Recent Decisions

The following is a summary of some recent OATH decisions decided in *July 2017*.  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

ALJ Faye Lewis recommended dismissal of charges that a taxi driver is unfit to retain his TLC driver license because he tested positive for marijuana, a controlled substance. Respondent offered credible evidence that he suffers from severe, debilitating pain from his diabetes and neuropathies and has been certified as a medical marijuana patient by the New York State Department of Health under the Compassionate Care Act since April 2017. ALJ Lewis found respondent cannot be denied a TLC driver license solely on the basis of his legally certified medical use of marijuana.  Taxi & Limousine Comm’n v. W.R., OATH Index No. 2503/17 (July 14, 2017), adopted, Comm’r Dec. (July 25, 2017).

Personnel

A construction laborer was charged with incompetence for excessive absenteeism under section 75 of the Civil Service Law (“CSL”). The laborer was out on worker’s compensation for more than one year, having worked only three days during that time as a result of work-related injuries to both his knees. ALJ Kara J. Miller found that the worker should be separated from employment under CSL section 71 as an appropriate alternative to disciplinary action under section 75 because his extended absence resulted exclusively from an occupational injury.  Dep’t of Environmental Protection v. Gavnoudias, OATH Index No. 648/17 (July 11, 2017).

Contracts

Petitioner appealed to the Contract Dispute Resolution Board ("CDRB"), seeking $19,264 in additional costs incurred for various repairs made to steam pipes at a residential site in Brooklyn. The City sought dismissal because petitioner did not file a Notice of Claim (“NOC”) within 30 days of the agency’s August 2015 letter determination. With no documentary proof, petitioner contended that agency staff directed it to ignore the August 2015 letter and that therefore, the letter was not a final decision. The CDRB, chaired by ALJ Ingrid M. Addison, dismissed the claim as time-barred, finding that absent proof of agency instructions to ignore the letter, it could not hold that the procedural requirements of the contract were waived. Nor did continued discussions between the parties toll the time frame.   Metropolitan Heat & Power Company, Inc. v. Dep’t of Housing Preservation and Development, OATH Index No. 179/17, mem. dec. (July 27, 2017).

On a contract for the reconstruction of the mechanical, electrical and heating systems at the Abe Stark Skating Rink, the contractor sought an additional $724,000 for labor and material costs incurred for mold remediation, reconstruction and redesign of the entire ceiling. The CDRB, chaired by ALJ Miller, determined that the contractor waived its claim for additional compensation for over 11,000 square feet of ceiling tile work by failing to reserve it in its partial time extension request. The remaining portion of the claim was precluded by the Contract’s No Estoppel Clause. The Board found that the contractor was entitled, however, to the unit price agreed to under the terms of the Contract for 1,000 square feet of ceiling tile work.   Building Maintenance Corp. v. Dep’t of Parks and Recreation, OATH Index No. 2027/16, mem. dec. (July 6, 2017).

Vehicle Retention

ALJ Joycelyn McGeachy-Kuls held that the Police Department was entitled to retain a vehicle seized in connection with an arrest for criminal impersonation, among other charges. Respondent was observed driving using a police siren to move traffic with a NYPD traffic vest displayed in the rear window of the vehicle. The respondent argued that his father, the car owner, was an innocent owner. ALJ McGeachy-Kuls found that respondent was the beneficial owner of the vehicle because of his frequent use of the vehicle, often without the owner’s permission, and prior statements made by respondent that the car belonged to him. Respondent has numerous traffic violations and his license is currently revoked. Return of the car to respondent would pose a heightened risk to public safety.    Police Dep’t v. Ahmed, OATH Index No. 0043/18, mem. dec. (July 18, 2017).

Real Property

In a Loft Law coverage case, the parties sought summary judgment as to whether two adjoining structures on a single zoning lot constituted a single building. One of the structures contained a metal treatment and coating facility, arguably an incompatible commercial use. ALJ John B. Spooner rejected claim that the structures were separate buildings, applying the six “single building” factors listed under the Loft Board rules. These two structures were constructed as, and have been commonly owned and consistently referred to and used, as a single building for nearly 100 years. The owner’s motion for summary judgment was granted.    Matter of Higbee, OATH Index Nos. 222/14, 385/14, 2744/15, 1997/16, mem. dec. (July 26, 2017).