BenchNOTES - April 2023

Office of Administrative Trials and Hearings

Independent and Impartial Administrative Law Court


BenchNOTES Newsletter

Search Decisions
BenchNOTES Newsletter

Search Decisions

BenchNOTES Newsletter


BenchNOTES Newsletter

Sign up to receive OATH BenchNOTES in your email inbox.

View the BenchNOTES Archives

OATH News

Job opportunities at OATH: OATH regularly posts employment opportunities on the NYC Jobs portal and on its website. View current openings.

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 caseworker charged with discourteous and threatening conduct.

ALJ Tiffany Hamilton recommended a 3-day suspension for a caseworker found to have engaged in discourteous conduct towards her supervisor.

Dep’t of Social Services (Dep’t of Homeless Services) v. McCain, OATH Index No. 1141/23 (Mar. 21, 2023).

Read more about Dep’t of Social Services (Dep’t of Homeless Services) v. McCain

Licensing

ALJ recommends continued suspension of taxi driver’s license.

ALJ Jonathan Fogel recommended continued suspension of a taxi driver’s license during the pendency of his criminal case for assault in the third degree.

Taxi & Limousine Comm’n v. Lomidze, OATH Index No. 1994/23 (Mar. 3, 2023), adopted, Comm’r Dec. (Mar. 14, 2023).

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

Real Property

ALJ recommends granting Loft Law protection.

ALJ Noel R. Garcia recommended granting protected occupancy status to a tenant residing in a unit covered by the Loft Law, finding that the unit has not been deregulated by a prior sale of rights.

Matter of Smulktis, OATH Index No. 327/21 (Mar. 10, 2023).

Read more about Matter of Smulktis

Appeals Division Decisions
(Appeals from the Hearings Division)

The Appeals Division reversed a hearing decision sustaining a violation against a building owner for failure to maintain the building in a safe and code-compliant manner. The issuing officer had served the summons by affixing it to the front door of the building and affirmed that he made a reasonable but unsuccessful attempt to personally serve respondent. Based on the issuing officer’s testimony, the hearing officer found that service was proper. On appeal, respondent argued that the issuing officer did not make a reasonable attempt at personal service. In support of this contention, respondent relied upon surveillance video showing the issuing officer posting the summons on the building door without ringing any bells, calling the superintendent, or speaking to anyone. The Appeals Division reversed, finding that the issuing officer’s testimony that he made a reasonable attempt to effect personal service was discredited by the video footage. DOB v. Franklin Avenue Estates LLC, Appeal No. 2201441 (March 23, 2023).

The Appeals Division affirmed a hearing decision sustaining a violation against a vehicle owner and operator for unlicensed for-hire activity, rejecting respondent’s argument that the case should be dismissed because the hearing was not timely. The vehicle was seized and a summons was issued on December 6, 2022. On December 12, 2022, the day of the hearing, respondent appeared more than four hours late, and the hearing was adjourned without objection. At the next hearing on December 20, 2022, respondent argued that the hearing was untimely because more than ten days had elapsed since the vehicle was seized. The hearing officer rejected this argument, finding that respondent caused the delay and had thereby waived the applicable time limit. The Appeals Division agreed, finding that respondent failed to appear timely at the December 13 hearing, and that the December 20 hearing was timely under the rules because it occurred within 14 days of the initial hearing date. TLC v. Zhili Chen, Appeal No. 73540244A (March 28, 2023).

The Appeals Division affirmed a hearing decision sustaining a building code violation against a building owner for failure to provide window protection for an adjoining property. Respondent argued that the summons should be dismissed for failure to provide adequate notice because the summons identified the adjacent property as situated at “exposure 4” of respondent’s building when it was situated at “exposure 3.” The Appeals Division found that the summons complied with the notice requirements and that the misstated exposure was a de minimis error. DOB v. Real Land Group LLC, Appeal No. 2201442 (March 23, 2023).