Recent Decisions - November and December 2016

The following is a summary of some recent OATH decisions decided in November and December 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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Personnel

ALJ Alessandra F. Zorgniotti found that an eligibility specialist used her position to coerce a client into purchasing over $150 in groceries with her benefits for respondent’s personal use. Termination of employment recommended.  Human Resources Admin. v. Bonner, OATH Index No. 472/17 (Dec. 5, 2016).

ALJ Astrid B. Gloade recommended termination of employment of a community assistant who was intoxicated at work, absent without leave, insubordinate and discourteous. ALJ Gloade noted that respondent’s disciplinary history was an aggravating factor as he was previously assessed a 60-day penalty and placed on a one-year probation in 2014, and found it troubling that several months into his probationary period, respondent reengaged in similar misconduct.  Human Resources Admin. v. Holman, OATH Index No. 223/17 (Dec. 22, 2016).

A principal administrative associate was charged with clocking out five minutes early every day for over a year, ignoring orders to stop this practice, poor work performance, and disobeying an order to stop spraying substances near her workstation. ALJ John B. Spooner sustained the charges. He recommended that the worker be demoted to an eligibility specialist.  Human Resources Admin. v. Greene, OATH Index No. 390/17 (Nov. 7, 2016).

Human Rights

In a default hearing, the Commission on Human Rights proved that a NYC eatery and its employee failed to accommodate a legally blind patron by demanding that he and his service dog leave the restaurant. Finding that respondents discriminated against complainant on account of his disability, ALJ Noel R. Garcia recommended $10,000 in compensatory damages for complainant, a civil penalty of $10,000, anti-discrimination training, and the creation of a store policy consistent with the Human Rights Law for respondents.  Comm’n on Human Rights ex rel. Gibson v. New York City Fried Chicken Corp., OATH Index No. 279/17 (Dec. 29, 2016).

Licensing

ALJ Zorgniotti found that petitioner proved that a taxicab driver harassed and used physical force against a female passenger by touching her private parts, grabbing her by the neck while making a lewd remark prompting the passenger and her mother to exit the taxi on a dark highway. Respondent was also found to have caused the passengers further alarm when he threatened and followed them. ALJ Zorgniotti recommended revocation of respondent’s TLC license and the maximum allowable fine of $2,350.  Taxi & Limousine Comm’n v. Hussain, OATH Index No. 2214/16 (Dec. 20, 2016), adopted, Comm’r Dec. (Jan. 6, 2017).

Prevailing Wage

ALJ Susan J. Pogoda found that respondents, a contractor and its president, failed to pay prevailing wages and supplemental benefits to 36 workers on seven public works projects, falsified payroll records and engaged in a kickback scheme. She recommended that the complainants be compensated in the sum of the underpayments plus 16 percent interest, that respondents should be assessed the maximum civil penalty of 25 percent of the total violation, and that they be debarred from all governmental contracts within New York State for five years.  Office of the Comptroller v. K.S. Contracting Corp., OATH Index No. 1086/16 (Dec. 30, 2016).

Real Property

A former tenant filed an application with the Loft Board seeking findings that the building and the unit that she had leased with her estranged boyfriend were covered by the Loft Law and that she is the protected occupant of the leased unit. ALJ Ingrid M. Addison found that the building is covered by the Loft Law but that the leased unit was used for business purposes and not as a family residence. Moreover, even if the leased unit was a covered unit, the applicant was not entitled to protected status because she was out of possession, the lease had expired, and she did not show that the leased unit is her primary residence.  Matter of Lasciak, OATH Index No. 2080/16 (Dec. 30, 2016).

Contracts

On a contract for the construction and renovation of carbon addition facilities at five wastewater treatment plants, the contractor sought an additional $65,039 for providing temporary heating to complete concrete topping work. The City moved to dismiss the claim because the contractor did not timely file its Notice of Dispute (“NOD”). The CDRB, chaired by ALJ Garcia, found that the contractor failed to timely file its NOD and did not expressly reserve its claim when it applied for a Partial Time Extension Request. The contractor’s petition was denied as time-barred and waived.  WDF, Inc. v. Dep’t of Environmental Protection, OATH Index No. 421/17, mem. dec. (Dec. 15, 2016).

Practice and Procedure

City worker charged with intoxication on duty asked to have his name withheld from the published decision to protect his privacy because the decision references his medical information. OATH proceedings are presumptively open to the public and its decisions are published without redaction, unless the trial judge finds that legally cognizable grounds exist to omit information from a decision. ALJ Gloade denied the worker’s request, finding that he placed his medical information in issue when he argued that the conditions that his employer attributed to intoxication were consistent with his diagnosis of pneumonia. Further, the evidence regarding the worker’s medical condition was very limited as he provided no details regarding his illness nor were any medical records produced at trial.  Human Resources Admin. v. Holman, OATH Index No. 223/17 (Dec. 22, 2016).