Recent Decisions - March 2014

The following is a summary of some recent OATH decisions decided in March 2014.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at (212) 933-3000.

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Licensing

Respondent requested a review of the Office of the City Clerk's denial of her application for a marriage license and a determination that she was not a party to a 1998 marriage in her name. In support of her appeal, respondent presented affidavits stating that she has never been married and evidence to prove that there were irregularities in the 1998 marriage application and license. ALJ Kara J. Miller found the proof credible and that the signatures on the 1998 application and license differed from respondent's signature. Therefore, ALJ Miller recommended that respondent's application for a marriage license be processed. Office of the City Clerk v. Diaz, OATH Index No. 1298/14 (Mar. 18, 2014), adopted, City Clerk's Dec. (Mar. 26, 2014).

Personnel

An enforcement agent was charged with failing to report a missing chemical spray canister and baton, and making false statements about what happened to them. Noting that respondent persistently refused to provide a truthful explanation for the loss, ALJ John B. Spooner recommended termination of employment as "integrity is vital" to respondent's job duties as a peace officer, which include providing truthful and accurate testimony at hearings. Business Integrity Comm'n v. Cekic, OATH Index No. 1186/14 (Mar. 6, 2014), adopted, Comm'r Dec. (Mar. 13, 2014).

A computer aide was charged with discourtesy, refusal to obey orders, and inefficient performance. ALJ Faye Lewis found that respondent committed misconduct when she was rude and unhelpful to a day care provider who repeatedly called her for assistance, and when she frequently failed to return that provider's telephone calls. Respondent also committed misconduct when she closed a door in a colleague's face after the colleague approached to say that a client was waiting to see her, and when she failed to obey orders to provide her supervisor with a case folder and to resubmit a form. However, ALJ Lewis concluded that it was not misconduct for respondent to tell her colleagues she was on her lunch break and did not want to be bothered, as meal periods are not work time. Considering respondent had no history of formal discipline, ALJ Lewis recommended 12 days' suspension. Dep't of Health & Mental Hygiene v. Levia-Mena, OATH Index No. 851/14 (Mar. 14, 2014).

Vehicle Retention

The Police Department sought to retain respondent's vehicle seized in connection with his arrest for driving while under the influence of alcohol. Respondent sought return of the car on the ground that the Department failed to serve him with notice of his right to a retention hearing. The Department argued that respondent was so inebriated that he could not recall having been served with the notice. However, it provided no proof that service of the notice was made. Rather, the Department suggested that the property clerk's voucher showing the car was inventoried the day after respondent's arrest sufficiently established that respondent was served with the notice because a copy of the notice is usually attached to the clerk's invoice. ALJ Ingrid M. Addison found that the Department did not prove the notice was properly served and she ordered the Department to return the vehicle. Police Dep't v. Jones, OATH Index No. 1690/14, mem. dec. (Mar. 21, 2014).

Human Rights

The Commission on Human Rights, on behalf of the complainant, alleged that a meter reading company and its owner discriminated against the complainant on the basis of gender and constructively discharged her from employment. ALJ Alessandra F. Zorgniotti found that the owner inappropriately touched the complainant, made sexual gestures and comments towards her, and posted an offensive cartoon with her name on it. ALJ Zorgniotti recommended that respondents be assessed a civil penalty of $75,000, back pay of $82,170 plus 9% interest, $12,636 in front pay discounted to its present value, and emotional distress damages of $200,000. Comm'n on Human Rights ex rel. Cardenas v. Automatic Meter Reading Corp., OATH Index No. 1240/13 (Mar. 14, 2014).

Respondent restaurant was charged with unlawfully discriminating against the complainant when its employee directed her to leave because she was accompanied by her service dog. Respondent failed to appear at the hearing. ALJ Astrid B. Gloade found that the restaurant violated the City Human Rights Law and recommended it pay $7,000 in compensatory damages for the complainant’s mental anguish and a $7,000 civil penalty, and hold discrimination training for respondent's employees. Comm'n on Human Rights ex rel. Stamm v. E & E Bagels, Inc., OATH Index No. 803/14 (Mar. 21, 2014).

Prevailing Wage

ALJ Spooner found that a contractor violated the prevailing wage law when it underpaid two workers who performed carpentry work on a project to construct a modular clean room at Elmhurst Hospital for the New York City Health and Hospitals Corporation (HHC). Although the purchase order contract did not expressly require respondent to pay the prevailing rates, the project constituted public work and the prevailing wage law applied. One worker who performed carpentry work and also acted as a supervisor was entitled to the prevailing rate for carpenters. Working foremen on public works projects are entitled to prevailing wages and supplements under prevailing wage law. ALJ Spooner did not find the violation to be willful. Respondent was a Michigan company and there was no evidence that it contracted with city or state agencies in New York before. The two workers were paid the same rate they received while working for respondent in Michigan, plus travel bonus and meal allowance. ALJ recommended that respondents pay $38,853 in unpaid wages, benefits, and interest and be assessed a civil penalty of 25%. Office of the Comptroller v. Superior Press and Automation, Inc., OATH Index No. 1057/14 (Mar. 5, 2014).

Real Property

A sublessee had filed an application with the Loft Board for protected status under the Loft Law on the theory that the prime lessee was an illusory tenant. Matter was referred to OATH for conference and possible trial. Building owner and prime lessee made a pre-trial motion to dismiss on the ground of collateral estoppel and res judicata because the sublessee had raised the same defense unsuccessfully in housing court. After oral argument, ALJ Addison granted the motion and recommended dismissal of the application. Matter of Bosquez, OATH Index No. 376/14 (Mar. 4, 2014).