Recent Decisions

The following is a summary of some recent OATH decisions decided in *April 2020*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Trials Division – COVID-19 Update

COVID-19 Update

The OATH Trials Division located at 100 Church Street, NY, NY 10007 is closed until further notice but is still holding conferences and trials by phone. If interested in taking advantage of this option, please email OATHCalunit@oath.nyc.gov and continue to check the OATH website at nyc.gov/oath for more information and updates.

Real Property

Petitioner sought to deny respondent’s application for a certificate of no harassment on the basis that current and former owners harassed Single Room Occupancy tenants. At trial, respondent, owner of the vacant building, presented six affidavits from the former tenants’ each stating that they received relocation expenses, freely surrendered their rights of their units, and were not harassed. ALJ Kevin F. Casey found that harassment occurred because the affidavits were intended to cause the lawful occupants to vacate and they did not disclose the tenants’ rights to continue occupancy and to an attorney or access to legal services as required by the City Housing Maintenance Code. Thus, denial of application for a certificate of no harassment recommended. Dep’t of Housing Preservation & Development v. Jones, OATH Index No. 283/20 (Apr. 1, 2020).

Contracts

The Contract Dispute Resolution Board (“CDRB”), chaired by ALJ Faye Lewis, dismissed a $2.8 million claim for additional compensation. Petitioner, a bridge contractor, claimed that under an acceleration clause in the contract, it was entitled to additional compensation for accelerating its work to achieve substantial completion of the project before a holiday embargo period. The CDRB found that the plain language of the contract required the Department of Transportation (“DOT”) to provide written approval of the acceleration initiative, and that there was no evidence that DOT issued such a directive. Mill Basin Bridge Constructors, LLC. V. Dep’t of Transportation, OATH Index No. 253/20, mem. dec. (Apr. 15, 2020).

A contractor sought $721,533 in additional compensation for installing additional bracing for an overflow sewage system. The CDRB, chaired by ALJ John S. Spooner, dismissed the petition finding that petitioner failed to provide adequate documentation to demonstrate that extra work was actually performed, that much of the claim was delay damages outside the Board's jurisdiction, and that the contract provided the resident engineer with discretion to require extra shoring at no extra cost to the City. Primer Construction Corp. v. Dep’t of Environmental Protection, OATH Index No. 2374/19, mem. dec. (Apr. 3, 2020).

In a dispute arising from a $1.4 million contract to plant new and replacement street trees, petitioner sought $367,383.72 in damages after respondent ordered petitioner to plant smaller lawn tree beds than petitioner expected. The CDRB, chaired by ALJ Kevin F. Casey, found that the contract did not guarantee a minimum lawn tree bed size and denied the petition. Rocco Agostino Landscape & General Contracting Corp. v. Dep’t of Parks and Recreation, OATH Index No. 2537/19, mem. dec. (Apr. 6, 2020).

Practice and Procedure

Petitioner charged respondents with employee-specific and workplace-wide violations of the Earned Safe and Sick Time Act. After petitioner rested its case-in-chef, respondents filed a motion to dismiss on the basis that petitioner did not meet its burden of proof as to the workplace-wide violations. ALJ Joycelyn McGeachy-Kuls found that petitioner did not provide sufficient evidence to establish a prima facie case for workplace-wide violations and dismissed three counts of the petition. Through a motion to reconsider, petitioner requested the tribunal to reconsider its dismissal and its interpretation of petitioner’s Rule 7-13(g) (now renumbered as Rule 7-111(a)). Rule 7-13(g) provides that where a respondent fails to produce a requested record that it is required to maintain and is relevant to a material fact alleged in a notice of hearing, an inference may be taken that such fact is true. ALJ McGeachy-Kuls found that Rule 7-13(g) is valid but petitioner did not prove that it requested the records from respondents, nor did it produce at trial the notice of hearing referenced in the rule. Further, ALJ McGeachy-Kuls found that petitioner had failed to show that the tribunal overlooked any controlling law or facts that could reasonably be expected to alter its decision. Dep’t of Consumer Affairs v. J&O Security Services, Inc. and Osagie, OATH Index No. 2830/18, mem. dec. (Apr. 27, 2020).

Licensing

The Taxi and Limousine Commission (“TLC”) summarily suspended respondent’s TLC driver license upon notification of his arrest for charges arising from a domestic dispute. ALJ Casey recommended lifting the suspension because respondent proved that he did not pose a continuing direct and substantial threat to public health or safety. Respondent presented credible evidence and corroborating witnesses’ testimonies establishing that his drunken brother-in-law was the initial aggressor and that respondent reacted to aid his sister and her infant children. Taxi & Limousine Comm’n v. Singh, OATH Index No. 1913/20 (Apr. 24, 2020), adopted, Comm’r Dec. (May 1, 2020).

The TLC brought a fitness proceeding seeking to revoke a TLC driver’s license because of his positive drug test result for marijuana use. Respondent argued that he did not use drugs and tested negative for drugs two months after testing positive. ALJ Noel R. Garcia found respondent’s general assertion that he did not use drugs unpersuasive. The ALJ also found that testing negative for drugs two months after testing positive did not negate respondent's positive drug test. The ALJ therefore recommended that respondent’s license be revoked. Taxi & Limousine Comm’n v. Breus, OATH Index No. 1293/20 (Apr. 16, 2020).