BenchNOTES - June 2014

Last Month's OATH Decisions

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Personnel

ALJ finds correction officers used excessive force.

Two correction officers were charged with improperly entering a punitive segregation inmate's cell, using excessive force, failing to report the force incident, failing to obtain medical attention for the inmate, and making false reports and statements. Respondents contended that the inmate was fully compliant with their orders and they denied that they used any force.    Dep't of Correction v. Reid, OATH Index Nos. 1898/14 & 1901/14 (June 18, 2014).

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Licensing

ALJ recommends dismissal of charges against cab driver.

A discretionary revocation proceeding was brought against a cab driver based on a passenger complaint stemming from a fare dispute on a trip from lower Manhattan to a hotel in Stamford, Connecticut. The passenger testified that he had not noticed that the meter was not engaged until they arrived at the destination, and that he was surprised when the driver told him the fare was $300.   Taxi & Limousine Comm'n v. Koneh, OATH Index No. 2146/14 (June 13, 2014), adopted, Comm'r Dec. (July 17, 2014).

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Contracts

CDRB denies claim.

An electrical contractor brought a claim for $326,275.64 in costs for replacing and repairing electrical equipment and machinery damaged by flooding during Hurricane Sandy. The Contract Dispute Resolution Board, chaired by ALJ John B. Spooner, determined that the contract required the contractor to replace and repair any damage to the temporary electrical system, including damage from Hurricane Sandy, until the City had issued final acceptance.   Barbaro Electric Co., Inc. v. Dep't of Environmental Protection, OATH Index No. 1841/14, mem. dec. (June 24, 2014).

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Vehicle Rentention

Police Department may retain seized van.

Police Department seized a van in connection with the driver's arrest for attempted murder and assault. The van's owner was not present at the time of the arrest.   Police Dep't v. Dookwa, OATH Index No. 2395/14, mem. dec. (June 18, 2014).

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Practice and Procedure

ALJ denies request to remove name from decision.

ALJ Zorgniotti denied respondent's post-trial request to remove his name from the report and recommendation because it discusses his medical history. Requests for redaction are generally denied where, as here, respondent placed private health matters in issue by way of a defense and the request was made after respondent placed medical documents in the record and testified about them at a hearing.   Dep't of Environmental Protection v. Capezza, OATH Index No. 1536/14 (June 13, 2014).

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Real Property

Occupant did not show uninterrupted prior non-conforming use.

Petitioner established that premises located within a district zoned for residential use was being used as an auto repair shop and for junk storage in violation of the NYC Zoning Resolution. The respondent denied that the premises had been used for junk storage and claimed that it had been used for automotive repairs since the early 1900's.   Dep't of Buildings v. 47-33 Little Neck Parkway, Queens County, OATH Index No. 802/14 (June 27, 2014), adopted, Comm'r Dec. (July 15, 2014).

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