Recent Decisions

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

Licensing

The Taxi and Limousine Commission (“TLC”) may suspend a license prior to hearing for “good cause shown relating to a direct and substantial threat to the public health or safety.” Under the TLC’s rules, the driver may request a hearing within ten calendar days from receiving notice of the suspension and such hearing must be held within ten calendar days of the TLC’s receipt of the request. At the summary suspension hearing, ALJ Astrid B. Gloade determined that the TLC failed to hold the hearing within ten days of the licensee’s request, as required by its rules, and granted the licensee’s motion to dismiss. ALJ Gloade recommended the summary suspension of the license be lifted. Taxi v. Limousine Comm’n v. Sow, OATH Index No. 467/20 (Oct. 15, 2019), adopted, Comm’r Dec. (Oct. 17, 2019).

Respondents’ dog attacked and killed a neighbor’s dog and injured the neighbor. Respondents did not appear for trial and failed to comply with petitioner’s order to make their dog available for examination. Based on the unrebutted evidence, including home surveillance video, ALJ Kevin F. Casey found that respondents’ dog is dangerous and recommended that petitioner take control measures authorized by the Health Code. Dep’t of Health & Mental Hygiene v. Sands, OATH Index No. 251/20 (Oct. 22, 2019).

The TLC sought to revoke respondent’s driver license because he tested positive for amphetamines. A trial was held at which respondent asserted that he must have erroneously ingested his son’s medication which resulted in his failed drug test. His son’s testimony conflicted with that of respondent, whom ALJ Ingrid M. Addison did not find to be credible. Accordingly, the judge was not persuaded that the respondent innocently ingested his son’s medication, and recommended that his license be revoked. Taxi & Limousine Comm’n v. Ebrahem, OATH Index No. 545/20 (Oct. 11, 2019), adopted, Comm’r Dec. (Oct. 17, 2019).

Vehicle Retention

Petitioner sought to retain, pending the forfeiture proceeding, a van seized in connection with an arrest as the alleged instrumentality of a crime. The driver was twice observed illegally picking up passengers in the van and recklessly driving away when TLC officers ordered him to stop. On the second occasion the driver was arrested for reckless driving and aggravated unlicensed operation of the van. The car owner argued that he is an innocent owner who, through an agent, rents out the van weekly to individuals based on verbal agreement. ALJ Noel R. Garcia found that the owner had ample reason to know, based on prior TLC summonses and knowledge by his agent, that his van was being used on a routine basis for illegal for-hire activity and he is not an innocent owner. ALJ Garcia ruled that petitioner may retain the van pending the forfeiture proceeding. Police Dep’t v. Jones & Brown, OATH Index No. 543/20, mem. dec. (Oct. 25, 2019).

Personnel

An oiler was charged with insubordination and inefficient work performance when he left his assigned work before completion on two occasions. Respondent testified that he had asked his supervisor to reassign him to a different work assignment when he felt unsafe working in an inmate area without another oiler present. ALJ Joycelyn McGeachy-Kuls credited the oiler’s testimony that he was reassigned to another task that day over the supervisor’s testimony that respondent did nothing for the rest of the day. On the second occasion, when respondent objected to his assignment to work in an inmate area, the supervisor gave him two options: request a transfer or return to work. Respondent requested a transfer. ALJ Joycelyn McGeachy-Kuls found that petitioner failed to prove the charged misconduct on either occasion and recommended that the charges be dismissed. Dep’t of Correction v. Cronin, OATH Index No.1861/19 (Oct. 22, 2019).

Contracts

The Contract Dispute Resolution Board (“CDRB”), chaired by ALJ John B. Spooner, dismissed a claim for over $1,580,000 in unspent Medicaid funds to offset costs incurred due to a workers’ compensation insurance assessment. The Board found that the claim was properly denied by HRA based upon a legal determination by the State Department of Health that workers’ compensation assessment costs are not allowable write-offs. Personal Touch Home Care, Inc. v. Human Resources Admin., OATH Index No. 2338/19, mem. dec. (Oct. 11, 2019).

The CDRB, chaired by ALJ McGeachy-Kuls, denied a contractor’s claim for additional payment for the replacement of eight sewage pumps due to site conditions it claimed were different from than those set forth in the contract. The CDRB dismissed the claims, finding they were untimely, waived, premature and lacked merit. Framan Mechanical, Inc. v. Dep’t of Environmental Protection, OATH Index No.1258/18, mem. dec. (Oct. 21, 2019).