BenchNOTES - August 2024

Office of Administrative Trials and Hearings

Independent and Impartial Administrative Law Court


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BenchNOTES Newsletter


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Personnel

Termination recommended.

ALJ Tiffany Hamilton recommended termination of employment for a correction officer who struck a restrained person in custody three times in the face with a closed fist.

Dep’t of Correction v. Lovelace, OATH Index No. 3501/24 (July 30, 2024).

Read more about Dep’t of Correction v. Lovelace..

Licensing

Dismissal recommended.

ALJ Orlando Rodriguez recommended dismissing, on collateral estoppel grounds, the second of two fitness proceedings brought by TLC against a licensee for his conviction of indecent assault in Pennsylvania in 2015.

Taxi & Limousine Comm’n v. Saini, OATH Index No. 2260/24 (July 25, 2024), rejected, Comm’r Dec. (Aug. 5, 2024).

Read more about Taxi & Limousine Comm’n v. Saini.

Human Rights

Dismissal recommended.

ALJ Michael D. Turilli denied petitioner’s request to preclude self-represented respondents, a real estate brokerage firm and its owner, from participating in the trial due to their failure to file an answer to the complaint, and recommended dismissal of the complaint based on petitioner’s failure to establish that respondents discriminated against complainant based on lawful source of income.

Comm’n on Human Rights ex rel. Miller v. New American Realty Corp., OATH Index No. 2253/24 (July 31, 2024).

Read more about Comm’n on Human Rights ex rel. Miller v. New American Realty Corp..

Procedure

Request to postpone proceeding denied.

ALJ Kevin F. Casey denied a request to postpone a prevailing wage proceeding pending the outcome of a related state court action.

Office of the Comptroller v. LN Pro Services, LLC & Fleetwash, Inc., OATH Index Nos. 2376/24, 2377/24 (July 11, 2024).

Read more about Office of the Comptroller v. LN Pro Services, LLC & Fleetwash, Inc..

Appeals from the Hearings Division

An appeals decision reversed a hearing decision dismissing a Building Code violation for failing to comply with a Commissioner’s order which directed respondent to submit an engineer’s report concerning a building’s structurally deficient conditions. The hearing officer dismissed the violation, and relied on DOB v. Salvatore Lopresti, Appeal No. 2300576 (Aug. 31, 2023), in finding that the summons failed to provide adequate notice of the charge. The appeals decision reversed, finding Lopresti inapplicable because in that case, respondent had submitted an engineer’s report, corrected the violation, and obtained DOB’s sign-off before the violation was issued. Here, there was no dispute that respondent did not submit an engineer’s report nor correct the conditions before the summons was issued, and respondent failed to demonstrate any confusion or prejudice caused by the summons. DOB v. Deihl Rlty Co Inc, Appeal No. 2400669 (July 25, 2024).

An appeals decision reversed a hearing decision sustaining a violation for failing to comply with the terms and conditions of a Department of Transportation (“DOT”) permit. The summons stated that a non-commercial vehicle was parked in the work zone located at Caton Place between Coney Island Avenue and East 8th Street, Brooklyn, in violation of respondent’s DOT permit. The hearing officer sustained the violation, rejecting respondent’s argument that the non-commercial vehicle belonged to a different contractor. The appeal decision reversed, finding that petitioner’s photograph showed the cited non-commercial vehicle parked at a location that was not subject to respondent’s DOT permit. NYPD v. Pavarini McGovern LLC, Appeal No. 2400542 (July 25, 2024).

An appeals decision reversed a hearing decision dismissing a violation for threatening, harassing, or abusing any person. A Taxi and Limousine Commission officer affirmed that after issuing a summons to respondent for illegally parking his for-hire vehicle, respondent cursed at him and his partner. The hearing officer dismissed the violation, crediting respondent’s explanation that he had used an expletive to express frustration to himself and that it was not directed at the officers. The appeals decision reversed, finding that respondent’s use of profanity within the officers’ range of hearing established the violation, and it was not a defense that respondent may have been speaking to himself and not the officers. TLC v. Geng Zhang, Appeal No. 74202309A (July 19, 2024).