BenchNOTES Newsletter

OATH News

Job opportunities at OATH:

OATH is hiring Law Clerks and a Chief Law Clerk. Working directly with OATH’s Administrative Law Judges, Law Clerks engage in legal research and writing on cases involving civil servant discipline, consumer and worker protection matters, taxi and rideshare licensing, contract disputes involving the city, as well as cases falling under the Campaign Finance Law, Human Rights Law, Conflict of Interest Law, and more. The Chief Law Clerk has a supervisory role. These jobs are a great way to promote access to justice in NYC. For more details visit https://cityjobs.nyc.gov/ and search for Job ID 695171 (Law Clerk) & 695172 (Chief Law Clerk).

Training on Adjudicating Cases at OATH:

The Administrative Judicial Institute at OATH invites you to attend a CLE-accredited program entitled Adjudicating Cases at OATH’s Hearing Division. The program will be presented by Deputy Commissioner and Chief Clerk Maria Marchiano, Deputy Commissioner for Adjudications Kelly Corso, and Deputy Commissioner for Appeals Peter Schulman. The program will include an overview of OATH as the City’s independent administrative law court, a review of key Hearings Division procedural rules, and an overview of the appeals process.

The program will be held virtually on Tuesday evening, February 25, 2025, from 6:00 p.m. to 7:30 p.m. The free program will provide 1.5 CLE credits in Areas of Professional Practice (transitional and non-transitional) to participants. Please share this announcement with your legal staff and colleagues. You may register for the program here.

Trials Division

Licensing

Lifting of license suspension recommended.

ALJ Joycelyn McGeachy-Kuls recommended lifting the license suspension of a taxi driver arrested for assault of another driver. Taxi & Limousine Comm’n v. Goni, OATH Index 1238/25 (Jan. 24, 2025).

Real Property

Granting protected occupancy application recommended.

ALJ Christine Stecura recommended granting the protected occupancy application of tenants residing in a unit covered under the Loft Law. Matter of Wharton-Bickley, OATH Index No. 2654/23 (Jan. 15, 2025).

Vehicle Seizure

Police Department may retain a seized vehicle.

ALJ Seon J. Lee determined that the Police Department may retain a vehicle seized as an alleged instrumentality of a crime. Police Dep’t v. Brown, OATH Index No. 1241/25 mem. dec. (Jan. 28, 2025).

Contracts

Granting motion to dismiss.

The Contract Dispute Resolution Board, chaired by ALJ Christine Stecura, granted the Department of Environmental Protection’s motion to dismiss a contractor’s claim for extra work it performed in connection with a supply and service contract for gas turbine generators at a wastewater treatment plants because it was time-barred. Acme Industrial Inc., LLC v. Dep’t of Environmental Protection, OATH Index No. 287/50, mem. dec. (Jan. 22, 2025).

Appeals from the Hearings Division

An appeals decision reversed a hearing decision that sustained a violation of 15 RCNY § 1-38(b), which states that an asbestos investigator is required to either (1) assume that some or all of the areas affected by the scope of investigated renovation work contained asbestos-containing material (“ACM”), or (2) collect and submit bulk samples of each area not assumed to contain ACM for analysis. In the summons, the issuing officer alleged that respondent, a certified asbestos investigator, “[f]ailed to assume/collect bulk samples of all suspect ACM within the proposed work area” during respondent’s investigation of an apartment renovation. In support of this allegation, petitioner, petitioner, submitted respondent’s Asbestos Assessment Report (“ACP-5”) and the issuing officer’s investigative report. The investigative report noted that the apartment contained 1,000 square feet of parquet flooring and mastic glue, but no ACM debris was observed. The ACP-5 did not indicate the mastic glue or flooring as assumed or sampled ACM. At the hearing, petitioner argued that the flooring must be addressed in the ACP-5 because it falls within the “work area” as part of the premises undergoing renovation. Respondent disagreed, arguing that the flooring was not within the scope of work because the renovation plans stated that the “existing flooring [is] not to be disturb[ed].” The hearing officer agreed with petitioner, finding that the flooring fell within the definition of “work area” and therefore had to be addressed in the ACP-5. On appeal, respondent reiterated his argument and petitioner failed to appear. The appeals decision reversed, finding that while the flooring was within the “work area,” respondent’s evidence demonstrated that the flooring was not disturbed by the scope of work and therefore he was not required to address it in the ACP-5. DEP v. Gerald O Nwanji, Appeal No. 2401815 (Jan. 30, 2025).

An appeals decision reversed part of a hearing decision dismissing a violation of § 17-715(a) of New York City’s Administrative Code, which prohibits the sale of flavored tobacco product. In the summons, the issuing officer alleged that respondent sold “sweet aromatic flavored” cigars and “triple vanilla flavored” cigars. At the hearing, respondent did not dispute the facts but argued that “sweet” is a description of the tobacco type and not a flavor. The hearing officer sustained the violation for the vanilla cigars and dismissed the violation for the sweet cigars, holding that “sweet” is not a flavor. On appeal, petitioner argued that the statutory definition of flavored includes “sweet.” Respondent did not appear. The appeals decision reversed, finding that while “sweet” is not cited in the code, the Department of Health and Mental Hygiene rules, which cross-reference the code, explicitly state that a tobacco product is presumed flavored if the labeling or packaging includes the descriptive term “sweet.” Therefore, “sweet” is a characterizing flavor and the sale of the contested cigars is prohibited. DCWP v. H & M Deli Grocery 1 Corp., Appeal No. 24T02001 (Jan. 2, 2025).

An appeals decision reversed part of a hearing decision sustaining violations of both the New York City Administrative Code and the New York City Zoning Resolution. In the summons, the issuing officer alleged that respondent was operating an unlicensed physical treatment establishment and issued violations of § 28-118.3.2 of the Administrative Code for occupancy contrary to that allowed by the Department of Buildings, and § 32-00 of the Zoning Resolution for illegal use in a commercial district. At the hearing, petitioner submitted a certificate of occupancy authorizing the premises as office space. Respondent testified that while they have a licensed masseuse, she was not present on the day of the inspection. Respondent also argued that the charges against them were duplicative. The hearing officer sustained both charges, finding that respondent violated Zoning Resolution § 32-00 by operating an unlicensed physical treatment establishment with an expired massage therapy license, and Administrative Code § 28-118.3.2 by failing to demonstrate a lawful conversion of the premises from offices to a massage parlor. The hearing officer also found that the charges were not duplicative because the violations required different elements of proof. On appeal, respondent reiterated that the charges were duplicative, and petitioner did not answer the appeal. The appeals decision upheld the Zoning Resolution § 32-00 charge, finding that petitioner proved respondent operated an unlicensed physical treatment establishment by offering massages by unlicensed masseuses which is a use prohibited by Zoning Resolution § 32-00 in all zoning districts. However, the appeals decision reversed the Administrative Code § 28-118.3.2 violation, finding that the charge was duplicative because both charges were based on the occupancy of the premises as a physical treatment establishment, a use prohibited in any district by the Zoning Resolution. In so finding, the appeals decision overruled past appeals precedent that stated such charges were not duplicative. DOB v. Fashion Management Corp., Appeal No. 2401430 (Jan. 30, 2025).