A sub-contractor hired to work on a project to construct a family intake center in the Bronx sought $1,149,507 in extra compensation due to the city’s failure to timely award mechanical, electrical and plumbing (MEP) contracts on the project and various changes in the scope of work.  The Contract Dispute Resolution Board (CDRB), chaired by ALJ Tynia D. Richard, found that the compensation sought constituted delay damages, which were not compensable under the contract and are outside the CDRB’s jurisdiction.  The CDRB also noted that the subcontractor had already received all compensation it was due for any extra work that resulted from changes in the scope of work through change orders approved by the contracting agency.    Calcedo Construction Corp. v. Dep’t of Homeless Services (in PDF), OATH Index No. 345/12, mem. dec. (Mar. 1, 2012).

Prequalification is the method through which an agency evaluates the qualifications of
vendors to provide certain goods or services before it issues solicitations for a specific contract.  When an agency denies a vendor prequalification, the vendor may appeal the agency head’s decision to OATH.  A vendor appealed such a denial based on a poor prior evaluation.  ALJ John B. Spooner noted that a vendor’s current and past performance with similar projects is among the criteria an agency may consider in reviewing applications for prequalification and, accordingly, found that the agency’s decision was not arbitrary and capricious.  The appeal was denied.   Council of Belmont Organization, Inc. v. Dep’t for the Aging (in PDF), OATH Index No. 1163/12, mem. dec. (Mar. 14, 2012).

In response to an application for coverage under recent amendments to the Loft Law, an owner argued that the tenant’s unit could not be covered as it was in a building with inherently incompatible uses.  The tenant sought summary judgment on this issue arguing that her building had been registered with the Loft Board before the Loft Law was amended, and a Loft Board rule exempted her unit from the requirement that there be no incompatible uses in the building.  The owner argued that the rule is inconsistent with the statute.  Another Loft Board rule appears to contradict the one the tenant cited.  ALJ Richard noted that unlike prior versions of the Loft Law, the 2010 Amendments did not appear to give authority to the Loft Board to expand coverage to accreted units in buildings registered under a prior Loft Law provision.  Accordingly, ALJ Richard denied the tenant’s motion and instructed the parties to submit briefs on the issues.    Matter of Pels (in PDF), OATH Index No. 2841/11, mem. dec. (Mar. 8, 2012).

In a disciplinary case where respondent failed to appear at the hearing, the Department of Buildings established charges that respondent damaged City property; refused on multiple occasions to report for mandatory overtime and attend mandatory training sessions as directed; was absent without authority; refused to perform an inspection; refused to appear for medical evaluation and participate in a fact-finding interview; was discourteous in his refusal to attend the medical evaluation; and was discourteous in the fact-finding interview that he did attend.  ALJ Alessandra F. Zorgniotti noted that these acts, as well as the employee’s responses when questioned about them, demonstrated that the employee refused to acknowledge his supervisor’s authority over him and would not change his ways.  Accordingly, despite his lack of prior discipline, ALJ Zorgniotti recommended termination of employment   Dep’t of Buildings v. Lamitola (in PDF), OATH Index No. 871/12 (Mar. 5, 2012).

A sanitation worker was charged with committing misconduct for being absent without leave (“AWOL”). At the hearing, the worker established that he was absent on the days charged because voices told him he would be killed if he attended. He also submitted medical records documenting a history of his mental disability. Because intent is a pre-requisite for a finding of misconduct, ALJ Faye Lewis recommended dismissal of the charges, and noted that the agency is not precluded from seeking disability leave for respondent.   Dep’t of Sanitation v. J.G. (in PDF), OATH Index No. 802/12 (Mar. 9, 2012).

ALJ Ingrid M. Addison sustained charges that an agency attorney: deliberately struck his supervisor with his heavy duffel bag and continued walking without stopping even though the supervisor was pinned to the wall; intimidated a co-worker when he repeatedly banged his lunch container on a counter and cursed while standing beside her; and barreled down a hallway with the same bag in the direction of the same co-worker, causing her to dart into an office to avoid being struck. ALJ Addison recommended dismissal of charges that the attorney intimidated a co-worker by staring through her office window, and that he failed to evacuate the building as directed by building security, finding the proof insufficient to establish that a directive had been given. Termination of employment was recommended, based upon the misconduct proven.   Human Resources Admin. v. Powers (in PDF), OATH Index No. 879/12 (Mar. 5, 2012), adopted, Comm’r Dec. (Mar. 21, 2012).

ALJ Kevin F. Casey found that correction officers used impermissible force against an inmate, concealed it, and failed to obtain prompt medical attention for the inmate. An inmate alleged that after he swore at an officer, multiple officers attacked him in a holding pen. The inmate identified who was present and recalled which officer knocked him down. However, he was unsure which officers kicked him when he was on the floor. His allegations were supported by photographs and medical reports of his injuries and a video showing the officers entering the pen. The officers denied the allegations and gave conflicting stories about what had occurred. ALJ Casey found the officers lacked credibility, sustained the use of force charge against the officer the inmate identified, and sustained charges of false reports and statements and failure to seek medical treatment against each officer involved. ALJ Casey recommended penalties of 15, 15, 20 and 30 days’ suspension without pay for the officers.   Dep’t of Correction v. Ford (in PDF), OATH Index Nos. 691/12, 692/12, 693/12, 694/12, & 702/12 (Mar. 30, 2012).

The Department of Buildings sought to revoke the license of a site safety manager who had pled guilty to federal charges of conspiracy to commit wire fraud and unlawful acceptance of payments as a labor representative.  The charges were based on the manager’s agreement to leave some workers “off the books,” which enabled his employer to pay those workers non-union wages and avoid paying money to a union benefit fund.  ALJ Richard found that there was a direct relationship between his criminal acts and the manager’s fitness to hold his license as the acts were conducted on a construction site.  In light of the nature of his crimes and indications that the manager had not learned from his mistakes, ALJ Richard recommended that his license be revoked.   Dep’t of Buildings v. Stamberger (in PDF), OATH Index No. 473/12 (Mar. 30, 2012), adopted, Comm’r Dec. (Apr. 5, 2012).