OATH Recent Decisions

To subscribe to receive the monthly BenchNOTES newsletter by email, click here.

Personnel

ALJ Michael D. Turilli recommended a 30-day suspension without pay for respondent, an Office of the Chief Medical Examiner (“OCME”) motor vehicle operator. OCME alleged that respondent acted negligently by entering a decedent’s home unaccompanied by the police officer who waited outside and brought OCME into disrepute when the New York Post reported that he was criminally charged with stealing a handbag from the decedent. The ALJ granted respondent’s motion to preclude footage from the officer’s body worn camera after finding that such footage was sealed under criminal procedural law as official records relating to respondent’s arrest and prosecution, but permitted the introduction of surveillance video because recordings made by a private building in the regular course of business are not official records. Relying on the recordings, OCME employee testimony, and documentary evidence, the ALJ found that respondent inefficiently, negligently, or carelessly performed his duties by entering decedent’s apartment without police supervision in violation of an unambiguous agency directive and OCME’s common practice. However, the ALJ found that OCME failed to prove respondent brought the agency into disrepute, finding that while the New York Post article may have brought OCME negative attention, it focused on the theft of the bag, a criminal charge of which respondent was acquitted, and which was neither alleged nor proven at this trial. Accordingly, the ALJ found that the 30-day suspension, and not termination, was the appropriate penalty. Office of Chief Medical Examiner v. Rheams, OATH Index No. 262/25 (Apr. 11, 2025).

ALJ Christine Stecura recommended dismissal of charges against respondent, a correction officer, after petitioner failed to prove that she engaged in undue familiarity with detainees. Petitioner, the Department of Correction, brought disciplinary charges against respondent, an investigator with the Correction Intelligence Bureau (“CIB”), for allegedly standing by a partially obscured open cell door that blocked her from camera view while speaking to detainees, giving and receiving unidentified items to and from detainees, and using her cell phone in front of detainees. Petitioner relied on security camera footage, and testimony from an investigator and an assistant deputy warden in charge of CIB, to support its allegations. Respondent did not dispute that she spoke with detainees at length in the housing areas or used her cell phone in front of detainees but argued that her conduct was related to her work duties as a CIB investigator, which requires speaking with detainees to build rapport and gain intelligence. Testimony from the retired warden of the facility and the assistant deputy warden in charge of CIB bolstered respondent’s testimony. Regarding the allegation that respondent gave and received unidentified items from detainees, the ALJ concluded that the video evidence showed respondent passing a paper bag out of camera view to detainees standing behind a cell door. It also showed respondent on another occasion removing a bag from her pocket, moving it out of camera view behind a cell door, and then returning the bag to her pocket. However, petitioner failed to show that in either instance impermissible items were given or received, or that respondent’s actions violated security procedures. Accordingly, the ALJ recommended dismissal of all charges against respondent. Dep’t of Correction v. Simon, OATH Index No. 962/25 (Apr. 10, 2025).

Real Property

ALJ Seon Jeong Lee recommended granting a protected occupancy application status after finding that petitioner used the interim multiple dwelling unit as his primary residence. Petitioner filed an application with the Loft Board for protected occupancy status based on a changed material circumstance from the Board’s previous denial of his application in 2016, when he was excluded from protected occupancy status as the roommate of the prime lessee. Petitioner alleged in the current application that the previous prime lessee had moved out of the unit 10 years ago and that petitioner has possession of the unit. The owner moved to dismiss the petition claiming it was barred by res judicata and collateral estoppel. The ALJ denied the motion, finding that the application raised new issues of law and fact, including the previous prime lessee’s surrender of the unit. The ALJ found that the evidence, including testimony from the previous prime lessee and petitioner, as well as documentary evidence, established that the previous prime lessee no longer maintains the unit as his primary residence and that petitioner is the sole individual using the unit as a primary residence. Thus, the ALJ found that petitioner was entitled to protected occupancy status and recommended the Loft Board’s approval of his application. Matter of Richmond, OATH Index No. 524/24 (Apr. 22, 2025).

Contracts

The Contract Dispute Resolution Board, chaired by ALJ Kevin F. Casey, dismissed a contractor’s request for additional compensation under a contract with the Department of Design and Construction for costs associated with excavating and removing debris from a sewer. The Board found the petition time-barred because the contractor failed to submit the Notice of Dispute to the Department’s commissioner within 30 days of the resident engineer’s determination on the extra costs, a decision that the contractor acknowledged through emails noting its disagreement. The Board also found that the contractor waived its claim by not including its requisite reservation in time extension requests submitted after the contractor filed the untimely Notice of Dispute. The contractor’s attempt to reserve the claim as “additional and disputed work” lacked specificity mandated by the contract. Finally, the Board held that even if the claim was not time-barred or waived, it failed on the merits because the contract price explicitly included the removal of debris. D’Onofrio General Contractors Corp. v. Dep’t of Design & Construction, OATH Index No. 3554/24, mem. dec. (Apr. 16, 2025).