Recent Decisions - February 2013

The following is a summary of some recent OATH decisions decided in February 2013.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at (347) 820-4954.  

Personnel

The Administration for Children’s Services proved charges that a counselor failed to immediately investigate, report, and document a report of child abuse at a juvenile detention center, and then later failed to cooperate fully in an investigation. ALJ Ingrid M. Addison found there was no mitigation for respondent’s failure to uphold his duty as a mandatory reporter and recommended a suspension of 45-days without pay.   Admin. for Children’s Services v. Miles (in PDF), OATH Index No 911/13 (Feb. 11, 2013).

Prevailing Wage

A roofing contractor hired by the City sought dismissal of the Comptroller’s allegation that it failed to pay its employees the prevailing wage and benefits as required. The contractor argued that the alleged violation occurred more than nine years before the petition was filed and that to proceed after such a long delay was unfair. ALJ John B. Spooner found there was no merit in these claims, noting that respondent had been aware of the ongoing investigation for several years and there was no express statute of limitations for the commencement of hearings. ALJ Spooner denied the contractor’s motion for summary judgment.   Office of the Comptroller v. Colonial Roofing Company, Inc. (in PDF), OATH Index No. 632/13, mem. dec. (Feb. 19, 2013).

Licensing

ALJ Addison found that a licensed hauler of trade waste failed to file an annual financial statement as required. The judge did not credit the hauler’s defense that he never received the notice instructing him to file. She noted that he had made no effort to correct the situation, even after appearing personally at a settlement conference, by which time he must have known of the allegations. She recommended a penalty of $10,000.   Business Integrity Comm’n v. Mattis Bros. Inc., (in PDF), OATH Index No. 1330/13 (Feb. 12, 2013).

In a default proceeding, ALJ Spooner found that the Commission did not prove that a landscaping service operated a business to collect trade waste without a license. The Commission presented the Notice of Violation and photographs, showing a commercial truck, with the name of respondent landscaping company, parked on a street and filled with dirt and rocks. Such proof was insufficient to show that the dirt was trade waste since it was equally plausible that it was landscaping material. Nor was there any proof that the dirt came from a commercial establishment or was debris from construction. ALJ Spooner recommended dismissal of the charges.   Business Integrity Comm’n v. All Green Lawn & Landscaping LLC, (in PDF), OATH Index No. 1107/13 (Feb. 7, 2013).

Real Property

The owner of an interim multiple dwelling sought an order terminating a 1992 finding of tenant harassment issued by the Loft Board against a different owner. In 2005, the Loft Board had denied the applicant’s prior request to terminate the harassment finding on the grounds that he failed to prove compliance with fire and safety requirements. ALJ Astrid B. Gloade found no evidence that tenants had lived in the building for a decade and no evidence the applicant had engaged in harassment of tenants. She also found the applicant had established compliance with fire and safety requirements and otherwise satisfied the legal requirements to end the finding of harassment. Therefore, ALJ Gloade recommended that the 1992 finding be terminated.    Matter of Alonzo (in PDF), OATH Index No. 998/13 (Feb. 15, 2013).

A group of over thirty tenants had sought a finding that their residence was an interim multiple dwelling and that they were the protected occupants. After a new state law passed in late January, 2013, the tenants requested an indefinite adjournment and, in the alternative, moved to withdraw their applications without prejudice because the new legislation materially affected their case. The building owner, who opposed their application for coverage, also opposed the adjournment and the motion to withdraw without prejudice. ALJ Kevin F. Casey found the legislation affected a key point of contention in the matter, the subject of a planned multiday hearing that would involve considerable expense for both sides. He denied request for an indefinite adjournment but granted the motion to withdraw without prejudice so that the applicants could determine how they should proceed.    Matter of 135-139 Plymouth St., Brooklyn (in PDF), OATH Index Nos. 1871-1896/12, 1898-1901/12, 1053-1054/13, 1409/13 (Feb. 5, 2013).

The owner of a building defaulted on a mortgage and the building was placed into receivership. The receiver challenged a planned sale of improvements in an apartment between an outgoing tenant and his subtenant, which is permitted under the Loft Board rules when the parties comply with the rules’ disclosure and notice requirements. The subtenant argued the receiver had no standing to contest the sale because he was not an owner. ALJ Faye Lewis found that while the Loft Board rule does not define the term “owner,” it must be read in harmony with the Multiple Dwelling Law, whose definition of “owner” includes a receiver.    Matter of Greig (in PDF), OATH Index No. 217/13, mem. dec. (Feb. 13, 2013).