Recent Decisions

The following is a summary of some recent OATH decisions decided in *August 2019*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Licensing

A general contractor was charged with displaying negligence, incompetence, or a lack of knowledge of the Building Code and related laws or rules. The contractor did not appear at trial. ALJ Faye Lewis sustained the charges based upon evidence of 60 sustained summonses establishing code violations, including 25 for immediately hazardous conditions, failure to correct conditions in 18 instances, failure to pay almost $101,000 in penalties, and failure to attend investigatory interviews, as directed. License revocation recommended. Dep’t of Buildings v. De La Hoz, OATH Index No. 2052/19 (Aug. 9, 2019), adopted, Comm’r Dec. (Aug. 26, 2019).

A taxi driver’s license was suspended after he was arrested for second degree assault. The criminal charges were later amended to endangering the welfare of a child and assault in the third degree. A trial was held to determine whether to reinstate the license or continue the suspension. ALJ Noel R. Garcia applied the new Second Circuit decision in Nnebe v. Daus, which requires an individualized assessment as to whether the criminal charges, if true, show that reinstatement of the taxi driver’s license would pose a direct and substantial threat to the public health or safety. Although an “inquiry into the factual guilt or innocence” is not required, “some level of conduct-specific findings based upon the facts underlying the complaint and the driver’s history and characteristics” would be sufficient. Nnebe v. Daus, 2019 U.S. App. LEXIS 21418 (2d Cir. July 19, 2019). ALJ Garcia rejected the licensee’s argument that the domestic assault was not related to his duties as a for-hire vehicle driver, finding that the driver’s actions revealed a lack of self-control and violent disposition. ALJ Garcia recommended the license remain suspended pending the outcome of the criminal case, finding that continued licensure would pose a direct and substantial threat to the health and safety of the public. Taxi and Limousine Comm’n v. Azad, OATH Index No. 142/20 (Aug. 15, 2019).

ALJ Kara J. Miller found that a TLC licensee, who tested positive for oxymorphone, successfully raised an innocent ingestion defense and recommended dismissal of the charge. Respondent’s testimony, which was corroborated by his father, credibly established that respondent’s father gave his own prescription painkillers to his son, who was suffering from severe back pain. ALJ Miller found it reasonable for respondent to believe having just been woken up and in significant pain, that his father gave him pills from one of respondent’s old prescriptions, which looked similar to the pills his father provided. Taxi and Limousine Comm’n v. Murtada, OATH Index No. 2199/19 (Aug. 22, 2019).

Personnel

A school food service manager was charged with failure to supervise her staff to ensure that potentially unsafe food was not served to students, and failure to ensure that kitchen equipment was clean and in working condition. Supervisors on several occasions attempted to help the manager remedy these issues, but she continued to perform unsatisfactorily. ALJ Joycelyn McGeachy-Kuls found that the manager failed to take responsibility for exposing students to recalled food and failed to take responsibility for the condition of the school kitchens. Given the seriousness and persistence of the conduct, she recommended termination of employment. Dep’t of Education v. Logan, OATH Index No. 494/19 (Aug. 19, 2019).

A sanitation worker was charged with disobeying orders to report for drug testing and to timely provide medical documentation justifying his inability to travel to the clinic for testing. Under the “obey now, grieve later” principle employees are required to follow their supervisor orders when given, and, if they have an objection, contest the order subsequently through formal grievance procedures. Here, the worker claimed one of the recognized exceptions to the principle, where obeying the order would present an imminent and serious threat to the worker’s health or safety. ALJ Garcia found that the worker made out the defense. The worker presented documentation from the hospital emergency room showing that he had fainted on the subway platform on his way to the clinic and was told by a doctor not to travel for several days. ALJ Garcia recommended that the charges against the Respondent be dismissed. Dep’t of Sanitation v. J.S., OATH Index No. 1454/19 (Aug. 5, 2019).

A civil engineer was charged with insubordination for failure to submit required sick leave documentation, and failure to cooperate in an investigation as to the authenticity of medical documentation. ALJ John B. Spooner found the engineer failed to comply with sick leave rules when she failed to submit documentation within three-days, as required, on 35 occasions. He also sustained the charge that the engineer did not cooperate with the investigation and he recommended a 30-day suspension. Transit Auth. v. Anonymous, OATH Index No. 1767/19 (Aug. 12, 2019).

Real Property

A tenant filed an application for Loft Law coverage and protected occupancy. The building owner opposed the application on the ground that the unit was removed from rent regulation by virtue of the prior’s tenant’s sale of rights and improvements. ALJ Spooner found that the applicant, the prior tenant, and the owner, made a valid three-way agreement whereby the prior tenant agreed to relinquish her rights to the unit, in exchange for discontinuation of an eviction action against her, and a new lease to the applicant. ALJ Spooner found that the sale of rights agreement was valid, and as such, recommended that the petitioner’s application for protected tenancy should be denied. Matter of Bozeman, OATH Index No. 1203/18 (Aug. 28, 2019).

A number of tenants filed applications with the Loft Board seeking to be declared protected occupants of their respective units. Respondent owner of the building alleged that one tenant’s claim was barred by collateral estoppel, asserting that the same issue was already litigated in Housing Court. Respondent brought a holdover proceeding against the tenant in Housing Court, in which the tenant failed to appear. An inquest was held, and the respondent was awarded a final judgement of possession. The tenant thereafter filed an Order to Show Cause in Housing Court after being evicted to regain possession of the unit, which was denied. ALJ Astrid B. Gloade found that the tenant was collaterally estopped from litigating the issue of his right to possession before OATH, as the issue had already been decided in Housing Court. ALJ Gloade recommended respondent’s motion for summary judgement be granted and the tenant’s application for protected occupancy be denied. Matter of Tenants of 255 McKibbin Street, OATH Index No. 771/19 (Aug. 12, 2019).