BenchNOTES Newsletter

OATH News

On January 30, the Mayor’s Preliminary Management Report (PMMR) was released. The Report provides an update on performance measures from the first quarter of the current fiscal year and compares it to the same period from the prior year. Read OATH's chapter of the report

Trials Division

Personnel

Termination recommended.

ALJ Orlando Rodriguez recommended termination of employment for a patient care associate who has been continuously absent without official leave since February 17, 2022. Health & Hospitals Corp. (Gotham) v. Alston-Harris, OATH Index No. 379/23 (Jan. 16, 2024).

Licensing

ALJ recommended lifting the suspension of a taxi driver’s TLC license.

ALJ Michael D. Turilli recommended lifting the license suspension of a TLC driver arrested for robbery and grand larceny. Taxi & Limousine Comm’n v. Mia Salim, OATH Index No. 1770/24 (Jan. 2, 2024), adopted, Comm’r Dec. (Jan. 4, 2024).

Real Property

$25,000 fine imposed.

ALJ Kevin F. Casey imposed a $25,000 fine against the owner of a building covered under the Loft Law for failing to maintain and repair a rooftop plumbing and drainage system. Loft Bd. v. The West Paramount LLC, OATH Index No. 3094/23, mem. dec. (Jan. 26, 2024).

Appeals from the Hearings Division

An appeal decision reversed a hearing decision sustaining a violation for idling a motor vehicle for longer than three minutes. At the hearing, the respondent moved to dismiss the summons because it had previously obtained a variance from petitioner to exempt its armored vehicles from idling prohibitions. The judicial hearing officer sustained the charge but did not address respondent’s argument. The appeal decision reversed, finding that because petitioner neither disputed the validity of the variance nor argued that it did not apply to the respondent’s activity at the time of the cited idling, the respondent had established an affirmative defense. DEP v. Rapid Armored Corp., Appeal No. 2301667 (January 25, 2024).

An appeal decision reversed a hearing decision sustaining a violation for idling a motor vehicle for longer than three minutes. The violation was issued based on a citizen’s complaint, and at the hearing, respondent argued that the summons should be dismissed because a citizen’s complaint for this code violation could only be made if the vehicle was a bus or a truck. Respondent argued that a backhoe was not a truck because the New York State Vehicle and Traffic Law defined a truck as a “motor vehicle designed, used, or maintained primarily for the transportation of property.” The judicial hearing officer found that the charge may be sustained because a backhoe was a motor vehicle. The appeal decision reversed, finding that a backhoe did not meet the definition of a truck because it is contractor equipment or an excavating machine, not a vehicle designed primarily for transportation of property. DEP v. DiFazio Industries LLC, Appeal No. 2301743 (January 25, 2024).

An appeal decision reversed a hearing decision sustaining a violation against an air monitoring firm and a property owner for failing to conduct air sampling during asbestos abatement as required. At the hearing, the issuing officer testified that she issued the violation because respondents did not conduct air sampling inside the work area. Respondents argued that for the type of work it was performing, a large asbestos project employing full containment, air sampling was only required outside of the work area. The judicial hearing officer credited the respondent’s evidence showing that the abatement was a large asbestos project but found no defense had been established. The appeal decision reversed, finding that under the pertinent rule, for a large asbestos projects employing full containment, air sampling must be performed in specified locations, none of which are inside the work area. Finding that petitioner offered no evidence that the air samplings were conducted outside of the locations specified by the rule, the appeal decision dismissed the charges. DEP v. Absolutely Clean Environment Inc & Riverview East Owners, Appeal No. 2301792 (January 25, 2024).