OATH Recent Decisions

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Personnel

ALJ Julia H. Lee recommended termination of employment for a correction officer charged with failing to report for duty and being absent without leave on numerous occasions; repeatedly refusing lawful orders to work overtime; arriving late to work on over 200 dates; and failing to perform her duties in a timely and efficient manner. Respondent did not deny the time and leave violations but contended that being ordered to work beyond her regular hours damaged her health and well-being. The ALJ rejected this argument, finding that respondent’s health concerns were not a defense and did not amount to a medical emergency under the health and safety exception to the “obey now/grieve later” principle. Although the officer had no prior disciplinary history, termination was warranted due to the number of violations and the officer’s unwillingness to accept responsibility. Dep't of Correction v. Crawford, OATH Index No. 1826/23 (June 23, 2023).

Licensing

ALJ Astrid B. Gloade recommended dismissing a summary suspension proceeding against a taxi driver whose TLC license expired approximately six weeks before the arrest that was the basis for TLC’s suspension of his license. TLC argued it had authority to suspend the expired license because drivers have a six-month grace period to renew their licenses after expiration. The ALJ rejected this argument, finding this interpretation unsupported by TLC’s rules or case law. The ALJ further noted that TLC has recourse against drivers with expired TLC licenses because TLC has the authority to deny renewal applications. TLC modified the recommendation and lifted the suspension. Taxi & Limousine Comm'n v. Hossain, OATH Index No. 2726/23 (June 1, 2023), modified, Comm’r Dec. (June 21, 2023).

Health and Safety

ALJ Julia Davis found respondent’s dog is a dangerous dog under the Health Code and recommended Department of Health impose any control measures other than euthanasia. The dog caused serious injuries when he attacked and bit a woman, although no medical evidence was introduced at trial. The ALJ found that the dog was provoked by the woman’s attempt to remove something from his mouth even though she had observed and been repeatedly warned that the dog suffered from food aggression. Respondent provided evidence of the dog interacting peacefully with adults, children, and small animals and expressed his willingness to take control measures. Based on this, and the lack of evidence that alternative control measures would be infeasible or unsuitable, the ALJ recommended that any control measures other than euthanasia be imposed. Dep’t of Health & Mental Hygiene v. Ryan, OATH Index No. 1353/23 (June 2, 2023).

Contracts

The Contract Dispute Resolution Board, chaired by ALJ Kara J. Miller, dismissed a contractor’s claim for payment of work it performed on three line items. The Board found the contractor failed to timely file its notice of dispute after receiving e-mails from the senior project manager notifying them that payments for two of the line items would be withheld to adjust for past overpayments. The Board rejected the contractor’s argument that the senior project manager lacked authority to issue determinations because he was employed by a third party, finding the project manager had authority to issue agency determinations and the contractor was made aware of this authority by the e-mail’s headings, signature lines, and contents. The Board also rejected the contractor’s argument that the determinations must be served by mail, finding this was not required by the contract and the contractor failed to establish any prejudice as a result of receiving the notice by e-mail. The Board dismissed the claim for the third line item, finding the claim is not ripe because a written determination was never issued. Volmar Construction Inc. v. Dep’t of Environmental Protection, OATH Index No. 1777/22, mem. dec. (June 23, 2023).

The Contract Dispute Resolution Board, chaired by Supervising ALJ Joan R. Salzman, dismissed a contractor’s claim to recover payments withheld by the Department of Environmental Protection (DEP) to pay for structural damages made when a subcontractor rammed the Catskill Aqueduct using a hoe ram and gouged two holes and a 3.5’ by 7’ spall (chip) into the aqueduct. The Board found that the claim was time-barred and waived in the contractor’s requests for extensions of time, for failure to reserve the claim with particularity as required by the contract and the procurement rules. After the subcontractor damaged the aqueduct during excavation, DEP notified the contractor that it must pay for the repairs and could either make the repairs itself or pay for another contractor to do so. The contractor wrote a response letter eight days later, giving its permission to the City to go ahead and have another contractor make the repairs and taking exception to the City’s action, but the contractor did not file its notice of dispute until about 18 months after it was due. The Board found the notice of dispute untimely and rejected contractor’s argument that its response letter was a valid notice of dispute. The response letter was not addressed to the agency head, and it did not identify itself as a notice of dispute or request a determination, nor did it refer to the dispute resolution process. The Board concluded that the contractor’s claim also failed on the merits because the contractor had an absolute obligation under the contract terms to protect the site and bore the sole responsibility to pay for the damages caused by its subcontractor. Welkin Mechanical LLC v. Dep’t of Environmental Protection, OATH Index No. 2244/22, mem. dec. (June 14, 2023).