Recent Decisions - January 2016

The following is a summary of some recent OATH decisions decided in January 2016.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

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Licensing

A taxicab driver was charged with threatening, cursing, shouting racial slurs and hitting another motorist with his taxicab following a minor car accident on the Williamsburg Bridge. In the cab driver's license revocation hearing, ALJ Susan J. Pogoda found that the motorist's testimony was incredible and inconsistent and the Taxi and Limousine Commission did not present convincing documentary evidence or other witnesses to support the motorist's version of events. Her credibility was further undermined by the fact that she has a pending personal injury lawsuit against the taxicab driver and therefore a motive to confirm her version of events. By contrast, the taxicab driver offered a clear, plausible and consistent account of the accident which was supported by documentary evidence, that he never threatened, cursed at, or assaulted the motorist with his cab. The charges against the taxicab driver were accordingly dismissed.   Taxi & Limousine Comm'n v. Merisier, OATH Index No. 70/16 (Jan. 27, 2016).

ALJ Alessandra F. Zorgniotti recommended revocation of a taxicab driver's license and a fine of $2,000 after he cursed at and exposed himself to a bus driver. The taxicab driver was trying to make a left turn in downtown Manhattan and was obstructed by a city bus that was also turning. During the incident, the taxicab driver yelled repeated profanities at the bus driver and then exposed himself to her. ALJ Zorgniotti credited the bus driver's testimony and sustained the charges, recommending the maximum penalties for the driver's violations.    Taxi & Limousine Comm'n v. Rahman, OATH Index No. 620/16 (Jan. 5, 2016), adopted, Comm'r Dec. (Jan. 22, 2016).

Respondent appealed the denial of her marriage license application by the City Clerk. The Clerk had determined that someone with the applicant's name and date of birth had received a license in 1985 and that the prior marriage was not dissolved. Respondent argued that she had never been married. She presented evidence of numerous errors and inconsistencies on the former marriage application, including her middle name, parents' birthplace, employment information, and signature. Respondent also affirmed that her sister, who had access to respondent's documents, confessed to having married a man for money. After reviewing the evidence, ALJ Noel R. Garcia recommended that the appeal be granted and the marriage license be processed.    Office of the City Clerk v. Deas, OATH Index No. 325/16 (Jan. 7, 2016).

Personnel

A sanitation worker was charged with refusing to undergo a drug test after he could not provide sufficient urine within the requisite three hour period for the test. The respondent argued that his blood pressure medication limited his ability to produce urine. Two doctors, testifying for petitioner, concluded that it is unlikely that the particular medication could have such an effect. Respondent did not offer any medical documentation showing his difficulty with urinating prior to the date of the contested drug test and had no trouble producing enough urine in subsequent drug tests. ALJ John B. Spooner sustained the charge and recommended 30-day suspension.   Dep't of Sanitation v. E. V., OATH Index No. 805/16 (Jan. 29, 2016). 

ALJ Kara J. Miller recommended termination of an administrative associate at a health clinic who was both excessively late and had a physical altercation with a co-worker. Petitioner alleged that respondent approached a co-worker and pushed him without provocation, using obscenities and attracting the attention of various other staff members. Multiple witnesses confirmed the co-worker's testimony. Respondent argued that the incident stemmed from the co-worker sexually harassing her but provided no evidence to indicate that the harassment actually took place. Moreover, respondent's testimony contained significant inconsistencies and implausible assertions. ALJ Miller sustained the physical altercation charge along with an uncontested charge of excessive lateness.   Health & Hospitals Corp. (Renaissance Health Network) v. James, OATH Index No. 2085/15 (Jan. 4, 2016). 

The Department of Sanitation charged a sanitation worker with misconduct after he had a confrontation with a superior at work. The worker had yelled at a Deputy Chief and pushed a car door into him, fracturing his finger. The worker also refused a drug test after being ordered to take one immediately after the incident. ALJ Faye Lewis weighed the testimony of both parties along with medical documentation and photographs of the Deputy Chief's injury and sustained the charges, recommending termination of employment.    Dep't of Sanitation v. Anonymous, OATH Index No. 056/16 (Jan. 4, 2016),adopted, Comm'r Dec. (Jan. 13, 2016). 

ALJ Kevin F. Casey sustained charges of misconduct against a sanitation worker who completed an unauthorized investigation on behalf of a friend. While on duty, respondent questioned private security personnel about their procedures for issuing littering summonses following a complaint from his friend that she was being harassed by the security officers in her housing complex. Respondent did not record or report his actions. ALJ Casey concluded that respondent used his position in the Department to assist a friend, failed to document his activities, and acted unprofessionally. A 30-day suspension was recommended.   Dep't of Sanitation v. Serrano, OATH Index No. 813/16 (Jan. 20, 2016). 

The Department of Sanitation proved that on multiple occasions a sanitation worker failed to submit documentation for emergency and sick leave, was inaccessible for home visits while on sick leave and failed to report to the clinic when required. Given the number of violations, ALJ Ingrid M. Addison recommended termination of employment but urged the Department to consider respondent's expressed desire to retire shortly as a viable alternative.    Dep't of Sanitation v. Adkinson, OATH Index No. 2170/14 (Jan. 25, 2016). 

Vehicle Retention

ALJ Alessandra F. Zorgniotti held that the Police Department was entitled to retain a vehicle seized in connection with an arrest for possession of a weapon. Respondent argued that he was the innocent owner of the vehicle and had lent the car to his cousin without any knowledge of his cousin's criminal activity. ALJ Zorgniotti rejected respondent's defense, noting that respondent's testimony was inconsistent and uncorroborated by any evidence showing that he was paying for the vehicle. ALJ Zorgniotti concluded that respondent's cousin was the beneficial owner of the vehicle at the time of his arrest. Because the Police Department met their burden showing that there is a heightened risk to public safety if the vehicle is returned to its owner, it is allowed to retain the vehicle pending the forfeiture action. Police Dep't v. McFadden, OATH Index No. 1280/16, mem. dec. (Jan. 26, 2016).