Recent Decisions

The following is a summary of some recent OATH decisions decided in *October 2018*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Licensing

A pedicab owner’s license was suspended without a prior hearing based upon an incident in Central Park where he allegedly defied orders from parks enforcement officers to stop, resulting in one of the officers being dragged behind the pedicab. A post-suspension trial was held to determine if the suspension was justified and whether it should be continued. Following a three-day trial, ALJ John B. Spooner found that the suspension was warranted and it should continue. He found the unrebutted testimony of the two officers to be credible and that the incident established good cause for the Commissioner to believe that the pedicab owner poses an “exigent danger to the public.” Dep't of Consumer Affairs v. Greenberg, OATH Index No. 0018/19, mem. dec. (Oct. 19, 2018).

Respondent brokers, a corporation and its principal, represented car owners or operators, other than themselves, at parking summons hearings for approximately five years. At a default trial, the Department of Finance (“DOF”) proved that respondents improperly obtained dismissals of summonses by submitting fraudulent evidence at 67 hearings. Using the Hearings-by-Web portal, respondents obtained the dismissals by submitting phony towing invoices to support false claims that the vehicles were disabled. DOF successfully brought actions against the car owners to reinstate the improperly dismissed summonses. At those hearings, the car owners indicated that they had hired respondents to act as their broker, but denied any knowledge that respondents submitted false evidence on their behalf. ALJ Joycelyn McGeachy-Kuls recommended that respondents be suspended from practicing before the Parking Violations Bureau for five years, the maximum penalty permitted by the DOF rules at the time respondents were served with the petition. Dep’t of Finance v. Empire Brokerage, Inc. and Nayyar Raja, OATH Index No. 2607/18 (Oct. 19, 2018), adopted, Comm’r Dec. (Oct. 30, 2018).

The Office of the City Clerk denied respondent’s application for a marriage license due to a prior marriage of a person with the same name and date of birth recorded in 1996. ALJ Kara J. Miller found that the documentary evidence demonstrated that respondent was not the same person issued a marriage license in 1996. ALJ Miller found that the 1996 marriage application and license contained numerous irregularities, including the bride’s mother’s name being misspelled, omission of the bride’s father’s name, an incorrect home address, and the wrong occupation listed for the bride. Further, the signature on the 1996 marriage license as compared to respondent’s signature on current official documents demonstrated that the signatures on the 1996 marriage records were not respondent’s. ALJ Miller recommended that respondent’s application for a marriage license be processed expeditiously. Office of the City Clerk v. Fyall, OATH Index No. 2698/18 (Oct. 16, 2018).

A licensed taxi driver was charged with engaging in sexual harassment and performing acts against the best interest of the public when he summoned a female pedestrian to watch him while he was masturbating in his taxi. The complainant testified that the licensee slowed his taxi and honked his horn to attract her attention and then he committed the charged act. In his testimony, the licensee had corroborated the details of the complainant’s account, except that he denied summoning the complainant over or masturbating. ALJ Spooner recommended that the violations be sustained. The fact that the complainant took multiple photographs of the licensee smiling at her and that she reported the incident to the Commission minutes after it occurred strongly supported her account. Conversely, the licensee was not a credible witness. He could provide no plausible reason why the complainant would take photos of him and report his actions if he had not done anything offensive. The recommended penalty was revocation of the licensee’s taxi license and imposition of the maximum fine of $1,350. Taxi & Limousine Comm’n v. Vargas, OATH Index No. 188/19 (Oct. 3, 2018).

Personnel

A civil engineer with the Bridge Inspection Unit was charged with repeatedly using a Department van for non-work related purposes, altering trip log sheets, misrepresenting his use of the vehicle by omitting entries on the trip log sheets, and failing to follow the directives of his supervisor. ALJ Kara J. Miller did not credit respondent’s claim that his supervisor gave him permission to use the van to run his personal errands and sustained those charges. She found, however, that petitioner, did not prove that respondent falsified his time records or that he fraudulently received compensation for time he did not work. ALJ Miller recommended that respondent be terminated from his position. Dep’t of Transportation v. Mirhosseini, OATH Index No. 916/18 (Oct. 12, 2018), adopted, Comm’r Dec. (Oct. 26, 2018).

A computer associate was charged with multiple instances of misconduct. ALJ Ingrid M. Addison found respondent guilty of being late and absent without leave on numerous occasions, sleeping and lounging on the job on at least 10 occasions, failing to promptly perform her assigned tasks on two occasions, failing to comply with her supervisor’s directive to attend a training session, being on social media on the job through use of the office computer, becoming loud and disruptive with her supervisor, using petitioner’s e-mail system to send abusive e-mails to recipients mainly comprised of her supervisors and directors, sending false information about her director via e-mail which she copied to another city agency, and failing to notify her supervisor, the office of labor relations, and the department of investigations that she had been arrested. ALJ Addison found that termination was the only appropriate penalty for the multitude of violations sustained. Dep’t of Information Technology and Telecommunications v. Arocho, OATH Index No. 1146/18 (Oct. 17, 2018).

Contracts

A contractor sought additional compensation arising from two contracts for the construction of sanitary and storm sewers and the installation of water mains in Queens and Staten Island. Under the contracts, the contractor was required to excavate and protect trenches which were crossed by gas facilities owned by National Grid and Con Ed. The utilities refused the contractor’s request that they “cut and loop” gas lines that crossed excavation trenches. This caused the contractor to use a different, more expensive method of protecting those facilities, which it claimed was an unanticipated changed condition entitling it to additional compensation. The Contract Dispute Resolution Board, chaired by ALJ Faye Lewis, found that the conditions on the ground did not “materially differ from those shown in the plans,” which is required in order to prevail in a changed conditions dispute. The contract specifications and drawings placed the contractor on notice of the location of the gas utilities and crossings, the contract documents unequivocally informed the contractor that its bid encompassed “any work” to support and protect gas facilities, and the contractor’s own submissions showed that it anticipated using the protective method ultimately used. The Board denied all of petitioner’s claims. Inter Contracting Corp v. Dep’t of Design and Construction, OATH Index No. 2207/18, mem. dec. (Oct. 26, 2018).

Vehicle Retention

Following the arrest of the car owner for criminal possession of a weapon, the Police Department seized the car as the alleged instrumentality of a crime. A Krimstock hearing was held to determine the Department’s right to retain the vehicle pending the forfeiture proceeding. To be entitled to retain the car, the Department had to show that it had probable cause for the arrest, which includes probable cause to search the trunk, where the weapon was recovered. ALJ Susan J. Pogoda found that material inconsistencies between the arrest and complaint reports and the criminal court complaint rendered the police department’s documentary evidence unreliable. Therefore, the Department failed to prove there was probable cause to search the trunk of the car or to arrest the car owner and she ordered that the car be released. Police Dep’t v. Wellington, OATH Index No. 301/19, mem. dec. (Oct. 2, 2018).