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Recent Decisions - December 2013

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

After a crane collapse injured seven construction workers in Long Island City, the Department of Buildings sought to revoke the crane operator’s Class B HMO license. ALJ Tynia D. Richard found that the operator violated Department rules by lifting a load without having verified its weight, which weight exceeded the crane’s capacity by 85%, by failing to lift from the area designated on approved plans, and by failing to have the approved load chart accessible. The ALJ recommended revocation of the license.   Dep’t of Buildings v. Geer, OATH Index No. 1288/13 (Dec. 18, 2013).

The Taxi and Limousine Commission alleged that a taxicab driver made inappropriate sexually suggestive remarks to a female passenger about her relationship status and sexuality and asked the passenger for a hug. ALJ John B. Spooner credited the passenger’s testimony and recommended that the driver’s license be revoked, noting that the comments were made late at night to a lone female passenger during a relatively long ride. Taxi and Limousine Comm’n v. Kamal, OATH Index No. 641/14 (Dec. 12, 2013).

In a discretionary license revocation proceeding, the Taxi and Limousine Commission proved that a taxicab driver stopped his vehicle in traffic, approached the car behind him, struck its window on one occasion, and yelled at its driver. ALJ Ingrid M. Addison did not find credible the complaining witness’s testimony that the driver threatened to “beat the shit” out of him and kill him. Nor did she find credible the testimony of the complaining witness’s wife, that the driver struck their car on multiple occasions. ALJ Addison recommended a 30-day suspension of respondent’s taxicab driver’s license, a fine of $1,350, and six points on the license. Taxi & Limousine Comm’n v. Ali, OATH Index No. 998/14 (Dec. 11, 2013).

Personnel

Department of Correction (DOC) brought charges against a correction officer relating to her relationship with an inmate, the father of her children. ALJ Alessandra F. Zorgniotti found that the officer failed to notify DOC about her pre-employment relationship with the inmate, brought her cell phone on post to speak with him, and engaged in unauthorized financial dealings and discussed official business with him. Termination from employment was recommended.   Dep’t of Correction v. Pearson, OATH Index No. 391/14 (Dec. 18, 2013).

Health and Hospitals Corporation (HHC) charged a hospital police officer with sleeping or assuming a sleeping position while on an eight-hour tour that began at midnight. HHC relied on video evidence that showed respondent’s head bobbing up and down and sideways after she was assigned to the front desk, and the officer admitted that her head was down and she was fighting to not fall asleep. ALJ Faye Lewis found that HHC proved the charge and recommended seven days’ suspension where respondent had no prior disciplinary record. Health & Hospitals Corp. (Harlem Hospital Ctr.) v. Henry, OATH Index No. 2196/13 (Dec. 9, 2013).

Human Rights

The Commission on Human Rights alleged that respondents, a dry cleaning company and its manager, discriminated against an employee due to his age and actual or perceived sexual orientation. At a default hearing, the Commission established that respondents used crude sexual terms to refer to the employee and did not use the same offensive terms against any other worker, and that the remarks caused the employee to quit. The only evidence presented to establish age discrimination was that he was the oldest employee. Therefore, ALJ Kevin F. Casey found that respondents discriminated based on actual or perceived sexual orientation, but that there was insufficient proof of age discrimination. He recommended $10,000 in compensatory damages for the employee and a civil penalty of $10,000. Comm’n on Human Rights ex rel. Perez v. Lee’s Kapri Cleaners & Glen Lee, OATH Index No. 101/14 (Dec. 12, 2013).

Real Property

Owners of a single room occupancy building applied for a certificate of no harassment. The record showed that the owners repeatedly told one tenant he had to move out within a short period of time because the building had been sold and the new owner wanted the building vacant, and that the owners failed to make prompt repairs with the intent to cause another tenant to vacate his unit. ALJ Faye Lewis recommended that the application be denied. Dep’t of Housing Preservation & Development v. McFaddin, et. al., OATH Index No. 2327/13 (Nov. 8, 2013).