BenchNOTES Newsletter

Overview Rules of Practice Trial Calendar Decisions

BenchNOTES Newsletter

OATH News

Job opportunities at OATH:

OATH is hiring Law Clerks and a Chief Law Clerk. Working directly with OATH’s Administrative Law Judges, Law Clerks engage in legal research and writing on cases involving civil servant discipline, consumer and worker protection matters, taxi and rideshare licensing, contract disputes involving the city, as well as cases falling under the Campaign Finance Law, Human Rights Law, Conflict of Interest Law, and more. The Chief Law Clerk has a supervisory role. These jobs are a great way to promote access to justice in NYC. For more details visit https://cityjobs.nyc.gov/ and search for Job ID 695171 (Law Clerk) & 695172 (Chief Law Clerk).

Trials Division

Personnel

49-day suspension recommended.

ALJ Faye Lewis recommended a 49-day suspension for a captain after he placed a person in custody in an impermissible neck restraint and submitted a false or misleading use of force report about the incident. Dep’t of Correction v. Russell, OATH Index No. 880/25 (Dec. 19, 2024).

Licensing

Dismissal of fitness proceeding recommended.

ALJ Kevin F. Casey recommended dismissal of a TLC fitness proceeding brought against a licensee for a positive drug test result after the licensee argued the defense of innocent ingestion. Taxi & Limousine Comm’n v. Haddad, OATH Index No. 617/25 (Dec. 20, 2024).

Human Rights

Dismissal of discrimination claim recommended.

ALJ Julia H. Lee recommended dismissal of a housing discrimination claim due to petitioner’s failure to establish a prima facie case against a landlord and his wife who allegedly refused to rent housing accommodations based on applicants’ national origins. Comm’n on Human Rights ex rel. Lopez v. Kahn, OATH Index No. 0738/23 (Dec. 27, 2024).

Appeals from the Hearings Division

An appeals decision reversed part of a hearing decision that sustained a Health Code violation against a food service establishment for failure to have a supervisor who holds a food protection certificate (“FPC”) present. At the hearing, respondent testified that the FPC holder was in the basement storage area at the time of inspection. The judicial hearing officer sustained the charge, finding that because the FPC holder was in the basement, “he was not present supervising all food preparation activities.” On appeal, respondent reiterated that the FPC holder was in the basement performing food inventory. Petitioner did not answer the appeal. The appeals decision reversed, finding that while the Health Code states an FPC holder must be present and supervising all food preparation activities during hours of operation, the FPC holder need not always be confined to the preparation area in order to supervise. The appeals decision concluded that the FPC holder’s presence in the basement storage area at the time of inspection was sufficient to rebut the allegation and reversed the violation. DOHMH v. Secret Summer Hospitality Group LLC dba Festival, Appeal No. 04825-24F1 (Dec. 23, 2024).

An appeals decision reversed a hearing decision that sustained a Class 1 violation of the Building Code for failure to safeguard the public and property from construction operations. The summons was issued to the premises owner and alleged that an excavated area lacked guardrails and other protections. At the hearing, respondent argued that the summons should have been issued to the general contractor. Petitioner disagreed, asserting that there was no general contractor because the permit had expired prior to the date of inspection. The judicial hearing officer sustained the charge, finding that there was no general contractor at the site because the permit had expired. On appeal, respondent reiterated that the general contractor should have been issued the summons. Petitioner did not answer the appeal. The appeals decision reversed, finding that the relevant provision of the Building Code limits liability to contractors, construction managers, and subcontractors. The appeals decision also found that there was no evidence that respondent was acting as a general contractor and that the permit expiration does not shift liability away from the general contractor, as a permittee remains liable for any work on a job until it notifies the Department of Buildings of its completion. DOB v. Diamond Street LLC, Appeal No. 2401204 (Dec. 19, 2024).

An appeals decision reversed a hearing decision that dismissed a Class 2 violation of the Administrative Code of the City of New York for failure to comply with a Commissioner’s order and file a certificate of correction. In the summons, the issuing officer affirmed that respondent had failed to comply with a Commissioner’s order set forth in a previous summons to file a certificate of correction, despite respondent entering into a stipulation agreement to certify the correction. At the hearing, respondent moved for dismissal on the ground that the previous summons did not properly contain a Commissioner’s order. The judicial hearing officer dismissed the summons, agreeing with respondent that the previous summons did not contain a Commissioner’s order. On appeal, petitioner argued that respondent entered into a stipulation agreement for the previous summons, in which it agreed to correct the summons and file a certificate of correction. Respondent did not answer the appeal. The appeals decision reversed, noting that a mailed copy of the previous summons did contain a Commissioner’s order and while previous case law has held that mailing the Commissioner’s order does not remedy the order’s exclusion from the affixed copy, such case law was not applicable here because respondent signed a stipulation agreement. The appeals decision held that respondent, in signing the stipulation, acknowledged and agreed to comply with the Commissioner’s order therein, even if the order was only in a mailed copy, and as a result, the dismissal should be reversed. DOB v. Northcrest Apartments CP, Appeal No. 2401604 (Dec. 19, 2024).