Recent Decisions

The following is a summary of some recent OATH decisions decided in *November 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 text message reminder initiative sees success: In early November, OATH reported that more than 1,000 people have subscribed for text message reminders about their upcoming OATH hearings, since the program launched agencywide in September. Text "OATHreminder" to 474747 to get reminders about your OATH case today.

OATH held a "Hearings Support for Veterans" event: In honor of Veterans Day, OATH hosted a "Hearings Support for Veterans" web event on November 18. Sponsors included the NYC Department of Veterans Services and all five borough presidents' offices, and more than 50 other elected officials’ offices and organizations. At the event, OATH Commissioner and Chief Administrative Law Judge announced the creation of a new Veterans Help Unit within the OATH Help Center. For more information, visit the Veterans Help Unit webpage or read the press release.

Appeals Division

The Appeals Division affirmed a hearing officer's decision finding that the respondent had not established a COVID-19 emergency defense to a violation for failure to clean 18 inches into the street. A respondent may establish the defense by showing that (1) one or more persons that live in the household test positive for COVID-19 and consequently all persons living in the household are required to isolate or quarantine; (2) all members of the household are instructed by a health care professional to isolate or quarantine due to possible COVID-19 symptoms; or (3) all members of the household are instructed by a health care professional to isolate due to age, underlying health conditions, or other pre-existing vulnerabilities to COVID-19. In this case, the respondent's claim that the curb area was not cleaned because household members had been exposed to COVID-19 did not fit within these criteria, as there was no claim that an individual living in respondent's household tested positive for COVID-19 or was otherwise instructed by a health care professional to isolate or quarantine, and she was found in violation. Dep't of Sanitation v. Nyarady, Appeal No. 2000976 (Oct. 8, 2020).

The Appeals Division affirmed a hearing officer's finding of violation against a contractor for failing to comply with the Governor's Executive Order to stop all non-essential work. The hearing officer found that it was not a defense that the co-op board had given the apartment owner permission or that redoing the floors did not require a permit. The Appeals Division upheld the decision despite the apartment owner submitting for the first time on appeal a certificate of authority to do the work during the lockdown, obtained after the date of offense. The Appeals Division found that there was no evidence that the contractor had been given authority to do the work prior to the date of violation and that not needing a permit to redo flooring was not a defense to doing the work when the Governor's Executive Order banned it. Dep't of Buildings v. K & S Home Dècor Inc, Appeal No. 2000854 (Oct. 8, 2020).

The Appeals Division reversed a hearing officer's dismissal of an illegal transient occupancy charge. The hearing officer credited that respondent, the premises owner, had no knowledge of the illegal occupancy caused by its tenant, and found that Petitioner failed to show that Respondent "had the opportunity through reasonable diligence to acquire such knowledge." However, the Department of Buildings' evidence established that the respondent's building had only 12 apartments, and an Airbnb listing for the cited apartment showed 100 guest reviews, indicating that the use of the cited apartment for transient occupancy had been ongoing for some time prior to the violation date. Therefore, the Appeals Division found that the respondent had the opportunity through reasonable due diligence to acquire knowledge that its tenant was renting the apartment for short stays. Dep't of Buildings v. 801-803, LLC., Appeal No. 2000717 (Oct. 8, 2020).

Trials Division

Licensing

The Taxi & Limousine Commission suspended a taxi driver's license in connection with his arrest for assault. A summary suspension trial was conducted remotely where the parties presented documentary evidence and the licensee testified. The licensee testified that his car was sideswiped and he admitted that he was angry and he punched the other driver. ALJ John B. Spooner found the licensee's candor, good driving record, and overall character indicate that he is not a substantial threat to the public and he recommended that the suspension be lifted. Taxi & Limousine Comm'n v. Livov, OATH Index No. 513/21 (Oct. 30, 2020).

Personnel

The Fire Department alleged that an Emergency Medical Technician ("EMT") used vulgar language while responding to a work-related question posed by a hospital triage nurse, in violation of six Department rules. A two-day virtual trial was held at which the Department presented two witnesses. The EMT testified that he did not remember the incident, but he did not challenge the charge in light of the testimony of the Department's witnesses. ALJ Ingrid M. Addison found that the Department proved violation of five rules, but since the conduct was based on a single incident, a single penalty was appropriate. She recommended a 45-day suspension. The Commissioner found the recommended penalty to be insufficient and he terminated the EMT’s employment. Fire Dep't v. Butscher, OATH Index No. 1798/20 (Oct. 15, 2020), modified on penalty, Comm’r Dec. (Nov. 30, 2020).

Practice and Procedure

In a proceeding under the Loft Law in which a tenant had applied for protected occupancy status, the building owner failed to timely answer and was declared to be in default. Under the Loft Board rules, a defaulting party may not file an answer or participate in the proceeding, unless it timely moves to vacate the default. To vacate the default, the party must show good cause for its failure to timely answer and a non-frivolous defense. The owner timely moved to vacate the default. Noting that judgments of default are disfavored, particularly when the respondent is present and actively seeking to defend the action, ALJ Susan J. Pogoda found that the owner provided a minimally reasonable explanation for the failure to file a timely answer and a non-frivolous defense. Motion to vacate the default was granted. Matter of Falcheck, OATH Index Nos. 1252/20 & 1253/20, mem. dec. (Oct. 14, 2020).

Vehicle Retention

The Police Department sought to retain a car it seized in connection with the car owner's arrest pending a forfeiture hearing. Under a federal court order the Department must provide notice of the right to a hearing to the driver at the time of arrest and to the car owner by mail within five days of the seizure. At a remote trial, ALJ Kevin F. Casey found that the Department failed to comply with the dual notice requirement. The Department did not prove that it attempted to serve the driver at the time of arrest or he was physically incapable of receiving notice at that time. ALJ Casey ordered the Department to return the car to the owner. Police Dep't v. Munchez, OATH Index No. 372/21, mem. dec. (Oct. 13, 2020).