Recent Decisions

The following is a summary of some recent OATH decisions decided in *May 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's offices, located at 100 Church Street, Manhattan, are closed until further notice, but the Trials Division is continuing to conduct conferences and trials by phone and video-conference. Parties with questions or concerns about scheduling and phone and video-conferencing should email OATHCalunit@oath.nyc.gov and continue to check the OATH website at nyc.gov/oath for more information and updates.

Health

Petitioner brought an enforcement action based upon a report that respondent’s dog attacked a young girl. Respondent did not appear for trial and was declared to be in default. At trial, petitioner presented testimony from the victim’s mother describing the dog’s unprovoked attack on her daughter as well as testimony from its Director of Veterinary Public Health Services regarding the investigation into the matter. ALJ Noel R. Garcia found that the unrebutted evidence proved that respondent’s dog is dangerous as defined by the New York City Health Code and recommended that the agency take enforcement action within the range of authorized actions in the Code. Dep't of Health & Mental Hygiene v. Dehlinger, OATH Index No. 1882/20 (May 22, 2020).

Contracts

Petitioner entered into a $46 million contract with the Department of Transportation (“DOT”) to replace the City Island Bridge with a cable-stayed design. Community opposition to the plan led to litigation and a stop work order. DOT asked petitioner for an alternative plan under the Contractor Initiated Value Engineering Change (“CIVEC”) clause of the contract. The alternative plan resulted in a $30.8 million plan to construct a causeway style bridge. Under the CIVEC clause, petitioner was entitled to fifty percent of the cost savings realized by the revised plans, but “[t]he Contractor’s costs for development, design and implementation of the CIVEC proposal are not eligible for reimbursement.” Petitioner submitted a claim for an additional $3.6 million for associated design costs due to the change in plans. The Contract Dispute Resolution Board (“CDRB”), chaired by ALJ Garcia, dismissed the claim, finding that the plain language of the CIVEC clause listed design costs under the petitioner’s responsibility. The record also showed the parties were in agreement that these design costs would be subtracted from petitioner’s share of savings stemming from the redesign and implementation of a less expensive bridge than was originally contracted for. Tutor Perini Corp. v. Dep’t of Transportation, OATH Index No. 0060/20, mem. dec. (June 1, 2020).

Licensing

The Taxi and Limousine Commission (“TLC”) summarily suspended respondent’s TLC driver’s license following his arrest for assault and harassment. Respondent presented credible eye witness testimony establishing that his ex-wife and her boyfriend were the initial aggressors and that respondent reacted to prevent them from entering his home. ALJ Kevin F. Casey recommended lifting the suspension because respondent proved that he did not pose a continuing direct and substantial threat to public health or safety. Taxi & Limousine Comm’n v. Balbuena, OATH Index No. 1975/20 (May 15, 2020), adopted, Comm’r Dec. (May 29, 2020).

The TLC brought a fitness proceeding seeking to revoke a driver’s TLC license because of a positive drug test result for marijuana use. Respondent argued that he never used marijuana and asserted that the doctor at the testing lab must have made a mistake. Respondent was aware that he had the option to retest the sample but declined to do so. ALJ Joycelyn McGeachy-Kuls found respondent’s denial of marijuana use and his speculation that there was an error in his test to be insufficient to rebut his positive drug test results. The ALJ recommended that respondent’s license be revoked. Taxi & Limousine Comm’n v. Sherpa, OATH Index No. 1768/20 (May 11, 2020), adopted, Comm’r Dec. (May 26, 2020).

The TLC summarily suspended respondent’s TLC driver’s license following his arrest for charges arising from a domestic dispute. ALJ Susan J. Pogoda found that respondent’s explanation of the events was disjointed, the details provided appeared to be selective and incomplete, and respondent offered little mitigating testimony and minimal evidence of his good character. ALJ Pogoda held that respondent poses a continuing direct and substantial threat to public health or safety, and recommended that respondent’s license suspension remain in force until resolution of the criminal charges. Taxi & Limousine Comm’n v. Ahmad, OATH Index No. 1735/20 (May 13, 2020), adopted, Comm’r Dec. (May 26, 2020).