Dep't of Buildings V. Fekete

1

Dep't of Buildings v. Fekete

OATH Index Nos. 1118/07 and 1119/07, mem. dec. (Mar. 23, 2007)

Respondents’ motionsfor permission to deposeDepartment employees and to preclude a Department operating procedure from being introduced at hearingare denied. Petitioner’s motions to amend the petition and to compel discovery are granted. Respondentsare ordered to provide discovery or it will be precluded at the hearing.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF BUILDINGS

Petitioner

-against-

HERSHEY FEKETE and LEON ST. CLAIR NATION

Respondents

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MEMORANDUM DECISION

KARA J. MILLER, Administrative Law Judge

This is a license proceeding referred by petitioner, the Department of Buildings, pursuant to section 27-140.1 of the Administrative Code. The Department alleges that respondents, Hershey Fekete, an expediter, and Leon St. Clair Nation, an engineer, violated various Department Rules by submitting doctored photographs to the Department in connection with two separate builder’s pavement plans. The Department seeks to revoke respondent Fekete’s registration as an expediter under 1 RCNY § 31-01 and to exclude respondent St. Clair Nation’s self-certification privileges as an engineer under 1 RCNY § 21-02(b).

On March 14, 2007, respondents moved to compel deposition testimony from three Department employees and to preclude petitioner from introducing Department Operating Policy and Procedure Notice (“OPPN”) 6/97at the hearing. On March 15, 2007, petitioner moved to amend the petition and to compel compliance with its discovery request. Both parties submitted timely responsive papers in opposition.

Respondents’ motions to compel deposition testimony and preclude the introduction of the Department’s operating procedure are denied. Petitioner’s motions to amend the petition and to compel discovery are granted.

ANALYSIS

Respondents’ Motion to CompelDepositions of Current and Former DOB Employees

Respondents move, pursuant to section 1-33 of OATH Rules of Practice, for an order permitting respondents to depose three employees of the Department: Brooklyn Deputy Borough Commissioner Thomas Fariello, Plan Examiner John Gallagher, and former Brooklyn Borough Commissioner Susan Hinkson. Respondents argue that the depositions are necessary to “understand what confessions or admissions, if any, [respondents] made to Deponents [that] may have led to the proffering of charges or may constitute part of Petitioner’s case against them.” (Resp. Mot. to Compel,Mar. 14, 2007). Petitioner opposes the motion and argues that respondents have not shown good cause as to why depositions should be permitted. Petitioner further states that if these alleged confessions or admissions occurred, respondents will have personal knowledge of the conversations. Moreover, respondents will have a full and fair opportunity at trial to confront witnesses.

In general, discovery is far less extensive in administrative adjudication than in civil litigation. Matter of Prince, OATH Index No. 1506/95 (Aug. 18, 1995). Section 1-33(b) of OATH’s rulesstates, in relevant part, that “[d]epositions shall only be taken upon motion for good cause shown.” 48 RCNY § 1-33(b). Depositionsare considered an “extraordinary discovery device” and a party seeking permission to take depositions must therefore “show a special heightened need” before they will be authorized. Tenants of 51-55 W. 28th St. v. Jo-Fra Properties, Inc., OATH Index No. 1019/05, mem. dec. (July 19, 2005) citing Conflicts of Interest Bd. v. Katsorhis, OATH Index No. 1531/97, mem. dec., at 10 (June 27, 1997) (denying motion to take depositions “absent a showing of special need”).

Respondents have failed to demonstrate a special heightened need for such an extraordinary discovery device. Respondents’ motion to take depositionsis denied.

Respondents’ Motion to Preclude the Introduction of DOB Operations Procedure 6/97

Respondents move, pursuant to section 1-34 of OATH Rules of Practice, to precludepetitioner from introducing OPPN 6/97at the hearing because it was not promulgated according to the City Administrative Procedure Act (“CAPA”) and therefore has no legal force or effect. Petitioner opposes respondent’s motion, arguing that it is without merit. Petitioner maintains that OPPN 6/97 refers to the submission of legitimate photographs and it is not concerned with rules regarding the submission of photographs, but rather that the photographs submitted were fraudulent.

Respondentsare not charged with violating OPPN 6/97, but instead are alleged to have violatedsections 31-01(a) et seq. and 21-02(b)(3) of Title1 of the RCNY. The issue of whether OPPN 6/97 was properly promulgated has little bearing on whether it should be introduced into evidence. The preclusion of evidence is a disfavored remedy. See Fire Dep’t v. Taylor, OATH Index Nos. 621/05, 622/05 (Jan. 21, 2005), modified on penalty, Comm'r Dec. (Mar. 22, 2005), aff'd, NYC Civ. Serv. Comm'n Item No. CD06-68-SA (July 10, 2006). It is well settled that where evidence is relevant and probative it is admissible in an administrative proceeding. Dep’t of Correction v. Mamon, OATH Index No. 605/07 (Feb. 8, 2007).

Respondents’ motion to preclude is denied.

Petitioner’s Motion to Request Leave to Amend Petitions

Petitioner moves, pursuant to section 1-25 of OATH Rules of Practice, to amend the charges to conform to recently discovered facts. The petitions were originally filed on December 19, 2006. On January 10, 2007, petitioner amended the petitions to include an additional charge. Petitioner has recently learned that the dateset forth in the petition that the fraudulent photographs were allegedly submitted to DOB was incorrect. Petitioner maintains that the photographs relating to 91-99 South 3rd Street, were submitted on or about February 15, 2005, not January 20, 2005, and requests that the charges be amended accordingly.

Respondents oppose the motion and argue that the charges should be dismissed because of the “fundamental unfairness” of allowing petitioner to amend the date set forth on the petition. Respondents alternatively moves for an adjournment because “the twenty six day shift in the date… obviates respondents’ pre-trial preparations and forces respondents to attempt to reconstruct events from more than two years ago on short notice” (Resp. Br. of Mar. 21, 2007).

This tribunal has allowed the amendment of a petition where a respondent will not suffer prejudice and the proposed amendment constituted only a minor modification to the original charges. See Dep't of Correction v. Rebecca, OATH Index No. 151/94, mem. dec. (Sept. 17, 1993); TriboroughBridge and Tunnel Auth. v. Leibowitz, OATH Index No. 1080/98 (July 24, 1998). In Department of Correction v. Sostre-Valentin, OATH Index No. 1923/99 (Sept. 22, 1999), the administrative law judge held that where a specification alleged the wrong date for an incident, it was appropriate to conform the charge to the proof where no one was prejudiced by the inaccuracy and respondent and all other witnesses were aware of the incident charged. See also Dep’t of Transportation v. McKoy, OATH Index No. 199/98 (Jan. 9, 1998) (petitioner permitted to conform the charges and specifications to the proof where the original charge gave an incorrect date and respondent failed to demonstrate the change was prejudicial).

Petitioner’s motion to amend the charges is granted. Respondents’ motion for dismissal, or in the alternative, an adjournment is denied.

Petitioner’s Motion to Compel Discovery

Petitioner moves, pursuant to OATH Rules of Practice section1-33(d) and (e), to compel respondents to comply with petitioner’s discovery demands. Petitioner asserts that it has complied by forwarding copies of two invoicesgenerated by respondent Fekete and a survey generated for one of the properties in question on March 16, and 21, 2007.

Section 1-33(c) provides that “[d]iscovery shall be requested and completed promptly, so that each party may reasonably prepare for trial.” 48 RCNY § 1-33(c). On February 13, 2007, petitioner served respondents with a request for document production. Respondents failed to respond as required on or before March 2, 2007. On March 5, 2007, petitioner’s counsel requested the discovery from respondents’ counsel during a telephone conversation. During a conference call with both parties, on March 8, 2007, I directed respondents’ counsel tocomply with petitioner’s discovery request before the close of business on March 9, 2007. Respondentsfailed to comply with my directive. Instead, they waited and implemented their own timeframe.

OATH rulesprovide for a number of penalties for failure to comply with an order compelling discovery including sanctions, preclusion of witnesses or evidence, and drawing of adverse inferences, among others. 48 RCNY § 1-33(e). See alsoBd. of Education v. Butler, OATH Index No. 554/93 (May 24, 1993).

Respondents havefailed to comply with petitioner’s formal discovery request to produce the materials by March 2, 2007. Moreover, respondents failed to follow my directive of March 8, 2007, to turn over the requested materials by March 9, 2007, despite respondents’ counsel’s representation that he would promptly comply. Petitioner’s discovery request has still not been completely and properly complied with andrespondents’ response is now three weeks overdue.Accordingly, petitioner’s motion to compel discovery is granted and respondents are ordered to provide the requested materials or a written itemized explanation of why they can not produce particular materials as requestedby 5:00 p.m. on Friday, March 23, 2007, or they will be precluded from introducing the items at the hearing.

Kara J. Miller

Administrative Law Judge

March 23, 2007

SUBMITTED TO:

VITTORIA FARIELLO, ESQ.

Attorney for Petitioner

STUART A. KLEIN, ESQ.

Attorney for Respondents