BenchNOTES - December

Office of Administrative Trials and Hearings

Independent and Impartial Administrative Law Court


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BenchNOTES Newsletter


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OATH News

Job opportunities at OATH: OATH regularly posts employment opportunities on the NYC Jobs portal and on its website. View current openings.

Just posted: Trials Division is hiring a Calendar Unit Supervisor, a Chief Law Clerk, and a Law Clerk.

Trials Division

Personnel

Termination of employment recommended.

ALJ Michael D. Turilli recommended termination of employment for a hospital investigator for engaging in a pattern of discourteous conduct, insubordination, and unsatisfactory work performance. Health & Hospitals Corp. (Elmhurst Hospital Center) v. Scott-Petty, OATH Index. No. 1318/24 (Nov. 6, 2024), adopted, CEO Dec. (Nov. 18, 2024).

Read more about Health & Hospitals Corp. (Elmhurst Hospital Center) v. Scott-Petty.

Human Rights

Civil penalty and mental anguish damages recommended.

ALJ Jonathan Fogel recommended assessing $10,000 in mental anguish damages, along with a $20,000 civil penalty, against real estate brokers for unlawful source of income discrimination. Comm’n on Human Rights ex rel. Morgan v. NY Pyramid Group, OATH Index No. 1588/24 (Nov. 7, 2024).

Read more about Comm’n on Human Rights ex rel. Morgan v. NY Pyramid Group.

Worker Protection

Prevailing wages granted.

ALJ Kevin F. Casey denied respondents’ and intervenor’s motions to dismiss a prevailing wage proceeding, finding that Article 9 of the Labor Law was applicable to workers who cleaned and disinfected subway cars during the COVID-19 pandemic. Office of the Comptroller v. LN Pro Services, LLC & Fleetwash, Inc., OATH Index Nos. 2376/24, 2377/24, mem. dec. (Nov. 18, 2024).

Read more about Office of the Comptroller v. LN Pro Services, LLC & Fleetwash, Inc. and other Worker Protection cases.

Contracts

Contractor’s challenge denied.

The Contract Dispute Resolution Board, chaired by ALJ Orlando Rodriguez, denied a contractor’s petition challenging the Department of Environmental Protection’s (“DEP”) rejection of plate material for the installation of stainless steel piping because it did not meet DEP’s thickness requirement. Walsh Construction Company II, LLC v. Dep’t of Environmental Protection, OATH Index No. 1870/23, mem. dec. (Nov. 27, 2024).

Read more about Walsh Construction Company II, LLC v. Dep’t of Environmental Protection.

Appeals from the Hearings Division

An appeals decision reversed part of a hearing decision that sustained a Health Code violation for a hand wash sink that did not have an approved hand drying device. In the summons, the issuing officer alleged that there were no paper towels or hand dryers provided for the hand wash sink in the kitchen. At the hearing, respondent testified that it used paper napkins that were discarded after one use. The hearing officer found that the Health Code required the use of paper towels, “which are different from napkins,” and sustained the charges. On appeal, respondent reiterated their use of napkins and that such single use, disposable towels complied with the Health Code. Petitioner did not answer the appeal. The appeals decision reversed, finding that the use of napkins, as described by respondent, complied with the Health Code, which requires that single-use, disposable towels, or a mechanical drying device be provided immediately adjacent to the hand wash sink. DOHMH v. Haifa Restaurant Inc., Appeal No. 03370-24F1 (Nov. 29, 2024).

An appeals decision affirmed a hearing decision that sustained a violation for idling a motor vehicle engine for longer than three minutes. The summons was issued by a citizen under the Citizen’s Air Complaint Program, which specifies that a citizen may file a complaint with the petitioner for an idling truck, as defined by the Vehicle and Traffic Law. At the hearing, respondent asserted that the cited vehicle was a van used to transport workers to jobs and did not meet the statutory definition of “truck,” which is a “motor vehicle designed, used, or maintained primarily for the transportation of property.” The hearing officer found that the van was a type of truck, as it was used and designed primarily for transporting tools. On appeal, respondent reiterated its argument that the van was not a truck because tools were incidental to a day’s work and because petitioner failed to prove the vehicle’s primary purpose was to move material rather than workers. The petitioner did not answer the appeal. The appeals decision affirmed the hearing decision, finding that it was the respondent’s burden to show that the vehicle was not a “truck,” as defined by the Vehicle and Traffic Law, which respondent failed to do. The decision noted respondent’s testimony that the van was used to transport tools, which are property within the meaning of the Law, and that the shape of the van allocated far more space for transporting materials than passengers. DEP v. WCG Ent, Appeal No. 2401401 (Nov. 21, 2024).

An appeals decision reversed a hearing decision that dismissed a violation for failure to maintain an animal service facility in a safe and code-compliant manner. In the summons, the issuing officer affirmed that there was no sprinkler system or fire protection system in the facility, which violated the Building Code under Local Law 78. At the hearing, respondent argued that the summons was defective and failed to provide adequate notice because the issuing officer did not identify the year of Local Law 78. Respondent submitted Local Law 78 of 2015, which enacted the requirement that animal service facilities comply with the retroactive requirements of the Building Code, as well as Local Law 78 of 2017, which enacted a law pertaining to incident reporting requirements at construction sites. The hearing officer dismissed the summons, finding that it failed to notify respondent of which law was violated “due to the lack of a correct citation.” On appeal, petitioner argued that the summons provided adequate notice because only Local Law 78 of 2015 required installation of a sprinkler system in animal service facilities. The respondent did not answer the appeal. The appeals decision, noting that the omission of the year was de minimis where the respondent demonstrated no confusion over which provisions of law it had failed to comply with, found that the summons provided adequate notice of the violation and reversed. DOB v. Thomas Russo, Appeal No. 2401418 (Nov. 21, 2024).