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).

Trials Division

Personnel

45-day suspension recommended.

ALJ Faye Lewis recommended a 45-day suspension with credit for a 30-day pretrial suspension served for a custodial engineer who stored an air rifle in a Department of Education warehouse building and fired it once on a weekend day when no one else was in the building. Dep’t of Education v. O’Hara, OATH Index No. 2125/24 (Feb. 11, 2025).

Licensing

Revocation of license and imposition of civil penalty recommended.

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. Dep’t of Consumer & Worker Protection v. Champion Auto Sales of Utica Avenue, LLC, OATH Index No. 2430/19 (Feb. 28, 2025).

Contracts

Contractor’s challenge dismissed.

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. Restani Construction Corp. v. Dep’t of Design & Construction, OATH Index No. 1005/24, mem. dec. (Feb. 6, 2025).

Appeals from the Hearings Division

An appeals decision affirmed part of a hearing decision that sustained a violation of the Health Code against respondent, a food establishment, for failing to provide an employee bathroom. In the summons, the issuing officer affirmed that respondent’s only bathroom was located in an area of the establishment where customers can bring their dogs and that employees have to pass through this area to access the bathroom. At the hearing, respondent testified that the food area is separated from the dog area by a glass partition. Respondent argued that this violation was not previously charged, and there were no structural changes made since respondent’s first inspection, for which respondent received an A letter grade. The hearing decision found that the respondent had not established a valid defense. Respondent appealed and petitioner, the Department of Health and Mental Hygiene, did not answer the appeal. The appeals decision noted that the Health Code states that patrons and employees may use the same toilet facilities, except if patrons would be required to walk through a kitchen or food preparation area to access the toilet. The Health Code also states that no live animal shall be kept, housed, or permitted to enter into or remain in any food service establishment. The appeals decision affirmed the charged violation, determining that the regulatory intent was clear that patrons are not to come in contact with food areas, and that employees, who have access to food areas, are not to come in contact with live animals at work. The decision also found that it was not a defense that respondent had not been previously issued a violation of the Health Code. DOHMH v. Annie’s Social Inc., Appeal No. 11830-24F0 (Feb. 7, 2025).

An appeals decision reversed a hearing decision that sustained a violation of the Administrative Code for the alteration of a residence as a dwelling for a larger occupancy than legally approved. At the hearing, respondent asserted that she was an improper party, as she had no interest in, or control over, the cited premises on the date of violation, January 23, 2018. Respondent asserted that she moved into the premises after her brother, a real estate broker, arranged for respondent to take title to the cited premises on February 7, 2012. In December 2015, the prior owner of the cited premises brought an action for fraudulent transfer, alleging that respondent had forged the prior owner’s signature. By order dated November 12, 2019, the Court determined that the deed was void ab initio, ordered such deed to be stricken from the Kings County Clerk’s Office, and declared that the prior deed be given full force and effect. Respondent moved out of the premises at the end of 2015, when she was sued, and had no connection with the cited premises since then. In support, respondent submitted the deed, dated February 7, 2012; the complaint filed by the prior owner in 2015; and the court order. The hearing decision sustained the charges and found that respondent had control of the property on the date of violation and therefore, was a proper party. On appeal, respondent reiterated her argument and petitioner did not answer. The appeals decision reversed, finding that respondent never had a legal interest in the property because the forged deed was a legal nullity at inception and never entitled to legal effect. The appeals decision further credited respondent’s testimony that she had no connection with the premises after she moved out in 2015 and concluded that the respondent was not an owner on the date of violation. DOB v. Shivon Ali., Appeal No. 2500090 (Feb. 27, 2025).

An appeals decision affirmed a hearing decision that sustained repeat charges of Violation Category 12, failure to prevent unwarranted or unnecessary alarms. The summons affirmed that respondent failed to prevent an unnecessary alarm on February 26, 2024, and, to support the repeat status violation, listed a prior summons, issued on August 26, 2023, for the same charge. At the hearing, respondent argued that the violation should be treated as a first offense because the current summons was not issued within six months of the prior summons. Respondent submitted a printout from a Time and Date Calculator app, which calculated that the summonses were issued six months and one day apart. The hearing decision found that the instant summons was issued within six months of the prior summons and imposed a mitigated penalty for a repeat violation because respondent submitted proof that they corrected the violating conditions before the first scheduled hearing date. On appeal, respondent reiterated its argument and petitioner did not answer the appeal. The appeals decision affirmed and, relying on article 2 section 30 of New York General Construction Law, found that the convention is to calculate a one-month period from a date in one month to the same date in the next month. Accordingly, the appeals decision held that the instant summons was issued within six months of the prior summons and the respondent was properly charged with a repeat violation. FDNY v. Board of Managers of 111 Mercer Condominium, Appeal No. 2401790 (Feb. 27, 2025).