Recent Decisions

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

• OATH and the Office of Nightlife expand MEND NYC mediation program: The MEND NYC program, a joint initiative of OATH and its Center for Creative Conflict Resolution and the Office of Nightlife, has been expanded to handle disputes between hospitality industry businesses and their landlords. This expansion will help restaurants, bars, and venues address challenges with rent, rent arrears, and other commercial lease issues, and represents an important effort to address challenges faced in the industry during the COVID-19 crisis. For more information, visit www.nyc.gov/mendnyc.


• On October 15, OATH announced that all civil summonses covered by the Criminal Justice Reform Act of 2016 can now be resolved by completing an online e-learning module rather than payment of a fine. For more information, read the press release or visit the OATH community service website.


• On October 5, OATH Commissioner and Chief Administrative Law Judge Joni Kletter joined Assembly Member Yuh-Line Niou to visit small businesses and share information about how to contest City summonses remotely during the COVID-19 crisis. For photos, visit OATH’s Twitter.


• OATH on Twitter: OATH has continued to grow its presence on Twitter. To stay up to date on OATH initiatives and events, follow @oathnyc.


• Federal court approves OATH Trials recommendation: The Eastern District of New York federal district court rejected a challenge to a Taxi and Limousine Commission (“TLC”) decision that had adopted recommendations by ALJ Astrid B. Gloade in a taxi license revocation case. At the OATH trial, the driver was charged with abusing a passenger when he followed her into the lobby of her building, yelled at her, and threw punches at her. Based on testimony from the passenger and video evidence, ALJ Gloade recommended license revocation and a fine of $1,350. The Commission Chair adopted the recommendation and imposed the recommended penalty. Taxi & Limousine Comm’n v. Singh, OATH Index No. 2321/16 (Aug. 12, 2016), adopted, Comm’r Dec. (Sept. 7, 2016). The Commission’s decision had been affirmed on appeal in state court. Singh v. NYC Taxi & Limousine Comm’n, 159 A.D.3d 406 (1st Dep’t 2018).
  
  In the federal court action, the driver, who spoke heavily accented English, claimed that he was deprived of due process and equal protection based upon the unintelligibility of his testimony at the OATH trial. The court disagreed and found Judge Gloade carefully made sure she understood the driver’s testimony by asking for clarification when needed, writing:
  
  Based on the Court’s review of the transcript of the OATH proceeding, the ALJ understood and followed Plaintiff’s testimony. For example, there were moments when the ALJ interjected, clearly showing that the ALJ had followed Plaintiff’s testimony. When the ALJ missed part of Plaintiff’s testimony, the ALJ asked for clarification or repetition. The few times that Plaintiff’s testimony was marked unintelligible in the transcript do not . . . indicate that the ALJ failed to hear or understand Plaintiff’s testimony. When Plaintiff began his testimony and was speaking too fast, which was reflected in the transcript as unintelligible, the ALJ asked Plaintiff to slow down, and Plaintiff’s testimony afterwards was clearly recorded in the transcript.
  
  The court also rejected the driver’s argument that “due process requires an ALJ to be provided with a language interpreter, when a witness speaks with an accent.” The court noted that “language assistance was available” under OATH rules, and found that “[T]he availability of such language assistance sufficiently protects Plaintiff’s right to a meaningful hearing”, particularly where, as here, the driver was represented by counsel at the OATH trial. Singh v. City of New York, 19-CV-5030 (PKC)(RER), memorandum & order (E.D.N.Y., Sept. 24, 2020).

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

In a case concerning price gouging in the sale of N95 masks, the Appeals Division reversed a hearing officer’s decision and sustained eleven violations filed by the Department of Consumer and Worker Protection (“DCWP”). The hearing officer rejected DCWP’s reliance on evidence of comparable prices for N95 masks sold in multi-packs from larger stores because Respondent’s single N95 mask for $10.00 was sold in a smaller store. However, the Appeals Division noted that an “excessive price increase” is 10% or more above the price at which the same or similar good could have been obtained, and it was acceptable to compare the per-mask price of a multi-pack to an individually sold mask, and here the evidence demonstrated that the mask was offered at a price over 250% more than comparable masks. DCA v. 260 Nassau Ave Corp., Appeal No. 05443235 (Sept. 14, 2020).

In a case in which the Department of Buildings alleged that the owner of a multiple dwelling illegally converted the building to transient use, the Appeals Division reversed a hearing officer’s decision and sustained the violation. The certificate of occupancy identified the building as, “Old Law Tenement Class ‘A’ Mult. Dwelling & S.R.O,” and the hearing officer decided that ambiguities in this classification required the consultation of other records, such as the premises’ “I-card,” which referenced short-term stays. In reversing, the Appeals Division found no ambiguity in interpreting the Respondent’s certificate of occupancy because a 2010 state law defined both a class ‘A’ multiple dwelling and a tenement as a dwelling for “permanent residence purposes” (i.e., stays of at least 30 days), and provided that a class ‘A’ multiple dwelling used for single room occupancy remained a class ‘A’ multiple dwelling. Consequently, Respondent’s certificate of occupancy only permitted stays of 30 days or more by the same natural person or family. Dep’t of Buildings v. Terrilee 97th Street, LLC,Appeal No. 2000284 (Sept. 10, 2020).

In a case filed by the Taxi and Limousine Commission (“TLC”) for a failure to inspect a broken headlight, the Appeals Division sustained a hearing officer’s determination of a violation by the for-hire vehicle driver. Although the driver provided evidence at the hearing that the headlight was repaired shortly after the summons was issued, a newly-enacted law providing for a defense where repair is made within 30 minutes after sunset on the first full business day after the date of the violation, was not yet in effect when the incident occurred or when the hearing was held. In addition, although the driver argued that he had inspected the vehicle when he started his shift and he could not have known at 10:47 p.m., when the summons was issued, that a headlight was not working, the Appeals Division noted that a single inspection is insufficient to establish continuous inspection, and a non-working headlight after dark is readily observable. TLC v. Mihai Ionut Rauta,Appeal No. 70312727A (Sept. 18, 2020).

Trials Division

Practice and procedure

In a proceeding filed by the Commission on Human Rights against Respondent, a sports bar, for allegedly denying a complainant access to its establishment on the basis of gender and disability, ALJ Faye Lewis issued a decision granting the Commission’s motion to compel the Respondent to reply to interrogatories and document demands, and denying the Commission’s request for sanctions. ALJ Lewis directed respondent to respond to the discovery demands, but denied the request for sanctions, finding it to be premature. ALJ Lewis advised respondent that its failure to produce discovery as ordered may result in the imposition of sanctions at trial. Comm’n on Human Rights ex rel Ramirez v. 27 Sports Bar & Café, OATH Index No. 2547/19, mem. dec. (Sept. 29, 2020).

ALJ Susan J. Pogoda granted a law firm’s application to withdraw from representation of Respondent in a Department of Buildings licensing matter. Under the Trials Division’s rules of practice, once an attorney appears in a matter, the attorney must seek permission from the trial judge to withdraw. Withdrawal is permitted only upon consent of the client or for good cause. Here, ALJ Pogoda found counsel established good cause as he showed his client failed to pay the initial retainer fee for attorney’s services or cooperate in his defense. The proceeding was stayed to give respondent the opportunity to seek new counsel. Dep’t of Buildings v. Choudhary, OATH Index No. 1042/20, mem. dec. (Sept. 29, 2020).

Contracts

A construction company, which had contracted with the Administration for Children’s Services to perform painting and maintenance work at several of the City’s early learning centers, filed a petition with the Contract Dispute Resolution Board (“CDRB”), seeking review of 37 invoices that were denied payment. The CDRB, chaired by ALJ Ingrid M. Addison, denied the claim, finding petitioner had filed its Notice of Dispute and Notice of Claim too late. An additional claim seeking payment for unpaid invoices not included in the original petition was dismissed procedurally as premature because no Notice of Dispute related to those invoices had ever been submitted to the agency head. Kaas Construction v. Admin. for Children’s Services, OATH Index No. 1491/20, mem. dec. (Sept. 24, 2020).

Real property

A loft building owner filed an application seeking access to a loft unit to perform legalization work. ALJ Addison recommended the application be denied because the owner’s first access notice lacked information regarding the scope of work to be performed and did not provide a range of five consecutive workdays for commencement of work as required by the Loft Board’s rules. Matter of American Package Co. Inc., OATH Index No. 1971/20 (Sept. 24, 2020).