Recent Decisions

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

Personnel

A correction officer was charged with using excessive force against an inmate and submitting a false report. A video of the incident and respondent’s testimony showed that a newly-admitted inmate resisted processing. When respondent tried to guide the inmate into a pen, the inmate swatted respondent’s hand away and attempted to spit in respondent’s face. Respondent admitted that his hand was briefly was on the inmate’s neck as he tried to push the inmate away. ALJ Noel R. Garcia sustained the excessive force charge but he recommended dismissal the false report charge. He found the officer’s written statement was consistent with the video evidence. The recommended penalty was a thirty-five day suspension without pay. Mitigation was found in the fact that the use of force was set in motion by the inmate’s belligerence, that the inmate did not suffer any injury, the officer’s long service record, and that the officer accepted responsibility for his actions. Dep’t of Correction v. Ward, OATH Index No. 2137/18 (Dec. 31, 2018).

A job eligibility specialist was charged with being discourteous to a client and telling her that she could not breastfeed her baby during a recertification interview because he feared being accused of sexual harassment. ALJ Astrid B. Gloade recommended that the charge be sustained based upon credible testimony from three witnesses that was corroborated by the client’s written statement. Respondent’s testimony that he did not see the client breastfeed the baby was not credible as it was inconsistent with his contemporaneous written statement that he saw the client breastfeeding her child and asked her to cover up. Respondent’s misconduct was compounded by his failure to comply with agency policy regarding a client’s right to breastfeed her child, about which respondent had received training only four months before. The recommended penalty was a twenty-five day suspension without pay. Human Resources Admin. v. Payton, OATH Index No. 343/19 (Dec. 28, 2018).

A hospital service aide charged with sending threatening phone texts admitted he sent the texts. The aide apologized the next day and completed five months of counselling and anger management. Due to aide’s sincere expressions of remorse and substantial efforts to deal with his anger control issues, ALJ John B. Spooner recommended a penalty of a 60-day suspension, without credit for 30-day pre-hearing suspension served. Health & Hospitals Corp. (Kings Co. Hospital) v. Lim, OATH Index No. 2411/18 (Dec. 28, 2018).

Real Property

Residential tenant, who lives in a four-story brownstone with a store on the first floor and a residential unit on each of the other three floors, sought findings that the building is covered by the Loft Law and that he is the protected occupant of his unit. The owner argued that the unit was ineligible for coverage because it was never commercially occupied. ALJ Kevin F. Casey ruled that the applicant only had to show that some portion of the building was used for commercial purposes, not that his unit was used commercially. The building, which was converted from a legal two-family residence with a commercial unit on the ground floor to a three-family multiple dwelling, was eligible for coverage. Further, ALJ Casey recommended protected status for the applicant because he took occupancy pursuant to a lease, currently in effect, with consent of the co-owner. Matter of Pichler, OATH Index No. 782/18 (Dec. 5, 2018).

Tenant sought a finding that she is the protected occupant of her unit under the Loft Law. The owner moved for dismissal of the application on the ground that the tenant was collaterally estopped from raising such claim since her status had been fully litigated by a Housing Court Judge who found that she was not a protected occupant. Tenant opposed the motion, arguing that the Judge had erred by denying her request to stay the Housing Court proceeding until the Loft Board ruled on her application, and that she did not have a full and fair opportunity to litigate her Loft Law status before the Housing Court Judge. In granting the owner’s motion and recommending dismissal of the application, ALJ Ingrid M. Addison noted the Judge’s articulation that the Housing Court has concurrent jurisdiction with the Loft Board to determine whether an applicant is protected by the Loft Law, and found that the tenant had received a full and fair opportunity to litigate her status in Housing Court. Matter of Russo, OATH Index No. 2152/18 (Dec. 12, 2018).