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BenchNOTES Newsletter

BenchNOTES - January 2014

Last Month's OATH Decisions

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BAM and Armory projects are public works, prevailing wage rates apply.

Comptroller brought proceeding against a contractor and its president (respondents), alleging that they failed to pay prevailing wages and benefits to two employees who performed electrical work at the Brooklyn Academy of Music (BAM) and the Fort Washington Armory (Armory). Respondents moved to dismiss on the ground that neither the BAM nor the Armory project is a public work for which the payment of prevailing wages is required.   Office of the Comptroller v. Mackey Reed Electric, Inc., OATH Index No. 1950/13 (Jan. 3, 2014).

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Center directors improperly transferred cases to inflate job placement statistics.

Two job center directors and a deputy director were charged with improperly transferring cases from other job centers in order to increase their own center’s job placement statistics. Respondents admitted that they participated in the scheme but that they did so under pressure of meeting agency-wide goals. ALJ John B. Spooner found that the respondents violated agency rules. He denied respondents’ motion to dismiss a portion of the charges as time-barred, finding respondents’ conduct fell within the crimes exception to the 18-month limitations period in section 75 of the Civil Service Law, i.e, respondents committed the crimes of official misconduct and computer tampering.   Health & Hospitals Corp. (Harlem Hospital Ctr.) v. Wise, OATH Index Nos. 1679/13, 1680/13, 1681/13 (Jan. 3, 2014).

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Practice and Procedure

ALJ denies pre-trial motions to preclude expert testimony and reports.

In a complaint brought by the City Commission on Human Rights against several store owners, ALJ John B. Spooner denied the parties’ motion in limine to preclude testimony and reports from adversary’s experts. Evidentiary issues and objections raised by the parties can be best addressed at the hearing by timely objections and thorough cross-examination. Comm’n on Human Rights v. Tiv-Tov Stores, Inc., OATH Index Nos. 1443-1458/13, mem. dec. (Jan. 17, 2014).

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Challenge to medallion transfer sale waived.

Under Commission rule, a taxi medallion owner must notify potential tort claimants when the owner intends to transfer an interest in the medallion. The owner must post a bond or establish an escrow account if viable tort claims exceed insurance coverage. OATH has been designated to conduct a hearing when a claimant timely objects to the owners’ proposed escrow amount.    Herrera v. Yiota Taxi, Inc., OATH Index No. 757/14, mem. dec. (Jan. 23, 2014).

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Vehicle Retention

ALJ orders return of car.

ALJ Kevin F. Casey ordered the Police Department to return a car that it had seized pursuant to the arrest of the owner’s son. ALJ Casey found that the Department did not establish reasonable suspicion for the stop of the car, which had led to the arrest. He also found that the respondent was an innocent owner of the car. Police Dep’t v. Collins, OATH Index No. 1221/14, mem. dec. (Jan. 9, 2014).