Tower crane operator failed to comply with safety standards.

On March 15, 2008, a 200-foot high tower crane collapsed at 303 East 51st Street in Manhattan, killing seven people. The Department of Buildings brought a license revocation proceeding against the tower crane rigger at the accident site.  After a seven-day hearing, ALJ John B. Spooner found that the Department proved that respondent violated applicable laws by (1) using a damaged sling to support a collar; (2) failing to follow the manufacturer’s specifications in using four instead of eight slings to support the collar and attaching the slings at the corners instead of in the middle; and (3) failing to pad the slings.   Dep’t of Buildings v. Rapetti (in PDF), OATH Index No. 374/11 (July 6, 2011) adopted, Comm’r Dec. (July 18, 2011).

Hair salon denied service to bride-to-be based on race. 

ALJ Alessandra F. Zorgniotti found that a hair salon denied its services to the complainant based upon her race.  The complainant testified that when she called the salon to make a hair-styling appointment for her upcoming wedding, the owner asked her what her race was and she identified herself as an African-American.  After the complainant missed the appointment due to a family emergency, the salon owner left her a voice message, which was admitted into evidence at the hearing.  Comm’n on Human Rights ex rel McIntosh v. Vance (in PDF), OATH Index Nos. 2018/11 & 2019/11 (July 18, 2011).

Maintenance worker in ferry building did not hold safety-sensitive position, random drug test disallowed.

A maintenance worker employed by the Staten Island Ferry Division of the Department of Transportation submitted to a random drug and alcohol test and tested positive for marijuana.  Respondent’s work was custodial in nature and it involved the ferry buildings and grounds.  He did not perform work on the ferries or on ferry equipment.  The worker moved to suppress the test result on the ground that the drug test was an unreasonable search under the Fourth Amendment to the United States Constitution.  Dep’t of Transportation v. R.B. (in PDF), OATH Index No. 1215/11 (July 13, 2011).

Owner’s non-appearance waives objection to Department’s failure to timely schedule hearing. 

Under the federal court order in Krimstock v. Kelly, the owner of a car seized by the Police Department as an instrumentality of a crime, is entitled to a vehicle retention hearing at OATH within ten business days of the Police Department’s receipt of the written demand for the hearing. Police Dep’t v. Acevedo (in PDF), OATH Index No. 2644/11, mem. dec. (July 20, 2011).

Pre-trial motions to dismiss. 

Pre-trial motions to dismiss are disfavored in practice at OATH and have only been granted in the clearest cases of failure by petitioner to state a viable claim. The burden is particularly high in employee disciplinary proceedings where the OATH ALJ makes recommended findings that are submitted to the referring agency for final action.  ALJ Zorgniotti denied in part without prejudice an employee’s pre-trial motion to dismiss disciplinary charges as pre-mature where the employee stated in her reply papers that there were issues of fact to be determined at trial. Dep’t of Correction v. LaSonde (in PDF), OATH Index No. 2526/11, mem. dec. (July 8, 2011).