Recent Decisions - September 2013

The following is a summary of some recent OATH decisions decided in September 2013.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at (347) 820-4954.

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Personnel

A Human Resources Administration public benefits fraud investigator pled guilty to federal charges for fraudulently obtaining Section 8 housing benefits. ALJ Alessandra F. Zorgniotti found that because of respondent’s federal guilty plea, the doctrine of collateral estoppel conclusively establishes respondent's fraudulent conduct. Judge Zorgniotti recommended termination from employment.   Human Resources Admin. v. Battle-Black, OATH Index No. 2272/13 (Sept. 10, 2013).

The Fire Department brought a disciplinary proceeding against a firefighter after he was arrested for criminal possession of cocaine. At the hearing, respondent objected to the admission of transcripts of the Fire Department’s interviews of the arresting officers, characterizing their introduction as an end-run around the sealing of criminal records. ALJ Astrid B. Gloade found the interview transcripts were not official records subject to seal and allowed their admission. Finding that the firefighter possessed cocaine, Judge Gloade recommended termination.   Fire Dep’t v. Murray, OATH Index No. 2316/13 (Sept. 25, 2013).

A correction officer who called in to request emergency leave to accompany his daughter to the hospital was not guilty of disobeying his supervisor's order to call him back from a phone belonging to the medical facility, when the medical facility denied him permission to use their phones. It was not disputed that respondent's daughter suffered from chronic asthma, and respondent proved he was at the hospital with his daughter that day. ALJ Tynia D. Richard found him absent without leave for part of his tour, however, for failing to call in for an extension of his emergency leave and recommended a three-day suspension. Dep’t of Correction v. Jones, OATH Index No. 2051/13 (Sept. 25, 2013).

Licensing

In a fitness proceeding, a for-hire vehicle driver was found to have tested positive for cocaine use. Respondent argued he had innocently ingested the substance while drinking mate de coca tea he purchased in Peru. Supervising ALJ Joan R. Salzman found that respondent's evidence was insufficient to refute the proof of illegal drug use and recommended license revocation. Taxi & Limousine Comm’n v. Proano, OATH Index No. 234/14 (Sept. 18, 2013).

Real Property

Administratrix of decedent’s estate appeared pro se on behalf of the estate to obtain the value of fixtures installed and improvements made by the decedent. Attorneys for the building’s owner moved to disqualify the administratrix from appearing pro se and to require her to obtain counsel because she was not the sole beneficiary of the estate. ALJ Tynia D. Richard found that there is no prohibition against a personal representative representing the interests of an estate at OATH hearings and allowed the Administratrix to proceed pro se. Estate of Bikman, OATH Index No. 2199/13, mem. dec. (Sept. 24, 2013).

Vehicle Retention

Police Department ("PD") sought to retain vehicle after car owner’s arrest for DUI. PD erroneously mailed respondent’s notice of her right to a hearing to the wrong zip code. ALJ Faye Lewis found notice was insufficient and ordered the release of respondent’s vehicle. Police Dep’t v. Brown, OATH Index No. 557/14, mem. dec. (Sept. 24, 2013).