The Article 78 Lawsuit – Part II
March 21, 2018

The Article 78 Lawsuit - Part II by James Stevens, Esq.By James Stevens, Esq.

{4:24 minutes to read}  In our last blog, we discussed the NYC Department of Buildings’ (DOB) issuance of over 100 summonses to NYC plumbers accusing them of violating Section 28-401.19.6 of the Administrative Code of the City of New York. Our initial hearing before the NYC Office of Administrative Trials and Hearings (OATH) hearings division was a success for our client, but unfortunately, the OATH appeals board reversed the decision of the hearing officer.

The OATH appeals board, sustained the violation charge in the summons and imposed a fine of $1,600. The hearings division only had discretion to impose a fine of $1,600 for this violation in this case; where the section of the code says “Commissioner shall have the power to impose a fine not to exceed $25,000.” The OATH hearings division cannot do that, and did not have discretion to do that.

  1. By the very language of this section of the code, it didn’t make sense to bring this summons and have this hearing at the OATH hearings division. It should have been at the OATH trials division.
  2. The argument would be on grounds that DOB failed to make out a prima facie case, just as the original hearing officer decided.

Not making out a prima facie case means that there was no standard for what constitutes the “negligence, incompetence, lack of knowledge, or disregard of the code” that is Subsection 6, under §28-401.19. Again, quoting the hearing officer:

On questioning by this hearing officer, the assistant chief (witness for DOB) could not articulate threshold of how many rejections or the numerical percentage of rejections that would give rise to a violation being issued. He could not articulate whether one rejection or 50 rejections would trigger a summons or whether the percentage would need to be greater than any particular number.

The only other section that is written in the summons, which initiated this situation is as follows:

On or about […], the department, (Department of Buildings) generated a report and learned that between […] and […], respondent submitted […] inspection requests to sign off plumbing work. During this […] period, approximately […] of these requests were denied, which accounts for […] percentage of all plumbing sign off requests submitted by respondent. This high rate of failure constitutes negligence, incompetence, lack of knowledge and/or disregard, etc.

The section of the law with that description was essentially boilerplate, but that is how all 100 plus of the summonses read.

After all the plumbing work is done, including tests, inspections, and authorizations, the final step in the process is for a plumber to submit paperwork, which is now done online. The plumber submits documents, evidencing that all the work has been done. If a plumber, in doing this last step of the process omits a document, forgets to click upload on a particular document, or forgets to sign his name, it will result in a denial from DOB with regard to what is called a plumbing sign-off request. If one of those clerical omissions occurs, DOB will notify the plumber of that denial via email.

What DOB did was run a report online to learn the New York City licensed plumbers with the highest rates of denial, and then issued these summonses to them. DOB did this as a concerted initiative, en masse.

In the last blog regarding the Article 78 Lawsuit, we will report the subsequent actions of the DOB, and their effect on our case.