Teacher's pending appeal challenging her termination during her probationary period held rendered moot by the teacher's subsequent termination by the employer for reasons unrelated to her probationary period service

Matter of Albany-Schoharie-Schenectady-Saratoga Bd. of Coop. Educ. Servs. v Rosa

2025 NY Slip Op 00007

Decided on January 2, 2025

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:January 2, 2025

CV-23-1657

]In the Matter of Albany-Schoharie-Schenectady-Saratoga Board of Cooperative Educational Services, Appellant,

v

Betty A. Rosa, as Commissioner of Education, et al., Respondents.

Calendar Date:November 12, 2024
Before:Garry, P.J., Lynch, Reynolds Fitzgerald, Fisher and Powers, JJ.
 

Bond, Schoeneck & King, PLLC, Syracuse (Kate I. Reid of counsel), for appellant.

Letitia James, Attorney General, Buffalo (Sarah L. Rosenbluth of counsel), for Betty A. Rosa and another, respondents.

Adrianne Rickson, Ballston Spa, respondent pro se.

Jay Worona, New York State School Boards Association, Inc., Latham, for New York State School Boards Association, Inc., amicus curiae.

Robert T. Reilly, New York State United Teachers, Latham (Jacquelyn Hadam of counsel), for New York State United Teachers, amicus curiae.

Reynolds Fitzgerald, J.

Appeal from a judgment of the Supreme Court (Justin O. Corcoran, J.), entered July 28, 2023 in Albany County, which, among other things, dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Commissioner of Education directing petitioner to reinstate respondent Adrianne Rickson to her position of vocational teacher, and (2) motion to dismiss the appeal.

In January 2019, petitioner hired respondent Adrianne Rickson (hereinafter the teacher), on a probationary basis, as a criminal justice instructor. In November 2021, the teacher used her work email account to forward a message to other colleagues notifying them of an after-school rally concerning COVID-19 policies. Consequently, the teacher received a memorandum counseling her for the improper use of petitioner's email system. In January 2022, the teacher offered her students an optional extra-credit assignment for viewing a podcast interview of a physician critical of COVID vaccinations and answering written questions related to the podcast. In February 2022, petitioner's superintendent notified the teacher that she intended to recommend to the Board of Education to discontinue her probationary employment. The Board of Education terminated the teacher's probationary appointment effective April 21, 2022. The teacher appealed to respondent Commissioner of Education, who determined that the superintendent's statement of reasons for discontinuance under Education Law § 3031 was too vague and remanded to petitioner to clarify and resubmit the statement of reasons for dismissal.

Thereafter, the superintendent articulated the grounds to discontinue the teacher's employment and she was terminated a second time in August 2022. Again, the teacher appealed. This time, the Commissioner reviewed the merits and determined that petitioner's probationary appointment was discontinued in bad faith and violated the teacher's right to academic freedom. As such, the Commissioner ordered that the teacher be reinstated with back pay and benefits. Petitioner thereafter commenced this CPLR article 78 proceeding against respondent New York State Education Department and the Commissioner challenging the determination as arbitrary, capricious and an error of law. Supreme Court denied petitioner's request to annul the Commissioner's determination and dismissed the petition. Petitioner appeals.

In the interim, the teacher was once again terminated from her position, for reasons unrelated to those at issue here. Respondents then moved to dismiss this appeal as moot, pointing to the fact that this latest termination was upheld by the Commissioner and the time to initiate a CPLR article 78 proceeding with respect to this has expired. Petitioner opposes this motion contending that the appeal is not moot and that, even if it is found to be so, the exception to the mootness doctrine applies.

Initially, we agree with respondents that the appeal of Supreme Court's July 2023 order was rendered moot by the teacher's subsequent unrelated termination. "[I]t is well settled that a court's jurisdiction extends only to live controversies and, thus, an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the order" (Matter of Association of Motor Veh. Trial Attorneys, Inc. v New York State Dept. of Motor Vehs., 223 AD3d 948, 949-950 [3d Dept 2024] [internal quotation marks and citations omitted]; see Matter of Clean Air Coalition of W. N.Y., Inc. v New York State Pub. Serv. Commn., 226 AD3d 108, 113 [3d Dept 2024]). Moreover, "[c]ourts are generally prohibited from issuing advisory opinions or ruling on hypothetical inquiries" (Coleman v Daines, 19 NY3d 1087, 1090 [2012]). The petition reveals that petitioner solely sought to annul the Commissioner's determination to reinstate the teacher. Given that the teacher has been terminated, without further recourse, an adjudication of the particular issues raised in the petition would have no practical effect upon the rights of the parties. "Where, as here, the passage of time or a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy, the claim must be dismissed" (Matter of Ballard v New York Safety Track LLC, 126 AD3d 1073, 1075 [3d Dept 2015] [internal quotation marks and citations omitted]; see Owner Operator Ind. Drivers Assn., Inc. v Karas, 188 AD3d 1313, 1316 [3d Dept 2020]). Nor are we persuaded by petitioner's argument that this matter is not moot due to its alleged right to restitution of any financial benefits received by the teacher while this appeal was pending. Petitioner's argument is unpreserved as it did not seek restitution in the CPLR article 78 proceeding, and in fact only raised the issue in response to respondents' motion to dismiss the appeal for reasons of mootness. As a result, this Court cannot entertain this argument as "[j]udicial review of administrative determinations pursuant to CPLR article 78 is limited to questions of law. Unpreserved issues are not issues of law" (Matter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001] [internal citations omitted]; accord Matter of Kosmider v Whitney, 34 NY3d 48, 53 n 2 [2019]; see Matter of Hamilton v Goord, 32 AD3d 642, 643 [3d Dept 2006], lv denied 7 NY3d 715 [2006]).

Moreover, we are unpersuaded that an exception to the mootness doctrine applies. In order to find an exception to the doctrine, a court must determine that three elements have been established; the issue is likely to recur, it is novel and substantial, and that it typically evades review (see Coleman v Daines, 19 NY3d at 1090; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 811 [2003], cert denied 540 US 1017 [2003]). It is well established that all three elements must be manifest. Here, although this issue may recur and is arguably substantial and novel, we are unpersuaded that it is likely to evade review.[FN1] As petitioner has failed to establish that all these elements are present, the exception to the mootness doctrine is inapplicable (see Matter of Association of Motor Veh. Trial Attorneys, Inc. v New York State Dept. of Motor Vehs., 223 AD3d at 950; Matter of Marxuach v New York State Dept. of Corr. & Community Supervision,211 AD3d 1442, 1444 [3d Dept 2022]; Matter of Smith v Annucci, 205 AD3d 1180, 1181 [3d Dept 2022]). As the issues raised by the petition are moot and the circumstances do not warrant application of the exception to the mootness doctrine, we dismiss petitioner's appeal (see Garnet Health Med. Ctr.-Catskills v Center for Discovery, Inc., 218 AD3d 939, 941 [3d Dept 2023]; Matter of Lamb v New York State Dept. of Motor Vehs., 187 AD3d 1269, 1270 [3d Dept 2020]).

Garry, P.J., Lynch, Fisher and Powers, JJ., concur.

ORDERED that the motion is granted and the appeal is dismissed, as moot, without costs.

                                                                        Footnotes

Footnote 1: In fact, this matter may not have evaded review here had petitioner requested restitution in its petition, or had the teacher not been terminated for unrelated reasons pending the appeal.

On January 15, 2025, New York State Comptroller Thomas P. DiNapoli announced the school district tax levy will remain capped at 2%

Property tax levy growth for New York’s school districts and 10 cities will remain capped at 2% for the fourth year in a row, according to data released on January 15, 2025, by State Comptroller Thomas P. DiNapoli. 

The tax cap, which first applied to local governments (excluding New York City) and school districts in 2012, limits annual tax levy increases to the lesser of the rate of inflation or 2% with certain exceptions. The law also includes provisions that allow school districts and municipalities to override the cap. DiNapoli’s office calculated the inflation factor at 2.95% for those with a June 30, 2026 fiscal year end. 

“For the fourth year in a row, the property tax levy for school districts and 10 cities will be capped at 2%,” DiNapoli said. “School district and municipal officials will have to deliver services efficiently as they face the difficult task of managing costs that continue to rise.”

The 2% allowable levy growth affects the tax cap calculations for 675 school districts and 10 cities with fiscal years starting July 1, 2025, including the “Big Four” cities of Buffalo, Rochester, Syracuse and Yonkers, as well as Amsterdam, Auburn, Corning, Long Beach, Watertown, and White Plains.

Click on the text in blue below for the additional information described:

List of allowable tax levy growth factors for all local governments

Real Property Tax Cap and Tax Cap Compliance web page

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Termination as the result of having engaged in certain recreational activities outside of employment after working hours challenged by discharged employee

Plaintiff's preliminary appeal statement filed with New York State's Court of Appeals seeking "leave to appeal" judicial decisions handed down in Sander v Westchester Reform Temple [Defendants] (228 AD3d 688) asks whether the content of a blog posted outside of work is within the ambit of a protected recreational activity within the meaning of §201-d(2)(c)* of New York State's Labor Law .

Supreme Court had granted the Defendants' motion to dismiss the Petitioner's complaint and the Appellate Division affirmed the lower court's decision. 

In the words of the Appellate Division: 

Even assuming, without deciding, that blogging is a protected recreational activity under Labor Law §201-d, the complaint alleges that the plaintiff was discharged, not for the activity of blogging, but for the content of the blog post. Thus, we agree with the Supreme Court that the plaintiff was not discharged due to a protected recreational activity within the scope of Labor Law §201-d(2)(c) (see id.; Bilquin v Roman Catholic Church, Diocese of Rockville Ctr., 286 AD2d 409). Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

Plaintiff then sought leave to appeal the Appellate Division's determination, which leave to appeal was granted by the Court of Appeals.

* §201-d(2)(c) of New York State's Labor Law provides as follows: 

"§201-d. Discrimination against the engagement in certain activities. 

     "(2) Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: 

          "(c) an individual's legal recreational activities, including cannabis in accordance with state law, outside work hours, off of the employer's premises and without use of the employer's equipment or other property;"

Police officer's appeal challenging his termination from his position after being found guilty of a number of acts of misconduct dismissed

A New York City police officer [Petitioner] was found guilty of seven disciplinary charges that had been filed against him, including charges alleging that he had engaged in a physical altercation with his former girlfriend; violated an order of protection; knowingly associated with an individual believed to be engaged in criminal activities in contravention of a direct order; made a misleading statement during an official New York Police Department [NYPD] interview; and conducted personal inquiries on an NYPD computer". The penalty imposed on Petitioner by the New York City Police Commissioner: dismissal from his position.

The Appellate Division unanimously confirmed the Commissioner's decision to  dismiss Petitioner from his position, noting "Substantial evidence supports the finding that [Petitioner] is guilty of seven disciplinary charges [filed] against him".

In the words of the Appellate Division, "The Hearing Officer was entitled to find that [Petitioner's] alibi evidence lacked credibility" and the "dismissal of criminal charges against [Petitioner] related to the altercation and the violation of the order of protection" does not undermine NYPD's determination, as "NYPD can impose discipline for a broad range of conduct . . . even if that conduct is not criminal".

Noting that it had no discretionary authority to review Petitioner's unpreserved challenges to the admission of sealed arrest records at the disciplinary hearing, NYPD's reliance on Civil Service Law §75, or the reliability of the hearing transcript", the court, citing Khan v New York State Dept. of Health, 96 NY2d 879,  and other decisions, said it had considered and rejected Petitioner's remaining "due process challenges to the evidentiary hearing, at which he was represented by counsel".

As to the penalty imposed on Petitioner by the Commissioner, dismissal from his position with NYPD, the court opined that "The penalty of termination is not disproportionate to the severity of [Petitioner's] conduct, particularly in light of his disciplinary history".

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

 A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html

Owner of transportation company for the State of New York's Medicade program pleas guilty to stealing over $700,000 from the program

In a press release dated December 9, 2025, New York State Comptroller Thomas P. DiNapoli, Schenectady County District Attorney Robert M. Carney, and Schenectady County Sheriff Dominic Dagostino announced the guilty plea of Muhammad Adnan Saeed, owner of Sublime Medical Transportation, for stealing over $700,000 from New York State’s Medicaid program. 

Saeed inflated Medicaid bills by falsely claiming that group rides were separate, individual rides in order to unlawfully receive mileage payments for each individual in the group.

"Muhammad Adnan Saeed defrauded the Medicaid program through a systematic billing scheme in order to bolster his own profits at the expense of New Yorkers,” DiNapoli said. “The Medicaid program provides access to essential health care for millions of people, and my office will continue to partner with law enforcement to root out fraud. My thanks to District Attorney Carney and Schenectady County Sheriff Dagostino for their partnership in protecting the Medicaid program.”

Carney said: “This defendant lined his pockets at the expense of a critical government program designed to ensure our vulnerable, low-income population receives the medical care it needs. Worse, the defendant’s fraud was committed on the backs of people struggling with addiction. Rather than helping them get the treatment they need, the defendant used them to cheat Medicaid and paid them cash kickbacks, furthering their addiction. The defendant inflated his profits by transporting patients from Schenectady to Amsterdam rather than down the street to a Schenectady clinic, and from Oneonta to Utica. All the while the defendant was collecting unemployment benefits to which he was not entitled. Mr. Saeed then sent hundreds of thousands of dollars to his family overseas to hide his fraudulent earnings. I thank State Comptroller DiNapoli and his staff for their work uncovering the multiple layers of fraud perpetrated by this defendant.”

Dagostino said: "Individuals who steal from taxpayers by defrauding the Medicaid system should be fully prosecuted and made to pay for their crimes. I thank State Comptroller DiNapoli and Schenectady County District Attorney Carney, as well as my investigators, for their efforts to bring Muhammad Adnan Saeed to justice."

Saeed, 40, is the president of Sublime Medical Transportation, a Schenectady County company that is enrolled in the Medicaid program as a participating transportation provider for program beneficiaries.

Under Medicaid regulations, patients may use transportation services for legitimate appointments which are then billed to the Medicaid program by the provider. Group rides are not allowed without prior authorization and, when approved, providers can only bill for mileage once for the group.

The joint investigation revealed that Saeed fraudulently billed the Medicaid program for over four years, claiming payment for individual rides which were actually unauthorized group rides. The investigation found that over 2,500 transportation trips were fraudulent, accounting for nearly 85% of the Medicaid claims submitted by Sublime.

This scheme inflated the amount the state paid Sublime. The investigation also found Saeed paid kickbacks to Medicaid enrollees to use Sublime’s services and facilitate the crime. Saeed, who earned $88,500 as a driver for his company, also applied for and unlawfully collected state unemployment insurance benefits in excess of $60,000, while at the same time running Sublime.

Saeed pleaded guilty today in Schenectady County Court before Judge Mark J. Caruso to two counts of grand larceny in the second degree, in connection with his Medicaid fraud and unemployment scheme. 

As part of the plea agreement, Saeed will serve a state prison sentence and pay full restitution. He is due back in court on May 23 for sentencing. 

The case was prosecuted by Assistant District Attorney William Lemon and the defendant was represented by Justin Dearmas.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Reports of alleged fraud involving taxpayer money may be made by calling the toll-free Fraud Hotline at 1-888-672-4555, by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236 or by emailing a complaint to investigations@osc.ny.gov.