Recent Decisions

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

Contracts

A contractor filed claims arising out of a contract to clean and rehabilitate the High Bridge, a stone bridge over the Harlem River. The contractor sought an additional $6.50 million, contending that the Department of Design and Construction ("DDC") required it to install stringent containment methods beyond what was required by the contract, resulting in extra costs. DDC sought to dismiss one claim as untimely filed. The Contract Dispute Resolution Board, chaired by ALJ Astrid B. Gloade, found that the claim was timely filed and decided it on the merits. The Board ruled that DDC's requirements to prevent debris from being released during the cleaning and rehabilitation of the stone surface of the upper and lower bridge piers did not go beyond the scope of the work in the contract. The claims were denied.    Schiavone Constr. Co., LLC v. Dep't of Design and Constr., OATH Index No. 2251/17, mem. dec. (Dec. 15, 2017).

Licensing

Any client who retains a lobbyist for an amount in excess of $5,000 must file a termination notice with the City Clerk's office within thirty days after the lobbyist ceases activity on behalf of the client. After a default hearing, ALJ Kevin F. Casey found that a client of a lobbyist failed to timely file a termination notice with the City Clerk. A civil penalty of $20,000 was recommended. The penalty may be reduced based upon the graduated scale in the City Clerk's rules, when the client files the termination notice.   Office of the City Clerk v. Javar Corp., OATH Index 1105/18 (Dec. 28, 2017), adopted, City Clerk’s Dec. (Jan. 16, 2018).

After a default hearing, ALJ John B. Spooner found that a construction and demolition debris removal company failed to identify principals, a driver, and all of its vehicles, in its registration application. The company also unlawfully leased its vehicles to other companies and it failed to disclose its principal's criminal conviction and an illegal dumping violation. Revocation of company's registration recommended.   Business Integrity Comm'n v. Atlantic Couriers Inc., OATH Index No. 1174/18 (Dec. 27, 2017), adopted, Comm'r Dec. (Dec. 28, 2017).

The Taxi and Limousine Commission ("TLC") charged a licensee with unfitness, alleging he passed the license exam by fraud and then, after being ordered to retake the test, failed it. The licensee passed the exam in seven minutes, despite the fact that he had failed it the previous nine times. ALJ Alessandra F. Zorgniotti found the proof was insufficient to show the driver committed fraud, but she recommended revocation of his TLC driver's license because he had failed the re-test. She did not credit the licensee's testimony that he failed the re-test because he was ill and his wife was hospitalized, finding the testimony to be self-serving and uncorroborated.   Taxi and Limousine Comm'n v. Siddig, OATH Index No. 267/18 (Dec. 15, 2017), adopted, Comm'r Dec. (Jan. 3, 2018).

Personnel

The Department of Correction ("DOC") charged a captain with submitting a false use of force report. The report stated that an officer used a chemical agent and punched an inmate because the inmate had refused to comply with search procedures and assumed a fighting stance. DOC contended that the report was false because the surveillance video showed that the inmate had never assumed a fighting stance. ALJ Noel R. Garcia found that the video was inconclusive and did not establish that the inmate was merely leaning against the wall with his arms folded rather than assuming a fighting stance. ALJ Garcia noted that while the captain's description of the inmate's position might seem overstated, such imprecise language does not rise to the level of a false statement, and therefore the charge should be dismissed.    Dep't of Correction v. Frederick, OATH Index No. 1988/17 (Dec. 5, 2017).

A housing inspector was charged with unlawfully converting the cellar of his two-family residence into single rooming units and unlawfully installing kitchen and plumbing fixtures in the cellar space. ALJ Joycelyn McGeachy-Kuls found that the inspector unlawfully converted his cellar into rooming units, which he rented to tenants. The rooms were unsafe because they lacked the required means of egress. The inspector's conduct showed disregard for the housing and safety standards he was charged with enforcing and was in violation of the public trust. Termination of employment recommended.    Dep't of Housing Preservation and Dev. v. Allen, OATH Index No. 1767/17 (Dec. 20, 2017), adopted, Comm'r Dec. (Dec. 22, 2017).

Real Property

An owner of a property within the New York City Watershed sought to build a three-bedroom, single-family home, with a septic system. Because the Watershed Regulations prohibit the installation of a septic system on a site with a slope greater than 15 percent, and the site has a slope of 22 percent, the property owner sought a variance. Department of Environmental Protection ("DEP") denied the variance, finding the owner failed to propose sufficient mitigation measures to avoid degradation of the water supply. The owner appealed to OATH, alleging that DEP's denial of the variance was an abuse of discretion and that unless it is allowed to install the septic system, the property will be undevelopable. ALJ Casey affirmed the denial of the variance. He found that the owner's proposed mitigation, adding two inches of fill, would increase the risk of sewage breaking through and reaching the reservoir, and hence is not as protective of the water supply as compliance with the regulation.    Zappico Construction, LLC v. Dep't of Environmental Protection, OATH Index No. 523/18 (Dec. 6, 2017), adopted, Comm'r Dec. (Dec. 21, 2017).

A company was charged with operating a food service establishment after its permit had expired, and after the Commissioner declared the operation to be a nuisance and had issued a cease and desist order. The owner of the premises was charged with failing to abate the nuisance. ALJ Gloade rejected the company's claim that it stopped serving food after its permit expired and used the premises as a film location holding site. She found compelling evidence that the company continued to serve food: inspectors observed customers consuming drinks and a bartender pouring a drink during inspections; and the company did not challenge the same allegations at prior violation hearings. ALJ Gloade found the owner failed to take steps to abate the nuisance and removed the Department's closure signs from the premises without authorization. She recommended the premises be sealed and padlocked.    Dep't of Health and Mental Hygiene v. Abel River, Inc., OATH Index No. 910/18 (Dec. 5, 2017).

Vehicle Retention

A car was seized following the owner's arrest for driving while under the influence of alcohol and/or drugs, reckless driving, unlawful possession of marijuana and driving onto a public sidewalk. Arrest records showed that the arresting officer observed the driver turn without signaling and swerve onto a sidewalk.  When approached by the arresting officer, the driver did not produce identification, his eyes were red, and his speech was slurred.  ALJ Susan J. Pogoda found that there was probable cause for the owner's arrest, and the Department was likely to prevail in the forfeiture proceeding.  She also found, based on the owner's lengthy criminal record and the circumstances of his arrest, return of the car would pose a risk to public safety.  The Department is entitled to retain the car pending resolution of the civil forfeiture hearing.   Police Dep't v. Santana, OATH Index No. 1117/18, mem. dec. (Dec. 8, 2017).