Recent Decisions - June 2016

The following is a summary of some recent OATH decisions decided in June 2016.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

The documents below are in PDF format. Download the Adobe Reader now.

Licensing

A taxicab driver was charged with taking a passenger’s cell phone in a fare dispute, hitting her in the face, keeping her cell phone and credit card, driving off at a high speed while she was holding the door causing her to fall and sustain injuries, and using her credit card. ALJ Alessandra F. Zorgniotti credited the passenger’s testimony and she sustained the charges. She recommended that the taxicab driver’s hack license be revoked and that he should be fined the maximum penalty possible of $3,350.  Taxi and Limousine Comm’n v. Reza, OATH Index No. 1648/16 (June 14, 2016).

The City Clerk had denied a marriage license application based on licenses issued in 1986 and 1990 to a person with the same name and birth date as respondent. On appeal, ALJ Astrid B. Gloade found that respondent proved that she was not the person to whom the prior licenses were issued. The evidence included misspelling of respondent’s name, misidentifying her parents’ place of birth, listing her occupation as “home worker” and secretary when respondent had been employed by the United States Postal Service since 1986, as well as inconsistencies between the signatures on the two prior applications and documentation of respondent’s signature since 1993. Thus, ALJ Gloade recommended that respondent’s application for a marriage license be accepted and processed.  Office of the City Clerk v. McIver, OATH Index No. 2318/16 (June 30, 2016), adopted, City Clerk’s Dec. (July 7, 2016).

Personnel

A correction officer was charged with making false and misleading statements in a written report concerning force used by another officer against an inmate. Video showed that the other officer pulled the inmate’s arm through the food slot and hit the inmate at least once. Respondent’s report stated that there was an “altercation” and included the word “arm” to indicate where force was applied. ALJ John B. Spooner found respondent’s report was deficient, but not intentionally false, because the report did not provide the detail required by the use-of-force directive. He dismissed the charge that respondent did not report that the other officer had struck the inmate because there was insufficient proof that respondent saw a blow. ALJ Spooner recommended a suspension for 15 days.   Dep’t. of Correction v. Lozada, OATH Index No. 1619/16 (June 23, 2016).

ALJ Kevin F. Casey found that a carpenter improperly documented his overtime availability, did not respond to his supervisors’ phone calls regarding availability for overtime, failed to keep his supervisor’s informed about his progress on assignments, disobeyed instructions for filling out timesheets, and refused to comply with orders to refrain from adding extraneous comments to work tracking forms. ALJ Casey recommended a suspension of 20 days without pay.  Fire Dep’t. v. Toner,   OATH Index No. 2741/15 (June 30, 2016).

Vehicle Rentention

ALJ Ingrid M. Addison ruled that the Police Department is entitled to retain a Chevrolet Box Truck seized in connection with respondent’s arrest for possession of forged instruments and unlicensed driving. The police stopped the truck after an officer noticed a fraudulent license plate, the number of which was printed on a plastic sticker. ALJ Addison ruled that respondent did not have standing to seek return of the truck because he did not testify as to how he got possession of the vehicle, and the registered and titled owner did not appear to support that respondent was in lawful possession of it at the time of his arrest. Judge Addison found that the Department had probable cause not only for the stop, but for the arrest of respondent who was driving with a suspended license. Further, the judge found that return of the vehicle to respondent would pose a risk to public safety.  Police Dep’t v. Kaba, OATH Index No. 2211/16, mem. dec. (June 27, 2016).

Contracts

On a contract to rebuild the Coney Island Steeplechase Pier, which had been destroyed by Hurricane Sandy, the contractor sought an additional $676,154 for the installation of shims to allow the pier decking to rest flush on top of the structural concrete beams as depicted in contract drawings. Due to variances in fabrication, the decking rested on raised plates used to distribute the load around anchoring screws. Shims had to be added to close the gap between the decking and the underlying support beams. The Contract Dispute Resolution Board (“CDRB”), chaired by ALJ Zorgniotti, ruled that it was not unreasonable for the City to expect that structural elements be built as specified in the contract and accompanying drawings, and that if contractor had any questions, it should have raised those during the bidding process. The contractor’s claim was denied.  Triton Structural Concrete, Inc. v. Dep’t. of Design and Construction, OATH Index No. 1184/15, mem. dec. (June 28, 2016).

General contractor on a contract to replace the waste transfer station in Flushing Bay sought additional compensation for installing electrical wiring on devices that it furnished, arguing that the electrical contractor was responsible for the installation. The Department of Sanitation contended that the claim must be dismissed because the general contractor did not timely file its Notice of Dispute (“NOD”). The CDRB, chaired by ALJ Gloade, granted the motion. It ruled that the time frame for filing the NOD started when the project engineer informed the general contractor in writing that it was responsible for the installation. The CDRB rejected the contractor’s argument that the time to file the NOD did not start until almost two years later, after the contractor performed the work, submitted a change order and the change order was rejected.  Prismatic Development Corp. v. Dep’t. of Sanitation, OATH Index No. 1239/16, mem. dec. (June 30, 2016).

Human Rights

Commission on Human Rights alleged that landlord failed to accommodate a tenant’s disability and retaliated against her by bringing a bad faith eviction action. Commission moved for summary judgment. ALJ Spooner granted the Commission’s motion for summary judgment in part, finding no issue of material fact regarding the accommodation claim. Landlords admitted that they were aware of the complainant’s disability and denied her request for a modified bathtub or walk-in shower. Since landlords refused the Commission’s request for information as to how the proposed accommodation was unreasonable, it must be deemed reasonable as a matter of law. ALJ Spooner denied summary judgment on the retaliation claim and damages, which raised disputed issues of material fact.  Comm’n on Human Rights ex. rel. Blue v. Jovic, OATH Index No. 1624/16, mem. dec. (June 30, 2016).

Real Property

Five tenants living in three units in a Brooklyn building applied for Loft Law coverage and protected occupancy status. ALJ Casey recommended that the application be granted. The sole contested issues were whether the rear unit has a window that faces a lawful yard or court and whether the building was residentially occupied by three families living independently from each other for twelve consecutive months during the window period. ALJ Casey found that the rear unit has three windows that face a driveway, which qualifies as an outer court based on section 12-10 of the Zoning Resolution. Moreover, the evidence showed that the three units were in fact independent living spaces which were residentially occupied for twelve consecutive months during the window period.  Matter of Tenants of 130 Palmetto St., Brooklyn, OATH Index No. 114/15 (June 15, 2016).