Recent Decisions - May 2014

The following is a summary of some recent OATH decisions decided in May 2014.  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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Personnel

A respiratory therapist was charged with insubordination, neglect of duty, and unbecoming conduct. ALJ Faye Lewis found that respondent neglected his duty by failing to answer multiple telephone calls from the emergency room relating to a trauma patient and failing to respond to the emergency room in a timely manner. However, petitioner did not establish that respondent was insubordinate or that he engaged in unbecoming conduct by initiating an argument with staff. Penalty recommended was a 60-day suspension. Health & Hospitals Corp. (Queens Hospital Ctr.) v. Toval, OATH Index No. 1372/14 (May 28, 2014).

An emergency medical technician was charged with committing five incidents of misconduct over a two-year period. ALJ John B. Spooner sustained the charges, finding respondent threatened and harassed co-workers. ALJ Spooner recommended that respondent's employment should be terminated due to the severity of his behavior. Fire Dep't v. Holdip, OATH Index No. 1404/14 (May 19, 2014).

Two correction officers were charged with failing to notify their supervisor or medical staff that an inmate had not received his medication. The inmate had recently been admitted to the double detoxification unit, which is designated for the treatment of inmates experiencing symptoms of alcohol and opiate withdrawal. The officers removed the inmate from a line of inmates waiting to receive detoxification medication after he began to act irrationally and left him in an area away from other inmates for several hours. The inmate, who did not receive his prescribed dosage of medication, died after a subsequent use of force involving officers other than the respondents. ALJ Astrid B. Gloade, sustained the charges that respondents' performance was deficient and recommended 20 days' suspension. Dep't of Correction v. Wisher, OATH Index Nos. 591/14, & 592/14 (May 19, 2014).

Contracts

The LAWS Construction Corporation entered into a contract with the Department of Parks and Recreation to build a golf course in the Bronx. LAWS filed a petition with the Contract Dispute Resolution Board (CDRB), seeking additional compensation for transporting cover material, which it considered extra work. The CDRB, chaired by ALJ Alessandra F. Zorgniotti, determined that any additional costs associated with the transportation of the cover material stemmed from the city’s delay, and therefore LAWS' claim was a delay claim, which is outside the CDRB's jurisdiction, not an extra work claim. Furthermore, the CDRB found that the company waived the claim when it failed to reserve it when it filed for an extension of time to complete the project. As a result, LAWS' appeal was denied and Parks' motion to dismiss was granted. Laws Construction Corp. v. Dep't of Parks & Recreation, OATH Index No. 1445/14 (May 28, 2014).

At a default hearing, ALJ Kevin F. Casey found that respondents, two corporations and their president, violated Labor Law section 220 by failing to pay prevailing rates of wages and benefits to five workers under public works contracts with the Department of Parks and Recreation and the Department of Transportation. ALJ Casey recommended that respondents be assessed a total underpayment, interest, and civil penalty of $883,891.94, as well as barring the respondents from government contracts within New York State for five years as a penalty for the deliberate falsification of payroll records. Office of the Comptroller v. Craft Fence, Inc., Robert Guido, & Craft Contracting Group, Inc., OATH Index No. 494/14 (May 6, 2014).

Licensing

Following a default hearing, ALJ Ingrid M. Addison found that a base station continued to dispatch cars for twelve days after its license had expired. She recommended a fine of $1,200 for the unlicensed activity. ALJ Addison declined to recommend padlocking of the base station because the evidence showed that the station owner had relocated the base to Connecticut. Taxi and Limousine Comm'n v. Mazal Limousine Svc., OATH Index No. 2145/14 (May 13, 2014).