Recent Decisions - November 2012
 The following is a summary of some recent OATH decisions decided in November 2012.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at (212) 442-4900.  


Personnel

A correction officer was charged with improper use of force against two inmates. That officer and his partner were also charged with making false reports and failing to obtain medical attention for an injured inmate.  ALJ John B. Spooner found petitioner proved that the first officer used improper force against one of the inmates but he recommended dismissal of the rest of the charges.  The recommended penalty was a 15-day suspension, given the inconclusive proof as to the precise extent of the force used.  This was the first OATH case involving videoconferenced testimony by an inmate from a City jail.  Dep't of Correction v. Wingate (in PDF), OATH Index Nos. 1490/12 & 1491/12 (Nov. 15, 2012).

An office worker was charged with being intoxicated at work on four occasions during a one month period.  ALJ Kevin F. Casey sustained two of the charges.  He rejected as implausible respondent’s claim that his medications and illnesses cause a variety of symptoms, including dizziness and vomiting, which give people the mistaken impression that he was intoxicated, in view of proof that respondent was diagnosed with acute alcohol intoxication at a hospital on one of the charged dates.  Given respondent’s prior disciplinary record -- which included a 40-day suspension for similar, recent misconduct -- and in the absence of evidence of rehabilitation, ALJ Casey recommended termination of respondent’s employment.   Human Resources Admin. v. Anonymous (in PDF), OATH Index No. 212/13 (Nov. 21, 2012).

A firefighter who tested positive for cocaine admitted to using the drug but argued that he should be permitted to vest his pension and retire when eligible to do so.  ALJ Alessandra F. Zorgniotti noted that pursuant to the Department’s “zero tolerance policy,” termination of employment is the usual penalty for a first time positive test, in the absence of exacerbating or extenuating circumstances.  She found that respondent failed to present sufficient evidence in mitigation to justify a lesser penalty.  She recommended termination of respondent’s employment, without an allowance that his pension be permitted to vest fully.  Fire Dep’t v. Arcello (in PDF), OATH Index No. 109/13 (Nov. 29, 2012).

An ultrasound technician was charged with failing to follow hospital procedures requiring that a patient’s name and medical record number be placed on each image of the patient’s echocardiogram. Without the required identifiers, the reviewing cardiologist could not prepare his report, and the patient had to return to re-take the test. Though the hospital sought the penalty of termination of employment, ALJ Tynia D. Richard recommended a 30-day suspension, noting that the misconduct, while serious, was a single error and caused no harm except inconvenience.  Health & Hospitals Corp (Jacobi Medical Ctr.) v. Goldfayn (in PDF), OATH Index No. 2100/12 (Nov. 21, 2012).

ALJ Spooner found that a pharmacy technician sexually harassed two female co-workers by forcibly grabbing one from behind and pressing himself against her, and by forcibly kissing the other employee three times.  Termination of employment was recommended.    Health & Hospitals Corp (Elmhurst Hospital Ctr.) v. Polepalle (in PDF), OATH Index No. 142/13 (Nov. 20, 2012).


Contracts

Under a value engineering change provision contained in its contract to reconstruct a pedestrian bridge for the Department of Transportation (“DOT”), the contractor was entitled to 50% of the cost savings resulting from its proposed contract change.  The parties disagreed on the value of the contractor’s share of the savings, with the contractor claiming it was $126,160.25 and DOT asserting that it was only $46,505.75.  The Contract Dispute Resolution Board (“CDRB”), with ALJ Joan R. Salzman sitting as chair, dismissed the contractor’s claim for three independent reasons: (1) The claim was time-barred because the contractor failed to file its notice of dispute timely with the agency head.  (2) Were it not time-barred, this claim was waived when petitioner submitted a request for an extension of time without reserving the cost-savings proposal.  (3) Were the claim neither time-barred nor waived, it must be denied on the merits as the CDRB found the contractor’s method of calculating the cost savings erroneous and concluded that DOT’s calculation was correct.  Ferreira Construction Co. v. Dep’t of Transportation (in PDF), OATH Index No. 1619/12, mem. dec. (Nov. 16, 2012).


Vehicle Forfeiture

The Police Department sought to retain a vehicle seized incident to the arrest of the driver for driving while impaired by drugs and other charges.  Respondent’s attorney sought return of the car due to the Department’s alleged failure to comply with the notice requirements contained in the federal court Krimstock order.  ALJ Faye Lewis ruled that lack of notice is an affirmative defense; where respondent did not testify with respect to notice, statements from respondent’s attorney did not make out the defense.  However, ALJ Faye Lewis found that the police failed to prove there was probable cause to arrest respondent and ordered the car released.    Police Dep’t v. Romo (in PDF), OATH Index No. 658/13, mem. dec. (Nov. 29, 2012).

A driver whose car was seized in connection with his arrest for driving while intoxicated sought the return of his car.  Based upon the driver’s admission that he was driving and struck a parked car, and his breathalyzer reading of 0.178 (more than twice the legal limit), ALJ Richard ruled that the Department was entitled to keep the vehicle pending a civil action for permanent forfeiture of the car.  ALJ Richard rejected the driver’s claim that he was not informed of his right to a hearing given that he signed a form acknowledging that he received notice of his hearing rights.    Police Dep’t v. Kelvin (in PDF), OATH Index No. 820/13, mem. dec. (Nov. 16, 2012).


Licensing

Companies that are licensed to collect refuse from commercial establishments (“trade waste”) in New York City must obey directives from the licensing agency, the Business Integrity Commission, and follow Commission rules.  ALJ Astrid B. Gloade found that respondent failed to submit a customer register as required by the rules, and also failed to comply with a Commission directive regarding the filing of a customer register.  Respondent did not appear at the hearing and, upon proper proof of notice, the matter proceeded by inquest.  ALJ Gloade noted that respondent had recently been fined for violating the same rules.  She concluded that the $20,000 penalty sought by the Commission was appropriate in light of several considerations, including respondent’s “seeming disregard of its obligations.”  Business Integrity Comm’n v. Skylyn Corp. (in PDF), OATH Index No. 714/13 (Nov. 9, 2012), adopted, Comm’r Dec. (Dec. 12, 2012).

Evidence showed that Northeast Recycled Grease, Inc. (“Northeast”) collected 40 gallons of used vegetable oil from a restaurant without a license to pick up trade waste.  ALJ Spooner found that Northeast was operating in violation of city law and recommended a penalty of $5,000.  Business Integrity Comm’n v. Northeast Recycled Grease Inc. (in PDF), OATH Index No. 787/13 (Nov. 26, 2012), adopted, Comm’r Dec. (Dec. 12, 2012).