BenchNOTES - March 2023

Office of Administrative Trials and Hearings

Independent and Impartial Administrative Law Court


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BenchNOTES Newsletter


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COVID-19 Update

Pursuant to an order of the Chief Administrative Law Judge, hearings, trials, and other OATH operations are available by telephone, videoconferencing, online, or mail. In-person appearances are also available. For more information, visit OATH's website at www.nyc.gov/oath.

Trials Division

Personnel

Suspension recommended for procurement specialist charged with excessive lateness.

ALJ Julia H. Lee recommended a 5-day suspension for a procurement specialist who was late on 40 separate occasions over a period of eight months.

Dep’t of Housing Preservation & Development v. Abdullah, OATH Index No. 217/22 (Feb. 23, 2023), adopted, Comm’r Dec. (Mar. 20, 2023).

Read more about Dep’t of Housing Preservation & Development v. Abdullah

Licensing

ALJ recommends lifting suspension of taxi driver’s license.

ALJ Orlando Rodriguez recommended lifting the suspension of a TLC license for a driver who had been arrested for strangulation in the second degree.

Taxi & Limousine Comm’n v. Escano-Escano, OATH Index No. 1878/23 (Feb. 7, 2023), adopted, Comm’r Dec. (Feb. 13, 2023).

Read more about Taxi & Limousine Comm’n v. Escano-Escano and other Licensing cases

Real Property

ALJ recommends denying Loft Law protection.

ALJ Noel R. Garcia recommended denying protected occupancy status to tenants in a building covered by the Loft Law, finding that the unit was previously deregulated by a valid sale of rights.

Matter of Postelnicu, OATH Index No. 1170/21 (Feb. 15, 2023).

Read more about Matter of Postelnicu

Appeals Division Decisions
(Appeals from the Hearings Division)

The Appeals Division reversed a hearing decision sustaining a violation against a taxi driver for running two stop signs. At the hearing, the taxi driver introduced dashboard camera video showing him stopping at the stop signs. The hearing officer discredited the video, finding it unreliable because it was impossible to review the metadata, the file title appeared to be edited, there were no indicators of location and speed, and the video ended before the traffic stop was initiated. The Appeals Division reversed, finding that there was no basis to discredit the video and the video showed respondent stopping at the stop signs. TLC v. Md Abdul Kadir Khan, Appeal No. 73230494A (February 24, 2023).

The Appeals Division reversed a hearing decision sustaining a violation against a property owner for failure to comply with zoning regulations. Department of Buildings (“DOB”) alleged that an outdoor sign structure violated zoning regulations on surface area and height restrictions for outdoor signs. Respondent argued that the structure is not a sign and that it is incapable of supporting a sign. The Appeals Division agreed, finding that the cited sign structure was not a sign as defined by zoning regulations, because it contained no writing, pictorial representation, emblem, flag, or any other figure of similar character used to announce, direct attention, or advertise. DOB v. Lexuss Prospect Promotion LLC, Appeal No. 2201452 (February 23, 2023).

The Appeals Division reversed a hearing decision dismissing violations against a licensed process server for failure to include in her records the appropriate prefix for index numbers in two court proceedings. At the hearing, respondent testified that she completes her records through an application on her cellphone and that she cannot input index numbers, which is populated by the processing serving agency. The hearing officer credited this testimony, and also found that respondent is not subject to electronic recordkeeping requirements under the Administrative Code § 20-406.3(b). The Appeals Division reversed, finding that the Administrative Code exempts respondent from maintaining electronic records for seven years, but does not exempt her from including the required information when she created the records. The Appeals Division further found that respondent was responsible for reviewing the records generated by the cellphone application for accuracy and should have taken steps to ensure compliance. DEP v. Celeste Warren, Appeal No. 220112HR (February 28, 2023).