Recent Decisions - June 2014

The following is a summary of some recent OATH decisions decided in June 2014.  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

Two correction officers were charged with improperly entering a punitive segregation inmate's cell, using excessive force, failing to report the force incident, failing to obtain medical attention for the inmate, and making false reports and statements. Respondents contended that the inmate was fully compliant with their orders and they denied that they used any force. However, the inmate suffered scratches, scrapes, and bruises on his neck, back, ribs, wrist, ankle, and shoulders. ALJ John B. Spooner found that respondents entered the inmate's cell and used force as a means of punishing him for protesting a dispute about his telephone privileges. ALJ Spooner further found that respondents failed to report the use of force and thus prevented the inmate from receiving prompt medical assistance. He sustained all of the charges, and recommended that respondents be suspended for 45 and 30 days. Dep’t of Correction v. Reid, OATH Index Nos. 1898/14 & 1901/14 (June 18, 2014).

Petitioner alleged that project manager altered, without authorization, two scope of work orders bearing his supervisor's signature and emailed them to a contractor even though they had not been signed by the supervisor. ALJ Alessandra F. Zorgniotti found that the respondent knowingly made false entries on a written statement of a public servant, and that he had tampered with a public record. ALJ Zorgniotti also found that he emailed the altered documents to the contractor without copying his supervisor as directed. She recommended termination of respondent’s employment. Dep't of Environmental Protection v. Berlyavsky, OATH Index No. 1297/14 (June 10, 2014), adopted, Comm'r Dec. (June 26, 2014).

ALJ Ingrid M. Addison recommended dismissal of charges that respondent, a parks climber and pruner, falsified department records or violated department rules when he left his truck unattended and could not produce a trip ticket. ALJ Addison also found that the evidence did not support charges that respondent drove his vehicle negligently, placed a fellow employee in danger, or struck a utility pole. ALJ Addison, however, sustained a charge that respondent had vulgar decals pinned to the interior of his truck, and recommended a 15-day suspension with credit for time served. Since respondent had served a 30-day pre-trial suspension, ALJ Addison recommended that he be restored 15-days’ pay. Dep't of Parks & Recreation v. Softleigh, OATH Index No. 1804/14 (June 11, 2014), adopted, Comm'r Dec. (July 23, 2014).

A laboratory assistant was charged with committing errors in processing specimens. ALJ Astrid B. Gloade found that the hospital proved that respondent sent a patient's specimen for testing which was accompanied by the documentation for a different patient. ALJ Gloade also found that on another occasion, respondent entered the wrong code on a requisition form for the testing of a patient’s specimen, which resulted in the wrong test being performed on the specimen. Termination of employment was recommended, in light of respondent's prior disciplinary history and because her misconduct endangered the safety of others. Health & Hospitals Corp. (Elmhurst Hospital Ctr.) v. Huggins, OATH Index Nos. 587/14 & 1545/14 (June 23, 2014).

A correction officer was charged with leaving her residence while on sick leave without permission and without having logged out with the Health Management Division. Petitioner alleged that an Absence Control Investigator had visited the respondent's home during her sick leave, called the respondent five times, knocked on her door 20 times, and left a notification letter. However, the respondent provided evidence and testimony that she had never left her apartment, and that the Absence Control Investigator had never entered her apartment building that day. ALJ Kara J. Miller found the respondent to be more credible than the petitioner’s witness and recommended that the charge be dismissed. Dep’t of Correction v. Little, OATH Index No. 789/14 (June 17, 2014).

Licensing

A discretionary revocation proceeding was brought against a cab driver based on a passenger complaint stemming from a fare dispute on a trip from lower Manhattan to a hotel in Stamford, Connecticut. The passenger testified that he had not noticed that the meter was not engaged until they arrived at the destination, and that he was surprised when the driver told him the fare was $300. An argument ensued. The passenger said that when he exited the cab to find a witness, the driver knocked his wallet to the ground and forcibly ripped his watch off his wrist, breaking the watch band and causing a gash in his arm. Acknowledging the fare dispute, the driver denied using force against the passenger or taking his wallet. He testified that on out-of-town trips the passenger has the option of taking the ride on the meter or off-meter at a negotiated price. The driver’s electronic trip sheet corroborated his testimony that the passenger had opted for a negotiated fare. The driver also testified that the passenger appeared inebriated and had slept for most of the ride to Connecticut. ALJ Tynia D. Richard found the driver’s testimony to be credible. Finding the passenger’s account of assault and injury incredible and his photographic evidence unconvincing, she recommended dismissal of the charges. Taxi & Limousine Comm'n v. Koneh, OATH Index No. 2146/14 (June 13, 2014), adopted, Comm'r Dec. (July 17, 2014).

Contracts

An electrical contractor brought a claim for $326,275.64 in costs for replacing and repairing electrical equipment and machinery damaged by flooding during Hurricane Sandy. The Contract Dispute Resolution Board, chaired by ALJ John B. Spooner, determined that the contract required the contractor to replace and repair any damage to the temporary electrical system, including damage from Hurricane Sandy, until the City had issued final acceptance. Petitioner's claim was denied. Barbaro Electric Co., Inc. v. Dep't of Environmental Protection, OATH Index No. 1841/14, mem. dec. (June 24, 2014).

Vehicle Retention

Police Department seized a van in connection with the driver's arrest for attempted murder and assault. The van's owner was not present at the time of the arrest. The driver was the owner's former boyfriend, roommate, and the father of her child. The van's owner argued that she is an innocent owner and that the Department did not prove that it was necessary to retain the van to prevent its loss or destruction pending final judgment in a civil forfeiture action. Both parties argued that the other side bore the burden of proof on the question of innocent ownership. ALJ Faye Lewis found it unnecessary to rule on which party bore the burden, because the Police Department showed that the driver was the van's beneficial owner. Judge Lewis rejected respondent's argument that the retention hearing should not include an analysis of whether return of the van would present a heightened risk to public safety. Finding a heightened risk to public safety, Judge Lewis ruled that the Police Department was entitled to retain the van. Police Dep't v. Dookwa, OATH Index No. 2395/14, mem. dec. (June 18, 2014).

Police Department sought to retain a car, jointly leased by respondent mother and her son, that was seized in connection with the son's arrest for assault. At the hearing, the Department argued that the mother lacked standing to seek release of the car because she is not the titled or registered owner of the car. ALJ Kevin F. Casey found that the mother did have standing because as a co-lessee who made lease payments, she has a possessory interest in the car. However, ALJ Casey found that the Department disproved the mother's claim that she was an innocent owner, finding that her son was the beneficial owner of the car. He ruled that the Department may retain the vehicle pending the outcome of a civil forfeiture proceeding. Police Dep't v. Hambartsoumian, OATH Index No. 2651/14, mem. dec. (June 25, 2014).

Practice and Procedure

ALJ Alessandra F. Zorgniotti denied respondent's post-trial request to remove his name from the report and recommendation because it discusses his medical history. Requests for redaction are generally denied where, as here, respondent placed private health matters in issue by way of a defense and the request was made after respondent placed medical documents in the record and testified about them at a hearing. Nor did the medical condition, high blood pressure, carry much or any stigma, and respondent shared his condition with some co-workers prior to the incident which formed the basis of the disciplinary charges brought against him. Dep't of Environmental Protection v. Capezza, OATH Index No. 1536/14 (June 13, 2014).

Real Property

Petitioner established that premises located within a district zoned for residential use was being used as an auto repair shop and for junk storage in violation of the NYC Zoning Resolution. The respondent denied that the premises had been used for junk storage and claimed that it had been used for automotive repairs since the early 1900's. However, ALJ Alessandra F. Zorgniotti found that respondent's documentary evidence contained multiple gaps and failed to establish that the commercial use of the premises was legal at the time it was established. ALJ Zorgniotti therefore recommended that an order of closure be issued. Dep't of Buildings v. 47-33 Little Neck Parkway, Queens County, OATH Index No. 802/14 (June 27, 2014), adopted, Comm'r Dec. (July 15, 2014).