Recent Decisions

The following is a summary of some recent OATH decisions decided in *March 2019*.  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

On May 31, 2015, an HVAC machine, which was being lifted into an opening on the 30th floor of a building at 261 Madison Avenue in mid-town Manhattan, fell to the street when its rear sling failed. The fall caused significant property damage but no serious injuries. The master rigger in charge of the operation was charged with endangering public safety, negligence, and failure to comply requirements of the Administrative Code. Following an 11-day trial, ALJ Noel R. Garcia found that the rigger failed to be present during a critical pick, failed to use a proper softener between the sling and the edge of the unit and failed to have a plan that showed the rigging detail, in violation of the Code. Petitioner did not prove that improper rigging practices caused the rear sling to fail. A one-year suspension of the master rigger’s license was recommended. Dep't of Buildings v. Allecia, OATH Index No. 545/17 (Mar. 28, 2019).

A taxi base company was charged with submitting an affirmation which falsely stated that it did not dispatch any cars during the month of August 2018. The base company failed to appear at the trial. Petitioner produced affidavits from its inspector which showed that she obtained pre-arranged rides from the base company on two occasions during that month. ALJ Faye Lewis sustained the charge and recommended revocation of the base license and a $1,000 fine. Taxi & Limousine Comm'n v. Golden Luxury Transportation Inc., OATH Index No. 980/19 (Mar. 29, 2019).

A licensed general contractor and his company were charged with violations of Building Code requirements for demolition work performed at a Staten Island building where a mezzanine collapsed, killing a worker. Following a five-day trial, ALJ John B. Spooner credited petitioner's forensic investigation and found that the collapse was caused by the unauthorized removal of load-bearing walls, the violations should be sustained, and the contractor's license should be revoked. ALJ Spooner did not credit the contractor’s contention that its workers were engaged in cleanup and demolition had not yet begun as of the date of the collapse. Based upon the forensic evidence, he found that non-load bearing and load bearing walls had been removed prior to the collapse, without taking precautions required by the Building Code. Dep't of Buildings v. Formica, OATH Index No. 1100/18 (Mar. 11, 2019), adopted, Comm'r Dec. (Mar. 12, 2019).

A professional engineer was charged with making false material statements on Directive 14 (limited check) certification forms and professional certification forms, and with submitting plans which demonstrated a lack of knowledge of applicable laws. Following a six-day trial, ALJ Joycelyn McGeachy-Kuls sustained charges of false Directive 14 filings and defective plans. She dismissed the false professional certification charges because petitioner did not offer sufficient evidence to establish these charges. The majority of the plans involved an attempt to expand livable space in first floor apartments by creating duplex apartments with bedrooms in the cellars. The engineer labelled the cellar bedrooms as recreation rooms, thereby creating habitable space with insufficient egress, and stairs which did not comply with applicable laws. Then, to avoid the need to apply for a new or amended certificate of occupancy, the engineer falsely stated that the work did not involve a change in use, occupancy, or egress. ALJ McGeachy-Kuls recommended that the engineer lose all filing privileges with the New York City Department of Buildings. Dep't of Buildings v. Katerinis, OATH Index No. 2193/17 (Mar. 5, 2019).

Personnel

A special officer was charged with multiple acts of misconduct. Following a three-day trial, ALJ John B. Spooner sustained eight of the charges, including sleeping on duty, failing to stop an unauthorized car, inappropriately seeking to have his supervisor alter his timesheet, failing to obey orders to conduct patrols every thirty minutes, submitting false medical notes, excessive lateness and AWOL. Termination of employment was recommended. Dep't of Health & Mental Hygiene v. Elder, OATH Index No. 628/19 (Mar. 13, 2019), adopted, Comm'r Dec. (Mar. 28, 2019).

Vehicle Retention

The Police Department ("Department") seized respondent's car in connection with the arrest of two other persons. The Department submitted an affidavit from a detective stating that he observed the two persons use respondent’s car to facilitate drug transactions. Following a trial, ALJ Susan J. Pogoda found that although the Department had probable cause to make the arrests, respondent made out an innocent owner defense. Respondent showed that her former boyfriend was the only other person she allowed to use her car. The Department showed no connection between respondent or her former boyfriend and the arrestees. In addition, the Department failed to show that it timely mailed the notice of right to a retention hearing to respondent. ALJ Pogoda ordered the Department to return the car to respondent. Police Dep't v. Jones, OATH Index No. 1854/19, mem. dec. (Mar. 26, 2019).