Recent Decisions - March 2015

The following is a summary of some recent OATH decisions decided in March 2015.  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

ALJ Alessandra F. Zorgniotti found that a correction officer had engaged in an inappropriate relationship with a minor. She did not credit respondent's testimony than he thought the minor was 18 years old, because it was contradicted by more credible testimony from the girl, her mother and her step-father, who testified that the step-father than told respondent that the girl was 16 and that he should leave her alone. Due to respondent's law enforcement status, his actions of pursuing a 16-year girl, taking her places without her parents' knowledge and against their express wishes, and engaging in sexual contact with her bore a nexus to his job. Termination of employment was recommended.   Dep't of Correction v. Campos, OATH Index No. 1227/15 (Mar. 23, 2015).

Following a default hearing, ALJ Astrid B. Gloade found that petitioner proved charges that respondent, a job opportunity specialist, was AWOL and defrauded his employer. The undisputed proof showed that respondent issued rental assistance checks to persons who were not landlords and who were not entitled to the funds. The proof further showed that the fake landlords gave respondent the amount of the issued checks and he, in return, gave them cash. Respondent pled guilty in criminal court to welfare fraud where he admitted that he had engaged in a kickback scheme that defrauded his employer of over $ 690,000 in agency funds. Termination of employment recommended.   Human Resources Admin. v. Heras, OATH Index No. 1114/15 (Mar. 11, 2015).

ALJ John B. Spooner sustained charges that agency attorney had disclosed confidential information through emails to a private attorney representing an inmate in a lawsuit against the City in violation of Department rules and state and city laws. ALJ Spooner found mitigation in the attorney’s long unblemished service record, his forthrightness when confronted with the emails, his acknowledgment that he made a mistake, his expression of remorse and previously served 30-day pre-hearing suspension.   Dep't of Correction v. Klopman, OATH Index No. 984/15 (Mar. 13, 2015), modified on penalty, Comm'r Dec. (Apr. 2, 2015) (Commissioner imposed the penalty of termination of employment, finding respondent breached the attorney-client privilege and his disclosures renders him to be a security risk to the Department).

Two correction officers (Wright and Engleton) were charged with using unnecessary force against an inmate and submitting false reports and statements about the incident. Officer Engleton was also charged with failing to ensure that the inmate met with a visitor in a timely fashion. ALJ Kevin F. Casey found that petitioner proved Officer Wright used unnecessary force but it did not prove that the Officer Engleton witnessed or engaged in the use of force. Both officers made false or misleading written and oral statements about the incident and Officer Engleton allowed a visitor to wait for more than three hours to see the inmate. Recommended penalties are 20 and 45 days' suspension without pay, for Engelton and Wright, respectively.   Dep't of Correction v. Wright, OATH Index Nos. 553/15 and 555/15 (Mar. 16, 2015).

Prevailing Wage

Carpenters union sought a determination from the Comptroller of the prevailing wages and benefits to be paid to City workers in eight civil service titles. The Comptroller conducted an investigation and made preliminary determinations of the trade classifications for each title. After a four-day trial, the parties stipulated to the classifications for all of the titles except rigger. ALJ Kara J. Miller affirmed the Comptroller's preliminary finding that City riggers be paid commensurate with the rate of wages and benefits paid to millwrights in the private sector. The City failed to rebut the Comptroller’s finding that the union's private sector agreements cover at least 30 percent of the workers in the same trade or that the work of a rigger is comparable to that of a millwright.  Office of the Comptroller v. Office of Labor Relations, OATH Index No. 2445/14 (Mar. 5, 2015).

Practice and Procedure

In disciplinary proceedings at OATH, some parties engage in informal discovery, although OATH rules of practice provide broad guidelines for discovery practices. When a party fails to respond to discovery demands, the opposing party should make a pre-trial motion to compel production to the trial judge as soon as possible. Conversely, an objection to discovery should also be made as soon as possible. Here, petitioner sought to exclude evidence offered by respondent as a sanction for respondent's failure to timely produce documents in response to reciprocal discovery. ALJ Tynia D. Richard found respondent’s production inadequate but declined to impose a sanction because she did not find evidence that the non-compliance was willful. However, counsel was warned that similar conduct could result in sanctions in the future.  Dep't of Correction v. Bolanos, OATH Index No. 853/15 (Mar. 19, 2015).

Vehicle Retention

The police department seized a car in connection with the driver's arrest for gun possession and other charges. The car owner, who is the driver's father, sought return of the car as an innocent owner. ALJ Astrid B. Gloade ruled for the owner. An innocent owner is someone who neither knew, nor should have known, that his car would be used as an instrumentality of crime. Mere knowledge that a family member has a criminal record does not provide reason to anticipate that he would use the car to commit additional crimes where the prior criminal activity did not involve the use of a vehicle. ALJ Gloade credited the father's testimony that he was unaware of his son's prior criminal record; nor was there any proof in the record that the son's prior convictions involved the use of a vehicle. The Department did not show that release of the car was necessary to protect against a heightened risk to public safety because the car would be returned to the father, not the son, and there is little risk that he would loan it to his son in the foreseeable future.   Police Dep't v. Nickey, OATH Index No. 1826/15, mem. dec. (Mar. 12, 2015).

Human Rights Law

Housing cooperative was charged with discriminating against two tenants based on their disability by failing to waive no-dog rule to permit the tenants to keep their dog, who they contend is a companion or emotional support animal. Petitioner presented testimony from the complainants, their therapist, the psychiatrist for one of them, a member of the board of directors of the co-op board, the board president, a security guard at the apartment, and one of the respondents. Respondents called a single witness, the husband of one of the complainants. ALJ Faye Lewis found that respondents violated the City Human Rights Law when, after they were notified that the dog provides emotional support to the complainants, they failed to engage in an interactive process to assess the complainants’ needs and the reasonableness of waiving the no-dog rule. Instead, respondents initiated a legal action to evict the complainants. ALJ Lewis rejected the respondents' argument that petitioner had to prove that because of their disability it is "necessary" for complainants to keep their dog in order to use and enjoy the apartment. She found that under the City Human Rights Law petitioner only had to prove that a reasonable accommodation could be made to enable a person with a disability to enjoy the rights in question. ALJ Lewis recommended mental anguish awards of $40,000 for one complainant and $25,000 for the other and a civil penalty of $30,000, to be assessed against the corporate respondents only. She also recommended that supervisory personnel be required to undergo anti-discrimination training and that respondents be required to withdraw the eviction proceeding.   Comm'n on Human Rights ex rel. Carol T. v. Mutual Apartments, Inc., OATH Index No. 2399/14 (Mar. 13, 2015).

Taxi driver was charged with discriminating against two female passengers on the basis of sexual orientation when he told them to stop kissing or get out of the cab and he yelled vulgar remarks at them after they exited. ALJ John B. Spooner found the passengers' testimony more credible than the driver's. He rejected the driver's claim that he enforces a no-kissing rule for heterosexual couples in his cab, finding it not plausible and contrary to Taxi Commission rules, which only permit a driver to refuse to transport customers if they are "disorderly or intoxicated". ALJ Spooner found the driver violated the City Human Rights Law and he recommended that each complainant be awarded $5,000 for emotional distress and the driver be assessed a $5,000 civil penalty.   Comm'n on Human Rights ex rel. Spitzer v. Dahbi, OATH Index No. 883/15 (Mar. 27, 2015).

Licensing

Taxi driver was charged with hitting passenger's hand several times, cursing at and threatening the passenger. The complaint arose out of a disagreement over the route. When the disagreement intensified the passenger said he was going to file a complaint and took out his cell phone to record the driver. ALJ Raymond E. Kramer found that the driver swatted at the passenger's hands, twice making contact with his fingers and ultimately knocking the phone out of his hands. ALJ Kramer found the use of force, although minimal and causing no injury, was in violation of Commission rules. He also found that the driver cursed at the passenger, but did not find that the driver threatened the passenger. The Commission sought the maximum penalty of license revocation and a $3,500 fine. ALJ Kramer found that penalty to be unduly harsh, given the limited force used. He recommended a 30-day suspension and $1,000 fine.   Taxi & Limousine Comm'n v. Hossen, OATH Index No. 721/15 (Mar. 9, 2015), adopted, Comm'r Dec. (Apr. 8, 2015).

Real Property

In a Loft Law coverage case, the applicants reached an agreement with the owner to withdraw the application with prejudice. A non-applicant who leased a unit with one of the applicants, but was out of possession, moved to file an answer. ALJ Ingrid M. Addison denied the motion as moot and untimely where the movant did not provide a reasonable excuse for her failure to file a timely answer, nor a meritorious position to be litigated.    Matter of Fiscina, OATH Index No. 357/15 (Mar. 16, 2015).