OATH Recent Decisions

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Personnel

ALJ Faye Lewis recommended a 45-day suspension for a custodial engineer who stored an air rifle in a Department of Education warehouse building and fired it in the trucking bays of the warehouse on a Saturday when no one else was in the building. Respondent did not deny this allegation and testified that he brought the air rifle into the building and fired it on one occasion for the sole purpose of scaring away pigeons that had been roosting in the bay areas of the building, defecating on plastic wrapped pellets of food trays that were distributed to schools, and disturbing asbestos installation on the pipes. The ALJ found respondent’s testimony to be clear, consistent, unrebutted, and corroborated by documentary evidence, such as emails and photographs documenting the significant health concerns posed by the pigeons. While the ALJ found that respondent’s use of the air rifle was well-intentioned, she concluded that the storage and firing of the air rifle constituted misconduct as it showed poor judgment and was contrary to well-known standards of conduct. The ALJ dismissed the remaining charges against respondent for storing alcohol and parking his motorcycle on petitioner’s property because petitioner failed to produce sufficient evidence linking respondent to the alcohol and failed to establish that parking his motorcycle constituted misconduct. Lastly, the ALJ dismissed a charge relating to the transfer or sale of Department property as time-barred. The ALJ rejected petitioner’s argument that respondent should be terminated for this misconduct, noting that there was significant mitigation underlying respondent’s actions and that he has had a lengthy tenure with the Department with high performance evaluations and no history of discipline. Accordingly, the ALJ recommended a 45-day suspension with credit for a 30-day pretrial suspension served. Dep’t of Education v. O’Hara, OATH Index No. 2125/24 (Feb. 11, 2025).

Licensing

ALJ Kara J. Miller recommended revoking respondent’s second-hand automobile dealer license and imposing a civil penalty of $519,110 and restitution of $28,859.39 to seven consumers for respondent’s deceptive trade practices and violations of Consumer Protection Law. Petitioner, the Department of Consumer and Worker Protection (“DCWP”), commenced this case against respondents, the owners and officers of four second-hand car dealerships. The ALJ found that the testimony and documentary evidence, such as respondent’s online advertisements and consumer sale documents, proved that respondents violated Consumer Protection Law on multiple occasions by engaging in deceptive trade practices such as advertising vehicles with false prices and vehicle identification numbers, misrepresenting consumer’s cancellation options, failing to provide consumers with recall information, selling vehicles that were not road-worthy, and submitting false credit applications and finance documents. While the ALJ found that petitioner did not have jurisdiction over one of the dealerships because it was not located in New York City, the ALJ found that the remaining dealerships operated as a common enterprise and therefore, they were jointly and severally liable for the penalties. The ALJ also found that certain consumers were entitled to restitution for expenses such as repairs, travel expenses, deposits on cars never sold, and improperly charged taxes and fees. Lastly, the ALJ upheld petitioner’s request for restitution for consumers who were still making automobile payments and accruing interest on loans. Dep’t of Consumer & Worker Protection v. Champion Auto Sales of Utica Avenue, LLC, OATH Index No. 2430/19 (Feb. 28, 2025).

ALJ Faye Lewis recommended granting respondent’s application for a marriage license after petitioner failed to prove that respondent was the same person listed on a marriage license from 1996. Petitioner, the City Clerk, denied respondent’s application for a marriage license after it discovered another marriage license, dated July 8, 1996, with respondent’s name, birthdate, and birth certificate identification number listed. Respondent appealed this denial, alleging that she had never been married and that she did not know any of the other names on the 1996 license, including the groom’s. Respondent believed that her information was listed on this license because her birth certificate and social security card had been stolen around the same time. Through the presentation of documentary evidence, respondent established that the 1996 license and application contained incorrect information about her address and occupation at the time, as well as the name and birthplace of her father. The 1996 marriage documents also had spelling errors and irregularities relating to her last name, and the handwriting on the 1996 documents was markedly different from her own handwriting. The ALJ determined that petitioner failed to prove that respondent was the same person to whom the 1996 license was issued and recommended that respondent’s pending application for a license be processed expeditiously. Office of the City Clerk v. Gadsen, OATH Index No. 0765/25 (Feb. 4, 2025).

ALJ Julia H. Lee recommended suspending respondent, a professional engineer, from the Department of Buildings (“DOB”) professional certification program for a period of six months for submitting eleven professionally certified applications in which he displayed negligence, incompetence, or a lack of knowledge of the relevant rules and regulations. Petitioner, DOB, allows licensed professionals to forego their standard review procedure of work plans when submitting permit requests through their professional certification program. The ALJ found that petitioner proved respondent submitted eleven work plans through this program that demonstrated negligence, incompetence, or a disregard of the relevant rules because the plans had design deficiencies, failed to be fully detailed and dimensional, and, on numerous occasions, included support beams that could not withstand load capacity. The ALJ also found that respondent submitted three work plan applications that resulted in the revocation of associated permits. The ALJ rejected petitioner’s request that respondent be excluded from the professional certification program for a year, finding that a six-month suspension is more appropriate due to mitigating factors, including respondent’s inability to correct mistakes listed in prior objections due to the majority of the notices being issued on the same day; a lack of evidence of intentional misconduct; and respondent’s testimony that he has learned from these mistakes and resolved them in future applications. Accordingly, the ALJ recommended a six-month suspension. Dep’t of Buildings v. Ahead, OATH Index No. 2659/24 (Feb. 27, 2025).

Contracts

The Contract Dispute Resolution Board, chaired by ALJ Tiffany Hamilton, dismissed a contractor’s request for additional compensation for the modification of a road reconstruction contract with the Department of Design and Construction (“DDC”). The dispute arose when DDC changed certain curb-to-curb installation work to spot repairs. In response to DDC’s modification, the contractor requested an “equitable adjustment” of the contract price, arguing that replacing the curb-to-curb construction work with spot repairs increased costs and reduced efficiency because workers had to shift between locations rather than working in a logical sequence. The Board rejected this request, noting that it lacks jurisdiction to grant equitable relief or any other relief inconsistent with the contract. In addition, the Board stated that even if it had jurisdiction, the contractor’s claim would still fail because DDC had the power to alter the work from continuous installation to spot repair without liability under both the Contract and the General Note. Accordingly, the Board dismissed the petition. Restani Construction Corp. v. Dep’t of Design & Construction, OATH Index No. 1005/24, mem. dec. (Feb. 6, 2025).