Recent Decisions - December 2015

The following is a summary of some recent OATH decisions decided in December 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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Human Rights

ALJ John B. Spooner found that a landlord violated the City Human Rights Law (HRL) when he refused to accept a public assistance "security voucher" that the complainant had offered in lieu of a security deposit. He recommended a $10,000 civil penalty and affirmative relief requiring the landlord's employees undergo anti-discrimination training.    Comm'n on Human Rights ex. rel. Agosto v. American Construction Associates, LLC, OATH Index No. 1964/15 (Dec. 1, 2015).

Licensing

The Business Integrity Commission (BIC) alleged that respondent, a trade waste business and its principal, failed to notify BIC of their indictment for operating an illegal solid waste management facility and illegally dumping hazardous materials at a park in Suffolk County. BIC also alleged that respondent failed to appear for a deposition relating to the charges. ALJ Faye Lewis found that BIC established respondent lacked the good character, honesty and integrity necessary to maintain a BIC registration due to the nature of the crimes alleged in the indictment. She recommended revocation of its registration based upon the indictment as well as respondent's failure to notify BIC of the criminal charges. Additionally, ALJ Lewis found that although respondent failed to appear for the sworn deposition, this did not establish a violation of the Administrative Code provision alleged, which pertained only to applicants, not registrants.   Business Integrity Comm'n v. 5 Brothers Farming Corp., OATH Index No. 814/16 (Dec. 7, 2015).

Respondent was charged with being in the business of collecting trade waste without a BIC license. A BIC investigator testified that he observed respondent collect metal car parts and place them in his truck at three locations: an auto repair shop, an auto body shop, and a vacant lot. ALJ Astrid B. Gloade found that BIC proved the violations with respect to two of the locations but not the vacant lot. She recommended a civil penalty of $5,000.    Business Integrity Comm'n v. Forest, OATH Index No. 699/16 (Dec. 22, 2015).

The City Clerk denied a marriage license to an applicant based upon a record of five prior marriages between 1995 and 1996 of a person with the same name and birthdate. ALJ Ingrid Addison issued a decision based on the parties' submissions. Respondent's submissions included evidence that she got married in 1995, prior to the first marriage in the City Clerk's files, that her marriage was dissolved in 2014, and that three children were born to that marriage. Respondent also submitted a copy of a police report for criminal impersonation which she filed in 1997, after a man showed up at her marital residence, seeking a divorce from the person of the same name. A similar incident occurred in 1999, and she filed a report for harassment. ALJ Addison found respondent's proof credible and that the signatures on the fraudulent marriage licenses were different from respondent's signature. Therefore, ALJ Addison recommended that respondent's application for a marriage license be granted.    Office of the City Clerk v. Ayala, OATH Index No. 72/16 (Dec. 23, 2015).

Personnel

The Triborough Bridge and Tunnel Authority (TBTA) charged a Bridge and Tunnel Officer (BTO) with incompetency for excessive absenteeism under section 75 of the Civil Service Law. The BTO alleged that his absences were caused by a long-term disability and he sought a one-year disability leave under section 72 of the Civil Service Law. ALJ Alessandra F. Zorgniotti found that the BTO, who had an absenteeism rate of 100% in 2015 and 54% in 2014 was excessively absent. Even if the absences are caused by a disability, an employer may discipline an employee for incompetence under section 75 when the absences are excessive and have a burdensome effect on the employer. The BTO is not entitled to a one-year leave under section 72 as there was insufficient proof that he is currently unfit to perform his duties due to a disability. Given BTO's egregiously poor attendance over the past two years, termination of employment was recommended.   Triborough Bridge & Tunnel Auth. v. Beverly, OATH Index No. 2238/15 (Nov. 30, 2015), adopted, Auth. Dec. (Dec. 28, 2015).

A community liaison worker at Bellevue Hospital was charged with violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments. ALJ Kara J. Miller sustained the charges. Evidence showed that respondent violated patient escort procedures on three occasions by leaving patients unescorted at locations outside the facility. In addition, she violated the hospital's lateness policy and in one instance, falsified her time sheet to indicate she had arrived to work on time. ALJ Miller recommended termination of employment.   Health & Hospitals Corp. (Bellevue Hospital Ctr.) v. Belliard, OATH Index No. 2088/15 (Dec. 1, 2015).

The Department of Environmental Protection charged respondent, a city research scientist, with failing to satisfactorily perform the duties of his job. The Department presented the testimony of respondent's supervisors, as well as respondent's work performance evaluations. Respondent testified that after filing an Equal Employment and Opportunity complaint against one of his supervisors, he had been treated unfairly and his supervisors rated his work performance as unsatisfactory. ALJ Zorgniotti found that the testimony of the supervisors was unsupported by reliable documentary evidence, and as such was not objective proof that respondent was unable to meet the minimally acceptable threshold requirements of his title. ALJ Zorgniotti recommended that the charges be dismissed.   Dep't of Environmental Protection v. Saint Louis, OATH Index No. 195/16 (Dec. 21, 2015).

Contracts

In an appeal before the Contract Dispute Resolution Board (CDRB), a contractor sought an additional $318,124 for costs incurred when its elevator modernization and maintenance contract was extended for seven years beyond the scheduled completion date. The City moved to dismiss on the ground that the contractor was seeking delay damages which are outside the CDRB's jurisdiction. Contractor countered that it was seeking compensation for extra work, not delay damages. The CDRB, chaired by ALJ Addison, dismissed all claims, finding that all but one were for delay damages. The remaining extra work claim was dismissed because the contractor had not submitted daily records of the extra costs nor had it obtained an approved change order from the Commissioner, as required by the contract.   Centennial Elevator Industries, Inc. v. Dep't of Citywide Admin. Services, OATH Index No. 622/16, mem. dec. (Dec. 4, 2015).

Prevailing Wage

Services contractor admitted to failing to pay prevailing wages and benefits of $1.8 million to 28 security employees working at the Health and Hospitals Corporation (HHC) offices. ALJ Spooner rejected the contractor's contention that it did not pay prevailing wages and benefits because HHC personnel stated that HHC would not provide reimbursement for rate increases. For the willful violations found, the contractor was liable for the amount of the underpayment plus interest and a civil penalty of 25%. Office of the Comptroller v. Paramount Security Group, Inc., OATH Index No. 2553/15 (Dec. 2, 2015).

Vehicle Retention

A car owner moved for the return of his car on the ground that the Police Department did not serve him with notice of his right to a retention hearing at the time of seizure or by mail as required by Krimstock v. Kelly. The car had been seized following the owner's arrest for driving while intoxicated, aggravated unlicensed operation of a vehicle, driving with tinted windows, and refusing to take a breathalyzer test. ALJ Susan J. Pogoda found that the Department proved it had served the owner with notice of his right to a hearing. There was reasonable suspicion for the initial stop as the car had dark tinted windows in violation of the Vehicle and Traffic Law and probable cause for the arrest since the owner smelled of alcohol, there were three open bottles of vodka in the car, and he was driving with a suspended license. ALJ Pogoda found that the circumstances of the arrest supported a finding of heightened risk. As such, the Department was entitled to retain the car pending resolution of the civil forfeiture proceeding. Police Dep't v. Rich, OATH Index No. 946/16, mem. dec. (Dec. 15, 2015).