Recent Decisions - November 2015

The following is a summary of some recent OATH decisions decided in November 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 sergeant who worked the overnight tour at a juvenile detention center employed by ACS was charged with multiple employment infractions spanning nine months. Two supervisors testified at trial that the sergeant failed to complete work duties, including completing reports, attending meetings, properly signing out equipment, wearing his uniform, and responding to supervisors’ requests. ALJ John B. Spooner found the proof sufficient to sustain most of these charges. Based on respondent’s three prior disciplinary incidents, generally poor work evaluations, and recent egregious conduct, ALJ Spooner recommended termination of employment.   Admin. For Children's Services v. Diaz, OATH Index No. 2743/15 (Nov. 6, 2015).

Contracts

The Department of Parks and Recreation (“Parks”) had denied a contractor’s claim for over $65,000 in extra compensation for the reinstallation of a handrail while reconstructing sections of the Coney Island boardwalk in Brooklyn. On appeal, the Contract Dispute Resolution Board (“CDRB”), chaired by ALJ Alessandra F. Zorgniotti found that the work was required by the contract and it denied the claim. The contractor argued that it had determined prior to bidding that the handrail was not salvageable and assumed that Parks would approve use of a new handrail instead. Therefore, it did not account for costs of reinstalling the old handrail. The CDRB found that the contract required the contractor to carefully review the contract documents and inquire about any discrepancies regarding the scope of work before submitting its bid. Because it failed to do so, the contractor was bound by Parks’ interpretation of the contract.   Triton Structural Concrete, Inc. v. Dep’t of Parks and Recreation, OATH Index No. 1304/15, mem. dec. (Nov. 4, 2015).

Practice and Procedure

In an employee disciplinary proceeding, petitioner moved to recuse ALJ John B. Spooner because of alleged bias against the agency. Petitioner had made nearly identical motions in two prior cases, which were denied. In support, petitioner referred to a report and recommendation issued by ALJ Spooner two years ago that allegedly contained statements demonstrating “enmity towards the agency.” ALJ Spooner found that these statements did not suggest bias or prejudice against the agency but were simply relevant to determining the appropriate penalty. The fact that ALJ Spooner agreed with some of the arguments made by respondent’s counsel when assessing the penalty was not a basis for finding bias against petitioner. Petitioner’s motion was therefore denied. Dep’t of Environmental Protection v. Giacia, OATH Index No. 211/16, mem. dec. (Nov. 6, 2015).

Real Property

Residents in a building in Brooklyn filed an application seeking findings that the building is an interim multiple dwelling (“IMD”) covered by the Loft Law with five IMD units and that they are protected occupants of their units. Prior to trial, the owner agreed to register three of the units but alleged that the two remaining units did not contain qualifying windows, defined under the law as opening onto the street or lawful court or yard. Petitioners argued that the windows, while very small, opened onto a yard and provided some ventilation. ALJ Tynia D. Richard agreed, clarifying that the more stringent window requirements for legalization of the loft should not be applied in coverage cases, as here, because the purpose of the Loft Law is remedial in nature and intended to protect tenants. However, ALJ Richard rejected petitioners’ argument that the skylights should also be considered windows. She recommended that the application be granted. Matters of Tenants of 224-228 North 7th Street, OATH Index No. 1720/14 (Nov. 4, 2015).

A dance instructor and her son filed a coverage application. Applying prior Loft Board precedent, ALJ Addison found the mother to be a protected occupant because the evidence and testimony established that she lived at the premises for 12 consecutive months during the statutory window period, is the prime lessee and was in possession of the unit on the effective date of the Loft Law. On the other hand, the son, who is not a lessee, is not protected, and is at best entitled to succession rights. Alternatively, applying the Loft Board’s interpretation of its rule governing who is the protected occupant, which it expressed in some of its recent decisions, ALJ Addison found that the mother would not be protected because she did not show that the unit is her primary residence, while the son would be protected because he was the occupant in possession of the unit on the effective date of the law. Matter of Ukai, OATH Index No. 1394/14 & 1220/15 (Nov. 5, 2015).

A resident in a building in Brooklyn filed an application seeking a determination that the building is an interim multiple dwelling under the Loft Law and that his unit is a covered unit. Petitioner failed to establish that three units in the building had been residentially occupied during the window period. While the evidence was sufficient as to two of the units, it was insufficient to show the requisite occupation of the third unit. ALJ Faye Lewis denied the coverage application. Matter of Romano, OATH Index No. 2661/14 (Nov. 18, 2015).

Licensing

The City Clerk denied a marriage license to an applicant after determining that someone with her name, date of birth, and parents’ names had previously received a license, which had not been dissolved. Respondent appealed this denial. After reviewing the evidence, ALJ Kevin J. Casey found that respondent’s ex-boyfriend had fabricated the prior license following threats to kill her if she did not help him to obtain a green card. Respondent showed that she had never lived at the address provided on the application, that her signature did not match the prior application, that her boyfriend had access to her social security number and driver’s license, and that she had filed multiple domestic incident reports against him. ALJ Casey recommended that the applicant should be permitted to obtain a marriage license.    Office of the City Clerk v. Anonymous, OATH Index No. 452/16 (Nov. 12, 2015).

The Business Integrity Commission ("BIC") alleged that a construction company violated BIC rules when it: (1) failed to include its license number in written communication with a client; and (2) it offered a contract which did not contain a statement informing the customer it is not required to sign the contract. Following a hearing where the company did not appear, ALJ Astrid B. Gloade sustained the first violation only and recommended a fine of $5,000. ALJ Gloade found that the BIC rule, which required that the proposed contract be "accompanied by" the statement, did not require that the statement be included in the contract itself.    Business Integrity Comm’n v. Ventek Construction Corp., OATH Index No. 581/16 (Nov. 4, 2015).