to establish their respective cases. Taxi & Limousine Comm. v. Junfa Lin, Appeal No. 74140115A (July 30, 2021).

The Appeals Division reversed a hearing officer’s decision finding that a homeowner failed to keep her front yard clean. The homeowner testified that her uncle who lived in the house cleaned the area every day at 9 a.m. and again at 4 or 5 p.m. The hearing officer credited the homeowner’s testimony but sustained the violation. The Appeals Division noted that the summons described the premises as a one or two family dwelling, and that a regular twice-a-day cleaning schedule is sufficient to establish a reasonable-efforts defense to a dirty area charge for a one or two family house. The hearing officer should have therefore dismissed the summons based on the homeowner’s credited testimony.Dep’t of Sanitation v. Raja Adimoolam, Appeal No. 2100608 (July 22, 2021).

The Appeals Division affirmed a hearing officer’s decision finding a hardware store failed to conspicuously display the price of 19 different consumer commodities in its store. The store argued that they couldn’t always price each product, so they put up “small signs” describing the price for each “category” of product, all prices were in their computer, and there was an additional sign informing customers that if the item was not marked it could be brought to the front and checked on the computer. The Appeals Division found that the small signs contained inadequate information for each specific product, and that the additional sign asking customers to have unpriced goods looked up on the computer failed to comply with the requirement that prices be conspicuously displayed on or near the commodities. Dep’t of Consumer and Worker Protection v. Fakhri Hardware Inc., Appeal No. 05452999 (July 9, 2021).