Recent Decisions

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

Licensing

Following a crane collapse at 60 Hudson Street in lower Manhattan on February 5, 2016, which resulted in one fatality, injuries and significant property damage, respondent crane operator was charged with failing to comply with regulations and manufacturer’s instructions regarding proper stowage of the crane in anticipation of a wind event. After a ten-day trial, ALJ Ingrid M. Addison found that respondent’s failure to lower the crane to the ground in advance of a wind event which led to its collapse the next day, constituted negligence. ALJ Addison dismissed the charge that respondent lowered the boom to 72 degrees and the jib to 49 degrees, making it unstable and causing its collapse. She recommended revocation of respondent’s hoist machine operator’s license. The Commissioner adopted the ALJ’s recommendation and revoked respondent’s license, but opined that it was respondent’s operation of the crane which made it unstable and caused its collapse.   Dep’t of Buildings v. Reilly, OATH Index No. 1116/17 (Apr. 10, 2018), adopted, Comm’r Dec. (May 1, 2018).

Respondent, a subsidiary of a scrap metal trader, was charged with violating the City Trade Waste law when it picked up a full container of scrap metal at a demolition site without a license. For the past six months, respondent transported scrap metal, purchased by the trader from the demolition company, to a scrap yard in Brooklyn. Respondent made a pre-trial motion to dismiss the alleged violation, arguing it did not need a license because scrap metal is not trade waste under the City Trade Waste Law. Administrative Law Judge Joycelyn McGeachy-Kuls dismissed the violation. She found that scrap metal is a valuable commodity and thus it is not trade waste, which is defined as “spent, useless, worthless” material, nor is it recyclable material because it is not solid waste as defined in the law. Thus, no license or exemption was required to transport the scrap metal.   Business Integrity Comm’n v. B and C Scrap Transport, Inc., OATH Index No. 1373/18, mem. dec. (Apr. 10, 2018).

A tow truck company was charged with unlawfully towing cars, overcharging customers, failing to accept payment by credit card, making false statements in impound reports and failing to produce records required for inspection. After a trial where the company failed to appear, ALJ Faye Lewis sustained most of the charges, but she dismissed a charge of unfitness, finding that the applicable law and rules do not authorize an unfitness finding. Judge Lewis revoked respondent’s tow truck license and ordered respondent to pay a civil penalty of $36,400, and $277.75 in restitution.   Dep’t of Consumer Affairs v. 809 Collision Inc., OATH Index No. 578/18, mem. dec. (Apr. 20, 2018).

In 2012, the Commissioner issued an Order, revoking a mobile food vendor’s license for submitting fraudulent documents and owing $117,300 in unpaid fines, and declaring that the vendor not be issued another license. Nevertheless, the vendor applied for, and received, a new license in 2016. He was again charged with submitting fraudulent documents to obtain the license. Following a default hearing, ALJ Alessandra F. Zorgniotti found that petitioner did not prove that vendor submitted false documents but it proved that he obtained a license in violation of the Commissioner’s Order and that the fines remain outstanding. She recommended license revocation and that petitioner take steps to prevent the vendor, and others like him, from fraudulently obtaining a new license.   Dep’t of Health & Mental Hygiene v. Ganash, OATH Index No. 1769/18 (Apr. 12, 2018).

Personnel

A claims examiner raised a whistleblower defense to misconduct charges pursuant to section 75-b of the Civil Service Law. ALJ Noel R. Garcia found the employee did not establish that the sole motivation for petitioner’s charges was to retaliate against the employee for the complaints that he had filed. Instead, ALJ Garcia found that the persons who investigated and prosecuted the disciplinary matter had an independent and good faith basis to file the charges. Petitioner proved respondent took 288 days of unauthorized absence, he operated of a personal watercraft in Florida while on leave for a purported injury, and he submitted false documents during the hiring process which indicated that worked as an Assistant District Attorney during a period when he, in fact, worked as a paralegal. Termination of employment recommended.  Office of the Comptroller v. Gonzalez, OATH Index No. 1883/17 (Apr. 13, 2018), adopted, Comptroller’s Dec. (Apr. 30, 2018).

A correction officer was charged with aggravated harassment, violating EEO policies, failing to maintain professional boundaries with a female recruit and suppressing her report about his conduct. ALJ Kara J. Miller found the evidence inconclusive on most charges because the witnesses for both sides had credibility issues, making it difficult for petitioner to sustain its burden of proof. She sustained only the charge that the officer failed to maintain professional boundaries by referring to the complainant as “redbone”. A five-day suspension without pay was recommended.  Dep’t of Correction v. Mack, OATH Index No. 1958/17 (Apr. 27, 2018).

An employee challenged his placement on emergency involuntary leave for unfitness to perform his job duties due to mental disability under section 72 of the Civil Service Law. Co-workers credibly testified about the employee’s sudden, unprovoked outbursts, his verbal altercations with women who worked in his unit and his repeated, unsupported claims that the women are sexual predators who physically and verbally harassed him. A psychiatrist who examined the employee found the employee was unfit because he could not get along with his co-workers. ALJ Zorgniotti found petitioner proved that the employee was unfit and that petitioner properly placed him on emergency pre-hearing leave.  Dep’t of Transportation v. Anonymous, OATH Index No. 1750/18 (Apr. 16, 2018).

Contracts

On a contract to renovate the McCarren Park Pool in Brooklyn, the contractor sought extra compensation for the installation of platforms to cure a problem with water ponding on an access tunnel floor. The Contract Dispute Resolution Board (“CDRB”), chaired by ALJ McGeachy-Kuls, denied the contractor’s claim. Under the contract, the cost of the extra work was more than offset by the cost of omitted work, the contractor’s failure to replace fifty percent of the tunnel floor, as required by the contract.  Commodore Construction Corp. v. Dep’t of Parks & Recreation, OATH Index No. 503/18, mem. dec. (Apr. 27, 2018).