Application for accidental disability retirement benefits denied as the result of the applicant's failing to satisfy the notice provisions required by law

Petitioner filed an application for accidental disability retirement [ADR] benefits based on psychological injuries she alleged she had sustained during an assault that occurred at her workplace. Petitioner's application for ADR was denied by the retirement system because Petitioner had not complied with the notice provisions of Retirement and Social Security Law §363(c).*

Ultimately a Hearing Officer sustained the denial of Petitioner's application for ADR benefits, finding, among other things, that Petitioner did not provide the Retirement System:

[1] Notice of the nature and extent of her injuries within 90 days of the incident; and

[2] The statutory exceptions with respect to such notice requirement did not apply in this instance.** 

Upon administrative review, the New York State Comptroller [Respondent] sustained the Hearing Officer's decision and Petitioner commenced the instant CPLR Article 78 proceeding challenging the Respondent's determination.

Observing that Petitioner contends, and the Appellate Division said it agreed, that Petitioner's employer had actual notice of the incident at the time of its occurrence, the Appellate Division's decision noted that the statute "requires written notice" and to prevail absent such written notice Petitioner was required to demonstrate that an exception to the statutory notice requirement applied in her situation.

Addressing the specific exceptions cited by Petitioner, the Court's decision stated  that Petitioner "did not file a claim for workers' compensation benefits, premised upon her alleged psychological injuries, until nearly 2½ years after the underlying incident occurred and well beyond the 30-day notice requirement set forth in Workers' Compensation Law §18." Further, the Appellate Division opined that "Even assuming that the Workers' Compensation Board elected to excuse this defect on the basis that [Petitioner's] employer had actual knowledge of the accident ... any decision in that regard would neither be binding upon [Respondent] nor preclude the denial of [Petitioner's ADR]  application."

The Appellate Division then said that it was not persuaded that Petitioner may avail herself of "the good cause exception". While there was no question that an investigation was conducted almost immediately after the incident and numerous reports, summaries and statements were filed promptly thereafter, none of those documents filed, including Petitioner's own statements, described the nature of the assault as herein alleged, "nor do those contemporaneous records make mention of any injury". 

Significantly the Court said there is "nothing irrational or unreasonable about [Respondent's] interpretation of the regulation as providing that the event that triggers the notice requirement is the occurrence that resulted in the disability, not the diagnosis of such disability".

Finding that the documentary evidence upon which Petitioner relied "failed to describe the nature of the accident and the resulting injuries alleged", the Appellate Division concluded that substantial evidence supported the Respondent's finding that Petitioner "cannot avail herself of the good cause exception" and sustained the Respondent's determination.

* Retirement and Social Security Law §363(c)(a) provides that "no application for accidental disability retirement benefits shall be approved unless the applicant has filed with respondent, within 90 days of the incident upon which the alleged disability is based, written notice of, among other things, the particulars of the incident and the nature and extent of the injuries sustained.

**Exceptions to the statutory notice requirement are provided for and include, as relevant here, where "notice of such accident [has been] filed in accordance with the provisions of the [W]orkers' [C]ompensation [L]aw" or "for good cause shown as provided by [the applicable] rules and regulations". 

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

A party must satisfy a very heavy burden when seeking to have an arbitrator's award judicially overturned on public policy grounds

The Department of Corrections and Community Supervision [DOCCS] issued a notice of suspension and discipline to one of its employees [Petitioner] alleging that, among other things, Petitioner falsely held herself out as a police officer, executed an unauthorized traffic stop and arrested a motorist without cause. 

Petitioner grieved the 15 charges of misconduct DOCCS filed against her in accordance with the terms of the relevant collective bargaining agreement between DOCCS and the Public Employees Federation, Petitioner's collective bargaining unit representative. Following an arbitration hearing, the arbitrator rejected Petitioner's version of the incident as not credible, found Petitioner guilty of seven misconduct charges arising from the "motorist incident" but declined to decide the remaining eight charges, Charges 8 through and including Charge 15, stemming from allegedly inaccurate timesheets and vehicle logs. 

After reviewing Petitioner's personnel record, the arbitrator offered Petitioner a choice of penalties: 

(A) no reinstatement with an award of some back pay; or 

(B) reinstatement with no back pay for the 14-month suspension, loss of eight months of accruals, and completion of a five-day course on the use of force or anger management. 

Petitioner chose option (B), but DOCCS refused to reinstate Petitioner.

Petitioner commenced a CPLR Article 75 proceeding to confirm the award and DOCCS cross-moved to vacate so much of the award "as assumed — rather than found — that [Petitioner] was not responsible for charges 8 through 15. Further, DOCCS argued that Petitioner's reinstatement violated public policy. 

Supreme Court granted DOCCS' cross-motion, concluding that strong public policies against "unauthorized use of force, unlawful arrests and impersonating a police officer" could not be reconciled with an award reinstating Plaintiff.

The Appellate Division affirmed the Supreme Court's order partially vacating the award without reaching the merits of Petitioner's public-policy argument, reasoning that the arbitrator should determine the outstanding misconduct charges first and remitted the matter to the arbitrator.

On remittal, the arbitrator found Petitioner not guilty of charges 8 through 15 in a supplemental award and issued the same penalty options. 

Petitioner again chose reinstatement and DOCCS again refused to reinstate Petitioner. DOCCS and Respondent again appealed. Supreme Court agreed with Respondent, vacated the penalty and remitted the matter to a new arbitrator for a determination of a "different penalty". DOCCS appealed the Supreme Court's ruling.

The Appellate Division, noting that "A court may vacate an arbitrator's award only on grounds stated in CPLR 7511 (b)", ruled that "Among other circumstances, vacatur is permitted where an arbitrator directs an award that 'violates a strong public policy'", noting that "An arbitration award may only be vacated on public policy grounds 'where a court can conclude, without engaging in any extended factfinding or legal analysis [(1)] that a law prohibits, in an absolute sense, the particular matters to be decided, or [(2)] that the award itself violates a well-defined constitutional, statutory or common law of this State'".

Observing that there was "no contention that the law prohibited the arbitrator from deciding Petitioner's guilt and penalty under the CBA", the Appellate Division said that its review in the instant appeal focuses on whether "the final result creates an explicit conflict with other laws and their attendant policy concerns". [Emphasis supplied in the decision.]

Finding that DOCCS had not demonstrated such a conflict exists between constitutional, statutory and decisional law and the result of the arbitration award — reinstating Petitioner after a 14-month unpaid suspension, partial loss of accruals and completion of a five-day training and that the legal authorities cited by DOCCS set out generally applicable law,  but "the public policy considerations each authority embodies are too general to support vacating the arbitrator's penalty."

Concluding that DOCCS had not met its "very heavy burden" in seeking to have the arbitrator's award judicially overturned on public policy grounds, the Appellate Division said it was "constrained to confirm the award". 

Click HERE to access the Appellate Divisions decision posted on the Internet.

New York State Comptroller Thomas P. DiNapoli issued audit reports concerning the New York state departments and agencies listed below

On June 15, 2025, New York State Comptroller Thomas P. DiNapoli announced the following audits were posted on the Internet.

Click on the text highlighted in color to access the text of the audit.

Department of Agriculture and Markets/Department of Health – Oversight of the Nourish New York Program (Follow-Up) (2024-F-27)

Nourish NY, jointly administered by the Department of Agriculture and Markets (AGM) and the Department of Health (DOH), supplies surplus New York-grown agricultural products (e.g., milk, apples, squash) to populations in need through the state’s network of food relief organizations (i.e., regional food banks, food pantries, soup kitchens) for distribution to people experiencing food insecurity. A prior audit, issued in September 2023, found that both AGM and DOH needed to strengthen controls to ensure that only eligible products and expenses are funded by Nourish NY. Gaps in oversight create a risk that funding from Nourish NY may not be going toward the purchase of eligible agricultural products that benefit state vendors and support the state’s broader agribusiness needs. AGM and DOH made significant progress in addressing concerns from the initial audit report. Of the report’s five audit recommendations, four were implemented and one was partially implemented.

Office of Temporary and Disability Assistance – Oversight of Homeless Shelters (Follow-Up) (2024-F-31)

The Office of Temporary and Disability Assistance (OTDA) oversees the state’s network of emergency homeless shelters, which includes large former hotels, apartment houses and armories as well as smaller multi-family houses, specifically designed housing units, and motels. OTDA is responsible for supervising, inspecting and enforcing shelter compliance with applicable rules and regulations. A prior audit, issued in March 2020, found OTDA was not adequately overseeing homeless shelters. Auditors observed structural damage, mold, vermin, bug infestations, excessive garbage in rooms and missing or malfunctioning smoke detectors. OTDA needs to improve risk assessment, information tracking and monitoring of corrective actions and enforcement of existing consequences for violations. OTDA made some progress in addressing the issues identified in the initial audit report. Of the report’s eight audit recommendations, five were implemented, one was partially implemented and two were not implemented.

Office of Temporary and Disability Assistance – Homeless Services Housing Needs Assessment (Follow-Up) (2024-F-36)

Homeless shelters across the state provide various services to individuals and families, including assessment of needs, case management, access to health care, treatment for substance abuse, childcare services and assistance with finding permanent housing. According to its 2023 Annual Report, the Office of Temporary and Disability Assistance (OTDA) oversaw a network of 580 transitional homeless shelters statewide. A prior audit, issued in August 2023, found that OTDA was not adequately ensuring timely completion of assessment and planning activities early in a client’s shelter stay. Delayed access to services prevents a client from achieving independence. In a sample, auditors found that 70% of clients did not transition to permanent housing. OTDA also failed to collect and analyze aggregate data to identify and address the primary causes of this failure. OTDA made limited progress in addressing the problems identified in the initial audit report. Of the initial report’s seven audit recommendations, one was fully implemented, three were partially implemented and three were not implemented.

State University of New York – Oversight of Disability Services (Follow-Up) (2025-F-7)

The State University of New York (SUNY) is the largest comprehensive system of public higher education in the nation, comprising 64 institutions and serving approximately 367,500 students. During the 2023-24 academic year, 39,740 students self-reported a disability at SUNY campuses.

The Americans with Disabilities Act prohibits discrimination on the basis of disability by public entities, including access to programs, activities and services. A prior audit, issued in August 2023, found that a sample of campuses provided academic accommodations, outreach and training to students and staff about available services, and received no complaints regarding discrimination based on a student’s disability. However, campuses didn’t always accurately and consistently report data on students with disabilities, and auditors identified 170 areas where accessibility could be improved (such as the height of certain amenities or fixtures like bathroom sinks, mirrors and soap dispensers). 

SUNY made significant progress in addressing the problems identified in the initial audit report, implementing all four audit recommendations.

New York City Department of Social Services: New York City Department of Homeless Services – Oversight of Contract Expenditures of Church Avenue Merchants Block Association, Inc. (2023-N-9)

The New York City Department of Homeless Services (DHS), within the New York City Department of Social Services (DSS) is responsible for providing transitional housing and services in New York City and for providing fiscal oversight of the homeless shelters. In July 2011, DHS contracted with not-for-profit Church Avenue Merchants Block Association, Inc. (CAMBA) to provide temporary housing, case management, housing referrals, placement services and on-site medical and mental health services for homeless women at their 200-bed Magnolia House Women’s Shelter from July 2011 to June 2020.

During the three fiscal years ending June 30, 2023, CAMBA claimed $27.9 million in reimbursable expenses for the Magnolia contracts. Auditors found that $4,559,762 or approximately 16.3% of all reported costs, did not comply with requirements. These findings, along with other irregularities, point to a significant deficiency in DHS’ monitoring and oversight of its contracts with CAMBA. For instance, DHS approved CAMBA’s security contracts without evidence that they were competitively bid, as required, and DHS also did not complete the required expenditure reviews or ensure that year-end closeouts were completed in a timely manner, a process control that would improve the quality of DHS’ reviews and facilitate recovery of overpayments.

New York City Department of Social Services: Oversight of Contract Expenditures of Bowery Residents’ Committee (Follow-Up) (2024-F-38)

The New York City Department of Homeless Services (DHS), an administrative unit of the New York City Department of Social Services (DSS), is responsible for providing transitional housing and services for eligible homeless families and individuals in New York City and for providing fiscal oversight of the homeless shelters. In February 2011, DHS contracted with the Bowery Residents’ Committee (BRC), a city-based not-for-profit organization, to provide emergency shelter and ancillary services for mentally ill and chemically addicted homeless adults at its 200-bed Jack Ryan Residence from September 2010 to June 2021.

During the three fiscal years ending June 30, 2019, BRC claimed $23.6 million in reimbursable expenses for the contract. A prior audit, issued in December 2021, identified, for the three fiscal years ending June 30, 2019, that $1,428,199, or 6.05% of all reported costs, did not comply with requirements, indicating a significant monitoring deficiency. 

DHS officials made some progress in addressing the 11 recommendations from the initial audit report, implementing two, partially implementing seven and not implementing two.

Department of Agriculture and Markets – Farmland Protection Program (2023-S-19)

According to the American Farmland Trust, farms generate over $47 billion in annual economic impact and support approximately 160,000 jobs in the state; however, strains and operational stressors, such as the pressure to convert farmland to other uses like solar farms or residential homes—have contributed to the state rapidly losing farmland. The Farmland Protection Program (Program), established in 1996, provides eligible municipalities with grants (administered by the Department of Agriculture and Markets [AGM]) to implement farmland protection activities and promote the economic viability of farms while helping counteract pressures that may drive land out of agricultural production.

Auditors found that AGM divides the state into 10 geographic regions to allocate funding, distributing funds equally among them without considering regional factors such as grant eligibility, land values, farmland availability and Program participation, potentially contributing to delays in awarding grant funds for farmland preservation. Auditors also found that a $2 million cap per application, set by AGM in 2014, has a greater impact on regions with higher land values and greater development pressures, meaning farms in high-value areas may not be able to obtain adequate funding for their farmland conservation in a single application. Further, comparisons of historical AGM information and USDA Census data, as well as surveys of local land trusts, indicated a lack of awareness of the program and its requirements.

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Commercial Risk Advisor Newsletter

The July 2025 Commercial Risk Advisor newsletter, posted on the Internet, reports on five workplace safety trends and five cybersecurity errors and how to avoid them. Download now

The owner of a medical transport company was sentenced to serve 3 to 9 years in prison for stealing more than $700,000 from New York State's Medicaid program and New York State's unemployment insurance program

On July 11, 2025, New York State Comptroller Thomas P. DiNapoli, Schenectady County District Attorney Robert M. Carney, and Schenectady County Sheriff Dominic Dagostino announced that the owner of a Schenectady County medical transportation company was sentenced to serve three to nine years in state prison and pay restitution of $766,600 for stealing  from New York state’s Medicaid program and more than $60,000 from the state’s unemployment insurance program.

Muhammad Adnan Saeed, 40, owner of Sublime Medical Transportation, pleaded guilty to grand larceny in the second degree in January in connection with his Medicaid fraud and unemployment scheme. 

"Muhammad Saeed systematically defrauded the Medicaid program by fraudulently inflating claims in order to pad his wallet and then compounded his crimes by lying about his income in order to obtain unemployment benefits,” 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 waste, fraud and abuse. I thank District Attorney Carney and Schenectady County Sheriff Dagostino for their partnership in bringing Saeed to justice.” 

“It is true that there is waste, fraud and abuse in the Medicaid system when it comes to providing transportation to recipients of benefits in the opioid treatment program,” Carney said. “This defendant engaged in elaborate schemes to steal public funds including inventing non-existing trips, providing kickbacks to clients to ride with him, and pretending to need unemployment benefits. I agree strongly with Comptroller DiNapoli that this conduct deserves criminal prosecution and incarceration, and I am happy to partner with him not only to bring that about in this case, but hopefully to deter others who may be contemplating engaging in similar fraud.

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

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. Investigators determined that nearly 85% of Sublime’s Medicaid claims were fraudulent.

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. 

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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. New Yorkers can report allegations of fraud involving taxpayer money 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 filing a complaint online at https://www.osc.state.ny.us/investigations.