Last Month's OATH Decisions - August 2012


Excessive absence/incompetence charge shown by 73% absence rate.

The Department of Environmental Protection charged that a sewage treatment worker was incompetent due to excessive absence and AWOL.  He was also charged with being disrespectful to a supervisor.  Supervising ALJ Joan R. Salzman found that the uncontested proof that respondent was absent on 287 of 391 work days during an 18-month period, an absence rate of 73%, established the incompetence charge.   She also found that petitioner proved the AWOL and disrespect charges.   Noting respondent’s abysmal attendance record (exacerbated by his use of profanity to his supervisor), she found the AWOLs and the incompetence due to excessive absence to be independent bases for termination, and recommended termination of the respondent’s employment.  Dep’t of Environmental Protection v. Post (in PDF), OATH Index No. 1420/12 (Aug. 21, 2012), adopted, Comm’r Dec. (Sept. 4, 2012).

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Vehicle Retention

ALJ recommends return of car based on failure to serve timely notice of right to hearing.

The Police Department sought to retain a car they seized in connection with an arrest. ALJ Astrid B. Gloade found that the Department had failed to provide the respondent with notice of his hearing rights in compliance with a federal court order. ALJ Gloade found that this omission required the return of the car and ordered it released to the owner pending final judgment in a civil forfeiture action and resolution of the criminal charges.   Police Dep’t v. Blackwell (in PDF), OATH Index No. 164/13,  mem. dec. (Aug. 21, 2012).


Tenants showed 206 and 208 Bowery are horizontal multiple dwelling.

A tenant filed an application seeking a finding that 206 Bowery and 208 Bowery are to be considered together as an Interim Multiple Dwelling with four covered units in total, and that he was a protected occupant under the Loft Law. ALJ Alessandra F. Zorgniotti examined six factors and found that 206 and 208 had more common characteristics than independent characteristics and should be regarded as one building for Loft Law purposes. She also found that the four units were residentially occupied, as required by law, during the statutory “window period” for coverage. Finally she found the applicant’s apartment was of sufficient size to merit coverage and that he was a protected occupant under the Loft Law.    Matter of Gurkin (in PDF), OATH Index No. 489/12 (Aug. 23, 2012).


Cab driver found to have assaulted a passenger, license revocation recommended.

The Taxi & Limousine Commission proved that a taxicab driver physically assaulted a passenger. Security videos taken by cameras installed outside a restaurant showed a lengthy struggle between the two men that ended with the cab driver throwing the passenger from the vehicle into the street. Noting that even drunken and destructive behavior by the passenger, as claimed by the driver, would not mitigate the physical assault meted out by the driver, ALJ Richard recommended revocation of the driver’s hack license. ALJ Richard recommended dismissal of the charge that refusal to transport the passenger was improper.   Taxi & Limousine Comm’n v. Diallo (in PDF), OATH Index No. 1838/12 (Aug. 22, 2012).

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CDRB finds contractor ineligible for interest payment sought.

A contractor who renovated Ferry Point Park in the Bronx petitioned the Contract Dispute Resolution Board (“Board”) seeking interest under the Prompt Payment provisions in its contract with the City because it received payment more than 30 days after it submitted its invoice. The City argued that the contractor calculated the invoice date incorrectly, and that a dispute about interest was not within the Board’s jurisdiction. With ALJ Ingrid M. Addison sitting as chair, the Board disagreed, finding that because it involved interpretation of the contract, the dispute was within the Board’s jurisdiction. The Board further held that because the City had taken a deduction against the sum initially claimed on petitioner’s invoice, the ultimate payment to petitioner was ineligible for interest under the contract and the relevant Procurement Policy Board rules.    Laws Construction Corp. v. Dep’t of Parks & Recreation (in PDF), OATH Index No. 1362/12, mem. dec. (Aug. 14, 2012).


Dog that bit a child found to be dangerous.

ALJ John B. Spooner found that a dog which had twice bitten a child was a dangerous animal. The owner, who did not appear at the hearing, had previously contacted the Department of Health stating that he did not want the dog in the house he shared with his aunt due to concern it would bite his niece. Given the owner’s apparent abandonment of the dog, ALJ Spooner recommended that the Department of Health remove the dog to a location outside New York City or, failing that, consider humane destruction.    Dep’t of Health & Mental Hygiene v. Jefferson (in PDF), OATH Index No. 1988/12 (Aug. 15, 2012).