OATH Recent Decisions

To subscribe to receive the monthly BenchNOTES newsletter by email, click here.

Personnel

ALJ Julia H. Lee recommended termination of employment for an administrative manager who assaulted a co-worker by striking him in the head with a metal pipe. At trial, the injured co-worker did not testify, but petitioner presented the testimony of six employees who heard the commotion and arrived on scene to witness the interaction between respondent and the co-worker who had an injury to his head. The ALJ declined to draw an adverse inference for petitioner’s failure to call the injured co-worker as a witness, and did not credit respondent’s testimony that the injured co-worker struck her first. The ALJ found that although respondent had been employed by the agency for 36 years, the gravity of her violent conduct, coupled with four prior incidents of disruptive behavior, warranted termination. Dep’t of Housing Preservation & Development v. Smith, OATH Index No. 1986/23 (Aug. 31, 2023).

Vehicle Seizure

ALJ Michael D. Turilli ordered the retention of a vehicle seized by the police as an alleged instrumentality of crime. Following a traffic stop of the vehicle based on lack of registration, a detective from the NYPD Auto Crimes Unit noticed that the vehicle was missing the required vehicle identification number (“VIN”) sticker and transported the vehicle to the police precinct to determine whether it was stolen. At the precinct, an inventory search of the vehicle was conducted, resulting in the discovery of stolen property. The ALJ found that there was sufficient probable cause for respondent’s arrest due to the missing VIN sticker, a lawful inventory search was conducted, and release of the vehicle would present a heightened risk to public safety. Police Dep’t v. Niambele, OATH Index No. 651/24, mem. dec. (Sept. 20, 2023).

ALJ Kevin F. Casey ordered the release of a vehicle seized by the police as an alleged instrumentality of crime. Respondent was arrested for criminal possession of a weapon after a traffic stop. According to the police report, a police sergeant observed a firearm “in plain view” under the driver’s seat. The ALJ found this claim to be conclusory and therefore it did not establish a lawful basis for an arrest. It was unclear when the sergeant saw the gun, whether the sergeant was inside or outside of the vehicle, and how the sergeant was able to see under the driver’s seat. Further, petitioner failed to establish that there was a lawful, limited protected search of the vehicle or that release of the vehicle presents a heightened risk to the public. Police Dep’t v. Cuthbert, OATH Index No. 356/24, mem. dec. (Sept. 8, 2023).

Contracts

The Contract Dispute Resolution Board, chaired by ALJ Jonathan Fogel, dismissed a contractor’s claim for additional compensation for costs it incurred during the COVID-19 pandemic. The contractor argued that because the Department of Transportation directed it to continue work during the pandemic, the costs of complying with COVID-19 health and safety measures are compensable as “Extra Work" under the contract. The Board rejected this claim, finding the contract lacked a force majeure clause, which would have allowed the contractor to stop work, and as a result, the contractor was obligated to continue work and comply with all laws, including COVID-19 safety measures implemented by the governor’s executive order. Skanska Koch Inc. v. Dep’t of Transportation, OATH Index No. 328/22, mem. dec. (Sept. 15, 2023).

Procedure

ALJ Kevin F. Casey denied respondents’ summary judgment motion challenging the constitutionality of a New York City Human Rights Law (“NYCHRL”) provision, which prohibits landlords from discriminating against recipients of government-issued housing vouchers. Respondents are charged with housing discrimination under the NYCHRL by the New York City Commission on Human Rights for refusing to rent apartments to recipients of Section 8 vouchers. Respondents argued that because Section 8 vouchers required government inspection of apartments, compelling owners to accept vouchers amounted to unconstitutional warrantless searches. The ALJ found that an administrative tribunal lacks jurisdiction to find a law unconstitutional on its face and that respondents lacked standing to argue the law is unconstitutional as applied because there is no evidence respondents were subject to warrantless inspections or fined for refusing inspections. Lastly, the ALJ found the claim was unripe for review because respondents have not incurred any injury nor shown imminent injury. Comm’n Human Rights ex rel. Watson, et al. & Fair Housing Justice Center, Inc. v. PPC Residential, LLC, Parkchester Preservation Management LLC & Parkchester Preservation Company LP, et al., OATH Index Nos. 2245/19, 2246/19, mem. dec. (Sept. 11, 2023).