New York State Comptroller Thomas P. DiNapoli posted local government and school audits on the Internet

On August 28, 2025, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued and posted on the Internet.

Click of the test highlighted in color to assess the audit.

Schenectady County – Investment Program

While the county’s investments were generally legal, safe and liquid, county officials did not develop and manage a comprehensive investment program. Officials also did not monitor investments, formally solicit interest rate quotes or consider other legally permissible investment options. In addition, officials did not create a comprehensive investment program with written procedures and did not prepare monthly cash flow forecasts or otherwise monitor investments to estimate funds available for investment. As a result, the county maintained most of its available-for-investment funds (monthly average of $112 million) in a money market account, earning $1.8 million, at a banking institution earning lower than other interest rates available. Had officials managed a comprehensive investment program, solicited interest rate quotes and deposited funds into a bank account or an investment option already used by the county, officials may have realized additional earnings ranging from $5.1 to $10.6 million.

Town of Lorraine – Town Supervisor’s Records and Reports (Jefferson County)
The supervisor did not maintain complete, accurate and up-to-date accounting records and reports. As a result, the board lacked reliable information necessary to manage the town’s financial operations. The supervisor did not identify and resolve discrepancies between recorded cash balances and adjusted bank balances, in part, because she did not perform bank reconciliations in an accurate manner. As of Dec. 31, 2023, three bank account cash balances totaling $105,091 were not included in the accounting records and the remaining three bank accounts’ adjusted bank balances exceeded the recorded cash balances by $513,735. Auditors identified about $440,000 in recordkeeping errors that contributed to this difference between the cash in the bank and the records.

Shoreham-Wading River Central School District – Capital Assets (Suffolk County)
District officials did not properly record and account for all of the district’s capital assets. As a result, the district has an increased risk that its capital assets could be lost, stolen or misused. The board of education did not designate a property control manager. Therefore, the district did not have a specific person who was responsible for tracking capital assets and ensuring that capital asset information was complete, up-to-date, accurate and useful. District officials did not properly segregate asset inventory duties among employees, and officials did not monitor the work of those who performed these duties. Auditors reviewed 30 purchases made during the audit period, which included 96 purchased assets, and determined that 78 assets with a combined acquisition value of $419,538 (87%) were not included in the district’s inventory list.

Essex County Industrial Development Agency – Project Approval and Monitoring
The board did not properly approve and monitor projects that received financial assistance. The board did not develop and adopt, by resolution, uniform criteria for the evaluation and selection for each category of projects to be provided financial assistance, including the preparation of a written cost-benefit analysis (CBA), as required by law. Of the nine approved projects reviewed, a written CBA was not prepared for four of the projects, and the CBAs prepared for the other five projects did not include all the information required by law. As a result, the board could not properly assess these projects, before their approval, to ensure the benefit to the community would be a sufficient return for the financial assistance to be provided.

Town of Lewis – Records and Reports (Lewis County)
The supervisor did not maintain complete and accurate accounting records and reports. As a result, the board lacked reliable records and reports to effectively manage the town’s financial operations. The supervisor did not provide oversight of the clerk duties related to maintaining the accounting records, which resulted in errors and deficiencies in the town’s accounting records. The supervisor also did not provide the board with complete and accurate monthly reports during the audit period. The board also did not audit, or contract with an independent public accountant to audit the supervisor’s records for 2023.

Town of Wethersfield – Capital Project (Wyoming County)
The board did not properly plan for or manage the department building capital project. Specifically, the board did not develop and adopt a written multiyear capital plan or create and follow a capital project budget. As a result, the board spent approximately $243,500 of town funds to purchase property and goods and services that may not be used. The property that was purchased more than five years ago remains undeveloped and officials have no formal plans for it. Although officials paid $85,000 about two years ago for precast concrete wall blocks, officials have not scheduled a delivery date for the wall blocks and owe an additional $37,000 once delivered. In addition, the board improperly established a $1 million reserve fund in the town’s general fund. Although the town attorney notified the board in October 2023 that the board did not properly establish a capital reserve fund, the board did not take appropriate action to remedy the situation.

Fredonia Central School District – Lead Testing and Reporting (Chautauqua County)
District officials did not properly identify, report or implement needed remediation to reduce lead exposure in all potable water outlets as required by state law and Department of Health regulations. Auditors determined 178 of the 665 (27%) water outlets identified were not sampled or properly exempted by district officials. This occurred because district officials did not have a sampling plan to identify all water outlets for testing or exemption. District officials also did not have a remedial action plan that detailed which water outlets they exempted and how they would be secured against use, and what remedial actions were planned or enacted. Because there is no information on the lead levels of the 178 water outlets not sampled for testing, auditors were unable to determine whether officials identified and remediated all water outlets that would have required it.

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Mandamus to compel performance is an extraordinary remedy that is available only in limited circumstances

The extraordinary remedy of mandamus* is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated" (see Matter of Gonzalez v Village of Port Chester, 109 AD3d 614).

The Petitioner in this action alleged that her residence sustained property damage on June 17, 2022. On June 15, 2023, she submitted a notice of claim to the New York City Comptroller's Office, [Respondent] indicating that the Dormitory Authority of the State of New York and the Comptroller's Office were the agencies involved in her claim. 

The Comptroller's Office rejected Petitioner's notice of claim as late.  Petitioner then commenced this proceeding pursuant to CPLR Article 78 in the nature of mandamus to compel, among others things, the Respondent to accept the late notice of claim. 

In an order and judgment, the Supreme Court, in effect, granted Respondent's cross-motion and dismissed the proceeding insofar as asserted against the City Respondents. Petitioner appealed Supreme Court's ruling.

Sustaining the Supreme Court's ruling, the Appellate Division opined the Petitioner was not entitled to mandamus relief compelling Respondent to accept the late notice of claim as timely, noting that "Petitioner's late notice of claim served without leave of court is a nullity".

* A writ of mandamus is one of a number of the ancient “common law” writs and is granted by a court to compel an official to perform acts that such an official is duty-bound to perform. Other such ancients writs include the writ of prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of certiorari  compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of  “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. New York State's Civil Practice Law and Rules [CPLR] sets out the modern equivalents of the surviving ancient writs.

Click HERE to access the Appellate Division's decision posted on the Internet.

Communications made by "individuals participating in a public function, such as judicial, legislative, or executive proceedings" are protected by an absolute privilege

In an action to recover damages for defamation,* Plaintiff appealed an order of a Supreme Court which granted that branch of the motion submitted by two Defendants [hereinafter Defendant 1 and Defendant 2 respectively] for summary judgment dismissing the Plaintiff's causes of action to recover damages for alleged slander per se and libel per se insofar as asserted against Defendant 1. 

Two defendants, Defendant 1 and Defendant 2, moved for summary judgment dismissing the causes of action to recover damages for slander per se and libel per se insofar as asserted against Defendant 1. Supreme Court issued an order granting that branch of the Defendants' motion. The Plaintiff appealed.

The Appellate Division affirmed the Supreme Court's order "insofar as appealed from, with costs".

The Appellate Division's decision reports that Defendant 1 was, at relevant times, a council member for the Town and, among others, filed a complaint against Plaintiff with the Grievance Committee for the Ninth Judicial District alleging that Plaintiff represented a party in a taxpayer action commenced against Defendant 1 and the Town. Plaintiff subsequently became counsel for the Town while still representing the party in the taxpayer action. The Attorney Grievance Committee, First Judicial Department [Committee] ultimately disposed of the complaint by issuing an admonition to the Plaintiff.

In addition, the Appellate Division's ruling notes that Defendant 1, among others, released a media advisory to members of the press and to private individuals stating that Plaintiff had been "reprimanded" by the Committee. Further, during a press conference in front of the Town Hall, Defendant 1 stated, among other things, that the Plaintiff had been admonished and had engaged in "illicit quid pro quo."** 

The Appellate Division noted that communications made by "individuals participating in a public function, such as judicial, legislative, or executive proceedings" are protected by an absolute privilege", citing Toker v Pollak, 44 NY2d 211. Further, said the court, "Absolute privilege is based upon the personal position or status of the speaker and is limited to the speaker's official participation in the processes of government", citing Colantonio v Mercy Med. Ctr., 135 AD3d 686'.

The Appellate Division also noted that Defendants' motion for summary judgment dismissing the causes of action to recover damages for slander per se and libel per se insofar as asserted against Defendant 1 was properly granted by Supreme Court [albeit for reasons different than those relied upon by the Supreme Court]. 

In the words of the Appellate Division, "Assuming without deciding that the challenged statements constitute actionable defamatory statements, [Defendant 1] established, prima facie, that he published the challenged statements while acting in his role as a council member for the Town and was therefore protected by absolute privilege" citing Riggio v County of Nassau, 218 AD3d at 503 and other decisions.

In contrast, citing Alvarez v Prospect Hosp., 68 NY2d 320, the Court noted that Plaintiff failed to raise a triable issue of fact".

* In stating causes of action to recover damages for slander per se and libel per se Plaintiff alleged that the statements in a media advisory and at the press conference were defamatory per se. 

** Illicit quid pro quo refers to illegal or unethical exchanges, usually done in secret, in order to gain an unfair advantage.

Click HERE to access the Appellate Division's decision posted on the Internet.

An applicant seeking disability retirement benefits bears the burden of demonstrating a permanent incapacity from performing the duties of the position

In a proceeding pursuant to CPLR Article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System [Board] which denied the Petitioner's application for disability retirement benefits and the Medical Board of the New York City Employees' Retirement System appeal a judgment of the Supreme Court, which granted the Petitioner's amended petition and annulled the Board's determination, the Appellate Division reversed the Supreme Court's ruling "on the law, with costs," denied Petitioner's amended petition and dismissed the proceeding "on the merits".

Petitioner had applied for disability retirement benefits as a result of two work-related incidents claiming that as a result of the injuries he sustained in those incidents, he could no longer work.* In a proceeding pursuant to CPLR Article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System [Board] which denied the Petitioner's application for disability retirement benefits and the Medical Board of the New York City Employees' Retirement System appealed a judgment of the Supreme Court, which granted the Petitioner's amended petition and annulled the Board's determination.

The Medical Board had reviewed Petitioner's applications and medical documentation a number of times and ultimately issued its fourth report, which was substantively similar to the first three reports but more detailed, finding the Petitioner was not disabled. Petitioner then commenced the instant proceeding pursuant to CPLR Article 78 to review determination of the Board of Trustees.

In the words of the Appellate Division, "An applicant seeking disability retirement benefits bears the burden of demonstrating that she [or he] is permanently incapacitated from performing her [or his] job duties", citing Matter of Hannon v New York State Dept. of Human Rights, 170 AD3d 1175 and other decisions.  The Court also noted that "The Medical Board determines whether a member applying for disability retirement benefits is disabled, and the Board of Trustees is bound by the Medical Board's finding that an applicant is, or is not, disabled for duty" (See Matter of Russell v New York City Employees' Retirement Sys., 155 AD3d 1046).

The Appellate Division held that "a Medical Board's disability determination will not be disturbed if the determination is based on substantial evidence", citing Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, noting that "Substantial evidence in this context means some credible evidence", citing Matter of Maxwell v New York City Employees' Retirement Sys., 210 AD3d 1095,

The Appellate Division's decision also noted that "the Medical Board's determination that the Petitioner did not establish a disability as a result of the two work-related incidents was supported by credible evidence and the record indicates that "the Medical Board considered all of the medical evidence submitted by the [Petitioner] and interviewed and physically examined the[Petitioner] three times". In addition the Court's decision states that:

1. "The record further demonstrates that the [Petitioner's] right hip injury was the result of a preexisting condition and was not caused by the two work-related incidents"; and 

2. Petitioner's carpal tunnel syndrome was not considered a disability as the Petitioner chose to forego surgery.

Accordingly, the Appellate Division found that the Board of Trustees' determination adopting the recommendation of the Medical Board was not irrational or arbitrary and capricious and the Supreme Court should have denied the amended petition and dismissed the proceeding on the merits.

* The Petitioner did not have 10 years of service credit at the time of his application for disability retirement benefits and, therefore, was required to demonstrate that he was "physically . . . incapacitated for performance of gainful employment as the natural and proximate result of an accident not caused by his own willful negligence sustained in the performance of his duties" (See Retirement and Social Security Law §605[b][3]).

Click HERE to access the Appellate Division's decision posted on the Internet.

Challenge to the revocation press credentials issued to an individual by a New York City agency sustained

A petition filed by a New York City agency in an effort to revoke press credentials it had earlier issued to an individual [Respondent] was denied by New York City Office of Administrative Trials and Hearing [OATH] Administrative Law Judge [ALJ] Jonathan Fogel, "in a case of first impression".

Judge Fogel dismissed the petition filed by the New York City Mayor’s Office of Media and Entertainment [Petitioner] seeking to revoke a press credential it had previously issued to Respondent. 

Petitioner alleged that Respondent was not acting in a newsgathering capacity and Respondent misused or misrepresented his credential when he wore it to his own court proceedings and protests. 

The ALJ found that Petitioner failed to prove both charges by clear and convincing evidence. 

With respect to the court proceedings, the Administrative Law Judge held that Petitioner’s video evidence of Respondent wearing his credential outside the courthouse, discussing his case, and stating that he wore his badge with “no issues,” was insufficient to establish that Respondent actually wore the credential inside the proceedings or to influence the judge. 

The ALJ opined that Respondent plausibly asserted that he was newsgathering when he wore the credential outside the courthouse because he was reporting on his own court case. 

Respondent also produced proof that Petitioner had approved his newsgathering methods in connection with his application. 

Addressing "the protests," the ALJ found that video evidence supported Respondent’s assertion that he was newsgathering because he appeared to be broadcasting his commentary during the protests and answering questions from an online audience. 

Rejecting Petitioner’s argument that Respondent wasn’t newsgathering because he wasn’t “neutral,” the ALJ found that it is possible for someone to both attend a protest and engage in newsgathering.

Click HERE to access Administrative Law Judge Fogel's findings and decision. 

Selected items posted on blogs during the week ending August 22, 2025

A Government Leader’s Guide to Meeting Website Accessibility and Compliance Requirements Meet DOJ mandates with this publications from CivicPlus: ensure ADA compliance and better serve all residents. Read Now

Get your AI benchmark and take action! Discover your agency’s AI readiness in just 5 questions — identify roadblocks and know where you stand. Reveal My AI Score! 

Colorado Sags Under $1.2 Billion Loss Due to Federal Tax Changes  Colorado’s “rolling conformity” with the federal tax code, coupled with sweeping tax breaks enacted by Congress, triggered a sudden revenue loss. READ MORE

Hotel-to-Shelter Conversions Continuing Years After Pandemic Lockdowns  Cities and states scrambled to house homeless people in hotels and motels during the emergency phase of the pandemic. Many communities still find it’s a good model. READ MORE

Eliminate wait times. Serve the public faster  Automate check-in, form filling, payments and more with secure self-service - onsite or online. See what’s possible 

Local Governments could be flying blind as federal data disappears  State and local governments depend on federal data for everything from community planning to disaster response. What happens if it goes away? READ MORE 

Nearly 1 in 5 Americans Over 65 Are Still in the Workforce Driven by rising poverty and inadequate retirement income, older people are increasingly turning to employment, with labor force participation in urban areas climbing more steeply. READ MORE 

Practical guides, checklists, and benchmarks for workspace redesign  Whether you’re in IT, facilities, or HR — you’ll find clear takeaways on how to support modern public service work. Visit this interactive guide

Defined Contribution Plans and Alternative Investments Are vehicles like private equity, crypto and real estate a good fit for 401(k)-style public retirement plans — or too risky for savers? Marketers will soon be pitching these alternative investments to public employers. Prudence dictates caution. READ MORE

State and local leaders are navigating significant change

In this 30-minute webinar, Government Technology’s Dustin Haisler and Joe Morris will provide an update on what these changes mean for public agencies and the private-sector partners that support them, featuring insights into:

• The ripple effects of federal policy changes on state and local priorities
• Trends to watch in infrastructure, education, emergency services, and more
• How agencies are adapting their strategies

Whether you're a public-sector leader seeking to refine your agency's strategy or a private-sector vendor wanting to align your solutions with evolving government needs, this Government Technology webinar is designed to provide up-to-the-minute, actionable insights to help you lead effectively in 2025 and beyond.

Click here to REGISTER 

Plaintiffs in this action alleged law enforcement personnel engaged in malicious prosecution, fabrication of evidence, and false arrest

The United States Court of Appeals for the Second Circuit's summary of its decision in this action, Carruthers v Colton - 22-3232-cv, is set out below:

"Judgment, entered on November 29, 2022, by the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge), granting the motion to dismiss Carruthers’s complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by Defendants-Appellees Kimberly Colton, Charles Humphreyville, and Kristen Weston (hereinafter, “Defendants”). 

"Carruthers brought claims, pursuant to 42 U.S.C. §1983, for malicious prosecution, fabrication of evidence, false arrest, and failure to intervene against Defendants, who are all New York State Troopers. 

"The claims arose from Defendants’ alleged participation in a traffic stop of Carruthers’s vehicle on September 4, 2017, in Oneida County, New York, and in his subsequent arrest and prosecution for a felony driving while intoxicated (“DWI”) offense, multiple lesser DWI-related offenses, and a traffic infraction. 

"We conclude that the district court correctly dismissed Carruthers’s false arrest claim and the portion of his malicious prosecution claim based on the DWI related charges that were dismissed as part of his guilty plea to the traffic infraction but erred in dismissing Carruthers’s malicious prosecution claim as to the terminated felony charge and his fabrication of evidence claim.

"First, with respect to the false arrest claim, we agree with the district court that Carruthers’s guilty plea to the traffic infraction established probable cause for his arrest and defeats that claim. Second, as to the malicious prosecution claim, the district court correctly held that Carruthers does not have a viable claim as to the DWI-related charges dismissed as part of the negotiated guilty plea. 

"We generally assess the favorable termination element of a malicious prosecution claim charge by charge. Applying that rule to the guilty plea context, when a charge is dismissed as part of a negotiated agreement in which the defendant agrees to plead guilty to a different charge, that dismissal does not constitute a favorable termination for the purposes of a malicious prosecution claim. However, even if a guilty plea has been entered into for one or more charges, a favorable termination can be established for another dismissed charge in the same criminal case if the dismissal was unrelated to the plea disposition. 

"Thus, Carruthers has a plausible claim as to the terminated felony charge because the amendment of that charge to a misdemeanor (which effectively dismissed the felony charge) does not appear, based upon the complaint, to have been terminated as part of the guilty plea disposition. 

"Finally, with respect to the fabrication of the evidence claim, we conclude that Carruthers has adequately alleged particularized facts that, when construed in his favor, could reasonably give rise to the inference that Trooper Colton intentionally fabricated evidence to justify the DWI-related charges. 

"Accordingly, we AFFIRM the judgment of the district court as to the false arrest claim and the malicious prosecution claim insofar as it relates to the DWI related charges dismissed as part of the plea agreement, we VACATE the judgment of the district court as to the malicious prosecution claim only as it 3 relates to the terminated felony charge and the fabrication of evidence claim, and we REMAND for further proceedings consistent with this opinion."

Click HERE to access the full text of the Second Circuit's decision in this matter.

Employment opportunities with New York City's Office of Administrative Trials and Hearings

The New York City Office of Administrative Trials and Hearings [OATH] Trial Division is seeking recent law school graduates for appointment to positions 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 seeking to fill the position of Supervising Law Clerk to head OATH's legal research unit and supervise its staff 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 serving these positions must remain members of the New York State Bar in good standing while so employed by OATH and 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 Job ID 720158 (Law Clerk).

Judicial officers act in a judicial capacity when they decide firearms license applications and have absolute immunity from suit in their individual capacities

The Plaintiffs in this action, brought in the United States District Court for the Northern District of New York, are New York State residents who applied for concealed carry licenses pursuant to New York State’s firearms licensing laws*. 

A New York State court judge, Judge Jonathan D. Nichols, serving as a statutory firearms licensing officer, had reviewed and denied the Plaintiffs' applications for failing to meet the statutory criteria for eligibility for such a license. 

The Plaintiffs sued Judge Nichols in his individual and official capacities under color of 42 U.S.C. §1983, alleging that New York’s firearms licensing laws violate their rights under the Second and Fourteenth Amendments to the Constitution of the United States. A Federal District Court dismissed the Plaintiffs’ §1983 claims, holding:

1. Absolute immunity barred Plaintiffs' individual-capacity claims because Judge Nichols acted in his judicial capacity in ruling on their respective applications; and 

2. U.S.C. §1983 and Article III’s case-or-controversy requirement barred Plaintiffs' claims for injunctive relief and declaratory relief".

The Plaintiffs appealed the District Court's rulings. The Second Circuit Court of Appeals affirmed the District Court's decisions.

In so doing the Circuit Court of Appeals reaffirmed its precedent that judicial officers are acting in a judicial capacity when they decide firearms license applications and therefore, "enjoy absolute immunity from suit in their individual capacities". 

The Circuit Court further explained that "Plaintiffs’ specific claims for injunctive relief and declaratory relief against Judge Nichols in his official capacity are barred by Article III’s case-or-controversy requirement". 

* See New York State’s Penal Law §400.00, et seq.

Click HERE to access the Second Circuit's decision posted on the Internet.

The Real Risk Isn’t the Cloud—It’s Premises-Based Software -

Cloud Computing for Lawyers by Rochester, New York Attorney Nicole Black, was published by the American Bar Association. Click HERE to read the whole story.

Jurisdiction's motion for summary judgment denied in an action alleging its law enforcement personnel used excessive force in responding to an incident

The Plaintiffs in this action sought to recover damages based on the alleged use of excessive force by certain officers of a Town's Police Department and other named defendants [Defendants] in the course of certain Defendants' responding to an incident. 

Defendants moved for summary judgment dismissing the Plaintiffs' complaint insofar as asserted against them. Supreme Court denied Defendants' motion and the Defendants' appealed the court's ruling. 

The Appellate Division affirmed the Supreme Court's ruling. explaining:

1. "'Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness", citing Combs v City of New York, 130 AD3d 862, quoting Moore v City of New York, 68 AD3d 946; and 

2. Determining an excessive use of force claim involving law enforcement personnel requires an analysis of the facts of the particular case, including:

    a: "the severity of the crime at issue; 

    b. "whether the suspect poses an immediate threat to the safety of the officers or others; and 

    c. "whether [the suspect was] actively resisting arrest or attempting to evade arrest by flight".

Further, citing Holland v City of Poughkeepsie, 90 AD3d 841, the Appellate Division opined that "The question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide".

Click HERE to access the decision of the Appellate Division posted on the Internet.