Recent Decisions - January 2017

The following is a summary of some recent OATH decisions decided in January 2017.  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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Personnel

The Administration for Children’s Services (“ACS”) brought disciplinary charges against one of its employees. Prior to the first scheduled conference at OATH, the employee took leave from ACS and accepted a new position with another agency. The employee sought to adjourn the conference, but ACS moved to go forward with case. ALJ John W. Burns removed the disciplinary matter from OATH’s calendar without prejudice because employee is on leave from ACS pending successful completion of probationary period of employment with her new agency. Should the employee return to ACS on or before the end of her probationary period at the other agency, ACS shall have the right to re-file the charges and move forward with the disciplinary proceeding at that time.  Admin. for Children’s Services v. M.S., OATH Index No. 2054/16, mem. dec. (Jan. 11, 2017).

ALJ Astrid B. Gloade recommended a 63 day suspension without pay, nine days for each proven charge, for a sanitation worker who failed to comply with emergency leave regulations on seven occasions. The worker requested emergency leave three times due to car trouble, twice for emergency child care leave, and twice due to plumbing issues. On each occasion the worker failed to submit required documentation regarding his leave requests. Due to the worker’s extensive disciplinary history, mostly for violating time and leave rules, Judge Gloade reasoned that a penalty at the highest end of the range imposed under similar circumstances was appropriate.   Dep’t of Sanitation v. Perez, OATH Index No. 370/17 (Jan. 20, 2017), modified on penalty, Comm’r Dec. (Feb. 7, 2017) (Commissioner imposed penalty of termination of employment).

ALJ Kara J. Miller recommended termination of employment for a juvenile counselor who used excessive and inappropriate force on three residents. Respondent placed his arms, hand, and knee on one resident’s neck, pulled another resident backwards off a desk by his boxer shorts causing the resident to fall on his back and hit his head on a chair, and grabbed a third resident around the waist, lifting him in the air, and slamming him to the ground. Additionally respondent submitted a false report regarding the incident.   Admin. for Children’s Services v. Judge, OATH Index No. 1412/16 (Jan. 20, 2017).

ALJ Susan J. Pogoda recommended termination of employment for a patient care technician at a hospital. The respondent was found sleeping on duty three times, including one incident where a patient he was assigned to observe, fell from his bed and struck the leg of a doctor who was performing a bone marrow biopsy on a patient in the adjacent bed. Respondent also failed to document his observations of patients every 15 minutes, as required. Additionally, respondent had a significant disciplinary record including a previous suspension for sleeping on duty.   Health & Hospitals Corp. (Bellevue Hospital Ctr.) v. Ogbonna, OATH Index No. 165/17 (Jan. 17, 2017), adopted, Hosp. Dec. (Feb. 14, 2017).

Licensing

After an accident with the complainant, a cyclist, respondent taxicab driver failed to stop and exchange information with the complainant and instead tried to leave the scene. When the complaining witness caught up with him, respondent used physical force by making a sudden sharp turn to the right forcing the complainant up onto the curb and against a mailbox. ALJ Ingrid M. Addison found respondent’s conduct to be against the best interests of the public and recommended a 60-day suspension of his TLC license, a $2,200 fine, and four points against his license.   Taxi & Limousine Comm’n v. Faisal, OATH Index No. 655/17 (Jan. 18, 2017), adopted, Comm’r Dec. (Feb. 6, 2017).

Real Property

In coverage and protected occupancy proceeding, ALJ Alessandra F. Zorgniotti found that petitioners demonstrated that second floor unit was residentially occupied during the applicable window period and as occupants currently in possession, petitioners also qualified for protected occupancy. Respondents argument that prior tax returns indicating that the prime tenants did not live in the building and used the second floor unit for their business precluded a finding of coverage and protected occupancy was rejected because case law holding that tenants can be evicted for non-primary residency when their prior tax returns indicate they did not reside in their rent-regulated units did not apply.  Matter of Allweis, OATH Index No. 2569/14 (Jan. 18, 2017).

The owner of an interim multiple dwelling filed an application to terminate a finding of harassment, issued in 1991. The evidence presented established that the owner engaged in no further improper conduct, paid all past fines, properly registered the building, and complied with the fire and safety standards of Article 7-B of the Multiple Dwelling Law. ALJ John B. Spooner recommended that the owner’s application for termination of the finding of harassment should be granted.   Matter of 54 West 22nd Owners, LLC, OATH Index No. 1048/17 (Jan. 24, 2017).