BenchNOTES Newsletter

OATH News

OATH decisions to be published in The New York Law Journal. The New York Law Journal will begin publishing select, noteworthy decisions from the Trials Division in its “Decisions of Interest” section. This significant development highlights the crucial role OATH plays in the New York legal landscape, handling a diverse array of cases that impact daily life and addressing novel issues of law. To learn more about this important development, you can read Commissioner Asim Rehman’s commentary in the Law Journal which was published on September 25, 2024.

Job opportunities at OATH: OATH regularly posts employment opportunities on the NYC Jobs portal and on its website. View current openings.

Personnel

Suspension recommended.

ALJ Tiffany Hamilton recommended a 30-day suspension for a supervising inspector charged with incompetence for failing to identify errors in his subordinates’ reports and for submitting insufficient or incomplete inspection packages for enforcement action.

Dep’t of Buildings v. Collis, OATH Index No. 1190/24 (Aug. 21, 2024).

Licensing

Lifting of license suspension recommended.

ALJ Julia Davis recommended lifting the license suspension of a taxi driver arrested for arson and other related charges.

Taxi & Limousine Comm’n v. Singh, OATH Index No. 145/25 (Aug. 8, 2024), adopted, Comm’r Dec. (Aug. 21, 2024).

Contracts

Dismissal recommended.

The Contract Dispute Resolution Board, chaired by ALJ Christine Stecura, granted in part and denied in part a contractor’s claim that it cannot be directed to perform extra or changed work without a registered change order and that a project manager/resident engineer lacked authority to issue a directive to perform extra work.

E.W. Howell Co., LLC v. Dep’t of Design & Construction, OATH Index No. 270/24, mem. dec. (Aug. 21, 2024).

Appeals from the Hearings Division

An appeals decision affirmed a hearing decision dismissing an Administrative Code violation for failing to comply with a Commissioner’s order which directed respondent to submit an engineer’s report within 72 hours. The judicial hearing officer dismissed the summons, finding that the initial DOB violation did not contain a Commissioner’s order. The appeals decision affirmed on other grounds, finding that although the DOB violation contained a Commissioner’s order, petitioner nevertheless failed to establish the charge because its summons cited to an inapplicable provision of the Administrative Code. Petitioner had relied upon Administrative Code § 28-204.4, which pertained to notices of violations returnable to the Environmental Control Board and did not include the underlying DOB violation. DOB v. Village JV 129 First Avenue LL, Appeal No. 2401075 (Aug. 29, 2024).

An appeals decision reversed a hearing decision sustaining a violation of the Building Code for failing to ensure each worker has a site safety training (“SST”) card. The issuing officer conducted a site visit at a construction site and requested to see a worker’s SST card, which the worker was unable to produce. At the hearing, respondent’s site safety manager testified that the worker had completed SST prior to commencing work at the site and was waiting for his card to be sent. The site safety manager further testified that he had reviewed the worker’s certificates when he hired him less than two weeks before the inspection. Respondent argued that they had established an affirmative defense by showing that they reasonably relied on these certificates. The judicial hearing officer did not credit the site safety manager’s testimony, finding it inconsistent and lacking in detail. The appeals decision reversed, finding that the site manager credibly testified that respondent reasonably relied on apparently valid documentation and complied with the relevant Building Code. DOB v. Rogers Developers Grp LLC, Appeal No. 2401162 (Aug. 29, 2024).

An appeals decision reversed a hearing decision dismissing a violation of a Rule of the City of New York for failing to conspicuously post a refund policy. The issuing officer affirmed in the summons that respondent, a gym, did not have a refund policy conspicuously posted at the entrance or near the point of sale. At the hearing, the issuing officer testified that he did not see a refund policy until he was advised by respondent’s owner that an “All Sales Are Final” disclosure was printed at the bottom of a price list next to the counter. The issuing officer asserted that the refund policy print was too small and not conspicuous. Respondent’s owner argued that the refund policy, which other inspectors had found acceptable, was the same size font as the prices on the list, and submitted security camera video footage showing his conversation with the issuing officer. The judicial hearing officer found that respondent had presented a valid defense and dismissed the charge. The appeals decision reversed, finding that the refund policy was not conspicuously displayed because it was not obvious to the eye nor does it attract attention. The decision noted that in the video, the issuing officer and two of respondent’s employees appeared to struggle to locate the refund policy on the price list. DCWP v. Vibez Studio Inc., Appeal No. 23Q03266 (Aug. 30, 2024).