BenchNOTES - July 2016

Last Month's OATH Decisions

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Contracts

CDRB lacks jurisdiction to change “fair” performance evaluation.

Contractor, a provider of home care services for the elderly, sought order compelling the Department of the Aging (DFTA) to annul performance evaluations which rated the contractor’s performance as “fair.” The Contract Dispute Resolution Board (CDRB), chaired by ALJ Kevin F. Casey, found that it did not have jurisdiction to consider challenges to performance evaluations as section 2-10 of the Procurement Policy Board Rules provide a mechanism for resolving disputes regarding performance evaluations. People Care, Inc. v. Dep’t of the Aging, OATH Index Nos. 1558/12 & 1990/16, mem. dec. (July 28, 2016).

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Licensing

Taxi driver harassed passenger.

The Taxi and Limousine Commission (TLC) charged a taxicab driver with harassing a pedestrian by showing her a pornographic video on his cellphone and exposing his genitals. Petitioner presented the testimony of the complainant, as well as pictures of respondent and his cab taken at the time of the incident. Taxi & Limousine Comm’n v. Khalek, OATH Index No. 1845/16 (July 11, 2016).

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Personnel

55-a program not a defense to absenteeism.

Department of Environmental Protection alleged that respondent, a clerical associate, had been excessively absent since 2014. Respondent, who had an absenteeism rate of over 50%, claimed that she was hired under the Section 55-a Program due to her diabetes, which protected her from disciplinary charges. Dep’t of Environmental Protection v. A.M., OATH Index No. 1410/16 (July 6, 2016).

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Real Property

Landlord did not unreasonably interfere with tenant’s use of loft.

Tenant of an Interim Multiple Dwelling (IMD) unit filed an unreasonable interference application against building owner. ALJ John B. Spooner found that neither the eight-month delay in completing the renovation of the tenant’s apartment, the installation of a new sheetrock wall, nor the dust in the unit, constituted unreasonable interference. Matter of Brigham, OATH Index No. 2691/15 (July 14, 2016).

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