Recent Decisions - February 2016

The following is a summary of some recent OATH decisions decided in February 2016.  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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Campaign Finance

A candidate and his campaign committee were charged with violating the Campaign Finance Act during the candidate's unsuccessful campaign for re-election to the City Counsel. ALJ Kevin F. Casey found the Campaign Finance Board proved that respondents' campaign maintained petty cash in excess of the $500 limit. The ALJ also found that payments made to a consultant for absentee ballot education were not exempt from the expenditure limits, as these payments served to promote the candidate's election. Finally, respondents were ineligible for public matching funds because they provided inadequate documentation for more than 40% of their campaign contributions. After considering mitigating circumstances, ALJ Casey recommended a total penalty of $49,722.   Campaign Finance Board v. Gerson & Friends for Gerson, OATH Index No. 2421/14 (Feb. 19, 2016).

Contracts

On appeal a contractor sought $12,570,174 in additional compensation for its subcontractor as a result of delays that lead to increased supervisory costs, relating to a contract with the Department of Design and Construction for the renovation of City Hall. The City moved to dismiss on grounds that the contractor failed to timely file its petition with the Contract Dispute Resolution Board and the claims were outside the Board's jurisdiction. The Board, with ALJ John B. Spooner sitting as Chair, granted the motion finding the contractor's petition was time-barred because the prime contractor's failure to meet a deadline for submission of a claim on behalf of a subcontractor was not an excuse for untimeliness. Hill International, Inc., on behalf of Plaza Construction LLC v. Dep't of Design and Construction, OATH Index No. 613/16, mem. dec. (Feb. 16, 2016).

Human Rights

The Commission on Human Rights sought $50,000 in emotional distress damages as a result of respondent's alleged denial to build a wheelchair ramp at one of its building's entrances. During discovery, respondent was granted disclosure of complainant's mental health records by order of ALJ Alessandra F. Zorgniotti. Petitioner sought certification by ALJ Zorgniotti to submit the order for interlocutory review by the Commission chair on grounds that complainant's mental health records were protected by the doctor-patient privilege, and that a claim of "garden-variety" emotional distress damages does not waive the privilege under federal law. ALJ Zorgniotti denied the request as untimely and without merit as New York case law—the applicable law in these proceedings—has no exception for "garden-variety" damages. Instead, New York case law has held that a party waives the doctor-patient privilege when he or she seeks emotional distress damages. Subsequently, petitioner filed an objection to the ALJ's order, which she denied as waived and without merit. Comm'n on Human Rights v. Westbeth Corp. HDFC, Inc., OATH Index No. 1913/15, mem.dec. (Feb. 9, 2016) and OATH Index No. 1913/15, mem.dec. (Feb. 24, 2016).

Licensing

The Taxi & Limousine Commission (TLC) sought to revoke a driver's for-hire vehicle license after he tested positive for cocaine. Respondent denied having used any illegal drugs and presented a doctor's note stating that he does not have substance abuse problems. Respondent also offered subsequent drug test results which were negative for opiates. ALJ Noel R. Garcia found that the doctor's note did not indicate whether respondent had undergone laboratory testing, and respondent's subsequent drug tests were performed approximately 2-3 months after the TLC drug test. As such, respondent failed to rebut petitioner's scientific evidence. License revocation recommended.   Taxi & Limousine Comm'n v. Delorbe, OATH Index No. 887/16 (Feb. 11, 2016), adopted, Comm'r Dec. (Mar. 4, 2016).

Personnel

A supervising sewage treatment worker was charged with engaging in a verbal altercation, throwing chairs and slamming doors. Petitioner offered a video surveillance recording which showed the exchange between respondent and another worker. ALJ John B. Spooner found that the video and the testimony contradicted the co-worker's incredible assertion that respondent was threatening and "in his face." The ALJ also found that the rumors that respondent had thrown chairs and slammed doors were uncorroborated by the witnesses. ALJ Spooner recommended that the charges be dismissed and that respondent's pay be restored for the time he was suspended.   Dep't of Environmental Protection v. Giacia, OATH Index No. 211/16 (Feb. 10, 2016).

A child protective specialist was charged with failing to timely appear in family court regarding a case under her supervision and raising her voice at an agency attorney when questioned about the case. Respondent admitted to having forgotten to appear at family court, but denied yelling at the agency attorney. ALJ Astrid B. Gloade found that respondent's testimony was not credible, while the attorney's testimony was corroborated by a contemporaneous telephone complaint and an e-mail to respondent's supervisor after the incident. Given the nature of the proven misconduct, as well as respondent's disciplinary history for rudeness and insubordination, a 55-day suspension without pay was recommended.   Admin. for Children's Services v. Berrios, OATH Index No. 124/16 (Feb. 11, 2016), adopted, Comm'r Dec. (Feb. 23, 2016).

Real Property

In a Loft Law coverage case, the owner conceded the petitioner met all requirements except whether her unit met the minimum size requirement. Petitioner argued that the unit met the requirement, measuring area by using the length and width of the unit's exterior walls. The owner contended that the unit was undersized, arguing that area is the sum of the interior room spaces, excluding the width of the walls and partitions. ALJ Kara J. Miller found that petitioner's measurement method was more appropriate because it was consistent with the Multiple Dwelling Law and the Zoning Resolution. Furthermore, the remedial purpose of the Loft Law requires that ambiguous statutory language be resolved in favor of coverage. ALJ Miller recommended that the coverage application be granted.   Matter of Manganaan, OATH Index No. 344/15 (Feb. 24, 2016).

Loft Board application for protected status was filed by petitioner, who is deceased. Petitioner's surviving domestic partner pursued the application on her own behalf. She asserted that she is entitled to protection under 2010 amendments to the Loft Law, or alternatively she has succession rights to petitioner's protected occupancy. Respondents, the proprietary lessees to petitioner's unit argued that the unit was registered under the original Loft Law, and that petitioner and his partner were subtenants who took occupancy after June 21, 1982, without the consent of the cooperative association, and thus not qualified for protected status. The parties agreed to submit the issue on stipulated facts, without a trial. Based on prior Loft Board precedent, ALJ Alessandra F. Zorgniotti recommended that the application be dismissed because petitioner is a subtenant and not the prime lessee, she is not entitled to protected occupancy absent consent of the cooperative association.   Matter of Loback, OATH Index Nos. 1680/15 & 2190/15 (Feb. 4, 2016).

Vehicle Retention

The Police Department seized a motorcycle in connection with respondent's arrest for criminal possession of a weapon in the second degree and related lesser charges. Respondent raised the affirmative defense that the Department did not serve him with notice of his right to a retention hearing at the time of seizure or by mail as required by Krimstock v. Kelly. ALJ Noel R. Garcia found that the testimony of respondent's son did not address whether respondent received notice, and as such, did not prove the affirmative defense. Ultimately, however, ALJ Garcia ordered the motorcycle be returned to the owner because the arrest report did not produce any facts to indicate that there was reasonable suspicion to support the initial stop which led to the criminal charges. Police Dep't v. Brown, OATH Index No. 1360/16, mem. dec. (Feb. 2, 2016).