BenchNOTES Newsletter

BenchNOTES - April 2013

Personnel

School custodian found to have misused funds.

The Department of Education charged a custodial engineer with the misuse of funds.  ALJ Kevin F. Casey found that the custodian failed to repay more than $43,000 he owed to the Department in excess funds, that he wrote a check to the Department for $43,620, knowing that there were insufficient funds in his account to cover the check, and that he overpaid himself by $14,000.  ALJ Casey recommended termination of respondent’s employment.  Dep’t of Education v. Magassa (in PDF), OATH Index No. 494/13 (Apr. 5, 2013), adopted, Chancellor’s Determination (Apr. 23, 2013).

Contracts

Contractor’s claims denied in part as time-barred.

A contractor brought four disputes, arising from contracts with the Parks Department for heating and ventilation work, to be resolved by the Contract Dispute Resolution Board (CDRB).  The City moved to dismiss the claims as untimely filed or outside the CDRB’s jurisdiction.  The CDRB, with ALJ Faye Lewis sitting as chair, granted the City’s motion with respect to three of the claims and portions of the fourth, but reserved the remainder of the fourth claim for further arguments on the merits.   Summit Mechanical Systems Ltd. v. Dep’t of Parks and Recreation (in PDF), OATH Index No. 665/13, mem. dec. (Apr. 17, 2013).

Vehicle Retention

Police Department must return seized car because it did not give owner timely notice of hearing rights.

ALJ Kara J. Miller found that the Police Department failed to provide the arrestee with notice, as required by the Federal Court order in Krimstock v. Kelly.  ALJ Miller found that respondent’s detailed affidavit in which he denied that he received notice of his hearing rights at the time of arrest or by mail was more persuasive than the Department’s proof, which contained inconsistencies.  ALJ Miller ordered the Police to release the vehicle.   Police Dep’t v. Drummond (in PDF), OATH Index No. 1704/13, mem. dec. (Apr. 3, 2013).

Licensing

ALJ recommends dismissal of charge of collecting trade waste without license.

The Business Integrity Commission (BIC) alleged that the respondent violated Administrative Code section 16-505(a) by collecting trade waste without a license.  Respondent did not appear and the matter proceeded by inquest.  At the hearing, BIC sought to amend their pleading to charge violation of Code section 16-505(b), which prohibits unregistered hauling of self-generated waste, instead of section 16-505(a).    Business Integrity Comm’n v. Amanda Freire d/b/a S-Lawn Care (in PDF), OATH Index No. 1600/13 (Apr. 10, 2013).