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OATH Recent Decisions and News

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OATH News

OATH Deputy Commissioner changes: In early 2022, two OATH deputy commissioners retired. Linda May, who served as Deputy Commissioner for Administration, and Susan Kassapian, who served as Deputy Commissioner for Appeals, were both longtime City employees who served at other agencies prior to joining OATH. Arnab Das has been appointed as the new Deputy Commissioner for Administration.

Law firm joins pro bono effort: International law firm Cleary Gottlieb Steen & Hamilton has joined the group of legal services providers volunteering their time to represent taxi drivers facing summonses issued by the NYC Taxi and Limousine Commission in their cases at OATH. The firm is partnering with the nonprofit Mobilization for Justice, which has been providing pro bono representation for vehicle-for-hire drivers at OATH since 2019. For more information about OATH referrals of unrepresented respondents for pro bono legal support, click here.

COVID-19 update

Pursuant to an order of the Chief Administrative Law Judge, hearings, trials, and other OATH operations are being conducted by telephone, videoconferencing, online, or mail, and in-person appearances are also available. For more information, visit OATH’s website at www.nyc.gov/oath.


OATH Trials Division

Licensing

ALJ Kara J. Miller recommended revocation of a construction contractor’s general contractor license and superintendent of construction license based on negligence, incompetence, and lack of knowledge or disregard for the Building Code. The contractor and his company had been found in violation on 97 summonses within 2 years, 57 of which were Class 1 immediately hazardous violations posing risks to public safety, with a total amount of unpaid penalties of $33,035. Dep’t of Buildings v. Zefi, OATH Index No. 1579/20 (Dec. 15, 2021), adopted, Comm’r Dec. (Dec. 17, 2021).


ALJ Christine Stecura recommended that a TLC driver’s license remain suspended pending the outcome of his criminal charges related to a domestic violence incident in which he allegedly threw a metal cup at his wife’s foot and destroyed her iPhone and iPad, leaving her in fear for her safety. ALJ Stecura found that despite the driver’s favorable ratings and lack of prior criminal history, given the nature the offense, lifting his suspension would pose a direct and substantial danger to public health and safety. Taxi & Limousine Comm’n v. Ni, OATH Index No. 884/22 (Dec. 15, 2021), adopted, Comm’r Dec. (Dec. 29, 2021).


ALJ Michael D. Turilli recommended the suspension of a TLC driver’s license be lifted pending the outcome of his criminal case. Respondent was involved in an off-duty dispute with his tenant and charged with criminal obstruction of breathing, assault, and harassment. ALJ Turilli found that the tenant sustained relatively minor injuries, and provided inconsistent accounts of the incident. Combined with the driver’s spotless 14-year record as a TLC driver and history as an otherwise peaceful, law-abiding person, ALJ Turilli found that the TLC failed to establish that his continued licensure pending the outcome of his criminal case posed a direct and substantial threat to public health or safety. Taxi & Limousine Comm’n v. Bhuyan, OATH Index No. 969/22 (Dec. 22, 2021), adopted, Comm’r Dec. (Dec. 29, 2021).


Personnel

ALJ Astrid B. Gloade recommended dismissal of a charge that a Department of Transportation Highway Repairer refused to comply with a direct order. Under the well-established principle of “obey now, grieve later,” employees must obey an order when given and, if they object, subsequently challenge it through the grievance process. One recognized exception to the rule is when compliance with the order would threaten the health or safety of the employee. ALJ Gloade found the employee reasonably believed compliance with the order to clean the area behind a guardrail on an active roadway, without additional safeguards on a dark and rainy night, presented an immediate threat to his health and safety. Dep’t of Transportation v. Lee, OATH Index No. 1056/21 (Dec. 13, 2021).


ALJ Noel R. Garcia recommended a 40-day suspension for a Department of Correction officer who used excessive force against an inmate when she deployed a chemical agent from less than three feet away although other de-escalation techniques were available. ALJ Garcia also found the officer submitted an incomplete report about the incident. Dep’t of Correction v. Antigua, OATH Index No. 2101/21 (Dec. 7, 2021).


ALJ Ingrid M. Addison recommended termination of employment for a Health and Hospitals Corporation (MetroPlus Health Plan) health insurance enroller who accessed and made changes to the healthcare accounts of three consumers without their consent. Health and Hospitals Corp. (MetroPlus Health Plan) v. Parks, OATH Index No. 1909/21 (Dec. 2, 2021).


ALJ Gloade recommended termination for a Department of Correction captain with a significant disciplinary record who committed multiple infractions within an 18-month period. ALJ Gloade found that the captain was discourteous to a subordinate, failed to anticipate a use of force, deployed her chemical agent without warning within three feet of several inmates, and submitted inaccurate and incomplete reports. The captain also tested positive for marijuana on a random drug test and failed to safeguard her firearm when she told investigators she believed her weapon was home, but the gun had been in her car for several days. Dep’t of Correction v. Pitts, OATH Index No. 927/21 (Nov. 30, 2021).


ALJ Garcia recommended termination of a Department of Homeless Services employee who punched a fellow special officer in the face while off-duty. A separate charge for removing a cable from an x-ray machine was not proven. Dep’t of Social Services (Dep’t of Homeless Services) v. Barbee, OATH Index No. 1105/21 (Dec. 29, 2021).


Appeals Division
(appeals from the Hearings Division)

The Appeals Division reversed a hearing officer’s decision to dismiss a charge that a car sales business failed to conspicuously display the price of a used vehicle and it affirmed the dismissal of a Department of Consumer and Worker Protection charge that the business failed to maintain records of deposits with all required information. At the hearing, the business’s witness did not dispute that a vehicle without a price was parked amongst its other vehicles for sale, but she argued that its business is online and no one would have seen it. The hearing officer dismissed the charge, finding that the unpriced vehicle was not yet “offered” for sale. The hearing officer also dismissed the recordkeeping charge, finding that it was unclear what information the DCWP was alleging was missing. The Appeals Division reversed the hearing officer’s finding on the price charge, noting that a vehicle is offered for sale if customers could observe it on display, and the witness acknowledged that persons would sometimes enter its offices where the vehicles were located and, in a previous summons, the same inspector wrote that he was able to enter the premises and receive a price quote while acting undercover. The Appeals Division affirmed the dismissal of the recordkeeping charge, because DCWP’s photographs proved that the business’s invoices did, in fact, contain all the necessary deposit information. DCWP v. Gullwing Motor Cars LLC, Appeal No. 21Q00596 (December 22, 2021).


The Appeals Division reversed a hearing officer’s decision sustaining a charge that an asbestos investigator submitted an asbestos survey which lacked required information about the square footage of areas where samples were taken and the sample collection date. In response to the Department of Environmental Protection officer’s request for the missing information, the asbestos investigator provided proof of the linear footage but not the collection date. At the hearing, the asbestos investigator provided proof of the collection date. The hearing officer sustained the charge, finding the asbestos investigator had not provided the DEP officer with all required information before the summons was issued. The Appeals Division reversed, finding the asbestos investigator provided all of the necessary information. It found the asbestos investigator refuted any inference raised by her failure to provide the DEP officer with sufficient proof by providing missing proof at the hearing. It noted that the other cases where the inference was taken involved audits where all of an investigator’s survey report records must be provided to the agency officer, which was not the case here. DEP v. Mary Hartigan, Appeal No. 2101399 (December 16, 2021).


The Appeals Division affirmed a hearing officer’s decision sustaining a charge against a landlord for failure to comply with an order of the Department of Buildings commissioner to correct a violation. The hearing officer rejected a landlord’s assertion of an impossibility defense based on an uncooperative tenant and housing court delays that prevented him from being able to evict the tenant and perform the required repairs. The Appeals Division affirmed, finding respondent did not establish an impossibility defense, where he did not show that he had no responsibility for the presence of the offending occupant and did not show how the occupant came to reside at the premises or how long the occupant had been there. DOB v. Wu Shi, Appeal No. 2101404 (December 16, 2021).