OATH Recent Decisions

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Personnel

ALJ Orlando Rodriguez recommended termination of employment for a patient care associate who has been continuously absent without official leave since February 17, 2022. There was no dispute that respondent’s absences were due to her disability and that she can no longer perform her work duties. The ALJ rejected respondent’s argument that petitioner’s pursuit of disciplinary action violated the City’s Human Rights Law, finding that such violation may only be found where the employee has been able to demonstrate rehabilitation at the time of disciplinary action. The ALJ further rejected respondent’s argument that the proceeding should be converted to a proceeding under section 72 of the Civil Service Law because it is well-settled that a government agency may choose to bring disciplinary charges for time-and-leave violations rather than a disability proceeding, even when the misconduct is caused by a disability. Finding that respondent has been continuously absent without authorization, the ALJ recommended termination. Health & Hospitals Corp. (Gotham) v. Alston-Harris, OATH Index No. 379/23 (Jan. 16, 2024).

Licensing

ALJ Michael D. Turilli recommended lifting the license suspension of a TLC driver arrested for robbery and grand larceny. The complainant had alleged that respondent was driving him home when respondent pulled over, and yelled at him about the cab fare. He then pushed and wrestled him, forcibly removed his iPhone, and drove away. Respondent testified at trial that, after driving the passenger home, the passenger was unable to pay the fare and offered to get money from inside his home. Respondent asked for collateral to ensure the passenger’s return and the passenger left his phone. The passenger went inside but did not return, and after waiting 15 to 20 minutes, respondent drove home. The ALJ found that the circumstances of respondent’s arrest demonstrate that his continued licensure would not pose a direct and substantial threat to public safety, crediting his testimony that there was no physical altercation and that he brought the phone to the precinct as soon as the police called him. There was no evidence of any injuries to the passenger, suggesting the use of physical force may have been exaggerated. Given respondent’s lack of prior arrests, criminal convictions, driving violations, and passenger complaints, the record reflects that this was an isolated incident in respondent’s otherwise law-abiding life. Taxi & Limousine Comm’n v. Mia Salim, OATH Index No. 1770/24 (Jan. 2, 2024), adopted, Comm’r Dec. (Jan. 4, 2024).

Real Property

ALJ Kevin F. Casey imposed a $25,000 fine against the owner of a building covered under the Loft Law for failing to maintain and repair a rooftop plumbing and drainage system. At trial, the tenant testified that water has been leaking into his apartment since 2010, which eventually led to parts of the ceiling collapsing in 2017 and 2022. The tenant’s testimony was corroborated by video, photographs, and the report and testimony of a Loft Board housing inspector. The ALJ rejected respondent’s argument that any water damage was de minimis or was caused by a leaky radiator. The ALJ also rejected respondent’s argument that a one-time repair performed in early 2023 was sufficient, finding that water continues to accumulate on the building’s roof and leak into the tenant’s apartment. Based on the extensive water leak and the owner’s failure to take action, the ALJ assessed a total fine of $25,000, the maximum amount allowed under the Loft Board’s rules. Loft Bd. v. The West Paramount LLC, OATH Index No. 3094/23, mem. dec. (Jan. 26, 2024).

ALJ Astrid B. Gloade recommended granting Loft Law coverage to a building located at 19 West 26th Street, New York, and protected occupancy status for its occupants. The ALJ found that petitioners presented sufficient proof that the building was residentially occupied by three or more families living independently for 12 consecutive months during the window period. The ALJ rejected respondent’s argument that residential occupancy could not be established because the building’s tenants had commercial leases instead of residential leases, finding that the Loft Law is premised on a recognition that loft units leased for commercial use were being used residentially. Respondent did not dispute the other criteria for Loft Law coverage, therefore the ALJ held that the building qualifies an interim multiple dwelling under the Loft Law. The ALJ further found that petitioners qualified as protected occupants of their respective units because they were prime lessees who established that the units are their primary residences. Matter of Kappler, OATH Index Nos. 1962/20 & 2100/20 (Jan. 12, 2024).