Recent Decisions

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

Consumer Protection

Respondents, a not-for-profit corporation and its president who represented individuals in immigration-related matters for a fee, were charged with violations of the New York City Consumer Protection Law and the laws and rules governing immigration assistance services. ALJ Noel R. Garcia found respondents engaged in deceptive trade practices by posting videos and social media posts that contained false and misleading representations, including that their “ID4ICE” identification card was registered with the federal government and that the ID would shield a person from arrest by an immigration enforcement agent if the cardholder did not speak and “let the ID do its work.” Respondents also retained fees from four clients but failed to perform the services related to those fees, failed to provide written contracts for immigration assistance services to five clients, and engaged in a deceptive trade practice by falsely implying that respondent was an attorney. ALJ Garcia ordered respondents to pay a civil penalty of $38,950. Dep’t of Consumer Affairs v. A New Beginning for Immigrants Rights, Inc., et al. , OATH Index No. 2644/17, mem. dec. (Sept. 17, 2018).

Real Property

ALJ John B. Spooner recommended denial of an SRO owner’s application for certificate of no harassment. SRO occupants entered into buyout agreements with previous owner of building, which included a provision indicating that they had no right to remain at the premises other than with the owner’s permission. Judge Spooner found that this provision was inserted to induce the occupants to accept the compensation offered by the owner, waive any existing rights they may have, and vacate their units, which constituted harassment as defined by the Administrative Code. Further, Judge Spooner found that no written statement of rights, as required by Administrative Code section 27-2004(a)(48)(f-2), was provided to the occupants prior to the execution of buyout agreements. Dep’t of Housing Preservation & Development v. Simpson, OATH Index No. 2062/18 (Sept. 5, 2018), adopted, Comm’r Dec. (Sept. 24, 2018).

Twelve tenants brought action seeking coverage and protected occupancy status for ten units in a Brooklyn building. ALJ Susan J. Pogoda recommended finding that eight of the ten units are covered by the Loft Law and the current occupants of those units should be recognized as protected occupants. For the other two units, there was no proof of a continuous residential presence from 2008 and 2009 other than the prime lessees statements that they recalled having unidentified subtenants, which was insufficient to support a finding that these units were residentially occupied for 12 consecutive months. Although two units were found not to be covered, ALJ Pogoda noted that should the Loft Board cover these units, the two respective current tenants would presumptively be protected occupants. Matter of 400 South 2nd Street Tenants, OATH Index No. 1018/16 (Sept. 7, 2018).

Petitioners, the tenants of a unit in a Brooklyn building sought a finding that they were entitled to protected occupancy status under the Loft Law. The building owner argued that the applicants were not protected occupants because the unit was previously the subject of a sale of rights or improvements. ALJ Kevin F. Casey recommended that the tenants’ protected occupancy application be granted, finding that the owners did not prove that there was a valid sale of rights or improvements by prior tenants. One prior tenant had moved out of unit three years earlier and had no rights to sell and there was no evidence that the other prior tenant knowingly and voluntarily sold his rights under the Loft Law. Matter of Desjardins and Richer, OATH Index No. 203/18 (Sept. 7, 2018).

Contracts

Petitioner entered into a $1,861,075.96 contract with the Department of Parks and Recreation ("DPR") to reconstruct the perimeter sidewalks around Washington Square Park in Manhattan. Petitioner appealed DPR Commissioner’s denial of three proposed change orders seeking $33,956.31 in additional compensation. The Contract Dispute Resolution Board, chaired by ALJ Ingrid M. Addison, dismissed all three claims. The Board found that the petitioner waived one claim in its application for an extension of time to complete the contract, and that the other two claims were time-barred because they were submitted nearly four months after the Comptroller’s denial of its claims, well beyond the 30-day deadline for filing a petition with the Board following such denial. SH5 Construction Corp. v. Dep’t Parks & Recreation , OATH Index Nos. 1766/18 & 2111/18, mem. dec. (Sept. 6, 2018).

Licensing

At a fitness proceeding, Taxi and Limousine Commission alleged that respondent was unfit to retain his TLC driver license because his drug test was deemed adulterated. ALJ Kara J. Miller recommended that the charge be dismissed and respondent’s TLC driver license be reinstated. ALJ Miller found that respondent credibly denied using drugs or tampering with the drug test. Respondent testified that when he submitted his sample, two lab employees were arguing with each other. One of the employees took his sample without sealing it and placed it on a desk alongside other unsealed specimen containers. In addition, ALJ Miller found that the laboratory’s paperwork was insufficient and failed to establish that respondent refused to comply with a post-test interview which is required when a specimen is deemed adulterated. Taxi & Limousine Comm’n v. Noboa, OATH Index No. 138/19 (Sept. 6, 2018).

At a fitness proceeding, Taxi and Limousine Commission alleged that respondent was unfit to retain her TLC driver license because of a positive drug test for marijuana use. ALJ Casey recommended that the charge be dismissed because respondent proved an innocent ingestion defense. Respondent attended a party, hosted by a longtime friend from her church, where she ate some brownies that she later learned contained marijuana. Respondent’s friend testified at the trial confirming that she hosted a party where brownies containing marijuana were served and also confirmed that respondent does not smoke, drink alcohol, or use illegal drugs. Respondent’s testimony was further corroborated by the relatively low-level of marijuana metabolite detected in the sample she submitted three days after she ate the brownies. Taxi & Limousine Comm’n v. Johnson, OATH Index No. 0046/19 (Sept. 6, 2018).