Recent Decisions

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

A licensed master plumber and fire suppression piping contractor was charged with negligence, incompetence, lack of knowledge or disregard of the laws, and submitting a false or misleading statement to the Department of Buildings. Specific allegations included unlicensed and unsupervised plumbing work under his permits, failure to complete requisite inspections, and the performance of work without a permit. ALJ Kevin F. Casey sustained most of the charges. Because of the safety-sensitive nature of respondent’s work, he found that respondent’s negligence, incompetence, and submission of false statement warranted license revocation.    Dep’t of Buildings v. Harvey, OATH Index No. 214/17 (Nov. 29, 2017), adopted, Comm’r Dec. (Nov. 30, 2017).

A Taxi and Limousine Commission (TLC) licensed driver tested positive for amphetamine use and faced revocation of his license. At trial, the driver and his daughter presented credible testimony and evidence that he had inadvertently taken his daughter’s prescription medication, which was stored in the same bathroom cabinet as his own medication. On these facts, ALJ Susan J. Pogoda found that respondent had innocently ingested amphetamine, and therefore did not knowingly use an illegal drug, recommending dismissal of the charge.   Taxi & Limousine Comm’n v. Amrani, OATH Index No. 0077/18 (Nov. 22, 2017).

ALJ Joycelyn McGeachy-Kuls recommended that respondent receive a marriage license after he proved that three marriage licenses from 1978, 1982, and 1990, all of which listed his name, date of birth, and parentage, were not actually issued to him. The Office of the City Clerk had denied respondent a license because it appeared he had entered into three undissolved marriages. Respondent pointed out irregularities in the three other licenses, and presented testimony from his former wife and daughter to explain that he was married to that wife throughout the period the prior licenses were issued. ALJ McGeachy-Kuls accordingly found that his current application for a marriage license should be granted.    Office of the City Clerk v. Polanco, OATH Index No. 1036/17 (Nov. 1, 2017), adopted, City Clerk’s Dec. (Nov. 27, 2017).

The TLC alleged that a TLC licensed driver was unfit to hold his license because he had obtained the license through fraud, and had failed to comply with the TLC Rules, including its licensing requirements. The driver had failed three licensing exams, then passed the TLC licensing exam after completing it in only seven minutes. The driver was issued a license based on his passing grade, but his license status was later changed to conditionally approved, and he was ordered to retake and pass the licensing exam in order to keep his license. He spent almost two hours on the retake exam and failed it. ALJ Faye Lewis dismissed the charge of fraud, finding insufficient proof that the driver had intentionally cheated on the test where other individuals, including the test center, may have had motive and ability to manipulate the test results. However, because the passing test result was unreliable and the driver had failed the retake exam, ALJ Lewis concluded that respondent failed to comply with TLC’s licensing requirements and that his license should be revoked.    Taxi & Limousine Comm’n v. Soto, OATH Index No. 270/18 (Nov. 16, 2017), adopted, Comm’r Dec. (Dec. 1, 2017).

Personnel

A captain was charged with excessive use of force following an incident in which she struck an inmate in the head and face area. Petitioner further alleged that respondent completed a false and misleading report and interview regarding the use of excessive force. In sustaining the charges, ALJ Noel R. Garcia found that the use of excessive force was a serious offense, however, he noted that the initiation of force was proper because the inmate had attempted to strike an officer, the injuries to the inmate were relatively minor, that it was impossible to determine the extent to which the minor injuries were attributable to respondent’s own actions, and that the captain has only a prior minor disciplinary record. ALJ Garcia therefore recommended a 50-day suspension.   Dep’t of Correction v. Rothwell, OATH Index No. 1963/17 (Nov. 3, 2017).

Vehicle Retention

ALJ Kara J. Miller found that the Police Department could retain a vehicle seized from respondent following his arrest for reckless endangerment, using emergency lights and a siren on his personal vehicle, fleeing an officer, and possession of a forged instrument. Respondent pleaded guilty to the forged instrument charge. At trial, respondent implied that the Department allowed him to use lights and a siren on his vehicle because he was part of a neighborhood safety patrol organization. ALJ Miller rejected this argument, noting that the Department had not authorized respondent’s use of emergency lights and siren and the safety patrol was unlicensed. ALJ Miller found that respondent’s highly dangerous driving and lack of remorse for his behavior demonstrated that returning the vehicle to him would create a risk to public safety. The Police Department was entitled to retain the vehicle pending the civil forfeiture action in state court.   Police Dep’t v. Teich, OATH Index No. 1034/18, mem. dec. (Nov. 21, 2017).

Real Property

Three tenants of an interim multiple dwelling in Brooklyn sought protected occupancy status and rent adjustments under the Loft Law. ALJ John B. Spooner found that two applicants were entitled to protected occupancy based on proof of residential use, and awarded them rental overcharges. However, the remaining applicant was not entitled to protected occupancy because there was no evidence that he was residing at the unit on the date he submitted an application, and he was, in fact, using the unit commercially for short-term rentals.    Matter of Tenants of 151 Kent Avenue, Brooklyn, OATH Index Nos. 532/17, 533/17 (Nov. 22, 2017).

Campaign Finance

The Campaign Finance Board sought repayment of $13,350 in matched public funds because respondents, including a candidate who ran for New York City Council in 2013 and his campaign committee, received contributions in violation of the law. Specifically, relying on Conflicts of Interest Bd. v. Oberman, OATH Index No. 1657/14 (Sept. 4, 2014), adopted, Board Dec. (Nov. 6, 2014), aff’d, 148 A.D.3d 598 (1st Dep’t 2017), petitioner claimed that the candidate had been found to have solicited campaign contributions in violation of the City’s Conflicts of Interest Law because while he was a City employee he used his City telephone for campaign-related purposes. Petitioner argued that respondents were ineligible for matching funds because the donations were received in violation of the law. ALJ Astrid B. Gloade concluded that although the Conflicts of Interest Board determined that the candidate used a City telephone during business hours for calls relating to the campaign in violation of the City’s Conflicts of Interest Law, it made no finding that the Campaign’s receipt of contributions in the wake of such telephone calls violated the Conflicts of Interest Law. Therefore, because there was no proof that the donations were received in violation of the law, ALJ Gloade recommended dismissal of the petition.    Campaign Finance Bd. v. Oberman, OATH Index No. 2519/17 (Nov. 21, 2017).

Contracts

A contractor sought $2.04 million in compensation for alleged extra work on the Williamsburg Bus Plaza in Brooklyn, pursuant to a contract with the City Department of Design and Construction (DDC). The Contract Dispute Resolution Board, chaired by ALJ Casey, held that DDC did not authorize the additional work, which included modified excavation methods throughout the bus plaza, and that petitioner failed to document the additional work, as required by the contract. The claim was therefore denied.    HASA Construction, LLC v. Dep’t of Design & Construction, OATH Index No. 1419/17, mem. dec. (Nov. 29, 2017).