Recent Decisions - February 2015

The following is a summary of some recent OATH decisions decided in February 2015.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

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Human Rights Law

Home improvements contractor was found to have violated the City Human Rights Law (HRL) by sexually harassing an employee and firing her in retaliation for opposing the discriminatory treatment. ALJ Kevin F. Casey recommended that the complainant be awarded $17,020 plus interest for lost wages, and $10,000 for mental anguish. He also recommended that respondents be assessed a civil penalty of $10,000.   Comm'n on Human Rights ex. rel. Martinez v. Joseph "J.P." Musso Home Improvement, OATH Index No. 2167/14 (Feb. 27, 2015).

In a default proceeding, respondents, a real estate broker and its agent, were found to have violated the HRL by refusing to show apartments to a prospective tenant because of his Section 8 housing voucher. ALJ Tynia D. Richard recommended that the complainant be awarded $7,500 for mental anguish and that respondents be assessed a civil penalty of $25,000.   Comm'n on Human Rights ex. rel. Howe v. Best Apartments, Inc., OATH Index No. 2602/14 (Feb. 18, 2015).

In a discrimination case, the Commission moved to declare respondents, who are self-represented, in default and preclude them from participating in the hearing due to their failure to comply with Commission requirements for filing an answer. ALJ Astrid B. Gloade denied the motion, finding the Commission did not notify respondents of their non-compliance in its notice of referral of the case to OATH in accordance with OATH's rules for Commission cases. Petitioner's failure to notify respondents until after the first conference deprived them of their opportunity to submit an affidavit showing good cause at or before the conference as provided for in the rule.   Comm'n on Human Rights ex. rel. Jordan v. Raza, OATH Index No. 716/15, mem. dec. (Feb. 11, 2015).

Personnel

ALJ Kara J. Miller found that a correction officer had engaged in undue familiarity with an inmate by failing to notify the Department that her husband had been arrested and incarcerated on Rikers Island, by taking telephone calls from him on her post phone and cellphone while on duty, and by disclosing Department business to him during the calls. The officer also threatened and assaulted a woman who she believed was having an affair with her husband after he was released from jail. Termination of employment recommended.   Dep't of Correction v. Harris, OATH Index No. 2383/14 (Feb. 27, 2015).

ALJ Faye Lewis denied a correction officer's motion to remove his name from a published OATH decision. Reports and recommendations issued by OATH, an independent tribunal, are not "under the control" of the Department of Correction and thus do not fall within the confidentiality provisions of section 50-a of the Civil Rights Law.   Dep't of Correction v. Victor, OATH Index No. 388/15, mem. dec. (Feb. 3, 2015).

ALJ Miller recommended dismissal of charges that a sewage treatment worker had left his assigned work location, threw a clipboard at a co-worker and neglected his duties. She sustained a charge that he had used threatening language towards the co-worker, but found he was provoked and recommended a reprimand as the penalty. ALJ Miller recommended dismissal of all charges brought against a second sewage treatment alleged to have challenged a co-worker to a fight and to have cursed the co-worker.   Dep't of Environmental Protection v. Butcher, OATH Index Nos. 297/15 & 299/15 (Feb. 9, 2015).

ALJ Lewis found that a case worker had sent official correspondence to a client that contained insulting language and was insubordinate and discourteous to a supervisor by failing to complete an assignment and instead ripping up a document in protest, in view of co-workers.   Human Resources Admin. v. Lovell, OATH Index No. 2477/14 (Feb. 13, 2015).

Prevailing Wage

ALJ Alessandra F. Zorgniotti found that a public works contractor failed to pay prevailing wages and benefits to two employees for lead abatement work at the Neversink Hydroelectric Generating Plant in Sullivan County. Petitioner also proved that respondent deliberately falsified payroll records. Respondents were liable for the underpayments, plus 16% interest and 25% civil penalty. They were also barred from all government contracts within New York State for five years.  Office of the Comptroller v. New American Restoration, Inc., OATH Index No. 218/15 (Feb. 3, 2015), adopted, Comptroller's Dec. (Mar. 11, 2015).

Real Property

ALJ Ingrid M. Addison found that applicants established that three units were residentially occupied during the window period and their building is therefore covered as an interim multiple dwelling under the 2010 amendments to the Loft Law. However, only two of three tenants proved that they are entitled to protected occupancy status under the law. The third tenant who moved in after the effective date of the 2010 amendments, did so without the knowledge or consent of the landlord. Further, he used the unit primarily as a recording artist rather than residentially, and therefore is not entitled to coverage.   Matter of Becker, OATH Index No. 116/15 (Feb. 20, 2015).

Two tenants filed an application seeking findings that their building is covered under the original Loft Law and that they are entitled to protected occupancy status. ALJ Casey recommended dismissal of the application. He found that the applicants proved that two units were residentially occupied during the window period but not that the third one was, as required for coverage under the law.   Matter of Lerner, OATH Index No. 1121/14 (Feb. 19, 2015).

Contracts

Contractor appealed from denials of two claims arising out of its contract to perform low voltage electrical work at the Croton Water Treatment Plant. First claim sought an additional $337,637 to cover costs due to improper work coordination relating to the installation of variable frequency drives (VFD claim). The other claim sought $456,684 to cover additional labor costs due to agency and general contractor's failure to provide adequate ventilation at the site which caused excessive heat (heat claim). The Contract Dispute Resolution Board (CDRB), chaired by ALJ Zorgniotti, dismissed the VFD claim as time-barred and the heat claim as a claim for delay damage which are outside the CDRB's authority.   Siemens Electrical, LLC v. Dep't of Environmental Protection, OATH Index Nos. 1303/15 & 1310/15, mem. dec. (Feb. 18, 2015).