Recent Decisions

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

Real Property

Residential tenants filed an application seeking Loft Law coverage in a four-story building which contains two commercial tenants. The building owner opposed the application, contending that ongoing commercial uses in the building are inherently incompatible with residential use. After a twenty-three day trial where the parties presented extensive documentary evidence and expert testimony, ALJ Faye Lewis recommended that the application be denied. Under the Loft Board rules, commercial uses within use groups 15 to 18 of the Zoning Resolution are inherently incompatible with residential use, if the use should be classified as High Hazard under the City Building Code. Here, commercial tenants engaged in the bottling and manufacture of non-alcoholic beverages, a group 17 use. ALJ Lewis found that the commercial use is a High Hazard use under the Building Code because the chemicals used by the businesses, including corrosive liquids used in cleaning the beverage vats, exceeded the maximum allowable quantities permissible under the Code. Matter of Tenants of 110 Bridge Street, OATH Index No. 377/ 14 (Nov. 9, 2018).

Loft Law coverage and protected occupancy applications filed by two tenants. Following a three-day trial, ALJ Kevin F. Casey recommended that the applications be denied. He found that applicants failed to prove that three qualifying units were residentially occupied during the window period, as one of the units did not have the required window facing a street, lawful yard or court, and that the applicants did not prove that their unit was residentially occupied for twelve consecutive months during the window period. Matter of Sullivan, OATH Index Nos. 121/15, 1807/18 (Nov. 15, 2018).

Licensing

Respondent’s Taxi and Limousine Commission ("TLC") license was suspended without a hearing following his arrest for assault in the third degree. A summary suspension trial was held to determine whether the suspension should continue pending resolution of respondent’s criminal case. The issue was whether the arrest charges, if true, demonstrate that restoration of the license while criminal charges are pending would pose a direct and substantial threat to public safety. TLC relied upon documentary evidence while respondent testified on his own behalf and presented the testimony of his neighbor, a retired police lieutenant, who has known respondent for about 10 years. ALJ Ingrid M. Addison found that respondent’s lengthy and unblemished record, the circumstances that spawned his arrest, and the six-month delay between the incident and respondent’s arrest, militated against a finding that restoration of the license would constitute a direct and substantial threat to public safety. She recommended that the Chairperson exercise her discretion and lift the suspension. Taxi & Limousine Comm’n v. Broiles, OATH Index No. 849/19 (Nov. 7, 2018).

The Department of Consumer Affairs ("DCA") brought an action against a licensed home contractor, alleging it received payment for renovation work but it failed to complete the work in a skillful manner. DCA also alleged that the contractor violated the local health law, failed to obtain required permits, failed to provide a contract to the homeowners with required clauses and engaged in deceptive trade practice by submitting duplicative and manufactured invoices to the homeowners. The contractor failed to appear at the scheduled trial and was declared in default. At the inquest, DCA relied on documentary evidence and testimony from the two homeowners. ALJ Noel R. Garcia sustained all of the charges except for failure to obtain required permits. The evidence showed that the contractor was paid for a home renovation job, but did not complete it and that the homeowners had to hire other contractors and specialists to complete the work. The contractor was ordered to pay a civil penalty of $11,350, and $179.701.97 in restitution to the home owners. Dep’t of Consumer Affairs v. OGM Construction, Inc., OATH Index No. 134/19, mem. dec. (Nov. 27, 2018).

Taxi licensee was charged with arguing with law enforcement, recklessly driving his cab against traffic and intentionally striking a police car. Licensee failed to appear for trial and was declared in default. At the trial, TLC relied upon hearsay evidence, including an arrest report containing a narrative of the incident provided by a traffic enforcement agent, and security footage video, to prove the charges. ALJ Susan J. Pogoda sustained the charges. She noted that the arrest report contained a detailed contemporaneous account of the incident by the traffic agent as reported to a police detective, both of whom are charged with a duty to accurately record the incident. While noting there were problems with the video, ALJ Pogoda found that it shows the licensee driving the taxicab directly into the police car, corroborating the traffic agent’s account that the licensee said he was “going to ram” the agent’s car. Recommended penalty was license revocation and maximum fine of $2,000. Taxi & Limousine Comm’n v. Griffith, OATH Index No. 2688/18 (Nov. 13, 2018).

Personnel

A case worker was charged with confronting a security officer at the facility where they worked, using profanity and physically restraining the security officer. It was further alleged that when the security officer’s supervisor arrived on the scene and directed the officer to her post, the case worker continued to restrain the officer, pushed the supervisor, and directed profanity at the supervisor. Following a two-day trial, ALJ Astrid B. Gloade found testimony of the security guard and her supervisor more credible than the case worker’s testimony and she sustained the charges. Penalty of a thirty-day suspension with credit for time served during a pre-trial suspension was recommended.Human Resources Admin. v. Brown, OATH Index No. 161/19 (Nov. 30, 2018).