Recent Decisions - February 2014

The following is a summary of some recent OATH decisions decided in February 2014.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at (212) 933-3000.

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Licensing

The Department of Health and Mental Hygiene (DHMH) sought to revoke a mobile food vendor’s license, alleging that he fraudulently obtained his license and had amassed numerous adjudicated violations and failed to pay the accumulated fines. ALJ Raymond E. Kramer found that DHMH did not prove respondent submitted a false application but, respondent was found guilty of 70 violations within a two-year period and that he failed to pay $47,980 in fines. Revocation of mobile food vendor license was recommended. Dep’t of Health & Mental Hygiene v. Elshamy, OATH Index No. 1371/14 (Feb. 24, 2014), adopted, Comm’r Dec. (Mar. 7, 2014).

A taxi driver’s license was summarily suspended based upon his arrest for leaving the scene of an accident involving a personal injury. At the summary suspension hearing, the driver asserted that the Taxi and Limousine Commission’s (TLC) authority to continue the suspension ended when the TLC’s new summary suspension rules took effect. ALJ Faye Lewis held that the issue before OATH was not whether the suspension was proper under the rule permitting the Chairperson to summarily suspend a license, but instead whether continued licensure during the pendency of the criminal charges would pose a direct and substantial threat to public health and safety. Here, the driver failed to establish that his continued licensure would not pose a threat to public safety and she recommended continuation of the suspension. Taxi & Limousine Comm’n v. Smith, OATH Index No. 1260/14 (Feb. 28, 2014), adopted, Comm'r Dec. (Apr. 7, 2014).

ALJ Ingrid M. Addison recommended the continued suspension of a taxicab driver based upon his arrest for robbery in the third degree and criminal obstruction of breathing or blood circulation. Respondent’s testimony failed to rebut petitioner’s charge that continued licensure would pose a threat to public safety. In spite of respondent’s assertion that his arrest spawned from a domestic incident with his girlfriend of two years, ALJ Addison found that if true, the charges demonstrate respondent’s propensity to use force and that continued licensure would pose a threat to public safety. Taxi & Limousine Comm’n v. McLane, OATH Index No. 1641/14 (Feb. 24, 2014), adopted, Comm’r Dec. (Mar. 10, 2014).

Personnel

A correction officer was charged with tendering fraudulent documents to obtain subsidized housing benefits, establishing residency in another state for purposes of engaging in unauthorized outside employment, and engaging in unauthorized outside employment. ALJ Astrid B. Gloade found that the officer underreported her income to obtain Section 8 housing benefits and that she had an unauthorized job while on a leave of absence from the Department. The residency charge was dismissed. Termination of employment was recommended   Dep’t of Correction v. Colon, OATH Index No. 229/14 (Feb. 24, 2014).

Department of Transportation alleged that a civil engineer was mentally unfit to perform his duties due to his failure to perform complex work assignments, accumulation of so much clutter at his cubicle that he could not use it as a work space, and personal hygiene and appearance issues. ALJ Tynia D. Richard found the evidence supported the medical opinion of a board certified psychiatrist that the engineer was unfit to perform the duties of his position due to a psychotic condition, known as delusional disorder of a persecutory nature, that impeded his ability to make basic engagements with reality. Involuntary leave recommended. Dep’t of Transportation v. S.N., OATH Index No. 1233/14 (Feb. 14, 2014), adopted, Comm’r Dec. (Feb. 24, 2014).

A computer specialist was charged with insubordination for answering phone calls to the IT Help Desk in a robotic voice and failing to properly and timely process IT Help Desk tickets. Respondent denied answering calls in a robotic voice, and asserted that he was following the greeting script provided by his supervisor and speaking slowly and clearly so callers would understand him. ALJ Kara J. Miller found that respondent was capable of answering calls in a normal tone but chose to use a robotic voice despite being directed by his supervisor to stop. She also found that respondent disobeyed his supervisor’s orders by failing to properly and timely process IT tickets. ALJ Miller recommended a 20-day suspension. Dep’t of Health & Mental Hygiene v. Dillon, OATH Index No. 108/14 (Feb. 14, 2014).

ALJ John B. Spooner recommended the termination of employment of a service aide for excessive absence and absence without leave. He rejected the aide’s claim that he was unable to work due to disability and that his employer improperly denied his leave request. Respondent had been granted a two-month medical leave and was told that if he needed to extend the leave he must request the extension with documentation of his “diagnosis, prognosis, and dates unable to work” prior to the expiration of the leave. ALJ Spooner found respondent failed to fulfill the requirements for an extension. His formal extension request was filed months late and the medical notes he submitted gave no information as to treatment and were vague as to prognosis. Health & Hospitals Corp. (Coler Goldwater Hospital) v. Steele, OATH Index No. 749/14 (Jan. 23, 2014), adopted, Hosp. Dec. (Feb. 5th, 2014).

Human Rights

The City Commission on Human Rights charged respondents, father-and-son owners of a building, with violating the City Human Rights Law, by refusing to show a vacant apartment to the complainant, when they learned that the complainant was an expectant father. When the complainant went to view the apartment, respondents were not present. Instead, an in-law who lived in the building answered the door and refused to show the apartment when the complainant said his wife was expecting. Respondents denied that they had a policy of excluding children, or that the in-law acted with authority as their agent. Respondents established that the in-law does not care for the building or assist in finding new tenants, and that the hired broker sent the complainant to view the apartment alone. Therefore, ALJ Alessandra F. Zorgniotti found that the in-law was not an actual or apparent agent of respondents, and she recommended that the complaint be dismissed.    Comm’n on Human Rights v. Shahbain, OATH Index No. 2439/13 (Feb. 3, 2014).

Real Property

Tenants of a building in Brooklyn sought a finding that they are protected occupants under the Loft Law. The owner argued that various rooms in the building were rented under a “guest house” arrangement that created single room occupancies not protected by the Loft Law. ALJ Tynia D. Richard found that, irrespective of the unusual rental arrangement in which renters rented their own bedroom and shared a kitchen, bathroom, and living and dining areas, their occupancies complied with the Loft Law’s statutory requirements. Moreover, the occupancies were inconsistent with the Multiple Dwelling Law’s definition of “Single Room Occupancy.” ALJ Richard recommended the coverage application be granted. Matter of Kuonen, OATH Index No. 685/13 (Feb. 27, 2014).

ALJ Miller recommended denial of a coverage application filed by two tenants, finding inconclusive proof of residential occupancy for twelve consecutive months during the window period. There was insufficient physical conversion of the loft and any residential use was incidental to the primary commercial use of the space as a fitness training business, dance studio and artist’s studio. ALJ Miller recommended that a coverage application filed by two other tenants in the same building be granted for their residential space, office and laundry room. She denied coverage, however, for storage space adjacent to their unit because it was not part of the registered unit, but part of a commercial pinball repair unit. During the proceeding, the owner had registered the unit with the Loft Board but later filed a decoverage application. ALJ Miller found the decoverage application was untimely under the Board’s rule and therefore coverage was conceded. Matter of Boyers,  OATH Index Nos. 1338/12, 1381/12 & 1403/13 (Feb. 10, 2014).