OATH Recent Decisions

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Personnel

ALJ Kevin F. Casey recommended dismissal of the disciplinary charges against a probation officer. The ALJ found that the officer, who appeared in court on the Department of Probation’s behalf for nearly 25 years, engaged in insubordination and conduct prejudicial to good order and discipline when she wore business attire to work instead of a polo shirt required by a new dress code. However, the ALJ also found that the Department improperly retaliated against the officer for complaining about the new policy to the Commissioner’s representative and the Department’s General Counsel. The officer’s credible testimony and other evidence showed that less than one week after complaining about the policy, the Department took adverse employment action against the officer by transferring her to another unit, in a different borough, without following Department procedures for involuntary transfers and imposing an unlawful 30 work-day pre-trial suspension. Dep’t of Probation v. Rivers, OATH Index No. 767/25 (Mar. 24, 2025).

Licensing

Chief ALJ Asim Rehman recommended imposing $1,642,500 in civil penalties and $2,255 in restitution against an employment agency for illegally collecting advance fees from customers, failing to refund advance fees, and providing documents that did not comply with legal requirements. The ALJ held that respondent violated the General Business Law (“GBL”) by collecting advance fees from 832 consumers based upon petitioner’s submission of 1,400 pages of receipts and respondent’s concession that it charged the fee. Petitioner also provided 31 customer complaints, which the ALJ found to be reliable and probative, that proved respondent failed to return advance fees upon a refund request, and 1,327 applications which demonstrated respondent was providing business documents that did not conform to the legal requirements set forth under the GBL. Lastly, the ALJ rejected respondent’s defense that they did not intend to violate the GBL because the statutory provisions at issue did not include intent as factor in determining compliance. Accordingly, while the ALJ did reduce the overall penalty sought by petitioner because certain penalties were impermissibly duplicative, he recommended imposing $1,642,500 in civil penalties, rejecting respondent’s excessive fine argument because the fine per single violation was not grossly disproportionate. The ALJ also awarded restitution to 19 specific customers for refunds of their advance fees and recommended that petitioner calculate the restitution for an additional 832 customers. Dep’t of Consumer & Worker Protection v. CMP Employment Agency Corp., OATH Index No. 3574/24 (Mar. 27, 2025).

Real Property

ALJ Astrid B. Gloade recommended granting a tenant’s application for protected occupancy status after finding that the tenant’s building was entitled to Loft Law protection as an interim multiple dwelling (“IMD”), and the tenant’s unit was covered under those protections. The ALJ found that the building was a single structure for purposes of Loft Law coverage, crediting the testimony of an architectural expert who reviewed historic maps, ownership and condominium records, Google Earth photographs, and Department of Building records. The tenant proved that the building was occupied residentially during the window period and qualified as an IMD through the testimony of individuals who lived in and visited the building. The ALJ further determined that tenant’s specific unit was covered, and that tenant was entitled to protected occupancy, based upon the tenant’s credible testimony that he had lived in the unit since 2013, except for one year when he moved at the landlord’s request. The tenant’s testimony was further corroborated by his son and ex-wife’s testimony, and documentary evidence, including his prior leases, rental insurance policies, and emails with the landlord. Accordingly, the ALJ recommended granting the tenant’s application for protected occupancy. Matter of Assante, OATH Index Nos. 390/22 & 391/22 (Mar. 14, 2025).

Human Rights

ALJ Kara J. Miller recommended dismissal of a gender discrimination claim against a nightclub that petitioner alleged denied a woman entry because she was pregnant. During trial, the woman testified that she visited the nightclub with two family members but was not permitted to enter because the nightclub had a policy barring pregnant women from the establishment. Denying the allegations, respondent offered the credible testimony of former employees who stated that the nightclub permits pregnant women to enter, they have personally seen pregnant women in the nightclub, and that the proof of admission hand stamp in petitioner’s photo did not match the hand stamps used by the nightclub. Respondent also raised the possibility that this incident took place at the neighboring nightclub because patrons frequently confused the two establishments, a defense that the ALJ found plausible given petitioner’s Uber receipt listed the address of the neighboring nightclub and not respondent’s address. Considering this, the ALJ found that petitioner did not meet its burden of proving that it was respondent’s nightclub that discriminated against the complainant and recommended dismissal of charges. Comm’n of Human Rights ex rel. Santana v. 417 W. Inc., OATH Index No. 1701/21 (Mar. 14, 2025).