Recent Decisions - July 2016

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

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Contracts

Contractor, a provider of home care services for the elderly, sought order compelling the Department of the Aging (DFTA) to annul performance evaluations which rated the contractor’s performance as “fair.” The Contract Dispute Resolution Board (CDRB), chaired by ALJ Kevin F. Casey, found that it did not have jurisdiction to consider challenges to performance evaluations as section 2-10 of the Procurement Policy Board Rules provide a mechanism for resolving disputes regarding performance evaluations. People Care, Inc. v. Dep’t of the Aging, OATH Index Nos. 1558/12 & 1990/16, mem. dec. (July 28, 2016).

Contractor sought $390,812.50 for extra costs incurred after the Department of Transportation directed it to inspect dark spots that appeared on steel girders used in the replacement of the Shore Parkway Bridge. On appeal, the CDRB, chaired by ALJ Noel R. Garcia, found that a December 9, 2014 letter from the project’s engineer—which stated that the contractor would not be compensated for inspecting the dark spots on the steel girders—was a final determination that triggered the 30-day period to file a Notice of Dispute. As such, the contractor’s March 6, 2015 Notice of Dispute was time-barred and the CDRB dismissed the petition. CCA Civil, Inc. v. Dep’t of Transportation, OATH Index No. 1528/16, mem. dec. (July 19, 2016).

Licensing

The Taxi and Limousine Commission (TLC) charged a taxicab driver with harassing a pedestrian by showing her a pornographic video on his cellphone and exposing his genitals. Petitioner presented the testimony of the complainant, as well as pictures of respondent and his cab taken at the time of the incident. ALJ Garcia found that the credible evidence established that respondent had harassed complainant by showing her a pornographic video, but not that respondent had exposed his genitals. ALJ Garcia recommended revocation of license and a fine of $1,000. Taxi & Limousine Comm’n v. Khalek, OATH Index No. 1845/16 (July 11, 2016).

TLC suspended taxi driver’s license after his arrest for assault for striking a butcher shop employee. At the summary suspension hearing, petitioner contended that respondent’s arrest justified continued suspension of his TLC license. Respondent maintained that he posed no threat to the public. ALJ Garcia found that respondent’s license should remain suspended until the criminal charge is resolved because the driver had been charged with a crime, the charge was still pending, and there was a nexus between the charged crime—assault—and public safety. Taxi & Limousine Comm’n v. Fariduddin, OATH Index No. 2467/16 (July 18, 2016), adopted, Comm’r Dec. (Aug. 8, 2016).

Personnel

Department of Environmental Protection alleged that respondent, a clerical associate, had been excessively absent since 2014. Respondent, who had an absenteeism rate of over 50%, claimed that she was hired under the Section 55-a Program due to her diabetes, which protected her from disciplinary charges. In addition, she presented numerous doctors’ notes to support her absences. ALJ Kara J. Miller found that the Section 55-a Program was not a defense to excessive absenteeism and her medical notes illustrated respondent’s habit of visiting different urgent care clinics every few days in order obtain doctor’s notes and avoid returning to work. ALJ Miller recommended termination of employment. Dep’t of Environmental Protection v. A.M., OATH Index No. 1410/16 (July 6, 2016).

The Human Resources Administration (HRA) charged respondent, a clerical associate, with excessive lateness, several instances of discourtesy, threatening and disruptive conduct, and making a false statement. Petitioner proved that respondent was late on 53 occasions, engaged in discourteous conduct on three occasions, was disruptive during a training class, and made a false statement during a supervisory conference. Petitioner failed to prove respondent engaged in other instances of discourteous conduct due to lack of corroboration of statements allegedly made by respondent and lack of specificity as to respondent’s words or actions. ALJ Garcia recommended termination of employment. Human Resources Admin. v. Bryant, OATH Index No. 1721/16 (July 5, 2016).

Real Property

Tenant of an Interim Multiple Dwelling (IMD) unit filed an unreasonable interference application against building owner. ALJ John B. Spooner found that neither the eight-month delay in completing the renovation of the tenant’s apartment, the installation of a new sheetrock wall, nor the dust in the unit, constituted unreasonable interference. The tenant’s unit was in need of extensive repairs due to a previous fire, and the extent of the damage was not known until the tenant vacated and the owner was able to inspect the unit. ALJ Spooner recommended that the application be dismissed. Matter of Brigham, OATH Index No. 2691/15 (July 14, 2016).

Tenants sought a finding that the building in which they reside is an IMD and they are protected occupants of the second and fourth floor units. At an inquest hearing, ALJ Raymond E. Kramer found that tenants provided sufficient direct and circumstantial evidence to demonstrate that the second, third and fourth floor units were residentially occupied during the 12-month window period and that tenants are protected occupants. ALJ Kramer recommended that the tenants’ coverage application be granted. Matter of Stathis, OATH Index No. 347/15 (July 12, 2016).

Tenants moved for summary judgment on their applications for protected occupant status and rent overcharge under the Loft Law, as well as their claim that the building is an IMD. Owner filed a cross-motion to dismiss tenants’ claims. Tenants argued that the building is an IMD and their units are covered under the Loft Law because the owner registered the building with the Loft Board in 1993. The owner contended that the building is not an IMD because the draft of a 1995 settlement with previous tenants before OATH, provided in part that the owner would withdraw the registration application with prejudice. ALJ Miller found that there were disputed material facts on the question of protected occupancy and rent overcharge and denied summary judgment. However, ALJ Miller granted summary judgment for the tenants on whether the building is an IMD, reasoning that this tribunal does not have jurisdiction to adjudicate registration applications, and therefore the 1995 settlement could not have required that the owner withdraw the registration application. Furthermore, even if the settlement was taken into consideration, the owner’s voluntary registration of the building in 1993 and filing of executed registration renewal applications with the Loft Board from 1993 to 2015, was not accidental, as alleged by the owner. Both the Loft Board’s and the owner’s interactions demonstrated that the building was an IMD. Matter of Blessing, OATH Index Nos. 2313/15, 0011/16, 0012/16, 0013/16, 0014/16 & 0015/16, mem. dec. (July 11, 2016).