OATH Recent Decisions and News

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OATH News

OATH delivers conflict resolution training about vaccine mandate: In September, OATH’s Center for Creative Conflict Resolution released a conflict resolution video training and guidance document for New York City businesses subject to the Mayor’s “Key to NYC” vaccine mandate for indoor dining, entertainment, and fitness venues. (Translated versions are available here.) The effort was noted in the New York Times, NBC News, and other media, and the video training has been viewed almost 7,000 times since it was released.

OATH announces milestone in telephonic hearings and resumption of in-person hearings: In late August, OATH announced that it had conducted telephonic hearings in more than 200,000 cases since the March 2020 shift to remote procedures. In addition, OATH announced that in-person hearings are now available upon request. Read more from Law360 (subscription required).

Remote-appearances rule changes forthcoming: In September, OATH issued a proposed rule to codify remote appearances, including by telephone and video, as a permanent option for respondents. The agency held a public hearing on September 20 and the final rule was approved by the Environmental Control Board on October 5.

OATH seeking remote-hearing vendor proposals: In September, OATH published a notice of intent to solicit vendor proposals for telephone and video court appearance conferencing services for administrative court hearings. Proposals were due by Oct. 6, 2021. Details are available here.

New ALJ appointed: In early October, Commissioner and Chief Administrative Law Judge Joni Kletter appointed Michael Turilli to a five-year term as an Administrative Law Judge. ALJ Turilli was formerly the supervising attorney in the New York City Office of the Comptroller’s labor law bureau, with extensive experience litigating prevailing wage enforcement matters before the OATH Trials Division.

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 in-person appearances are also available. For more information, visit OATH’s website at www.nyc.gov/oath.

OATH Trials Division

Personnel

ALJ Astrid B. Gloade recommended termination of employment for a sanitation worker who drove a Department of Sanitation collection truck the wrong way down a one-way street in Brooklyn and struck a pedestrian, resulting in the pedestrian’s death. ALJ Gloade found that the worker’s guilty plea in criminal court to conduct that constitutes a failure to exercise due care precluded him from contending at his disciplinary trial that he acted reasonably, and found that the worker was negligent when he drove a collection truck against the flow of traffic. ALJ Gloade also sustained a charge that the worker brought discredit on the agency because he was arrested and ultimately pled guilty to conduct that generated publicity that reflected negatively on the Department. Time and leave charges were also sustained but a charge of having damaged department property was dismissed. Dep’t of Sanitation v. Gilchrist, OATH Index No. 1897/20 (Aug. 13, 2021), adopted, Comm’r Dec. (Aug. 24, 2021).

ALJ Susan J. Pogoda recommended a 60-day suspension without pay for a correction officer for inappropriate use of force, submitting a misleading use of force report, and making false statements during a post-incident interview. ALJ Susan J. Pogoda found that even though the inmate became non-compliant and disruptive, the officer’s strike to the inmate’s facial area was not justified as the inmate’s movement was limited by enhanced restraints and he did not pose a danger to staff. ALJ Pogoda rejected the officer’s defense that he was attempting to utilize a control hold, finding that the officer struck the inmate in the face to gain compliance, and found that the officer made misleading statements in a post-incident report and interview. Dep’t of Correction v. Medina, OATH Index No. 1132/20 (Aug. 11, 2021).

ALJ Noel R. Garcia recommended a 10-day suspension without pay for a correction officer for excessive force against an inmate by unnecessarily placing his hand on the inmate’s face. ALJ Garcia found the officer’s defense that he extended his hands to try to prevent the inmate from spitting on him unpersuasive as the officer had both time and opportunity to move away from the inmate. However, ALJ Garcia found the Department of Correction did not prove the officer made a false report because the report noted that he did apply force to the inmate’s face. Dep’t of Correction v. Brignol, OATH Index No. 933/21 (Aug. 4, 2021).

ALJ Julia H. Lee recommended that an NYPD Traffic Enforcement Agent be placed on involuntary leave of absence because she is physically unfit to perform the duties of her position. Undisputed evidence showed that the agent was unable to stand or sit for prolonged periods of time or to walk without an assistive device. ALJ Lee also held that the NYPD’s procedural error in failing to serve the Department of Citywide Administrative Services with notice of the proposed involuntary leave was not fatal to the case, as DCAS had delegated this personnel function to the Police Commissioner. Police Dep’t v. S.S., OATH Index No. 1448/21 (Aug. 16, 2021), adopted, Comm’r Dec. (Aug. 25, 2021).

ALJ Kara J. Miller recommended that a Department of Buildings site safety plan examiner be placed on involuntary leave of absence because she is mentally unfit for the position. A psychiatrist retained by DOB found that the employee suffers from dementia, and her supervisors testified that her productivity did not meet the minimum standards and that she failed to follow direction despite repeated reminders. ALJ Miller noted that DOB needs to trust the employee to do her job properly as a matter of public safety and found that the employee’s memory problems prevent her from performing complex analysis and synthesizing information to appropriately examine demolition and site safety plans. Dep’t of Buildings v. Anonymous, OATH Index No. 0085/21 (Aug. 20, 2021).

Contracts

The Contract Dispute Resolution Board (“CDRB”), chaired by ALJ Astrid B. Gloade, denied a contractor’s claim for more than $200,000 in additional compensation for planting trees on Brooklyn streets. The dispute arose out of a $1.4 million dollar contract with the Department of Parks & Recreation (“DPR”) to plant street trees in Brooklyn. The contractor argued that DPR delivered trees late and directed it to plant them outside of the fall planting season in cold weather, which resulted in the death of 321 trees, necessitating the planting of replacement trees. The CDRB noted that the Contract did not provide an end date for the planting season, but instead provided for planting from October 1 to the end of May, as weather permits, and found that the City’s Street Planting Guide, which lists a planting season end date of December 15, was not incorporated into the Contract. The CDRB also denied the contractor’s request to waive liquidated damages based on delays in planting caused by the alleged late delivery by DPR, finding the claim to be beyond its jurisdiction and time-barred. Coastal Contracting Corp. v. Dept of Parks & Recreation, OATH Index No. 1131/21, mem. dec. (Aug. 20, 2021).

Licensing

ALJ Kevin F. Casey found that Taxi and Limousine Commission-licensed taxicab driver sexually harassed a passenger by initiating sexually explicit conversation and continuing to make sexually explicit comments after the passenger told him to stop. ALJ Casey recommended that the driver’s TLC license be revoked and he be fined $1000. Taxi & Limousine Comm’n v. Shuchinski, OATH Index No. 2125/21 (Aug. 19, 2021), adopted, Comm’r Dec. (Sept. 2, 2021).

ALJ Faye Lewis found that the holder of a Taxi and Limousine Commission agent license dispatched for-hire vehicles without an active agent license for at least 106 days. ALJ Lewis found that the agent’s efforts to obtain a waiver of interest and penalties from New York State tax authorities did not constitute a defense to operating without a TLC license. She recommended that the agent be fined $100 for each day of unauthorized activity, totaling $10,600. ALJ Lewis noted that the TLC may wish to consider a lower amount or an installment payment if the agent demonstrates hardship. ALJ Lewis also recommended that the TLC issue and post an order directing the agent to immediately discontinue the unlicensed activity and an order padlocking the premises until the agent renews its license.Taxi & Limousine Comm’n v. Manhattan Checker Management Corp., OATH Index No. 2216/21 (Aug. 6, 2021).

ALJ Joan R. Salzman recommended that an individual’s application for a marriage license be granted, after the City Clerk’s denial based upon a record of a previous marriage. ALJ Salzman held that the evidence did not support a finding that the applicant was the same person to whom a 1996 marriage license was issued under the same name and date of birth. Office of the City Clerk v. Lopez, OATH Index No. 2030/21 (Aug. 12, 2021).

Appeals Division
(appeals from the Hearings Division)

The Appeals Division affirmed two decisions finding that the respondents, sibling deejays, committed an act detrimental to public health, in violation of the New York City Health Code, and New York State Executive Order, by encouraging, promoting, or organizing a non-essential gathering during the COVID-19 public health emergency. At the hearings, the respondents’ attorney argued that the Sheriff’s Office failed to establish that respondents owned or leased the property where over 500 people gathered for a Halloween party in a building with a capacity of no more than 15 persons, or that they were involved with the event or its host as anything other than contract employees. The Appeals Division concluded that the evidence, including the fact that the deejays regularly promoted their events on social media, and the testimony of a Sheriff’s Office officer that he personally observed the respondents at the event playing loud dance music that induced attendees to participate, was sufficient to demonstrate that both the respondents “encouraged” a non-essential gathering. DOF v. Christian Martinez, Appeal No. 2100827 (August 19, 2021) and DOF v. Steven Martinez, Jr., Appeal No. 2100845 (August 19, 2021).

The Appeals Division reversed a hearing officer’s decision, instead finding the Young Men’s and Young Women’s Hebrew Association not in violation of a charge for failure to maintain a retaining wall. At the hearing, the respondent submitted a land survey and engineer’s affidavit indicating that the retaining wall was entirely on the neighboring property. The Appeals Division, noting that the Department of Buildings offered nothing to refute respondent’s evidence, concluded that because the respondent proved that the retaining wall was located entirely on the neighboring property, it was not liable for maintaining the wall, as this responsibility rests with the adjacent property owner under the City’s laws. DOB v. Young Men’s and Young Women’s Hebrew Association, Appeal No. 2100418 (August 19, 2021).

The Appeals Division reversed a hearing officer’s decision dismissing a charge of occupancy in a manner contrary to that allowed by Department of Buildings records on the ground that the petitioner had failed to establish the legal occupancy of the property as a vacant lot. It was undisputed that the respondent was using the vacant lot on the date of inspection as a parking lot for three vehicles. Contrary to the hearing officer’s decision, the Appeals Division found that the legal occupancy of the premises as a vacant lot was established by a signed-off demolition application, and its use as a parking lot was therefore contrary to the legal use. Further, the Appeals Division found that the change in use brought the premises under special provisions of law, namely Administrative Code section 28-118.2, which provides that no open lot shall be occupied until a certificate of occupancy (“C of O”) has been issued, and DOB rule 30-02[c], which requires that a C of O be obtained prior to use of an open lot as a parking lot for four or fewer vehicles. Consequently, the Appeals Division concluded that a violation of section 28-118.3.2 was established, both because the use of the vacant lot for parking was contrary to the legal use and because the use of the open lot for the parking of three vehicles brought the premises under special provisions of law. DOB v. The Health Science Center at B, Appeal No. 2100731 (August 19, 2021).