BenchNOTES - October 2024

Office of Administrative Trials and Hearings

Independent and Impartial Administrative Law Court


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Trials Division

Personnel

Termination recommended.

ALJ Seon Jeong Lee recommended termination of employment for a community coordinator who was excessively absent, attempted to engage a client in an inappropriate personal relationship, failed to appear for a mandatory interview, and submitted false documents. Dep’t of Social Services (Dep’t of Homeless Services) v. Pena, OATH Index No. 874/24 (Sep. 3, 2024).

Read more about Dep’t of Social Services (Dep’t of Homeless Services) v. Pena and other Personnel cases.

Contracts

Claim remanded to agency.

The Contract Dispute Resolution Board, chaired by ALJ Faye Lewis, remanded a contractor’s claim for additional compensation to re-excavate a cofferdam because the agency determination failed to consider facts and arguments that had been previously raised by the contractor. Unionport Constructors JV v. Dep’t of Transportation, OATH Index No. 2404/23, mem. dec. (Sept. 30, 2024).

Read more about Unionport Constructors JV v. Dep’t of Transportation and other Contracts cases.

Appeals from the Hearings Division

An appeals decision vacated a hearing decision dismissing an Administrative Code violation for work without a permit. On February 9, 2024, a summons was issued stating that a Request for Corrective Action (“RCA”) had been issued on September 15, 2021, and that the unpermitted work described in the RCA had not been corrected. The hearing officer dismissed the charge, finding respondent was not a proper party because she had sold the cited premises in January 2024 and no longer controlled the property when the summons was issued. The appeals decision reversed, finding respondent was a proper party because she owned the property when the RCA was issued in September 2021, giving rise to the inference that respondent performed the unpermitted work. The matter was remanded to provide respondent with an opportunity to assert other defenses to the charge. DOB v. Carrera, Amalia, Appeal No. 2400922 (Sept. 26, 2024).

An appeals decision reversed a hearing decision dismissing an Administrative Code violation for failure to comply with a Commissioner’s order. DOB violations were issued to respondent between June 2022 and August 2023. In December 2023, a summons for failure to comply with a Commissioner’s order was issued based on respondent’s failure to remove the violating conditions described in the DOB violations. The judicial hearing officer dismissed the summons, finding that the underlying DOB violations did not contain Commissioner’s orders. The appeal decision reversed, determining that each of the underlying DOB violations contained a Commissioner’s order to remove the described violation. The appeal decision also rejected respondent’s argument that the Administrative Code violation is not a “Class 1 immediately hazardous” violation because a sidewalk shed was in place. The appeal decision found that the existence of a sidewalk shed did not negate the severity of the condition resulting from the building owner’s repeated failure to repair the building’s facade. DOB v. Coalition for the Homeless In, Appeal No. 2400740 (Sept. 26, 2024).

An appeals decision reversed a hearing decision dismissing an Administrative Code violation for unreasonable noise. In the summons, the issuing officer affirmed that he took sound level measurements (“SLM”) at a dance studio and that the noise was loud enough to disturb the peace. The judicial hearing officer dismissed the violation, finding that petitioner had failed to establish the accuracy of the SLM readings because the issuing officer did not follow the protocols in the training manual for taking measurements. The appeal decision reversed, finding that the protocols in the manual were not legally binding. However, the decision found the SLM readings were unreliable because the meter was not set to Lmax as required by the Administrative Code. Nonetheless, the decision sustained the violation because SLM readings are not required to establish a violation for unreasonable noise, and the charge was sufficiently established by the issuing officer’s affirmed statement that the noise that was loud enough to disturb the peace. DEP v. Battery Dance Company, Appeal No. 2400945 (Sept. 26, 2024).