Recent Decisions - May 2016

The following is a summary of some recent OATH decisions decided in May 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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Personnel

A sanitation worker tested positive for amphetamine and methamphetamine after a random drug test. He alleged that the test should have been voided because his urine sample was not in his view the entire time before the specimen was sealed, although the sample did remain within the exclusive control of the specimen collector. ALJ Noel R. Garcia found that this error in the collection process did not significantly affect the worker’s right to a fair and accurate test and that petitioner established the proper chain of custody. Because this was the worker’s third violation of the Department’s substance abuse policy, ALJ Garcia recommended termination of employment.    Dep’t of Sanitation v. N.G., OATH Index No. 1389/16 (May 12, 2016)

ALJ Kevin F. Casey found that a job opportunity specialist spoke on her cell phone while a client was waiting, refused to set up her work voicemail, and burned the edges of a disciplinary memorandum. He dismissed a charge that the employee had made disrespectful comments to a supervisor. The recommended penalty was a 15-day suspension without pay.     Human Resources Admin. v. Smart, OATH Index No. 1325/16 (May 6, 2016).

ALJ Alessandra F. Zorgniotti found that a highway repairer intentionally pushed his supervisor. Because the employee had 18 years’ service, a minor disciplinary record, and had been provoked by the supervisor, ALJ Zorgniotti recommended a ten-day suspension without pay. Petitioner failed to prove that the employee had cursed at the supervisor.     Dep’t of Transportation v. Harris, OATH Index No. 1531/16 (May 18, 2016).

Real Property

Three tenants of a loft on Bleecker Street applied for coverage under the Loft Law. ALJ Astrid B. Gloade granted their application, finding that the evidence at trial showed that the building is an interim-multiple dwelling (“IMD”), that applicants’ units are covered, and that applicants are the protected occupants. Testimony of the applicants and their associates, along with photographs and other documents, demonstrated that four units in the building were independently occupied as residences during the 12-month statutory window period.    Matter of Gatein, OATH Index Nos. 2121/13, 1033/14, & 2233/14 (May 13, 2016).

In a coverage and protected occupancy application with many novel legal issues, including whether a unit is located in a basement and therefore excluded from coverage, ALJ Faye Lewis found that five of the six units met the requirements for coverage, the building is an IMD, and three of the applicants are protected occupants. ALJ Lewis found that in determining whether a unit is located in a basement under the Loft Law, its floor elevation should be compared to the curb level of the closest street. Using this method, she found that only one unit, which otherwise qualified for coverage, is located in a basement. As to whether the units have legal windows, ALJ Lewis found: that lot line windows qualify a unit for coverage; windows opening onto the building’s alleyway qualify for coverage because the alleyway is a legal outer court under the definition in the Zoning Resolution, which does not have a size requirement; a tunnel-like structure from one unit leading to a window in another unit, created by an applicant and post-dating the coverage application, is not a window; and a window in a garage space opening onto a street is not part of one of the applicant’s unit. Another unit met the size requirement of the Loft Law and was residentially occupied, even though the tenant had signed an affidavit stating it was used for commercial purposes. Further, a roof space was not part of an applicant’s unit because he did not have exclusive use of the space, nor was that issue properly before her in a coverage application. As to protected occupancy, ALJ Lewis found that while one of the applicants does not currently live at the building, he is a protected occupant because he remains in possession of his unit. She determined that two other applicants who currently live at the building, one of whom is a prime lessee, are also protected occupants.    Matter of Saladino et. al., OATH Index Nos. 2412/13 & 1879/14 (May 20, 2016).

Practice and Procedure

Respondent-owner in a Loft Law case moved to recuse ALJ Gloade from the trial. Before trial, petitioner had forwarded ALJ Gloade emails purportedly containing attorney-client communications that had been divulged to a third party and a summary of settlement options. Respondent-owner alleged that because OATH trial judges and settlement judges are meant to be separate, disclosure of these emails to ALJ Gloade would affect her impartiality. ALJ Gloade denied the motion, finding that the emails did not contain meaningful insight into the settlement discussions and that they would not affect her ability to render an impartial decision.    Matter of Gatein, OATH Index Nos. 2121/13, 1033/14, & 2233/14 (May 13, 2016).