Recent Decisions - March 2017

The following is a summary of some recent OATH decisions decided in *March 2017*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Licensing

Trial was held to determine whether two dogs, German shepherd and American bull mix, are dangerous. Bite reports and death certificate proved that the dogs attacked, mauled and caused the death of dog owner’s mother in the basement of her home. ALJ Noel Garcia found unconvincing and speculative owner’s argument that her mother provoked the dogs because she had a seizure or because the dogs thought she was an intruder. ALJ Garcia recommended humane euthanasia of the dogs because of possibility that they could be violent again as they continued to exhibit aggressive behavior during their stay at an animal shelter following the incident.  Dep’t of Health & Mental Hygiene v. Schoentube, OATH Index No. 1677/17 (Mar. 10, 2017).

Taxi driver found to have been discourteous to two passengers and to have grabbed and struck the passengers. Charge that driver robbed the passengers was dismissed since the driver turned over to the police the cell phone and identification card that he had picked up on the street following the scuffle. ALJ John B. Spooner recommended a penalty of license revocation and a fine of $2,850.   Taxi & Limousine Comm’n v. Nyantakyi, OATH Index No. 1003/17 (Mar. 7, 2017), adopted, Comm’r Dec. (Mar. 28, 2017).

Personnel

Eligibility specialist was found to have inefficiently performed her duties by holding seven cases for 22 or more days and delaying the processing of a client’s application for months. She was also disrespectful to the deputy director on multiple occasions, was disrespectful to the security guard at her workplace when asked to present ID, was discourteous to a client’s son on the telephone and denied homebound services to his mother, was loud and discourteous to an agency client within the earshot of other clients, and failed to follow a supervisor’s instructions to service said client. ALJ Ingrid M. Addison recommended a 30-day suspension.   Human Resources Admin. v. Hines, OATH Index No. 0073/17 (Mar. 17, 2017).

Prevailing Wage

ALJ Kevin F. Casey determined that public works contractor failed to pay prevailing wages and supplements to five workers on two Parks Department contracts. The contractor wrongly paid pavers at the lower apprentice rate, and falsely claimed it made payments for supplements to the union on behalf of the workers. ALJ Casey found the underpayments on both contracts to be willful. The contractor was liable for underpayments, interest and a civil penalty totaling $96,866 and ALJ Casey recommended that it be banned from bidding on government contracts in New York for five-years.  Office of the Comptroller v. Professional Pavers Corp., OATH Index No. 1654/16 (Mar. 17, 2017).

Contracts

Process serving company with contract with the Administration for Children’s Services sought additional compensation for alleged extra costs incurred serving documents due to changes in City laws. The Contract Dispute Resolution Board, chaired by ALJ Spooner, found the claim to be time-barred. Under the contract, the company had to file its Notice of Dispute (“NOD”) within 30-days of receiving written notice of the action in dispute. Here, the NOD was filed in January 2015 for work performed from 2010 through 2014. If the contractor believed the payment it received on any invoice was less than the full amount owed, it was required to make a claim within 30-days of the payments, or at the latest, 30 days from the last payment, which was received on October 2014. The Board also rejected the contractor’s request for immediate payment of all outstanding invoices, plus interest. Under the contract, the agency was entitled to withhold payment until completion of its audit of charges for witness fees, claimed to have been paid by the contractor.   JDG Investigations, Inc. v. Admin. for Children’s Services, OATH Index No. 547/17, mem. dec. (Mar. 7, 2017).

Real Property

Nine tenants filed a coverage application with the Loft Board. ALJ Astrid B. Gloade found that the building is covered by the Loft Law and that eight of the tenants are protected occupants of their units. Those tenants are prime lessees or sub-tenants who took possession prior to the effective date of the 2010 amendments to Loft Law. ALJ Gloade recommended the Loft Board find unprotected one applicant who took occupancy without a lease after the effective date of the 2010 amendments. Proof that the owner was aware that the tenant paid a portion of the rent for the unit on one occasion was insufficient to prove that the owner consented to the creation of a statutory tenancy.   Matter of Tenants of 79 Lorimer Street, OATH Index No. 1020/16 (Mar. 23, 2017).

ALJ Casey found that a loft building owner overcharged a tenant by $20,779. He rejected the owner’s claim that the unit was removed from rent regulation by a predecessor tenant’s sale of rights and improvements, finding the owner failed to prove a valid sale occurred. ALJ Casey also rejected the owner’s argument that the tenant lacked standing because he committed fraud when he acted as a broker when the former owner sold the building to the current owner. Whether the tenant committed fraud in the sale of the building is the subject of litigation in state Supreme Court and was not relevant to the issues presented here, whether he is a protected tenant and whether he was overcharged under the Loft Law.   Matter of Brandman, OATH Index No. 1681/15 (Mar. 2, 2017).