BenchNOTES Newsletter

OATH News

Job opportunities at OATH:

OATH Trial Division is seeking recent law school graduates for the position of 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.

OATH is also hiring a Supervising Law Clerk to head the legal research unit consisting of Law Clerks. The Supervising Law Clerk position requires admission to the New York State Bar; four years of recent full-time responsible, relevant, satisfactory legal experience following admission to any bar, 18 months of which must have been in the supervision of other attorneys, in an administrative, managerial or executive capacity. Experience handling highly complex and significant legal work is a plus. Incumbents must remain members of the New York State Bar in good standing for the duration of this employment.

Both positions work to promote access to justice in New York City. For more details visit https://cityjobs.nyc.gov/ and search for Job ID 720154 (Supervising Law Clerk) or 720158 (Law Clerk).

Trials Division

Licensing

Lifting of license suspension recommended.

ALJ Faye Lewis recommended lifting the license suspension of a taxi driver arrested for assault after an off-duty incident. Taxi & Limousine Comm’n v. Ahmed, OATH Index No. 2350/25 (June 18, 2025).

Health and Safety

Dogs found to be dangerous.

ALJ Faye Lewis found that five dogs were “dangerous dogs” under the Health Code and Administrative Code and recommended petitioner impose any control measures other than euthanasia to protect the public. Dep’t of Health & Mental Hygiene v. Dennis-Ekwobi, OATH Index No. 1470/25 (June 11, 2025).

Real Property

Granting protected occupant’s application recommended.

ALJ Christine Stecura recommended granting a protected occupant’s application under the Loft Board’s rules after finding that the owner’s restriction on her elevator access constituted a diminution of services. Matter of Moon, OATH Index No. 2648/23 (June 23, 2025).

Contracts

Contractor’s petition dismissed.

The Contract Dispute Resolution Board, chaired by ALJ Jonathan Fogel, denied a contractor’s request for additional compensation under a contract with the Department of Environmental Protection for construction of a bypass tunnel to divert the flow of water around a leak in the Rondout-West Branch Tunnel. Kiewit-Shea Constructors, AJV v. Dep’t of Environmental Protection, OATH Index No. 833/24 (June 4, 2025).

Appeals from the Hearings Division

An appellate decision reversed a hearing decision sustaining a violation of § 28-105.1 of the New York City Administrative Code against respondent for construction work without a permit. The summons alleged that the issuing officer observed construction work without a new building permit, as required by the Administrative Code and the structural permit. At the hearing, the issuing officer testified that during his inspection he was shown a structural permit, which was issued in conjunction with a new building permit that respondent was not issued until the following day. The issuing officer also observed the performance of concrete form work in the building. In addition, petitioner submitted the structural permit which states at the bottom of the page that all structural work for a new building must not commence until the associated new building permit is issued. Respondent argued that petitioner lacked the authority to include this stipulation with the structural permit or, alternatively, that failure to comply with the stipulation was not a violation of § 28-105.1 because respondent had a valid structural permit on the date of inspection. In sustaining the charge, the hearing decision found that operations beyond structural work were being performed on the date of inspection. On appeal, respondent reiterated its hearing arguments and asserted that concrete form work was structural work covered by the structural permit. Petitioner did not answer the appeal. The appellate decision reversed, finding that concrete form work is structural work and therefore, only structural work was being performed on the date of inspection. The appellate decision found that respondent was not performing unpermitted work, even though it did not comply with the stipulation on the bottom of the permit, because respondent had a valid structural permit. The appellate decision noted further that if petitioner seeks to keep a permit from authorizing structural work until the new building permit is active, as expressed in the stipulation, it could enact a rule to that effect or delay issuing the structural permits until the related new building permits were issued. DOB v. City Wide Builders Grp In, Appeal No. 2500093 (Apr. 24, 2025).

An appellate decision affirmed a hearing decision sustaining numerous violations of the Health Code. The summons alleged that during an inspection of respondent’s restaurant, the issuing officer observed ice being produced and stored for customer consumption by an ice machine that exhibited rust and black residue, in violation of § 81.27(b); green organic debris on waste pipes below the three compartment sink and pooled water below the dishwasher, in violation of § 81.23(a); a partially used can of Raid flying insect spray, with a label indicating it was not to be used in a food processing establishment, on the concrete ledge above the basement steps, in violation of § 81.23(d); and approximately 45 plastic containers, facing upwards on a kitchen shelf, exposed to possible contaminants, in violation of § 81.07(o). In an online hearing submission, respondent asserted that the ice machine is used to make crushed ice to cool down stocks in an ice bath and for the dish on a display-only table and a different ice machine, which is regularly cleaned, is used to make ice for drinks. It further argued that the green organic debris and pooled water observed are normal, temporary conditions that are not present long enough to attract vermin; the Raid can is permitted to be on the basement steps, and it was only used for the sidewalk; and the plastic containers are ready for use and meant to be stored face up. The hearing decision disagreed and sustained the violations of the Health Code. It found that because crushed ice was absorbed into the fish and consumed, the machine holding the ice was a food contact surface. The hearing decision also did not credit respondent’s claims that organic debris and pooled water were not present long enough to attract pests or that the Raid was not used in the establishment. Finally, the decision found that facing upwards, the top container could be contaminated by flies, dust, or food debris. On appeal, respondent reiterated its hearing arguments, emphasizing that the crushed ice was used for fish that was for display and not intended to be consumed. Petitioner did not answer the appeal. The appellate decision sustained the violations, finding that respondent presented insufficient evidence to show that the fish were display-only. The appellate decision deferred to the hearing decision’s credibility findings regarding the conditions conducive to pests and use of the Raid insect spray and agreed that storing food containers face up exposed them to contamination in various ways. DOHMH v. Stone Park Corner LLC, Appeal No. 00999-24F1 (June 18, 2025).

An appellate decision reversed a hearing decision dismissing a violation of § 3303.4.6 of the Building Code for storage of combustible material in violation of the Fire Code. The summons alleged that the issuing officer observed six plastic containers of gasoline, both empty and full, at a new building site. At the hearing, respondent argued that petitioner failed to establish how the plastic gasoline containers were stored in violation of the Fire Code. The hearing officer dismissed the summons on this ground. On appeal, petitioner argued that the photographs in the summons showed a gas container precariously close to an electrical outlet and that it was not required to cite a specific Fire Code provision in the summons. Respondent did not answer the appeal. The appellate decision reversed the dismissal, finding that because § 3303.4.6, in requiring compliance with the Fire Code, incorporated by reference all Fire Code provisions, petitioner did not have to specify a Fire Code provision with which the plastic gas containers were not in compliance. The appellate decision found that the affirmed statements and photographs in the summons established a prima facie case, noting that Fire Code § 304.2 provides that “[i]t shall be unlawful to store rubbish or other combustible waste in a manner that creates a fire hazard or public nuisance,” which now shifts the burden to respondent to show that the gasoline containers did not create a fire hazard or public nuisance. DOB v. Vera Carting Corp, Appeal No. 2500484 (June 26, 2025).