Recent Decisions - June 2015

The following is a summary of some recent OATH decisions decided in June 2015.  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

ALJ Tynia D. Richard sustained charges that a counselor at a juvenile detention center used excessive force against a resident and made a false report. A video showed respondent initiate force against the resident who was not complying with commands but was not physically resisting. It showed respondent put the resident in a bear hug, push him over a group of chairs, and choke him; the same video later showed him chase the resident and throw him to the floor. Others had to intervene in both instances to get respondent away from the juvenile. The director and the head of training testified these acts were serious violations of agency guidelines. Respondent’s report of the incident was false and misleading, having omitted material facts. Termination was recommended. The Commissioner adopted the ALJ’s factual findings but did not impose a penalty, as respondent had since resigned.   Admin. For Children Services v. Silva, OATH Index No. 1275/15 (June 26, 2015), adopted, Comm'r Dec.

A captain was charged with filing an untimely report and with being AWOL for 5 days. ALJ Alessandra F. Zorgniotti sustained the charges. The captain had hurt his back while on vacation and converted his vacation days to sick days. While still on vacation, he requested that his vacation be extended by the number of days he was on sick leave. The captain did not report to work as scheduled and failed to verify whether his request to extend his vacation had been granted. ALJ Alessandra F. Zorgniotti recommended 20-day suspension for the AWOL charges and a reprimand for submitting a late report.  Dep't of Correction v. Ramos, OATH Index No. 1903/15 (June 19, 2015).

A sanitation worker admitted that he had tested positive for cocaine and offered evidence in mitigation, including character evidence from supervisors. ALJ Kevin F. Casey recommended termination of employment, but urged petitioner to consider alternative penalties such as drug and alcohol testing for the remainder of the worker's career.   Dep't of Sanitation v. Anonymous, OATH Index No. 1821/15 (June 3, 2015).

Vehicle Retention

Police Department sought to retain a car seized in connection with the driver's arrest for possession of a forged instrument, unlawful possession of personal ID, and driving with a suspended license. ALJ Richard found the Department entitled to retain the car. Probable cause existed for the arrest because police observed the driver cut across four lanes of traffic and drive the wrong way down a one-way street. A license check revealed he was driving with a suspended license. Respondent car owner, who had a child with the driver, raised an innocent owner defense and denied knowledge of the driver's prior record, which included 4 arrests for unlicensed operation of a motor vehicle, 3 of which were in respondent's car. After his 2012 arrest for aggravated unlicensed operation, the driver's sole phone call was to the respondent. ALJ Richard rejected the innocent owner defense, finding that the owner knew or should have known that the driver would use the car for illegal purposes. Retention of the car was necessary because the owner, who was not credible, could not be trusted to prevent the driver from using the car again.   Police Dep’t v. Edmonds-Lawrence, OATH Index No. 2109/15 (June 16, 2015).

Real Property

Following a coverage trial, the building owner stipulated that seven applicants were protected occupants of the first floor. The Loft Board rejected the settlement because no more than five unrelated persons can live together under the multiple dwelling law, and it remanded the matter for a hearing to determine which applicants are protected. After a second trial, ALJ John B. Spooner found that only one of the applicants is entitled to protected status. That applicant proved that he lived at the unit under a rental agreement and paid rent directly to the landlord. None of the other applicants proved that they lived in the unit pursuant to any kind of a rental agreement. Nor did they show that they lived together as a "family" as that term is defined in the law as the proof only showed causal and transient relationships between the occupants.    Matter of Stone, OATH Index No. 1945/14 (June 4, 2015).

ALJ Kara J. Miller recommended that the Loft Board grant a building owner's abandonment application. She found that the former tenant did not notify the owner of his intent to vacate, and that the owner was unable to locate him despite diligent efforts.    Matter of Kent Avenue Holdings, LLC, OATH Index No. 099/15 (June 19, 2015).

A loft building owner applied to terminate a harassment finding against a former owner. ALJ Ingrid M. Addison recommended that the application be granted because there was no evidence of subsequent harassment, all outstanding fines were paid, and the owner obtained Article 7-B compliance.    Matter of 450 Broadway Owners LLC, OATH Index No. 1988/15 (June 8, 2015).

Contracts

A contractor petitioned the Contract Dispute Resolution Board (CDRB), on behalf of three of its subcontractors, regarding a contract with the Department of Environmental Protection (DEP) to repair homes damaged by Hurricane Sandy. The contractor sought reimbursement for those subcontractors for the costs of their General Liability Insurance (GLI). The CDRB, chaired by ALJ Addison, denied the petition, finding that that the Contract did not provide for reimbursement of the subcontractors' GLI costs.    Conti of New York, LLC v. Dep't of Environmental Protection, OATH Index No. 1203/15, mem. dec. (June 18, 2015).

A dispute arose under a Contract to reconstruct sections of boardwalk in Coney Island. The contractor sought additional compensation claiming that the direction to reinstall an aluminum handrail was extra work. The City moved to dismiss on the ground that the contractor had failed to timely file its Notice of Dispute with the agency head. The CDRB, chaired by ALJ Alessandra F. Zorgniotti, denied the motion. The City argued that the dispute ripened when the contractor received minutes from a meeting when it was told to install the handrails. The contractor argued that the dispute did not ripen until its request for a change order was denied. The CDRB found that it not unreasonable for the contractor to wait until it had performed the work, submitted the claim, and the claim was unambiguously denied before pursuing its remedies under the Contract.    Triton Structural Concrete, Inc. v. Dep't of Parks & Recreation., OATH Index No. 1304/15, mem. dec. (June 17, 2015).

Contractor sought extra compensation again in five appeals consolidated into one case. The appeals pertained to a beach front restoration project to repair areas damaged by Hurricane Sandy. The City filed motions to dismiss all five appeals, arguing that the claims were waived because they had not been reserved when the contractor applied for a time-extension. The CDRB, chaired by ALJ Zorgniotti, found that the contractor had reserved two of its claims in the extension request but not the other three, and dismissed the three claims which had not been reserved.    Triton Structural Concrete, Inc. v. Dep't of Design & Construction, OATH Index Nos. 1183/15, 1185/15, 1187/15, 1188/15 & 1943/15, mem. dec. (June 17, 2015).

Contractor sought additional compensation for asphalt work based on unit price per square yard. The CDRB, chaired by ALJ Casey, denied the claim as untimely filed. The CDRB also found that the contractor had waived its claim by failing to reserve the claim when it made time-extension requests. Lastly, the CDRB found that the claim lacked merit because asphalt work was to be calculated under a contract provision which mandated a lump sum payment, not unit pricing.    Perfetto Enterprises v. Dep't of Parks & Recreation., OATH Index No 1646/15, mem. Dec. (June 11, 2015).

Human Rights

After a default hearing, ALJ Richard found that a restaurant violated the City Human Rights Law when it placed an ad seeking a "waitress." ALJ Richard recommended a penalty of $5,000 and mandatory anti-discrimination training for respondent's hiring staff.   Comm'n on Human Rights v. Rozario, OATH Index No. 1273/15 (June 3, 2015).

Practice and Procedure

In a Loft Board proceeding, ALJ Spooner formally admonished an attorney who failed to meet ordered deadlines and refused to reply to repeated discovery requests. The attorney did not receive a more severe sanction because he ultimately complied with requests and conducted himself professionally at trial.  Matter of Stone, OATH Index No. 1945/14, mem. dec.  (June 8, 2015).

Licensing

ALJ Casey recommended the lifting of a suspension of a for-hire vehicle driver because the Commission did not show that restoration of the license would pose a direct and substantial threat to public safety, as required under the Administrative Code. The driver's license was suspended following his misdemeanor arrest for assault in the third degree and harassment. ALJ Casey noted the driver has owned and operated a for-hire franchise for 19 years without any complaints. He found that the criminal charge, even if true, was an isolated departure from a lifetime of lawful behavior.    Taxi & Limosine Comm'n v. Hawas, OATH Index No. 2255/15 (June 17, 2015).

After a default hearing, ALJ Spooner found that a for-hire vehicle driver had made suggestive remarks to a young female passenger and had placed his hand on her thigh. He recommended that the driver's for-hire license be revoked and that he be fined $2,000.    Taxi & Limosine Comm'n v. Wilmores-Metivier, OATH Index No. 2289/15 (June 29, 2015).