OATH Recent Decisions and News

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OATH News

On September 16, 2022, Mayor Adams released the Mayor's Management Report (MMR) for Fiscal Year 2022, which spans July 1, 2021, through June 30, 2022. The report explains OATH's special initiatives during the fiscal year and illustrates OATH's effectiveness in delivering services. Some highlights include an increase in Help Center sessions for self-represented respondents, an increase in interpretation services for respondents with limited English proficiency, an increase in the settlement rate at the Trials Division, and timely decision issuance at the Hearings Division. You can find OATH's MMR chapter here and the new user-friendly digital format of the entire MMR online 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, Chief 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. In-person appearances are also available. For more information, visit OATH’s website at www.nyc.gov/oath.

OATH Trials Division

Personnel

In a prevailing wage rate-setting case brought by the Comptroller, ALJ Faye Lewis found that the marine engineers and chief engineers on the Staten Island Ferry (“SIF”) should be paid wages and benefits commensurate with the wages and supplemental benefits of chief engineers and first assistant engineers aboard U.S.-flag cargo ships operated by Maersk Line Ltd. ALJ Lewis found that the SIF employees and Maersk employees worked in in the same trade or occupation, as required for rate-setting purposes, and she rejected a claim that the Maersk engineers worked in a different locality and did not constitute thirty percent of more of comparable private sector employees. She also found that building engineers, the group proposed by the Comptroller as the private-sector match, were not comparable to marine engineers, given the substantial differentiation in the actual work performed, licensing requirements, and pedigree. Office of the Comptroller, ex rel. District No. 1 v. Office of Labor Relations, OATH Index No. 1667/21 (Aug. 23, 2022).

ALJ Kevin F. Casey recommended a 60-day suspension for a Department of Health driver involved in a road rage incident. The petitioner proved that the employee engaged in intimidating behavior when, after a hospital worker struck a parked car the driver was sitting in, he followed the worker into a hospital lobby and told the worker he would wait outside for him while carrying an object that could have been used as a weapon. Evidence also established that respondent used a fake placard to park in an agency-designated space. Dep't of Health & Mental Hygiene v. Rheams, OATH Index No. 1651/22 (Aug. 16, 2022).

ALJ Kara J. Miller found that a Department of Health and Mental Hygiene laboratory scientist engaged in discourteous and intimidating behavior toward co-workers by making disparaging and profane remarks to one co-worker and, on a separate occasion, squeezing another co-worker's shoulders, refusing to remove her hands, and shaking her. Considering the proven charges and noting that the employee had been disciplined two other times in the past five years for similar misconduct, ALJ Miller found that the employee's pattern of bullying and intimidating behavior warranted termination of his employment. Dep't of Health & Mental Hygiene v. DeGrasse, OATH Index No. 1580/21 (Aug. 9, 2022).

Vehicle Seizure

In the month of August, the Trials Division published Memorandum Decisions in over 50 vehicle seizure proceedings brought by the Department of Transportation under the Dangerous Vehicle Abatement Law. In each case, the vehicle owner defaulted by not appearing at trial. In a typical case, the Department alleged that an owner failed to complete a required vehicle safety course after a vehicle registered in their name accumulated 128 school speed camera violations and ten red light camera violations within a one-year period. In that case, ALJ Julia H. Lee held that the city was entitled impound the vehicle after the evidence showed that the vehicle had accumulated eight red light camera violations and the registered owner failed to complete the safety course. Dep't of Transportation v. Davis, OATH Index No. 2223/22, mem. dec. (Aug. 18, 2022).

Licensing

ALJ Astrid B. Gloade recommended a three-year license suspension for a general contractor who accumulated over 100 violations in a two-year period. Of the 118 sustained summonses levied against the contractor, 61 were Class 1 violations for immediately hazardous conditions, including inadequate lateral support in an excavation site and lack of safety equipment in an elevator shaft. ALJ Gloade also found that respondent failed to pay $211,544 in fines that had been assessed against him and his construction company for summonses issued against them, although respondent submitted proof that he ultimately resolved all but $5,000 of those fines by the time of trial. Dep't of Buildings v. Zhuo, OATH Index No. 1809/21 (Aug. 12, 2022), adopted, Comm'r Dec. (Aug. 19, 2022).

Human Rights

ALJ Ingrid M. Addison found that a supervisor at one of respondent's stores, made inappropriate and sexist comments to complainant and other female employees over a two-month period, of which the store's manager was made aware, but failed to act. ALJ Addison did not find that complainant was constructively discharged because she failed to avail herself of respondent's published procedures for seeking redress, and because there were other motivating factors which led her to quit her job. ALJ Addison recommended $30,000 in mental anguish damages, a civil penalty of $60,000, and ordered respondent to develop new anti-discrimination policies. Comm’n on Human Rights ex rel. Brehshiek Marquez v. Fresh & Co., OATH Index No. 434/22 (Aug. 9, 2022).

Appeals Division
(appeals from the Hearings Division)

The Appeals Division affirmed a hearing decision finding that an issuing officer made a reasonable attempt to personally serve a summons prior to resorting to “affix and mail” service permitted by the New York City Charter. At the hearing, the officer testified he attempted to access three building entrances but was unable to enter. He also that testified the building was unoccupied and he saw no concierge desk in the lobby. The Appeals Division found that it was reasonable for the officer to believe the premises were not accessible, noting photographs showing the premises surrounded by a construction fence with padlocked gates at the entrance. DOB v. Delsham Capital LLC, Appeal No. 2200560 (August 25, 2022).

The Appeals Division affirmed a hearing decision finding a violation of § 3.09 of the Health Code, where dog feces were observed on respondent's property. At the hearing, respondent claimed that she was an absentee owner and her tenant's dogs were responsible for the nuisance. She further testified that dogs were not allowed under the lease, but the tenants refused to move. The hearing officer held that as the owner, respondent was responsible for the nuisance created by her tenants. On appeal, respondent raised a new defense that the nuisance was cat feces and her tenant's dogs were not responsible. The Appeals Division affirmed the finding of violation, noting that respondent had failed to establish an affirmative defense by showing that she was making concerted efforts on a continuing basis to abate the cited nuisance condition. DOHMH v. Liyun Lu, Appeal No. 2200605 (August 25, 2022).

The Appeals Division reversed a hearing officer's decision sustaining a summons charging respondent, a food service establishment, with violating § 81.05(a) of the Health Code for operating without a valid permit. At the hearing, the owner testified he applied for a new permit and believed he had received a temporary license and was allowed to operate. The owner requested an opportunity to submit evidence in support, but the hearing officer denied his request. On appeal, the owner submitted copies of a permit application receipt and a letter from the New York City Licensing Center, which established respondent was allowed to “begin to operate on the 22nd day after you submit your application, even if you haven't received your permit.” Generally, under 48 RCNY § 6-19(f)(2), the Appeals Division will only consider evidence that was presented to the hearing officer. However, here, the Appeals Division found good cause to consider respondent's new evidence, noting that the owner specifically described this evidence at the hearing and requested permission to submit it. The Appeals Division found that under § 81.05(d), respondent was legally permitted to operate without a permit beginning on the 22nd day after the submission of its permit application. DOHMH v. Beverage Innovation Greene Inc. d/b/a Whistle & Fizz, Appeal No. 04780-22F0 (August 17, 2022).