Recent Decisions

The following is a summary of some recent OATH decisions decided in *January 2018*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Personnel

Correction officer was charged with abandoning control room post to confront an inmate who had refused to provide pedigree information, failing to anticipate a use of force, using excessive force, and filing a false report. The officer testified that he left the control room because he was unable to communicate with the inmate through the window slot. He did not contact a supervisor because believed he could use interpersonal skills to obtain the information. It was not until the inmate struck the officer did the situation quickly escalate. ALJ Alessandra F. Zorgniotti found the officer’s testimony, which was corroborated by the video, to be credible. She found that the officer exercised reasonable and prudent judgment under the circumstances and she recommended dismissal of the charges.   Dep’t of Correction v. Echevarria, OATH Index No. 0005/18 (Jan. 12, 2018).

A correction officer admitted that he brought alcohol onto his post, drank it through his tour and falsely reported in the Department’s logbook that he conducted his required tours of the inmates. The correction officer argued that he should not be fired because he is an alcoholic and that his condition caused his misconduct. ALJ Susan J. Pogoda found that the correction officer did not show that the misconduct was caused by a disability and recommended termination of correction officer’s employment.    Dep’t of Correction v. Rolando, OATH Index No. 2417/17 (Jan. 12, 2018), adopted, Comm’r Dec. (Feb. 27, 2018).

Vehicle Retention

ALJ Ingrid M. Addison directed the Police Department to release a car that it had seized in connection the owner’s arrest, finding the Department did not prove that it gave the owner notice of his right to a hearing in both English and Spanish at the time of arrest, as required by federal court order. Police Dep’t v. Rios, OATH Index No. 1377/18, mem. dec. (Jan. 18, 2018). Following the decision ordering release of the car, the Department moved to reargue. ALJ Addison denied the motion because the federal court order does not provide for reargument and because the Department attempted to introduce new evidence that it could have produced at trial.    Police Dep’t v. Rios, OATH Index No. 1377/18, mem. dec. (Jan. 26, 2018).

Car owner sought return of vehicle seized in connection with his friend’s arrest on weapons charges. Car was in friend’s possession at the time of arrest. Owner claimed he was an innocent owner entitled to immediate release of the car. ALJ John W. Burns did not credit the owner’s testimony that he was unaware of his friend’s extensive criminal record. He also found that the friend was the beneficial owner of the car. The owner, who lived upstate, had not possessed the car since he gave it to his friend six months earlier. The friend exercised complete control over the car from then on. ALJ Burns ruled that the Police Department may retain the car.    Police Dep’t v. Exilus, OATH Index No. 1357/18, mem. dec. (Jan. 9, 2018).

Prevailing wage

A subcontractor on a public works project was charged with willfully failing to pay prevailing supplemental benefits to two workers. At a default hearing, the two workers testified that that they were paid prevailing wages but they did not receive any supplemental benefits. The subcontractor had submitted certified payroll records indicating that it paid supplemental benefits to the union for the workers, but the union confirmed that it received no payments from the subcontractor on behalf of the complainants. ALJ Joycelyn McGeachy-Kuls found that the subcontractor willfully failed to pay the complainants prevailing supplemental benefits and it falsified payroll records. She recommended a five-year ban from all government contracts.    Office of the Comptroller v. Heights Elevator Corp., OATH Index No. 2387/17 (Jan. 9, 2018), adopted, Comptroller’s Determination & Order (Jan. 17, 2018).

Contracts

Petitioner contractor sought an additional $53,014, representing full payment on emergency repair work performed at a residential building in Brooklyn. The Contract Dispute Resolution Board ("CDRB"), chaired by ALJ Ingrid M. Addison, found that the contractor had failed to correct defects identified to him and left for vacation, thus abandoning the job. This required the agency to hire another contractor to complete the work. The CDRB found that petitioner was entitled only to the cost of materials he left behind, $10,662.75, which were used by the substitute contractor to complete the job.    Combined Construction, Inc. v. Dep’t of Housing Preservation & Development, OATH Index No. 2223/17, mem. dec. (Jan. 18, 2018).

Real Property

Loft building owner imposed rent increases after it obtained a residential certificate of occupancy. The tenants brought a court action seeking to invalidate the certificate and related rent increases. During pendency of the court action, the tenants filed rent adjustment and protected occupancy applications with the Loft Board. The building owner sought to stay the Loft Board proceedings during the pendency of the court action. In the interest of judicial economy, ALJ Kara J. Miller granted the motion to stay. OATH does not have jurisdiction to revoke the building’s certificate of occupancy. Therefore, the rent adjustment applications would be determined under the status quo of a valid certificate of occupancy, which would entitle the owner to legalization milestone rent increases. But if the certificate is subsequently voided by the court, the rent adjustment applications would need to be renewed, to determine the maximum rent without the legalization milestone rent increases.    Matter of Moloney, OATH Index Nos. 1784/17, 2160/17, 2473/17, mem. dec. (Jan. 23, 2018).