OATH Recent Decisions and News

The following is a summary of some recent OATH decisions decided in *March 2021*. To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

OATH News

New ALJ appointed and ALJ re-appointed: On March 15, Chief Administrative Law Judge Joni Kletter appointed Julia Lee to a five-year term as an ALJ. Judge Lee most recently served as director of annual disclosure and special counsel at the Conflicts of Interest Board and has previously worked as an assistant attorney general for the State of New York and an assistant district attorney in Brooklyn. In addition, Chief Judge Kletter reappointed Judge Faye Lewis to a new term as an ALJ. Judge Lewis has served as an ALJ for 30 years.

NYC Hospitality Alliance event: On March 16, Chief Judge Kletter participated in an online panel discussion hosted by Andrew Rigie, executive director of the NYC Hospitality Alliance, alongside Judge Ray Kramer, an OATH ALJ and director of the Center for Creative Conflict Resolution within OATH. Among the topics discussed were the process by which hospitality industry businesses can respond to civil enforcement summonses before OATH during the COVID-19 emergency, and the MEND NYC mediation program to address disputes between residents and small businesses. To view a recording of the discussion on YouTube, click here.

COVID-19 update
Pursuant to an order of the Chief Administrative Law Judge, all hearings, trials, and other OATH operations are being conducted by telephone, videoconferencing, online, or mail, and OATH will only allow in-person appearances in limited, pre-approved circumstances. Individuals may only enter OATH offices if the agency has approved your or your representative’s request because there is a compelling need for an in-person proceeding and the proceeding can be conducted while providing sufficient social distancing and other public health protections to comply with state and local government public health guidelines. For more information, read OATH's public flyer.

OATH Trials Division

Contracts

The CDRB denied a contractor’s request for additional compensation, finding the contractor was not entitled to additional money under the contract. Total Environmental Restoration Solutions Inc. (“TERS”) filed a petition with the CDRB, seeking $2.1 million in additional compensation, retainage, late fees, and interest under two emergency contracts with the New York City Police Department in 2013 for mitigating and digitizing millions of documents that were damaged by water during Hurricane Sandy. TERS contended that NYPD undercounted the number of documents that were remediated and images that were digitized. NYPD contended that TERS significantly overbilled for work that it performed. The CDRB, chaired by ALJ Kevin F. Casey, denied the claims for extra compensation. It found that under one contract, TERS was paid the maximum amount allowed. On the other contract, the CDRB found that TERS was paid for the actual number of pages remediated and images scanned, as provided by the contract, and awarded $4,567.76 in retainage and interest. Total Environmental Restoration Solution Inc. v. New York City Police Dep’t, OATH Index No. 1195/20, mem. dec. (Feb. 4, 2021).

Licensing

ALJ McGeachy-Kuls recommended stripping an architect’s filing privilege due to his lack of knowledge. Between 2013 and 2019, the architect sought to perform work on properties in Queens, Brooklyn, and the Bronx, and certified that the applications conformed to all applicable laws, rules, and regulations. ALJ Joycelyn McGeachy-Kuls found that the Department of Buildings established that the architect submitted applications that demonstrated incompetence or lack of knowledge of applicable laws. Specifically, ALJ McGeachy-Kuls found that the architect made false and inaccurate statements on the applications and falsely certified that there was no change of use, egress, or occupancy on the filed plans. Due to the seriousness and persistence of this misconduct, ALJ McGeachy-Kuls recommended revoking the architect’s filing privileges relating to any application or document. Dep’t of Buildings v. Klein, OATH Index No. 1380/20 (Feb. 16, 2021).

ALJ Ingrid M. Addison recommended that the Taxi and Limousine Commission lift its suspension of a TLC driver’s license while criminal charges were pending against him. The TLC suspended the driver’s license upon learning that he had been arrested and arraigned on charges of acting in a manner injurious to a child, menacing, and harassment. The charges arose out of a complaint filed by his wife’s parents, alleging that following a dispute with his mother-in-law the driver became aggressive, displayed his private parts, and retrieved a kitchen knife, placing her in fear of personal injury, in the presence of a minor child.

Upon review, ALJ Addison noted that there were major inconsistencies in the TLC’s evidence and competing Orders of Protection were issued against the driver and his father-in-law, but none in favor of his child. Moreover, the driver had never been arrested in his 14-year career as a taxi driver and he presented a stellar character witness. Since it was apparent that this was a family dispute that only began when his in-laws moved in with him, ALJ Addison found that the record did not establish that respondent poses a direct and substantial threat to the public health and safety. Taxi & Limousine Comm’n v. Kashem, OATH Index No. 1297/21 (Feb. 10, 2021).

ALJ Faye Lewis recommended that suspension of a taxi driver’s license be lifted, because TLC failed to establish that the driver, who had been arrested for assault, posed a continuing direct and substantial threat to public health or safety. The driver was arrested at his home based on a complaint by his wife who alleged that upon hearing a male voice in their apartment at night, he entered the apartment, pushed her to the floor and punched her right shoulder. She refused medical attention. Although the driver did not testify about the circumstances underlying his arrest, the record showed that the incident was an aberration. The driver has been a TLC licensee since 2008 and has no prior arrests. He has volunteered twelve hours a week since 2016 as an auxiliary police officer and his testimony that he wanted to give back to his community seemed heartfelt. Taxi & Limousine Comm’n v. Isibor, OATH Index No. 1200/21 (Feb. 11, 2021), adopted, Comm’r Dec. (Feb. 11, 2021).

Vehicle Retention

ALJ Joan R. Salzman determined that the NYPD was entitled to retain a seized vehicle where the driver, who was also the registered owner, was arrested for shooting a man in the thigh and using his vehicle as a getaway car to flee the scene of the shooting. The driver’s counsel moved to dismiss the proceeding, claiming that the NYPD had delayed the hearing in violation of the Krimstock Order when it refused to accept service of the hearing demand by email. ALJ Salzman denied the motion. She found that the NYPD’s insistence on receiving the original hearing demand form complied with the terms of the Krimstock Order and that the hearing was timely.

Judge Salzman found that the NYPD was likely to succeed on the merits in a civil forfeiture action based on its preliminary showing that detectives investigating gang violence had reviewed several videotapes of the incident and identified the driver and his vehicle on the tapes and had documented their basis for the arrest. In addition, there would be a heightened risk to public safety if the vehicle were returned to the driver based on the circumstances of the crimes charged (seven felonies including attempted intentional murder and criminal possession and use of a loaded firearm) and the driver’s recent conviction of a violent crime. ALJ Salzman found that the NYPD was entitled to retain the vehicle pending the outcome of a civil forfeiture action. Police Dep’t v. Thompson, OATH Index No. 1308/21, mem.dec. (Feb. 10, 2021).

Real Property

ALJ Noel R. Garcia found that a unit was not covered under the Loft Law, as the applicants did not prove that the unit was used residentially during the “window period.” Instead, the window period tenant credibly testified that the unit had been leased commercially to operate a business. As the applicants failed to establish that the unit was a covered unit, their rent application was similarly dismissed. Matter of Kim, OATH Index Nos. 199/18 & 279/18 (Feb. 4, 2021).

Appeals Division

The Appeals Division reversed a hearing officer’s decision, finding instead that a respondent, Consolidated Edison, had not violated the terms and conditions of a Department of Transportation permit. DOT alleged that Consolidated Edison had failed to permanently restore a conduit trench before expiration of its permit, but the Appeals Division found that DOT had cited the wrong section of law and failed to show a requirement to permanently restore the roadway prior to expiration of the permit. DOT v. Consolidated Edison, Appeal No. 2001386 (February 11, 2021).

The Appeals Division affirmed a hearing officer’s imposition of $1,500 in penalties against a restaurant for Fire Code violations. The restaurant argued that no penalty should be imposed because it corrected the violations before the cure date listed on the summons but was unable to file the necessary paperwork with the Fire Department due to COVID-19. The restaurant also argued that the Governor’s Executive Order No. 202.8 tolled the cure date. The Appeals Division found that the restaurant had failed to show that it filed an acceptable certificate of correction before the cure date, and therefore was not entitled to zero penalties. The Appeals Division noted that Executive Order 202.8 tolled time limits applicable to “any legal action, notice, motion, or other process or proceeding” and did not toll the cure date by which to file a certificate of correction. FDNY v. Gemi Thai Inc, Appeal No. 2001163 (February 11, 2021).

The Appeals Division reversed a hearing officer’s decision that had found a respondent failed to maintain a boiler in a code-compliant manner because it did not supply hot water to an apartment. The building manager testified that the boiler for that apartment required electricity to operate, but the tenant had not opened an electricity account with Consolidated Edison; the boiler worked once the tenant’s electricity was turned on. Accordingly, the respondent was not found to be in violation of DOB boiler rules. DOB v. 330 Empire, LLC, Appeal No. 2001340 (February 11, 2021).