Recent Decisions - November 2014

The following is a summary of some recent OATH decisions decided in November 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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Licensing

Department of Health and Mental Hygiene brought a proceeding against the owner of the premises and the owner of a food service establishment operated on the premises seeking closure of the premises. ALJ Tynia D. Richard found that respondents operated a food service establishment without a permit after the Commissioner had issued orders to close the establishment and posted closure signs, and respondents reopened the premises and obscured the signs. ALJ Richard recommended that the premises be sealed and padlocked.  Dep't of Health and Mental Hygiene v. Scott, OATH Index No. 937/15 (Nov. 26, 2014).

Taxicab driver's license was suspended based upon arrest for assault in the third degree. After a summary suspension hearing ALJ Kevin F. Casey had recommended that the Taxi and Limousine Commission ("Commission") restore the license. The Commission then remanded the matter to OATH for further consideration consistent with the standard set forth in Nnebe v. Daus. Upon reconsideration, ALJ Casey adhered to his finding that continued suspension of the license was unwarranted because the Commission had failed to show that, even assuming the truth of the pending criminal charges, restoring respondent's license would pose a direct and substantial threat to public health of safety. Taxi & Limousine Comm'n v. Sakib, OATH Index No. 395-rr2/15 (Nov. 14, 2014), rejected, Comm'n Dec. (Dec. 18, 2014) (Commission adheres to its position and rejects recommendation to lift suspension).

Personnel

Respondent, a hospital institutional aide, was charged with failing to follow protocol for returning found property and with being intoxicated while on duty. Respondent took possession of a patient's clock radio that was left behind during a patient move. Respondent testified that she placed the radio on her cart for safekeeping, with the intent of giving it to her supervisor at the end of her shift, but that she was confronted by the patient's son before she could do so and she returned it to him. ALJ Alessandra F. Zorgniotti recommended dismissal of the charge. Petitioner did not prove that respondent was on notice of a rule or policy mandating the immediate report of lost property to a supervisor. Her decision to wait until the end of her shift to bring the radio to housekeeping was not so unreasonable as to be considered negligence. As for the intoxication charge, the son's claim that he smelled alcohol on respondent's breath when he walked alongside her was contradicted by surveillance video which showed respondent left the room first and the son followed several paces behind and testimony from respondent's supervisor, who did not smell alcohol. Dismissal of intoxication charge recommended.  Health & Hospitals Corp. (Henry J. Carter Specialty Hospital) v. Savain, OATH Index No. 217/15 (Nov. 5, 2014).

Respondent, a service aide, was charged with five individual absences without authorization, a long-term period of absence without authorization and failing to adhere to two directives to resolve her employment status. The charges were established by documentary evidence and the testimony of petitioner's witnesses. Respondent had been previously disciplined for similar wrongdoing and was aware of petitioner's policies and procedures. Thus, ALJ Kara J. Miller recommended termination of respondent's employment.  Health & Hospitals Corp. (Dr. Susan Smith McKinney Nursing & Rehabilitation Ctr.) v. Ellis, OATH Index No. 1710/14 (Nov. 25, 2014).

Petitioner sought to place respondent, a clerical associate, on an involuntary leave of absence under Section 72 of the Civil Service Law, alleging that she is mentally unfit to perform the duties of her position. Petitioner had directed respondent to undergo psychiatric evaluation after respondent continually exhibited inappropriate, disruptive, and aggressive behavior at work. The evaluating psychiatrist offered testimony and a report declaring that respondent suffered from a severe functional psychiatric disorder and that her behavior was incompatible with her work duties. Respondent maintained that she was fit to work, submitting a one-paragraph letter from her treating psychiatrist. Following a hearing, ALJ Astrid B. Gloade found petitioner's proof more persuasive and she recommended that respondent be placed on Section 72 disability leave.  Human Resources Admin. v. M.O., OATH Index No. 173/15 (Nov. 21, 2014).

Real Property

Tenant filed an application for protected occupancy with the Loft Board, asking to be added to the building registration as a tenant of record for her unit. The owner asserted that the application was time-barred under Multiple Dwelling Law Section 282-a. ALJ John B. Spooner found that the statutory language in Section 282-a clearly and unambiguously applied to "coverage of residential units," not applications for protected occupancy, and ruled that the application was not time-barred. Based upon the stipulated facts, ALJ Spooner found that the tenant was entitled to protected status and recommended that the application be granted.  Matter of Behlke, OATH Index No. 153/13, (Nov. 12, 2014), adopted in part and remanded, Loft Bd. Order No. 4348 (Jan. 15, 2015).

Taxi and Limousine Tribunal

OATH consists of four divisions: the OATH tribunal, the Environmental Control Board (ECB), the Taxi and Limousine Tribunal (TLT) and the Department of Health and Mental Hygiene Tribunal. This month we will highlight a case heard at the TLT, which holds hearings on summons issued to vehicles and drivers licensed by the City Taxi and Limousine Commission (Commission).

Respondents, five for-hire vehicle bases owned by Uber, failed to provide electronic trip record information for all trips dispatched through their bases over a five-month period, as directed by petitioner, the Taxi and Limousine Commission. Respondents conceded that they did not provide the information, but they argued that the directives violated the Fourth Amendment of the Constitution because they infringed on a reasonable expectation of privacy, and the requested information was confidential and proprietary. Petitioner maintained that the directives were authorized by Commission rule and were necessary to ensure public safety.

Respondents did not submit any evidence supporting their defense or dispute petitioner's documentary evidence. Hearing Officer Ann Macadangdang found that respondents' suggestion that the requested information was confidential and proprietary was undercut by its assertion that they had provided trip records in the past. She found that petitioner’s request for information was limited in scope and that respondents' drivers had a diminished expectation of privacy while performing their duties. Accordingly, petitioner met its burden. Penalty imposed was a $200 fine and suspension of the base licenses until compliance.  Taxi and Limousine Comm'n v. Weiter LLC, Summons No. FC0000332 (Jan. 6, 2015).