Recent Decisions - March 2009

The following is a summary of some recent OATH decisions decided in March 2009.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at (212) 442-4900.

Human Rights Law

In 2005, the City Council passed the Local Civil Rights Restoration Act, which provides that the City Human Rights law shall be liberally construed "regardless of whether federal or New York State civil and human rights laws ? have been so construed". In Williams v. N.Y.C. Housing Authority, 872 N.Y.S.2d 27 (1st Dep't 2009), the court announced that the federal standard for sexual harassment claims - in the absence of proof of tangible job detriment the complainant must show that she was subjected to "severe or pervasive" acts of harassment - does not apply to claims brought under the City Human Rights Law. The new test under Williams is "whether the plaintiff has proven ? that she has been treated less well than other employees because of her gender."

The Commission on Human Rights alleged that a funeral home discriminated against an administrative assistant on the basis of her age, national origin, and gender, in violation of the New York City Human Rights Law. Judge Tynia Richard applied the Williams standard and found that the respondents yelled at and regularly criticized complainant in front of co-workers for the clothing she wore and for her gray hair, and demeaned her for her ethnic heritage. As none of the male employees were treated in a similar fashion, the Commission established the respondents treated the complainant less well than other employees because of her gender, and awarded $35,740 for lost income, $5,000 for mental anguish, and $36,400 in front pay.

Comm'n on Human Rights ex rel. Zoleo v. Weinstein Family Services of NY (in PDF), OATH Index No. 623/09 (Mar. 25, 2009).

Licensing

ALJ Joan Salzman granted in part and denied in part an architect's motion to dismiss charges by the Department of Buildings that sought to exclude him from exercising limited supervisory check privileges under 1 RCNY section 21-02, and to bar him from filing any documents with the Department under Administrative Code section 28-211.1.2. Judge Salzman dismissed the specifications alleging conduct that occurred prior to the effective date of section 28-211.1.2, because the Appellate Division recently held in Nation v. City of New York, 874 N.Y.S.2d 452 (1st Dep't 2009), that this section was "clearly penal in nature" and "may not be applied retroactively." She found the Department's contention that it was seeking leave to appeal the Appellate Division's decision an insufficient basis on which to try those specifications. ALJ Salzman denied the remainder of architect's motion. Dep't of Buildings v. Scarano (in PDF), OATH Index No. 2571/08, mem. dec. (Mar. 18, 2009).

A taxi driver was found to have physically assaulted a passenger when he grabbed her arm to prevent her from leaving before police arrived after she refused to pay the fare. Although the driver claimed he merely stood in front of the passenger in order to detain her, ALJ Ingrid Addison did not find his testimony on that issue credible. She did, however, credit the driver's claim that he did not refuse to take the passenger to her final destination or verbally harassed her. Nonetheless, because the Commission's rules against physical contact provide for no exceptions, the judge recommended a 30-day suspension of the respondent's taxi driver's license and a $1,000 fine. Taxi & Limousine Comm'n v. Barry (in PDF), OATH Index No. 2201/09 (Mar. 10, 2009).

ALJ Kara Miller heard the appeal of an applicant who was denied a marriage license by the City Clerk, based upon records indicating that three prior marriage licenses had been issued to a person with the same name and birth date. The respondent admitted that she had been previously married one time but submitted proof that that marriage had been legally dissolved. As to the other two marriages, although the respondent's testimony contained inconsistencies, ALJ Miller ultimately credited her that her identity had been stolen and that she had never lived at the addresses listed on the two disputed marriage applications. Additionally, while the ALJ found that respondent's current signature shared some similarities with those on the disputed applications and licenses, there were enough differences to persuade her that the prior signatures were not the respondent's. ALJ Miller concluded that the respondent's application should therefore be processed. Office of the City Clerk v. Escalera (in PDF), OATH Index No. 1435/09 (Mar. 20, 2009).

Real Property

The Loft Board remanded an abandonment proceeding back to OATH for a further finding of whether a tenant had voluntarily vacated a unit before the execution of a warrant by a marshall. ALJ Alessandra Zorgniotti explained that the record established that the tenant entered into a court approved stipulation to resolve a holdover proceeding, wherein he agreed to vacate and surrender all rights of possession to the disputed unit. She found that the tenant voluntarily vacated the unit at least 29 days prior to the enforcement of a warrant of eviction, at the time owing $53,000 in past rent and leaving no usable fixtures. Accordingly, she recommended that the Loft Board declare the unit abandoned. Matter of Mandara (in PDF), OATH Index No. 1635/09 (Mar. 3, 2009).

ALJ John Spooner recommended that the Department of Housing Preservation and Development deny an SRO owner's application for a certificate of no harassment. Judge Spooner found that the evidence showed numerous acts of harassment occurred during the inquiry period, including verbal abuse and threats by management employees, posting of a humiliating sign, displays of violence, denying a tenant entry to his room, refusal to abate noise from hallway doors, and denying entry to a SRO project representative. Dep't of Housing Preservation & Development v. Bernardi (in PDF), OATH Index No. 416/09 (Mar. 19, 2009).

Vehicle Retention

ALJ Spooner ordered the release of a van used by its owner to sell counterfeit merchandise. While the Department established the first two prongs of the Krimstock Order, that probable cause existed for the arrest and the vehicle was used as an instrumentality of a crime, it failed to establish that releasing the vehicle would pose a heightened risk to public safety. The ALJ cited to prior OATH cases that had held that absent the owner having a history of using the vehicle to sell counterfeit goods, releasing such vehicles does not pose a heightened risk. Police Dep't v. Jaber (in PDF), OATH Index No. 2415/09, mem. dec. (Mar. 10, 2009).

The Police Department was entitled to retain a vehicle seized following the driver's arrest for operating the vehicle while impaired by drugs, possession of marijuana, and possession of a forged vehicle registration. As to the third prong of the Krimstock Order, ALJ Zorgniotti found that respondent's possession of a forged registration, a felony, and failure to explain why the vehicle had license plates belonging to another vehicle established that releasing the vehicle would pose a heightened risk to public safety. Additionally, the judge rejected the respondent's argument that the case was analogous to those where vehicles were released to first time DWI's, because marijuana, unlike alcohol, is an illegal substance, and the respondent here failed to acknowledge his behavior and demonstrate that he appreciated the seriousness of his mistake. Police Dep't v. Weaver (in PDF), OATH Index No. 2419/09, mem. dec. (Mar. 10, 2009).