Recent Decisions - October 2014

The following is a summary of some recent OATH decisions decided in October 2014. To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

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Contracts

A contractor filed a claim on behalf of a subcontractor on a contract to demolish a marine transfer station and build a new one in Flushing Bay. The subcontractor sought $195,471 for extra work allegedly incurred as a result of a hidden, underwater, man-made obstruction. The Contract Dispute Resolution Board (CDRB), chaired by ALJ Alessandra F. Zorgniotti, determined that the claim was waived because the contractor had failed to reserve it when it applied for an extension of time to complete the contract. The CDRB found that even if the claim had not been waived, the contractor failed to show that the subcontractor was entitled to additional money under the contract.  Prismatic Development Corp. v. Dep't of Sanitation, OATH Index No. 2405/14, mem. dec. (Oct. 22, 2014).

A contractor brought a claim for extra work associated with the installation of underground gas piping and plumbing for contract work on the Forum Project at the Queens Borough Hall. The City moved to dismiss, arguing that the petition was time-barred. The CDRB, chaired by ALJ Faye Lewis, found that the contractor filed its Notice of Claim three months late and granted the motion to dismiss. Worth Construction Co., Inc. v. Dep't of Design & Construction, OATH Index No. 198/15, mem. dec. (Oct. 9, 2014).

A contractor sought $3,516 for extra work performed to prevent an excavated area from filling with water while building a comfort station at Schmul Park in Staten Island. The City moved to dismiss because the contractor waived its claim by failing to reserve it when it requested a time extension. The CDRB, chaired by ALJ Tynia D. Richard, determined that the contractor waived its claim, and noted that had it not waived the claim, the contractor would still have been responsible for the soil stabilization and dewatering work it performed.  J.A. Lee Construction Inc. v. Dep't of Parks & Recreation, OATH Index No. 2329/14, mem. dec. (Oct. 14, 2014).

Licensing

A taxicab driver was charged with cursing at a passenger, intentionally spinning his taxicab and hitting a parked car, and threatening to throw the passenger out of the cab and beat him up. ALJ Astrid B. Gloade recommended dismissal of the charges that the taxicab driver purposefully spun his taxicab and threatened the passenger, noting that the road conditions were poor because of a snow storm, and that doing so would jeopardize the taxicab driver's own safety and expose him to financial liability for damage to the vehicle. Finding that the taxicab driver cursed at the passenger, Judge Gloade recommended a fine of $1,000 and a 30-day suspension of the taxicab driver's license.  Taxi & Limousine Comm'n v. Gamal-Eldin, OATH Index No. 2612/14 (Oct. 17, 2014).

Personnel

A correction officer committed misconduct when she got into an off-duty fight in an optical store; respondent pulled down a display case, broke mirrors, threw a chair at the optician, advanced toward him while brandishing a piece of broken glass and grabbed the optician in a bear hug. ALJ John B. Spooner recommended that the officer be suspended for 60 days.  Dep't of Correction v. Chapple, OATH Index No. 325/15 (Oct. 24, 2014).

ALJ Kevin F. Casey found that a sanitation supervisor failed to provide proper documentation for emergency leave, was absent without leave, failed to remain accessible for a home visit, and wore unauthorized sneakers on duty. ALJ Casey recommended dismissal of a charge that supervisor was out of residence without authorization while on sick leave. Penalty recommended was 52 days' suspension.  Dep't of Sanitation v. James, OATH Index No. 1789/14 (Oct. 24, 2014), adopted, Comm'r Dec. (Nov. 5, 2014).

A supervisor in the Adult Protective Services Unit was charged with insubordination when she failed to conduct six home visits and refused to attend a mandatory forum. ALJ Kara J. Miller found that the charges were proven. Taking into consideration the supervisor’s long tenure and minimal disciplinary history, Judge Miller recommended a penalty of ten days suspension without pay.  Human Resources Admin. v. Brown, OATH Index No. 38/15 (Oct. 3, 2014).

Real Property

The Loft Board referred to this tribunal a coverage application filed by a husband, his wife, who is the prime lessee of the premises for which they seek coverage, and their adult niece. ALJ Ingrid M. Addison found that petitioners resided in the unit for 12 consecutive months during the window period and recommended that the unit be deemed an interim multiple dwelling (IMD) unit. ALJ Addison also recommended that the niece, who continues to reside in the unit, be declared a protected occupant. Even though the prime lessee and her husband had moved to Maine, the ALJ found that they continued to maintain a presence at the premises, paying rent, leaving furniture and clothing at the premises, and staying there on occasion. The ALJ therefore recommended that they too be declared protected occupants. The Board concurred that the unit is an IMD but remanded the matter for fact-finding on the issue of primary residency. It ruled that as prime lessees who are not currently in occupancy of the unit, the husband and wife applicants must prove that the unit is their primary residence to be entitled to protection. The Board also reserved its ruling on the status of the niece.  Matter of Pak, OATH Index No. 2447/13, (Oct. 9, 2014), adopted in part and remanded, Loft Board Order No. 4334 (Nov. 20, 2014).

ALJ Zorgniotti recommended that the Loft Board grant a coverage application, finding that the applicants demonstrated that there were three residentially occupied units during the window period and that they qualify for protection under the Loft Law.  Matter of Various Tenants of 357 Bowery, OATH Index No. 1067/14 (Oct. 22, 2014).

Vehicle Retention

The Police Department sought to retain respondent's car, which was seized in connection with the arrest of the father of respondent's daughter for firing shots into the door of a Bronx nightclub, wounding a man in the arm. The father was indicted for first degree assault and attempted murder. ALJ Spooner found that the Police Department is entitled to retain the seized vehicle because the father was the beneficial owner and the respondent should have known that he might use the car to commit a crime. In addition, returning the car to respondent posed a heightened risk to public safety such that it was necessary to retain the vehicle pending resolution of the civil forfeiture action.  Police Dep't v. Morgan, OATH Index No. 865/15, mem. dec. (Oct. 27, 2014).