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Pursuant to an order of the Chief Administrative Law Judge, all hearings, trials, and other OATH operations are being conducted by telephone, videoconferencing, online, or mail, and OATH will only allow in-person appearances in limited, pre-approved circumstances. Individuals may only enter OATH offices if the agency has approved your or your representative’s request because there is a compelling need for an in-person proceeding and the proceeding can be conducted while providing sufficient social distancing and other public health protections to comply with state and local government public health guidelines. For more information, read OATH's public flyer.
In a case concerning price gouging in the sale of N95 masks, the Appeals Division reversed a hearing officer’s decision and sustained eleven violations filed by the Department of Consumer and Worker Protection (“DCWP”). The hearing officer rejected DCWP’s reliance on evidence of comparable prices for N95 masks sold in multi-packs from larger stores because Respondent’s single N95 mask for $10.00 was sold in a smaller store. However, the Appeals Division noted that an “excessive price increase” is 10% or more above the price at which the same or similar good could have been obtained, and it was acceptable to compare the per-mask price of a multi-pack to an individually sold mask, and here the evidence demonstrated that the mask was offered at a price over 250% more than comparable masks. DCA v. 260 Nassau Ave Corp., Appeal No. 05443235 (Sept. 14, 2020).
In a case in which the Department of Buildings alleged that the owner of a multiple dwelling illegally converted the building to transient use, the Appeals Division reversed a hearing officer’s decision and sustained the violation. The certificate of occupancy identified the building as, “Old Law Tenement Class ‘A’ Mult. Dwelling & S.R.O,” and the hearing officer decided that ambiguities in this classification required the consultation of other records, such as the premises’ “I-card,” which referenced short-term stays. In reversing, the Appeals Division found no ambiguity in interpreting the Respondent’s certificate of occupancy because a 2010 state law defined both a class ‘A’ multiple dwelling and a tenement as a dwelling for “permanent residence purposes” (i.e., stays of at least 30 days), and provided that a class ‘A’ multiple dwelling used for single room occupancy remained a class ‘A’ multiple dwelling. Consequently, Respondent’s certificate of occupancy only permitted stays of 30 days or more by the same natural person or family. Dep’t of Buildings v. Terrilee 97th Street, LLC,Appeal No. 2000284 (Sept. 10, 2020).
In a case filed by the Taxi and Limousine Commission (“TLC”) for a failure to inspect a broken headlight, the Appeals Division sustained a hearing officer’s determination of a violation by the for-hire vehicle driver. Although the driver provided evidence at the hearing that the headlight was repaired shortly after the summons was issued, a newly-enacted law providing for a defense where repair is made within 30 minutes after sunset on the first full business day after the date of the violation, was not yet in effect when the incident occurred or when the hearing was held. In addition, although the driver argued that he had inspected the vehicle when he started his shift and he could not have known at 10:47 p.m., when the summons was issued, that a headlight was not working, the Appeals Division noted that a single inspection is insufficient to establish continuous inspection, and a non-working headlight after dark is readily observable. TLC v. Mihai Ionut Rauta,Appeal No. 70312727A (Sept. 18, 2020).
In a proceeding filed by the Commission on Human Rights against Respondent, a sports bar, for allegedly denying a complainant access to its establishment on the basis of gender and disability, ALJ Faye Lewis issued a decision granting the Commission’s motion to compel the Respondent to reply to interrogatories and document demands, and denying the Commission’s request for sanctions. ALJ Lewis directed respondent to respond to the discovery demands, but denied the request for sanctions, finding it to be premature. ALJ Lewis advised respondent that its failure to produce discovery as ordered may result in the imposition of sanctions at trial. Comm’n on Human Rights ex rel Ramirez v. 27 Sports Bar & Café, OATH Index No. 2547/19, mem. dec. (Sept. 29, 2020).
ALJ Susan J. Pogoda granted a law firm’s application to withdraw from representation of Respondent in a Department of Buildings licensing matter. Under the Trials Division’s rules of practice, once an attorney appears in a matter, the attorney must seek permission from the trial judge to withdraw. Withdrawal is permitted only upon consent of the client or for good cause. Here, ALJ Pogoda found counsel established good cause as he showed his client failed to pay the initial retainer fee for attorney’s services or cooperate in his defense. The proceeding was stayed to give respondent the opportunity to seek new counsel. Dep’t of Buildings v. Choudhary, OATH Index No. 1042/20, mem. dec. (Sept. 29, 2020).
A construction company, which had contracted with the Administration for Children’s Services to perform painting and maintenance work at several of the City’s early learning centers, filed a petition with the Contract Dispute Resolution Board (“CDRB”), seeking review of 37 invoices that were denied payment. The CDRB, chaired by ALJ Ingrid M. Addison, denied the claim, finding petitioner had filed its Notice of Dispute and Notice of Claim too late. An additional claim seeking payment for unpaid invoices not included in the original petition was dismissed procedurally as premature because no Notice of Dispute related to those invoices had ever been submitted to the agency head. Kaas Construction v. Admin. for Children’s Services, OATH Index No. 1491/20, mem. dec. (Sept. 24, 2020).
A loft building owner filed an application seeking access to a loft unit to perform legalization work. ALJ Addison recommended the application be denied because the owner’s first access notice lacked information regarding the scope of work to be performed and did not provide a range of five consecutive workdays for commencement of work as required by the Loft Board’s rules. Matter of American Package Co. Inc., OATH Index No. 1971/20 (Sept. 24, 2020).