OATH Recent Decisions

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Licensing

ALJ Faye Lewis recommended lifting the license suspension of a taxi driver arrested for assault after an off-duty incident. Recognizing that the pending criminal charge must be taken as true under the summary suspension rule, the ALJ concluded that the arrest appeared to be an isolated incident arising out of narrow and limited circumstances that did not impact respondent’s ability to interact courteously and professionally with the public. The driver denied that he assaulted the complainant and testified that at the time of the alleged assault, he and the complainant participated in a political rally which the complainant disrupted by arriving late, pushing other protestors, and grabbing a banner which the protestors were holding. The driver claimed not to have been involved in this altercation because he was not standing in the immediate proximity of the complainant. The driver’s testimony about the incident was corroborated by two witnesses who also testified that they did not see the driver assault the complainant. Video evidence introduced by the driver supported his assertion about the complainant’s behavior but did not capture the entire rally and thus was not probative of whether the driver assaulted the complainant. The ALJ also noted the absence of significant injury and the lack of evidence that the driver was ever involved in an altercation with a passenger in finding that continued suspension of driver’s license was not necessary to protect the public. Taxi & Limousine Comm’n v. Ahmed, OATH Index No. 2350/25 (June 18, 2025).

Health and Safety

ALJ Faye Lewis found that five dogs were “dangerous dogs” under the Health Code and Administrative Code and recommended petitioner impose any control measures other than euthanasia to protect the public. Petitioner, the Department of Health and Mental Hygiene, introduced testimony of several witnesses to the attack, as well as documentary evidence consisting of Animal Care Center intake forms and Animal Bite reports, which established that multiple dogs bit an 83-year-old man and that all five dogs menaced and threatened the man. The ALJ noted that respondent was not present during the attack, and rejected as speculative her argument that the dogs must have been provoked by construction workers who threw bricks and other materials at the dogs during the attack. The ALJ rejected petitioner’s request for a recommendation of humane euthanasia, finding that euthanasia of the dogs was not authorized under the Administrative Code. While the Code permits euthanasia for any dog that kills or causes severe injury to a human being, here petitioner did not prove that each of the five dogs bit the man or that any particular dog inflicted severe injuries. The ALJ also noted that respondent had moved out of state and had agreed to neuter, cage, muzzle, train, and leash the dogs, and there was no evidence suggesting that any particular dog was too dangerous to retrain or that training and other control methods would be inadequate. Dep’t of Health & Mental Hygiene v. Dennis-Ekwobi, OATH Index No. 1470/25 (June 11, 2025).

Real Property

ALJ Christine Stecura recommended granting a protected occupant’s application under the Loft Board’s rules after finding that the owner’s restriction on her elevator access constituted a diminution of services. Owner moved to dismiss the petition on res judicata and collateral estoppel grounds, arguing that applicant’s claim is precluded by an identical claim in a New York State Supreme Court action. The ALJ denied the motion on the basis that the state court never reached a final judgement on the merits. At trial, applicant established through credible witness testimony and documentary evidence that she had unfettered access to the elevator from when she moved into the Building, in 1977, until the owner bought the building and restricted her access in 1994. The ALJ found the prior owner consented to applicant’s use of the elevator and the lease provided for elevator use; therefore, the owner’s restriction of applicant’s elevator access was a diminution of services. The ALJ rejected the owner’s argument that applicant waived her right to use the elevator because she failed to object to elevator work in the narrative statement and was unpersuaded by the owner’s assertions that the elevator is unsafe, requires a designated operator, and poses an unacceptable insurance risk. Accordingly, the ALJ recommended that applicant’s access to elevator services be restored. Matter of Moon, OATH Index No. 2648/23 (June 23, 2025).

Contracts

The Contract Dispute Resolution Board, chaired by ALJ Jonathan Fogel, denied a contractor’s request for additional compensation under a contract with the Department of Environmental Protection (“DEP”) for construction of a bypass tunnel to divert the flow of water around a leak in the Rondout-West Branch Tunnel. The contractor sought additional compensation based on a differing site condition claim for excessive wear to machinery used to tunnel through rock during the excavation that went beyond the wear represented in the contract. The contractor argued that the excessive wear was due to and evidence of a differing condition which could not be ascertained before the work began. The Board rejected this argument because the Contractor failed to identify and prove an actual, physical condition of the worksite. The Board also found that without knowledge of an actual condition, it was unable to determine whether the condition was ascertainable pre-bid, as required by the contract. Accordingly, the Board found that the contractor failed to meet its evidentiary burden and denied the petition. Kiewit-Shea Constructors, AJV v. Dep’t of Environmental Protection, OATH Index No. 833/24 (June 4, 2025).