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Asim Rehman appointed as Commissioner and Chief Administrative Law Judge: On March 29, Mayor Eric Adams announced the appointment of Asim Rehman to serve as the Commissioner of OATH and Chief Administrative Law Judge. Commissioner Rehman, who previously served as deputy commissioner for legal matters and general counsel at the New York City Department of Correction, is the first Muslim-American and first person of South Asian descent to lead OATH. Read more here.
OATH proposes four new rules: In February, OATH published a proposed rule to grant respondents additional time—up to 75 days—to request a new hearing after a default judgment in the Hearings Division. A public hearing was held on April 5. On April 14, OATH published two proposed rules, regarding appearances and representation and the conduct of registered representatives in the Hearings Division. On April 15, OATH published a proposed rule to make technical amendments to cross-references related to cases filed in the Trials Division by the New York City Commission on Human Rights. A public hearing on the three proposed rules published in April was held on May 18.
Trials Division chief law clerk retires: OATH Trials Division chief law clerk Martin Rainbow retired in April, after a distinguished legal career of over 37 years at OATH, working for 10 Chief Administrative Law Judges and numerous Administrative Law Judges. Among his many roles at the agency, Mr. Rainbow served as the editor of this BenchNOTES newsletter.
OATH is seeking CDRB panelists: The OATH Trials Division is seeking applicants to serve as neutral members on appeals panels of the Contract Dispute Resolution Board, chaired by OATH Administrative Law Judges. More details and the application form are available here.
Job opportunities at OATH: OATH regularly posts employment opportunities on the NYC Jobs portal and on its website. Click here to view current openings.
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.
ALJ Faye Lewis recommended revoking a driver’s Taxi and Limousine Commission driver license and for-hire vehicle license for bypassing a metal detector at TLC’s office, disregarding orders of two security guards, threatening them, and slapping one in the face. ALJ Lewis rejected TLC’s request for a recommendation of fines and assessment of points against his driver license, noting that he had an otherwise clean record and those penalties would be unduly harsh in light of the revocation of both of his licenses. Taxi & Limousine Comm’n v. Okwan, OATH Index No. 775/22 (Jan. 25, 2022).
ALJ Julia Davis recommended lifting the suspension of a TLC driver’s license because the TLC did not prove continued licensure posed a direct and substantial threat to the public’s health and safety. The driver’s off-duty arrest, for assault in the second degree with a complainant whose identity as either a romantic partner or tenant or a stranger was in dispute, was his first arrest and appeared to be an aberration in an otherwise law-abiding life, including an18-year taxi driving record with no customer complaints and only one infraction. Taxi & Limousine Comm’n v. Medina, OATH Index No. 1160/22 (Jan. 26, 2022).
ALJ Kevin F. Casey recommended dismissal of charges that a Comptroller’s Office computer associate obstructed an investigation by making false statements and submitting false documentation. ALJ Casey found that respondent engaged in protected activity when she submitted an EEO retaliation claim and sustaining disciplinary charges stemming from that claim could deter her or others from filing discrimination claims, contrary to the City’s Human Rights Law. However, ALJ Casey found that employee’s false or misleading statement to the Department of Investigation was misconduct, rather than protected activity, and recommended a 20-day suspension without pay. Office of the Comptroller v. Hogans, OATH Index No. 203/21 (Jan. 5, 2022), adopted, Comptroller’s Dec. (Jan. 24, 2022).
ALJ Joan R. Salzman recommended a 20-day suspension, with credit for five days pre-trial suspension served, finding a correction officer negligently failed to supervise an inmate who slipped off his handcuffs unseen by the officer and his partner and escaped from a group of inmates the officer had driven to a Department of Correction facility parking lot in an agency bus. ALJ Salzman found that the officers did not maintain constant visual supervision of the inmates as they walked into the facility, and that the officer stayed with the bus while his partner walked ahead of the inmates, contrary to agency protocol for escorting inmates. The inmate hid in the parking lot for seven or eight minutes, sometimes under a parked bus, and then was captured and secured into custody. The officer, who had no prior record of discipline in his eight years of DOC service, gave forthright testimony and admitted his error. Dep’t of Correction v. Jolly, OATH Index No. 2061/21 (Jan. 14, 2022).
ALJ Julia H. Lee recommended termination of employment for a correction officer who unjustifiably struck an inmate in the face and torso. The correction officer’s claim that he used “soft hand“ techniques in response to a threat from the inmate was contradicted by video evidence and testimony. Dep’t of Correction v. Douglas, OATH Index No. 1539/21 (Jan. 11, 2022).
ALJ Salzman recommended a 50-day suspension for a correction officer who she found, had failed to exercise self-control and used impermissible force against an inmate who provoked her. ALJ Salzman also found that the officer filed a misleading report about the incident, omitting important information and minimizing facts unfavorable to her. Dep’t of Correction v. Bernard, OATH Index No. 1686/21 (Jan. 10, 2022), adopted, Comm’r Dec. (Mar. 18, 2022).
ALJ Ingrid M. Addison recommended a thirty-five-day suspension without pay for a Triborough Bridge & Tunnel Authority lieutenant who sent text messages to a subordinate that violated the MTA All Agency Policy Directive against sexual and other harassment. ALJ Addison also found that respondent regularly referred to subordinates using derogatory, discriminatory language but the evidence did not establish that respondent made unsolicited sexual advances towards the complaining subordinate. Triborough Bridge & Tunnel Auth. v. Vella, OATH Index No. 227/22 (Feb. 10, 2022).
ALJ Christine Stecura recommended a 30-day suspension for a correction officer who submitted a false, misleading, incomplete, and inaccurate report regarding a use of force incident by failing to report that she observed another officer headbutt an inmate where the video evidence established that respondent observed the incident from close range and with an unobstructed view. Dep’t of Correction v. Gallop, OATH Index No. 544/22 (Feb. 28, 2022), adopted, Comm’r Dec. (Apr. 26, 2022).
ALJ Kevin F. Casey recommended termination of employment for a correction officer who engaged in a sexual relationship with an inmate, provided the inmate with contraband, and told the inmate to delay reporting a rape committed by another officer. Dep’t of Correction v. McNeill, OATH Index No. 265/22, (Feb. 22, 2022).
ALJ Michael D. Turilli recommended termination of employment for a correction officer who was excessively absent and found to be medically incompetent to perform his duties as a correction officer. The officer called out sick on 295 days from mid November 2020 through the date of trial in February 2022. Dep’t of Correction v. Y.B., OATH Index No. 0824/22 (Feb. 25, 2022), adopted, Comm’r Dec. (Apr. 11, 2022).
ALJ Joan R. Salzman recommended termination of employment for a Department of Correction captain who delivered clothes in a brown paper bag to an inmate after midnight, a few hours before the inmate died of a heart attack due to drug overdose, was unduly familiar with the inmate, and failed to submit an Unusual Incident Report regarding the death. The captain was also found to have used impermissible force when he put another inmate in a chokehold while that inmate was handcuffed, to have submitted a false or misleading report, and to have given false or misleading information about this second incident in an investigatory interview. Dep’t of Correction v. Paul, OATH Index No. 1712/21 (Feb. 7, 2022), adopted, Comm’r Dec. (Apr. 20, 2002).
ALJ Ingrid M. Addison granted a property owner’s pre-trial motion to dismiss a Department of Housing Preservation and Development harassment proceeding, following denial of the owner’s application for a “certificate of no harassment.“ Because the property was not on the HPD list of covered properties when the owner filed for a Department of Buildings permit, a certificate of no harassment was not legally required for the issuance of a permit, even though the owner had been mistakenly told by DOB that one was required. The owner’s filing for a certificate triggered HPD’s harassment investigation, but ALJ Addison found that because a certificate on no harassment was not in fact required, HPD lacked jurisdiction to investigate the building. Dep’t of Housing Preservation & Development v. Herman, OATH Index No. 60/22, mem. dec. (Jan. 3, 2022).
ALJ Kara J. Miller recommended that a tenant’s motion for summary judgment regarding coverage and protected occupancy in a Loft Law case be denied because the building had already successfully been legalized. ALJ Miller granted the building owner’s motion for summary judgment based on an ancillary case in Kings County Supreme Court, in which the trial judge ordered the Department of Buildings to correct typographical errors as to the address and lot numbers on the certificate of occupancy. The corrections provided the building with a final residential certificate of occupancy since 2005, excluding the building from coverage under the Loft Law. Matter of Various Tenants of 11-27 Arion Place, OATH Index Nos. 1133/21 & 1134/21 (Feb. 22, 2022).
The Appeals Division reversed a hearing decision that had found a restaurant in violation for construction of an outdoor restaurant seating enclosure without a permit. At the hearing, the restaurant’s representative testified that the enclosure was 368 square feet, and not 500 as alleged on the summons, and had been approved through the New York City Open Restaurant Program. She argued that a permit for the enclosure was not required by DOB’s Buildings Bulletin 2020-17. On appeal, the restaurant submitted the Open Restaurant Program approval, dated before the date of violation, which the Appeals Division accepted into evidence as a dispositive governmental record. The Appeals Division found that the respondent’s credible evidence established a defense of reasonable reliance on the Buildings Bulletin, which exempted from permit requirements “tents or other shelters that are on the sidewalk and/or roadway where the restaurants or bars have obtained approval through NYC Open Restaurant Program and are less than 400 SF each in area.“ DOB v. First Street Development LLC, Appeal No. 2101632 (January 27, 2022).
The Appeals Division partially reversed a hearing officer’s decision to the extent that it sustained a charge of threatening, harassing, or abusing a passenger based solely on a taxicab driver yelling at the passenger. The Appeals Division noted that while yelling at a passenger is sufficient to support a charge of discourtesy, the standard for finding that the passenger was threatened, harassed, or abused requires a showing that the driver yelled something threatening or abusive, such as cursing or calling the passenger a derogatory name, or that the driver took some additional abusive action in addition to raising their voice. Taxi & Limousine Comm. v. Abdur Rouf Gazi, Appeal No. 10179115C (February 28, 2022).
The Appeals Division reversed a hearing officer“s decision finding a grocery store established a defense to a charge of selling a single cigar for $2.70, less than the required floor price of $8. The store had asserted a defense, based on a cash register scanning error, which was later fixed, but the Appeals Division noted lack of intent is not a defense to the charge. Dep’t of Consumer and Worker Protection v. Skyview Deli & Grocery Inc., Appeal No. 21T01857 (February 22, 2022).