BenchNOTES Newsletter

BenchNOTES - March 2013

Personnel

Prison counselor found to have disrespected supervisors, refused certain work.

Respondent, an associate counselor, was charged with disrespecting his supervisors, failing to obey an order to submit a report, doing less work than colleagues, refusing to do certain work, and making false entries into Department records. ALJ Astrid B. Gloade found that respondent called his supervisors “Nazis” and “Fascists,” refused to conduct workshops to assist inmates, and processed less than one percent of the discharge letters issued by his three-person unit.  Dep’t of Correction v. Massie (in PDF), OATH Index No. 651/13 (Mar. 29, 2013).

Contracts

CDRB reduces deduction for omitted work.

Petitioner, general contractor, contracted with the Department of Housing Preservation & Development (“HPD”) to renovate city-owned buildings. When several items of work were omitted and one item was added, HPD authorized a net credit of $21,073 for omitted and extra work. Petitioner filed a petition with the CDRB on behalf of its subcontractor, alleging that HPD miscalculated the credit.   Melcara Corp. v. Dep’t of Housing Preservation & Development (in PDF), OATH Index No. 926/13, mem. dec. (Mar. 13, 2013).

Article about City contract dispute resolution process published in Construction Law Journal.

An article written by Jennifer Clark, Esq., an OATH Law Clerk, was published in the Winter 2013 edition of the New York County Lawyers Association’s Construction Law Journal.  The article highlights the procedural aspects of the City’s contract dispute resolution process.

Vehicle Retention

ALJ orders PD to return car because it did not give timely notice of hearing rights.

ALJ John B. Spooner ordered the Police Department to release a car seized in connection with the owner’s arrest where the Department offered no proof that it served the owner with notice of his right to a hearing at the time of arrest or subsequently by mail, as required by the federal court order in Krimstock v. Kelly.  The car owner requested a hearing after learning about the process on a website developed by Columbia University Law School and this tribunal.   Police Dep’t v. Harris (in PDF), OATH Index No. 1607/13, mem. dec. (Mar. 14, 2013).

Real property

ALJ finds tenants’ ground-floor, but not cellar portion of their unit, is covered by Loft Law.

Tenants sought Loft Law coverage of their unit which comprised the ground and cellar floors of a five-story building in which the units on the second through fifth floors are registered IMD units.  The owner contended that the 2010 amendments to the Loft Law exempt from coverage apartments “located in a cellar,” and therefore, because the cellar, which is used for accessory residential storage and a sculptor's studio, is part of the tenants' unit, the entire unit is precluded from coverage.    Matter of Schuss (in PDF), OATH Index No. 2066/12 (Mar. 25, 2013).

Licensing

ALJ recommends permit and license revocation for absentee food cart permit holder.

The Department of Health sought revocation of a mobile food vending permit because the holder allowed other people to operate his cart without supervision and because he had filed papers with the Department in 2005, 2007, 2009 and 2011, which falsely swore that he was the only person operating his cart.    Dep’t of Health & Mental Hygiene v. Islam (in PDF), OATH Index No. 1116/13 (Mar. 7, 2013).

Practice and procedure

Sanctions not imposed where party did not show prejudice due to lost evidence.

Three correction officers were charged with failing to anticipate a use of force against an inmate inside an intake cell.  Respondents sought sanctions because the Department failed to produce a surveillance video, which showed the area outside the pen, but not inside, where the use of force occurred.  At the hearing, the person responsible for directing that the video be copied testified that she failed to make the request timely and the video was destroyed.    Dep’t of Correction v. Stepney (in PDF), OATH Index Nos. 390/13, 391/13, 392/13 (Mar. 4, 2013).