Recent Decisions - August 2015

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

A captain was charged with using excessive force against an inmate and making false statements. Two officers were charged with making false statements, and one of the officers was also charged with failing to arrange a mental health referral. ALJ John B. Spooner did not credit the inmate's testimony, which was contradicted in large part by video evidence, and he recommended dismissal of the force and false statement charges. ALJ Spooner also recommended dismissal of the mental health referral charge. The evidence showed that two supervisors were aware of the inmate’s behavior and decided not to make a referral. In the circumstances, the officer could not be blamed for failing to make a referral.   Dep't of Correction v. Williams, OATH Index Nos. 2174/15, 2175/15 & 2176/15 (Aug. 24, 2015).

A sanitation worker admitted that he refused to submit to a drug test. The Department requested termination of the employment because this was the worker's third violation. At a penalty hearing, the worker testified and presented testimony from a supervisor and the director of the Employment Assistance Unit (EAU). The worker had tested positive in 2003 and again in 2004, but did not violate the policy again until 2014. The director of EAU recommended that the worker remain with the Department under EAU observation, given the long gap between the second and third violations. ALJ Faye Lewis recommended termination of employment but she urged the Department to agree to a less drastic penalty requiring drug and alcohol testing for the rest of the worker's career. She found respondent's testimony to be sincere and the opinion of the EAU head to be worthy of considerable weight.  Dep’t of Sanitation v. Anonymous, OATH Index No. 1853/15 (Aug. 7, 2015).

ALJ Kara J. Miller found an oiler threatened a stationary engineer on two occasions, improperly lowered medical air pressure, failed to follow a directive to put oil in the air compressor, left his post and created a potentially hazardous situation by failing to tighten the feed valve on the regulator for one of the boilers. ALJ Miller credited the engineer's testimony that after an alarm sounded in the boiler room, respondent stormed into the engineer's room, asked what was going on, picked up the engineer's computer monitor and lifted it in the air while threatening the engineer. On another occasion, respondent had approached the engineer in the parking lot as he was walking to his car and threatened him in a loud and profane manner. ALJ Miller recommended dismissal of the remaining charges. ALJ Miller recommended termination of the oiler's employment, finding his conduct created a risk to others in the facility.   Health & Hospitals Corp. (Woodhull Medical & Mental Health Ctr.) v. Sullivan, OATH Index No. 1236/14 (Aug. 28, 2015).

A correction officer was found to have been out of residence without authorization while on sick leave, and was left instructions to report to the Health Management Division (HMD) with his shield, identification (ID) and all personal firearms. When he reported to HMD, he was placed on immediate suspension because it was his fourth violation. He surrendered his shield and ID but not his firearm, and stated that the gun was at his other residence in Pennsylvania. After he was directed to await an escort to accompany him to the residence to retrieve the firearm, respondent left the facility. The following day, he claimed to have found the gun at his Brooklyn residence. ALJ Ingrid M. Addison found respondent insubordinate for being out of residence without authorization, failing to surrender his firearm when requested, disobeying the order to remain at HMD, and failing to promptly notify the Department that he had legally changed his name. Termination of employment recommended.   Dep't of Correction v. Hedges, OATH Index No. 1962/15 (Aug. 21, 2015).

Contracts

Electrical contractor who executed a $29.4 million contract with the Department of Environmental Protection (DEP) to perform rehabilitation work and upgrades at the Wards Island Pollution Control Plant sought an additional $8,642,044 for costs incurred due to alleged acts and omissions by DEP. DEP moved to dismiss the petition, arguing that the contractor sought delay damages, which are beyond the scope of the contract’s alternative dispute resolution (ADR) provision. The contractor argued that it was seeking recovery as a cardinal change, i.e., that material breaches by DEP doubled the duration of the work from 48 months to 79 months and increased the cost of performance by $8,642,044. The CDRB, chaired by ALJ Addison, found that all claims except one were delay damage claims and it dismissed all claims except that one. DEP was directed to file its response to the surviving claim.   Siemens Electrical, LLC v. Dep't of Environmental Protection, OATH Index No. 962/15, mem. dec. (Aug. 14, 2015).

General contractor with a contract to repair single and multi-family homes damaged by Hurricane Sandy sought reimbursement of the costs of commercial general liability (CGL) insurance incurred by its subcontractors. The Contract Dispute Resolution Board (CDRB), chaired by ALJ Astrid B. Gloade, determined that the contract did not provide for the City's reimbursement of the subcontractors' CGL insurance costs and it denied the claim.   Judlau Contracting, Inc. v. Dep't of Environmental Protection, OATH Index No. 1893/15, mem. dec. (Aug. 20, 2015).

Licensing

A mobile food vending permittee was charged with falsifying renewal applications by stating that only he would operate the cart, committing more than four violations of the Administrative or Health Code within a two year period, and failing to pay associated fines. Petitioner showed that notices of violation were issued to several other vendors who were selling from respondent's cart, respondent committed 18 violations in less than one year, and he owed $4,910 in associated fines. ALJ Tynia D. Richard rejected respondent's argument that he was not liable for violations committed by other vendors, noting that under the Health Code, a permittee is liable for all violations committed by others operating his cart. ALJ Richard found no evidence that notice to respondent was lacking. The ALJ recommended permit revocation, which was adopted by the agency.    Dep't of Health & Mental Hygiene v. Argyros, OATH Index No. 2579/15 (Aug. 19, 2015), adopted, Comm'r Dec. (Sept. 1, 2015).

The Business Integrity Commission (BIC) charged respondent with making false statements on its application and renewal forms and with five occasions of failing to timely notify BIC of a material change. ALJ Addison found that respondent falsely stated that it was not the subject of administrative charges on two of its renewals. ALJ Addison sustained only one instance of failure to notify BIC of a material change. The application and renewal forms indicated that material information was marked with an asterisk. But only the original application contained an asterisk next to the question on administrative charges. Therefore, the charge that respondent violated BIC’s Order was sustained when it failed to notify BIC within 10 days of the first set of administrative charges issued against it. The renewal applications did not contain an asterisk to indicate that such charges constituted material changes, so ALJ Addison dismissed those charges. ALJ Addison recommended a $30,000 fine for the three violations proven.    Business Integrity Comm'n v. GW Metal, Inc., OATH Index No. 2548/15 (Aug. 13, 2015).

Vehicle Retention

The Police Department seized a car in connection with the car owner's arrest for menacing and possession of a loaded firearm. The car owner sought release of the car, alleging that the Police Department had failed to serve him with notice of his right to a hearing as required by federal court order in Krimstock v. Kelly. ALJ Alessandra F. Zorgniotti found that the Police Department failed to show that car owner was served with notice of his right to a hearing at the time of the arrest or later by mail, as required. She ordered that the car be released.   Police Dep't v. Norman, OATH Index No. 237/16, mem. dec. (Aug. 14, 2015).

Human Rights

After a contested trial, respondent was found to have violated the City Human Rights Law when he posted a Craig's List advertisement for a restaurant manager, seeking "Eastern European waitress and female bartender/phone person." ALJ Kevin F. Casey rejected respondent's claim that he posted the ad merely as a favor for a friend, finding that the evidence showed that he acted as the restaurant manager's agent. The proof showed that respondent wrote the ad, posted it on the internet, forwarded the responses to the manager and was reimbursed for expenses. The Commission sought a civil penalty of $15,000. Noting that higher penalties have been imposed where a respondent has refused to cooperate, here respondent participated in the process. ALJ Casey recommended a civil penalty of $5,000 and affirmative relief of requiring him to undergo anti-discrimination training.  Comm'n on Human Rights v. Aksoy, OATH Index No. 1617/15 (Aug. 24, 2015).

Real Property

Applicant sought a finding from the Loft Board that she is the protected residential occupant of the entire first floor. ALJ Zorgniotti recommended that the application be denied. ALJ Zorgniotti found that only the rear portion of the first floor was residentially occupied during the window period and the applicant did not show the rear space was at least 400 square feet, as required by the Loft Law. Even if the rear space was covered, the applicant would not be entitled to protected status because she was living there rent free with her husband, without a valid lease.    Matter of Zhao, OATH Index No. 2225/14 (Aug. 12, 2015).

Tenants filed an application seeking a finding that the owner's plans to demolish and replace the mezzanine platform would unreasonably interfere with their use of the unit. ALJ Gloade ruled that objection to the scope of work was barred because the applicants had an opportunity to participate in the narrative statement process and a work permit was issued by the Department of Buildings. The tenants also argued that because the proposed work would render the unit unfit for habitation, the owners' failure to provide notice of suitable alternative housing constituted unreasonable interference. The owner agreed to provide alternative housing for one applicant, but not the other, whom the owner claimed maintained primary residence elsewhere. The owner did offer to provide temporary storage to the second applicant at the owner's expense. ALJ Gloade found the applicants did not prove unreasonable interference under the Loft Board rule.   Matter of 26 Bond Street Management, LLC, OATH Index No. 1105/15 (Aug. 5, 2015).