OATH Recent Decisions

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Personnel

ALJ Tiffany Hamilton recommended a 30-day suspension for a supervising inspector charged with seven counts of incompetence for failing to identify errors in his subordinates’ reports and for submitting insufficient or incomplete inspection packages for enforcement action. The ALJ found respondent was incompetent on three occasions when he approved two inspection reports without notifying his supervisors of the hazardous conditions cited therein and when he approved an inspection report that contained a significant error. The ALJ found that petitioner failed to prove the other charges. Petitioner had requested termination or demotion as a penalty, but the ALJ determined that a lesser penalty was warranted because petitioner only established three out of the seven charges. The ALJ found further mitigation in that respondent had only been promoted to supervisor eight months before the conduct underlying the first charge. Respondent had also asked his supervisors several times for help but received none, was cooperative when his supervisors pointed out his errors, and expressed a commitment to doing better. Finding that respondent should be afforded the opportunity to improve as a supervisor, the ALJ recommended suspension. Dep’t of Buildings v. Collis, OATH Index No. 1190/24 (Aug. 21, 2024).

Licensing

ALJ Julia Davis recommended lifting the license suspension of a taxi driver arrested for arson and other related charges. Respondent was arrested on July 4, 2024 after he gave his 11-year-old son fireworks to light and one malfunctioned, causing a fire that extensively damaged respondent’s home and a neighboring residence. The fire also put a tenant inside respondent’s home at substantial risk of serious physical injury. The ALJ found that although respondent demonstrated a serious lack of judgment, there was no evidence that respondent intended to injure anyone, engaged in any malicious or violent behavior, or exhibited a lack of self-control. Respondent had no prior arrests and offered letters from five individuals attesting to his good character. The unrefuted evidence also established that respondent is a hard-working licensee who has safely driven approximately 35,000 passengers without any evidence of TLC violations or customer complaints. The ALJ found that petitioner failed to establish that continued licensure would pose a direct and substantial threat to public health or safety. TLC subsequently adopted the judge’s recommendation and lifted respondent’s suspension. Taxi & Limousine Comm’n v. Singh, OATH Index No. 145/25 (Aug. 8, 2024), adopted, Comm’r Dec. (Aug. 21, 2024).

ALJ Charlotte E. Davidson recommended continuing the license suspension of a taxi driver arrested for sexual abuse and other related charges. The precipitating incident occurred in July 2023 at the Brighton Beach boardwalk, where respondent, along with two other individuals, allegedly took complainant’s clothing while she was swimming in the ocean, grabbed her, exposed themselves, touched her breasts and buttocks, and recorded her with their cellphones. In January 2024, respondent was indicted by a grand jury. Respondent denied the charges, testifying that on the date of the incident, he was walking by the boardwalk when he saw the police with two men who were speaking respondent’s native language and who called out to him to translate for them. Respondent then offered to translate for the police but was arrested after complainant implicated him in the crime. Noting that the criminal charges must be accepted as true in a license suspension proceeding, the ALJ found that respondent failed to offer any mitigating evidence to outweigh the seriousness of the criminal charges. TLC subsequently adopted the judge’s recommendation and kept respondent’s license suspension in place. Taxi & Limousine Comm’n v. Khudoykulov, OATH Index No. 184/25 (Aug. 7, 2024), adopted, Comm’r Dec. (Aug. 21, 2024).

Contracts

The Contract Dispute Resolution Board, chaired by ALJ Christine Stecura, granted in part and denied in part a contractor’s claim that it cannot be directed to perform extra or changed work without a registered change order and that a project manager/resident engineer lacked authority to issue a directive to perform extra work. In connection with a contract for construction work on the Bronx Animal Care Center and Veterinary Clinic, a Department of Design and Construction (“DDC”) project manager issued a directive to petitioner to perform additional work. The Board rejected petitioner’s argument that it cannot be directed to perform work absent a registered change order, finding that a contractor is obligated to continue performance during the dispute resolution process. However, the Board also found that DDC failed to prove that the directive to perform additional work was issued by an individual with the authority to order additional work. Under the contract, a resident engineer or project manager may be designated by the Commissioner to order extra work. Although DDC provided a letter from the Commissioner delegating the power to issue extra work to the resident engineer, such delegation is subject to the written prior approval of the Assistant Commissioner and there was no evidence that the Assistant Commissioner had issued the requisite written prior approval. E.W. Howell Co., LLC v. Dep’t of Design & Construction, OATH Index No. 270/24, mem. dec. (Aug. 21, 2024).

The Contract Dispute Resolution Board, chaired by Michael D. Turilli, denied a contractor’s claim for additional compensation for the engineering, fabrication, and installation of precast concrete panels for the construction of a new police precinct. The contractor filed a notice of dispute with the agency on February 3, 2021, but the agency did not issue a denial until November 10, 2021. The Board rejected the contractor’s claim that its petition should be granted because the November 10 agency decision had been untimely, finding that the Procurement Policy Board rules only permitted the contractor to file a Notice of Claim with the Comptroller if the agency failed to issue a timely determination. The Board further determined that the contract clearly required petitioner to design, engineer, and fabricate the precast concrete panels based on certain performance requirements. To the extent that the contract was ambiguous or erroneous regarding the performance requirements or general design concept of the precast panels, petitioner failed to seek pre-bid clarification and is therefore bound by the agency’s reasonable interpretation of the contract. Dobco, Inc. v. Dep’t of Design & Construction, OATH Index No. 3546/23, mem. dec. (Aug. 2, 2024).