OATH Recent Decisions and News

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OATH News

Commissioner Rehman formally sworn-in by the Mayor: On July 7, Mayor Adams held a swearing-in ceremony for Commissioner and Chief Administrative Law Judge Asim Rehman. To read the New York Law Journal’s coverage, click here. To listen to the remarks by Chief Counsel to the Mayor Brendan McGuire, Mayor Adams, and Commissioner Rehman, click here to view a recording of the event.

Leadership changes: Noel Garcia, who has served as an Administrative Law Judge at OATH since 2015, was appointed Deputy Commissioner of the new Special Education Hearings Division. Peter Schulman, who was the Assistant Commissioner of the Appeals Division, was appointed Deputy Commissioner of the Appeals Division, replacing Susan Kassapian after her retirement from City service.

Mayor Adams issues Executive Order 20: On June 24, Mayor Adams issued Executive Order 20 of 2022, assigning jurisdiction to OATH to adjudicate proceedings involving individual students under the federal Rehabilitation Act section 504. These matters often accompany complaints under the federal Individuals with Disabilities Education Act that are being adjudicated by the OATH Special Education Hearings Division.

Special Education Hearings Division public information session: On June 9, OATH held a public information session regarding the Special Education Hearings Division. To request a copy of the video recording, email sehd@oath.nyc.gov.

Changes to OATH’s rules of practice: OATH recently issued three final rules amending the Hearings Division rules of practice: extending the Hearings Division deadline to file a motion to vacate a default judgment to 75 days (read more here), modifying rules regarding appearances for hearings (read more here), and modifying rules regarding misconduct by parties and representatives (read more here). OATH also issued a final rule to update cross-references to the New York City Commission on Human Rights’ rules.

OATH seeking new Contract Dispute Resolution Board panelists: The OATH Trials Division is seeking applicants to serve as neutral members on appeals panels of the Contract Dispute Resolution Board, chaired by OATH Administrative Law Judges. More details and the application form are available here.

Job opportunities at OATH: OATH regularly posts employment opportunities on the NYC Jobs portal and on its website. Click here to view current openings. Current postings for attorneys include Administrative Law Judge, Law Clerk, Special Education Hearing Officer, Settlement Officer, and more. Current postings for non-attorneys include Data Analyst, Calendar Unit Clerk, Procedural Justice Coordinator, Procurement Analyst, Cybersecurity Analyst/Desktop Support Technician, and more.

COVID-19 update

Pursuant to an order of the Chief Administrative Law Judge, hearings, trials, and other OATH operations are available by telephone, videoconferencing, online, or mail, and in-person appearances are also available. For more information, visit OATH’s website at www.nyc.gov/oath.

OATH Trials Division

Personnel

ALJ Kevin F. Casey found that three correction officers drank alcohol while on duty, two officers tampered with evidence, one officer used an unauthorized cell phone, and two officers made false statements to interviewers by denying that they consumed alcohol on duty. In a separate incident, one of the officers used excessive force against an inmate and submitted a false or misleading report. ALJ Casey recommended termination of employment for the officer who used excessive force, and 50 to 60 days’ suspension for the other officers. Department of Correction Commissioner Louis Molina adopted all of ALJ Casey’s findings of fact and increased the penalty to termination of employment for each officer. Dep’t of Correction v. Wilson, Cameron, Williams, and Winfrey, OATH Index Nos. 117/22, 118/22, 119/22, 349/22, 415/22, and 487/22 (Mar. 4, 2022), adopted in part, modified on penalty in part, Comm’r Dec. (May 11, 2022).

ALJ Julia H. Lee recommended termination of employment for a correction officer who used excessive force when he struck a restrained inmate in the face and submitted a false and misleading use of force report. While the inmate had thrown food at the officer through an open slot of his cell and later alluded to there being feces in the food, ALJ Lee found that neither the inmate’s verbal abuse and threatening language nor the food-throwing justified the officer’s strike to his face. ALJ Lee also found that the officer’s statement in his use of force report that the inmate was trying escape from escort officers was inaccurate as video evidence demonstrated that the inmate was physically compliant throughout the extraction and escort. Dep’t of Correction v. Seraphin, OATH Index No. 1162/22 (Mar. 11, 2022), adopted, Comm’r Dec. (Apr. 26, 2022).

ALJ Kara J. Miller recommended termination of employment for a non-competitive class employee charged with excessive absenteeism under section 75 of the Civil Service Law, finding that the employee was continuously absent for more than 295 days following a workplace injury when a bathroom stall door fell on her. In her report and recommendation, ALJ Miller rejected the employee’s argument that the proceeding should be converted to a Civil Service Law section 71 proceeding involving a determination of permanent incapacitation due to disability ALJ Miller found that the Court of Appeals has acknowledged that the applicability of section 71 to non-competitive class employees remains an open question for the state legislature to resolve and that even if section 71 were applicable to non-competitive class employees, it does not provide for a hearing prior to termination. Dep’t of Consumer & Worker Protection v. Anonymous, OATH Index No. 2647/19 (Mar. 8, 2022), adopted, Comm’r Dec. (Apr. 14, 2022).

ALJ Michael D. Turilli recommended dismissing an off-duty misconduct charge against a correction officer who was arrested for assaulting his wife. The criminal charges against the correction officer had been dismissed prior to the trial before OATH and the officer’s wife declined to testify. ALJ Turilli found that the testimony of the arresting police officer, who recounted hearsay statements made by the wife at the scene over three years ago, was not sufficiently reliable to sustain the charge. Dep’t of Correction v. Cerrato, OATH Index No. 2021/22 (May 31, 2022).

ALJ Kevin F. Casey recommended a 45-day suspension for a hospital service aide for leaving work early and moving supplies, including personal protective equipment, from a nurses’ station to a closet during the COVID-19 pandemic without documenting his actions. ALJ Casey found that the hospital had failed to prove that the service aide stole hospital property, stored alcohol on the hospital premises, refused to surrender his keys, violated the Conflicts of Interest Law, or intimidated co-workers into signing a petition. Health & Hospitals Corp. (North Central Bronx Hospital) v. Friday, OATH Index No. 1055/21 (May 5, 2022).

ALJ Joycelyn McGeachy-Kuls found that a correction officer’s use of force during an escort of an inmate was appropriate but that the officer had submitted a false or misleading report about the incident. The Department of Correction had charged the officer with using excessive force against an inmate while he was being removed from a cell. ALJ McGeachy-Kuls found that the officer’s force was not excessive because the inmate was not compliant. However, ALJ McGeachy-Kuls found that the officer submitted a false or misleading report about the incident and recommended a 30-day suspension. Dep’t of Correction v. Frederique, OATH Index No. 641/22 (June 21, 2022).

ALJ Christine Stecura recommended that a correction officer be suspended for 60 days for using excessive force and submitting a false and misleading use of force report about an incident in which he struck an inmate in the face. ALJ Stecura rejected the officer’s argument that force was appropriate because the inmate had a cane and had made a threatening gesture. Dep’t of Correction v. Sylvester, OATH Index No. 1441/22 (June 8, 2022).

ALJ Julia Davis recommended that a Special Officer in the Department of Citywide Administrative Services be suspended for 20 days for making false statements and sleeping while on duty, both of which the respondent admitted during trial. ALJ Davis found that DCAS had failed to prove that the officer slapped a commuter on her buttocks because the complainant’s identification of the officer as the perpetrator was not sufficiently reliable. Dep’t of Citywide Administrative Services v. Blai, OATH Index No. 0626/22 (June 2, 2022).

Vehicle Seizure

ALJ Faye Lewis ordered the Department of Health and Mental Hygiene to return three Weed World Candies-branded trucks to their owners. DOHMH brought a case seeking a ruling consistent with Krimstock v. Kelly, 306 F.3d 40, 44 (2d Cir. 2002), finding that it had the right to retain three Weed World-branded trucks which it had seized, pending the completion of a civil forfeiture proceeding in state court. ALJ Lewis, following the analytical framework established by the Krimstock Order, 2007 U.S. Dist. LEXIS 82612 (S.D.N.Y. Sept. 27, 2007) [3d amended order and judgment], concluded that DOHMH was not entitled to retain custody of the seized vehicles pending the forfeiture action, because it had not established that return of the vehicles to their owners would pose a heightened risk to public safety. She thus ordered the release of the vehicles to their owners. Dep’t of Health & Mental Hygiene v. Weed World Candies, Inc., et al., OATH Index No. 1110/21, mem. dec. (June 30, 2022).

ALJ Jonathan Fogel held that the NYPD may retain a vehicle it seized following the driver’s arrest for criminal possession of a weapon in the second degree and other charges. ALJ Fogel found that a frame partially blocking the NY State “Excelsior” logo on the vehicle’s license plate was in violation of state law and was a lawful basis for stopping the car, and that the driver’s suspended driver license gave police probable cause to place him under arrest after the stop. The driver’s action of driving with a suspended license was sufficient to demonstrate that he used the vehicle as an instrumentality of a crime. ALJ Fogel further found that the driver’s recent conviction for driving while impaired by alcohol coupled with driving with a suspended license demonstrated a risk to public safety in the event the car was returned. Police Dep’t v. Marroquin, OATH Index No. 1423/22 (Mar. 1, 2022).

Licensing

ALJ Joan R. Salzman recommended revocation of a construction superintendent license, and the Commissioner of the Department of Buildings adopted her recommendation. ALJ Salzman found that the licensee attempted to bribe a DOB electrical inspector during a worksite inspection with $100 in cash as the inspector raised issues about wiring on the job. However, ALJ Salzman found that additional charges that the licensee failed to cooperate with the Department’s investigation of this attempted bribe were not proved. Dep’t of Buildings v. Nobel, OATH Index No. 35/22 (Mar. 15, 2022), adopted, Comm’r Dec. (Apr. 8, 2022).

ALJ Julia Davis recommended revocation of a driver’s TLC driver license based on an incident involving sexual harassment and force against a passenger. ALJ Davis found that the taxi driver grabbed the passenger’s arm and pulled it through the partition of the taxicab, which caused bruising, and repeatedly stated to a passenger, “You’re so sexy,” “I want to hug you,” and “I want to touch your tattoos,” while holding onto the passenger’s hand. The TLC adopted the recommended penalty of revocation and modified it to include a $500 fine. Taxi & Limousine Comm’n v. Madjroud, OATH Index No. 1184/22 (Apr. 14, 2022), adopted in part, modified on penalty in part, Comm’r Dec. (May 3, 2022).

ALJ Astrid B. Gloade recommended that a driver’s TLC driver license remain suspended during the pendency of his criminal case following his arrest for driving while intoxicated. Although the arrest occurred while off duty, ALJ Gloade found that there was a direct nexus between the driver’s duties as a licensee responsible for safely driving members of the public and the crime of driving while intoxicated, and thus found that the charges, if true, demonstrate that the driver’s continued licensure posed a threat to the public health and safety. Taxi & Limousine Comm’n v. James, OATH Index No. 2164/22 (Apr. 28, 2022).

ALJ Orlando A. Rodriguez recommended lifting the suspension of a driver’s TLC driver license where it was suspended following an arrest for assault, attempted assault, menacing, and harassment against his wife. ALJ Rodriguez found that the alleged conduct was mitigated by the absence of an allegation of injuries in the criminal charges, by the fact that the police report noted that the driver’s wife reported she was not in fear for her safety, that neither violence nor abuse had been escalating, and that she had not filed any prior Domestic Incident Reports. Moreover, ALJ Rodriguez found that the driver had a good driving history, no prior criminal record, and a history of law-abiding behavior. Taxi & Limousine Comm’n v. Nath, OATH Index No. 2214/22 (May 10, 2022).

Human Rights

ALJ Ingrid M. Addison found that respondents H&M and a property management company discriminated against a disabled complainant by failing to provide an accessible entrance that afforded full and equal enjoyment, on equal terms and conditions as able-bodied persons, and by failing to provide complainant and other disabled persons with a reasonable accommodation, in violation of the New York City Human Rights Law. ALJ Addison recommended civil penalties of $75,000 against H&M and $125,000 against Winter Management Group, along with affirmative measures to prevent discrimination. ALJ Addison also recommended the installation of a ramp at the corner of the premises. Comm’n on Human Rights ex rel. McKnight v. H & M Hennes & Mauritz L.P. & BJW Realty LLC et al., OATH Index No. 905/20 (Mar. 31, 2022).

Real Property

ALJ Kevin F. Casey recommended granting a tenant’s application for protected occupancy because the building’s owner failed to prove that the former tenant sold her rights to the unit. ALJ Casey determined that an agreement signed by the former tenant was facially insufficient to establish a valid sale of rights because she was not identified as a protected occupant, the Loft Law was not mentioned, there was no evidence that the former tenant had been represented by or had consulted with counsel before signing the agreement, and there was no evidence that she knew that she had any Loft Law rights or that she intended to sell them. Matter of Herman, OATH Index No. 1984/21 (May 13, 2022).

Contract

A panel of the Contract Dispute Resolution Board, chaired by ALJ Joycelyn McGeachy-Kuls, found that the City’s decision to indefinitely suspend a vendor’s moving services contract shortly after it was awarded was arbitrary. The Board ordered the City to lift the suspension, but declined to award money damages because the vendor did not provide proof of expenditures made in anticipation of performance under the contract and its claim for lost profits was too speculative. Sunrise Office Services, Inc. v. Dep’t of Citywide Administrative Services, OATH Index No. 742/21, mem. dec. (May 10, 2022).

Appeals Division
(appeals from the Hearings Division)

The Appeals Division reversed a hearing officer’s decision and found that a moving company was not in violation of unlawfully idling a motor vehicle’s engine adjacent to a school for longer than one minute. The company had argued that video showed the building, “Manhattan Star Academy,” was not easily identifiable as a school, since it only had a small sign on a recessed door of the same color, which did not contain information to allow the driver to easily identify it as a school, but the hearing officer rejected that defense and sustained the charge. On appeal, the company argued that the building’s signage did not say “school,” “learning center,” “K-12,” or anything else that would allow someone unfamiliar with the location to identify it as a school, especially in August, with no students around, and the Appeals Division found that the respondent had established an affirmative defense. DEP v. Atlas Van Lines, Appeal No. 2200023 (March 24, 2022).

The Appeals Division affirmed that part of a hearing decision sustaining charges of threats, harassment, or abuse, and acts against the best interest of the public. At the hearing, the complaining witness, a passenger in the respondent’s taxicab, testified that after she cursed at the TLC-licensed driver, he responded, “Go back to China.” The driver denied telling the passenger to “Go back to China.” The hearing officer credited the passenger’s testimony and sustained all the charges. On appeal, the driver’s representative argued that the driver’s response was warranted because the passenger was the first to curse. The Appeals Division found that although the passenger admittedly used profanity towards the respondent first, the driver was held to a higher standard as a City licensee and was required to follow the rules his license is subject to. The Appeals Division concluded that the passenger showed derogatory intent and evinced a discriminatory animus based on a protected characteristic, and therefore violated TLC rules, but found the charge for discourtesy duplicative. TLC v. Abdul Alam, Appeal No. 10172189C (March 18, 2022).

The Appeals Division reversed a hearing officer’s decision sustaining a “failure to maintain” violation against a building owner for a fire escape ladder partially blocked by air conditioning units. At the hearing the building owner’s attorney submitted credible evidence that, five years earlier, a court appointed a receiver to exclusively control and manage the property and enjoined the building owner from interfering in any manner with the premises. The Appeals Division found that the building owner therefore established an impossibility defense to the failure to maintain charge. DOB v. Tong Quan Wong, Appeal No. 2200004 (April 28, 2022).

The Appeals Division reversed a hearing officer’s decision holding a taxicab driver in violation for failing to yield to a pedestrian while making a turn at an intersection. The Appeals Division noted that the issuing officer’s affirmed statement in the summons, relied on by the TLC to establish its case, failed to state any facts as to either the vehicle or pedestrian’s speed or proximity in relation to each other or whether the pedestrian had to act to avoid colliding with the vehicle, and therefore failed to state essential elements of the violation. TLC. v. Rakib Raihan, Appeal No. 73430165A (April 22, 2022).

The Appeals Division affirmed a hearing decision sustaining six violations against an asbestos abatement contractor for failing to have a third-party air monitor. At the hearing, the Department of Environmental Protection submitted records showing the same air monitor worked on 44 of the company’s 46 projects in 2020, giving rise to the statutory presumption that the monitor had a business, personal, or other relationship with the company. The company argued that it was not in contract with the monitor and each firm had been hired separately by an abatement consultant working on behalf of property owners. The hearing officer sustained the charges, finding that the company failed to refute the statutory presumption and that the respondent was in violation because the property owners did not directly hire the air monitor. The Appeals Division found that while a property owner may hire an air monitor through an agent, the company here had not refuted the statutory presumption that by working on virtually all of the same projects together, the air monitor and the abatement contractor had a business or personal relationship. The Appeals Division noted that rule’s broad language was not limited to prohibiting direct contractual relationships between the abatement contractor and the air monitor and was intended to prevent activities producing a conflict of interest. DEP v Nextek Solutions LLC, Appeal No. 2200347 (May 26, 2022).

The Appeals Division affirmed in part a hearing decision dismissing five charges against a process server for failing to comply with process serving electronic recordkeeping requirements. The Department of Consumer and Worker Protection’s rules require a process server to use specific codes in an electronic logbook to record the type of service effected (personal, substituted, conspicuous, or corporate service). The process server testified that he labeled certain instances of personal service as corporate because the documents were served upon government officials in business settings, and the hearing officer dismissed the charges. The Appeals Division affirmed, finding the agency’s definitions insufficient and concluding that service upon a government agent who accepts service on behalf of an individual was a form of service separate from personal, substitute, conspicuous, and corporate service under state law, and DCWP had not established a distinct code for that form of service. DCWP v. Claude Brown, Appeal No. 210041HR (May 24, 2022).