Recent Decisions - February 2017

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

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Paid Sick Leave Law

The Paid Sick Leave Law was enacted to ensure that employees can take time off work to address their health needs or the health needs of family members. As part of its broad powers to enforce the law, the Department of Consumer Affairs (DCA) may issue a document demand to an employer requesting records that show the employer is in compliance with the law. In a default proceeding, ALJ John W. Burns found that DCA proved that an employer failed to comply with two document demands. He ordered a civil penalty of $1,000.   Dep’t of Consumer Affairs v. Sky Materials Corp., OATH Index No. 830/17, mem. dec. (Feb. 7, 2017).

Licensing

A professional engineer was charged with knowingly or negligently making false statements in applications filed with the Department of Buildings (“DOB”) and with displaying a lack of knowledge of applicable laws because he submitted applications which called for work which was prohibited by the Zoning Resolution, the Multiple Dwelling Law or the Administrative Code. ALJ Faye Lewis found that the engineer knowingly made false statements on three applications, negligently made false statements on three other applications and displayed a lack of knowledge on four filings. She recommended revocation of the engineer’s self-certification and limited review filing privileges. ALJ Lewis also recommended that respondent’s DOB filing privileges be revoked but that he be given an opportunity to apply for reinstatement after a one-year probationary period. The Commissioner adopted the ALJ’s recommendation in full, except that the Commissioner permanently revoked the engineer’s DOB filing privileges.   Dep’t of Buildings v. Schnall, OATH Index No. 2750/15 (Feb. 10, 2017), modified on penalty, Comm’r Dec. (Feb. 21, 2017).

Petitioner suspended the license of a taxi driver who was arrested for leaving the scene of an accident. The driver argued for reinstatement of his license claiming petitioner did not prove that he would present a direct threat to public safety if the suspension was lifted during the pendency of the criminal proceeding. Petitioner countered that under applicable federal case law the standard is not whether the driver is a threat but whether the charge for which he was arrested presents a sufficient nexus to public safety to be considered a threat. Relying on controlling federal case law, ALJ Ingrid M. Addison found that the criminal charge presented a nexus to public safety, such that, if true, respondent’s continued licensure would pose a risk to public safety. The judge therefore recommended continuation of the suspension.   Taxi & Limousine Comm’n v. Barman, OATH Index No. 1434/17 (Feb. 21, 2017).

Personnel

A tax auditor was charged with misconduct and incompetence for performing her duties in an inefficient manner, being discourteous to her supervisor, and time and leave violations. The auditor failed to appear at trial and the matter proceeded by inquest. Based on credible testimony from a supervisor and documentary evidence, ALJ Addison sustained the charges. She found that the auditor’s persistent unwillingness to perform her tasks constituted incompetence as well as misconduct. Termination of employment recommended.   Dep’t of Finance v. Kateme, OATH Index No. 728/17 (Feb. 2, 2017).

Contracts

Contractor sought an additional payment of $1,273,781, plus interest, arising from a contract to plant trees. The Contract Dispute Resolution Board (“CDRB”), chaired by ALJ Kevin F. Casey, denied the claim. After discovering that tree pits were backfilled with construction debris instead of the topsoil required by the contract, auditors directed the contractor to document payments made for “materials actually used” in the disputed work. The contractor was unable to provide verification for its alleged purchases from topsoil vendors. The contractor’s failure to comply with the contract’s recordkeeping requirements constituted a waiver of its claim for damages.   Mana Construction Group, Ltd. v. Dep’t of Parks & Recreation, OATH Index No. 2335/16, mem. dec. (Feb. 10, 2017).

Contractor sought extra compensation arising out of contract to perform electrical work at water treatment plant. The CDRB, chaired by ALJ Alesssandra F. Zorgniotti, denied the claims as time-barred, waived, defective or without merit.   Siemens Electrical, LLC v. Dep’t of Environmental Protection, OATH Index Nos. 1991/16, 2288/16, 426/17, mem. dec. (Feb. 7, 2017).