Recent Decisions - July 2015

The following is a summary of some recent OATH decisions decided in July 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

An ultrasound technologist was charged with failing to properly identify a patient and performing the wrong examination on the patient. ALJ Kevin F. Casey sustained the charges. Evidence showed that the technician did not follow hospital policy for identifying patients, which requires using two methods to verify a patient's identity, and as a result performed an ultrasound on the wrong patient. The technician realized his mistake after the examination had been completed and reported it to his supervisor. That no one was injured and the mistake was immediately reported was outweighed by the technician's record of poor performance. The hospital does not have to wait for a patient to be injured before taking action, thus termination of employment was recommended.   Health & Hospitals Corp. (Kings Co. Hospital Ctr.) v. Kahn, OATH Index No. 1051/15 (July 15, 2015).

Following an accident involving a sanitation worker's truck and a civilian car, which resulted in injuries to passengers in both vehicles, respondent submitted to drug and alcohol testing in accordance with the department's substance abuse policy. At trial, he admitted to testing positive for marijuana and testified in mitigation of the penalty. ALJ Ingrid M. Addison noted that respondent had violated the substance abuse policy three times, and had previously received a 44-day suspension for similar conduct. Respondent, who attributed his violation of the policy to difficulties with his former wife, did not persuade ALJ Addison that he was not a risk to relapse. Termination of employment was recommended.  Dep't of Sanitation v. T.S., OATH Index No. 1686/15 (July 2, 2015), adopted, Comm'r Dec. (Aug. 7, 2015).

A sanitation worker charged with testing positive for marijuana raised the defense of innocent ingestion. ALJ Casey recommended dismissal of the charge. The worker testified that he attended a party, where he got into an argument with an acquaintance. As a 'joke' after their argument, the acquaintance gave the worker a marijuana-laced brownie, without telling him that it contained marijuana. Respondent ate the brownie but did not know that it contained marijuana. The acquaintance’s credible testimony corroborated respondent's version of events, particularly because she had no motive to lie and she testified to participating in illegal activities against her own interests. Finding that the sanitation worker did not knowingly ingest marijuana, ALJ Casey recommended that the charges be dismissed.   Dep’t of Sanitation v. Anonymous, OATH Index No. 1685/15 (July 17, 2015).

Real Property

Watershed regulations require any new subsurface sewage treatment system (SSTS) be at least 100 feet from a wetland. A Putnam County property owner wanted to build a four-bedroom residence with a new SSTS which was only 46 feet from a wetland. He applied for a variance, offering to install an Eljen Geotextile Sand Filter instead of a conventional SSTS. The Department of Environmental Protection (DEP) denied the variance, finding that the property owner did not show that the proposed mitigation measure would be as safe as compliance with the 100 foot limit. On appeal, ALJ Susan J. Pogoda found that the DEP Commissioner had not abused his discretion in denying the variance. The denial was not arbitrary or capricious and had a rational basis. ALJ Pogoda recommended that the denial of the variance be affirmed.    Solof v. Dep't of Environmental Protection, OATH Index No. 2371/15 (July 10, 2015).

The Department of Housing Preservation and Development sought to deny a building owner's application for a certificate of no harassment (CONH), alleging that the owner harassed a Single Room Occupancy (SRO) tenant in his building. The Department alleged that the owner failed to provide essential services, such as heat and hot water, and that his son poured a combination of baby oil and urine on the tenant. The owner credibly showed that he attempted to resolve the problems in his tenant's apartment, but was consistently denied access to the unit. Proof of the baby oil/urine incident was limited to the tenant's testimony, which was insufficiently reliable to satisfy the Department's burden of proving that harassment occurred. ALJ Faye Lewis found that the Department did not prove that harassment occurred and recommended that the building owner's CONH be granted.   Dep't of Housing Preservation & Development v. Lewis, OATH Index No. 2675/14 (July 9, 2015).

ALJ Casey recommended that the Loft Board grant two occupants' applications for finding that they are each protected occupants of an interim multiple dwelling (IMD) unit, because each occupant's window opened onto a lawful yard or court. One unit opened onto an inner court yard with an interior awning-like structure that did not alter the nature of the area, and the other unit faced a lawful "rear yard" regardless of the fact that the yard was in a different zoning lot.    Matter of Doris, OATH Index Nos. 2542/14 & 2543/14 (July 10, 2015).

Vehicle Retention

The Police Department sought to retain a car seized in connection with the driver's arrest for criminal possession of a controlled substance, criminal possession of a forged instrument, driving while intoxicated, resisting arrest, and related lesser charges. ALJ Casey found that the Department was entitled to retain the car. The car owner was not present at the time of arrest, and is the driver's wife. She claimed to be an innocent owner. The Department successfully rebutted this claim showing that, aside from the driver's ten other arrests and convictions for narcotics related felonies, this was the third time the owner's car was used by him to commit a crime within the past year. The owner testified that she was aware that the driver had been arrested twice before while driving her car, and yet she continued to let him drive it. Retention was necessary in this case to protect the public, as the owner did not credibly show that she would prevent the driver from using her car in the future.   Police Dep't v. Smith, OATH Index No. 2587/15, mem. dec. (July 1, 2015).

ALJ Gloade ordered the Police Department to release a car that it had seized in connection with the owner's arrest for driving while intoxicated. Noting that it was the respondent's first arrest and that there was no indication that the respondent, who switched seats with the driver of the vehicle after it was pulled over by the police, was driving recklessly, ALJ Gloade found that the Department failed to prove continued retention of the car was necessary to protect against a heightened risk to public safety.   Police Dep't v. Velez, OATH Index No. 2663/15, mem. dec. (July 10, 2015).

Prevailing Wage

ALJ Tynia D. Richard found that a public works contractor and its president failed to pay prevailing wages and supplemental benefits to 21 employees on eight contracts to perform work on public schools. Respondents underpaid the workers by $196,037, and were liable for $401,072, including interest and penalties. The violations were willful in that respondents classified workers as "helpers" even though there was no such classification on the prevailing wage schedule, which was contained on each of the contracts. Finding that respondents deliberately falsified payroll records, she recommended that respondent's be barred from bidding on state contracts for five years, and be assessed a 25 % civil penalty.  Office of the Comptroller v. Reliance General Construction, Inc., OATH Index No. 1767/15 (July 23, 2015).

Following an 11 day trial, ALJ Kara J. Miller, found that contractor and its sole owner had failed to pay prevailing wages and supplemental benefits to three ironworkers on contracts to perform work at public schools. Evidence from investigations, which included review of certified payroll records, video footage from worksites, and statements from the complainants and custodial staff proved that respondents deliberately falsified payroll records by failing to include two laborers who worked on the jobs. Finding the petitioner's evidence to be more reliable than the evidence offered by respondents, ALJ Miller rejected respondents' contentions that the complainants were paid more than the prevailing wage or that they worked fewer hours than they had claimed. She recommended that the contractor be directed to pay the amount of the underpayment, plus a 25% civil penalty and 16% interest, and be barred from bidding on state public works contracts for five years.  Office of the Comptroller v. Astoria General Construction, Corp., OATH Index No. 1257/14 (July 20, 2015).

Licensing

ALJ Alessandra F. Zorgniotti recommended the continuation of a suspension of a taxi driver's license during the pendency of criminal charges against the license holder. The license holder was arrested for assault in the third degree, reckless endangerment, avoiding payment, and leaving the scene of a personal injury accident. ALJ Zorgniotti found that the continued licensure during the pendency of these charges would pose a threat to public health or safety.    Taxi & Limousine Comm'n v. Khouma, OATH Index No. 2550/15 (July 2, 2015), adopted, Comm'r Dec. (July 23, 2015).

A taxi driver who tested positive for cocaine denied illegal drug use and argued that it would be “suicidal” for him to do so due to longstanding health issues. He also argued that the test results were unreliable, offering test results from subsequent tests which were negative for opiates. ALJ Raymond E. Kramer found that respondent failed to rebut the scientific evidence of the positive result for cocaine. License revocation was recommended.    Taxi & Limousine Comm'n v. Anonymous, OATH Index No. 1537/15 (July 14, 2015).