Appointing authority may disregard the resignation of an employee in the classified service served with Civil Service Law Section 75 disciplinary charges

Supreme Court denied Petitioner's motion for leave to renew the denial of his 2017 petition brought pursuant to CPLR Article 78 seeking judicial annulment of the City of New York et al's [Respondents] determinations terminating Petitioner's employment at the Administration for Children's Services and disqualifying him from employment with the New York City Taxi and Limousine Commission. In addition, Supreme Court imposed sanctions on the Petitioner.

Petitioner appealed the instant decision of the Supreme Court, which ruling was unanimously affirmed by the Appellate Division.

The Appellate Division said that the Supreme Court "providently exercised its discretion in denying [Petitioner's] motion to renew — his fourth — because he did not present any new evidence that would change the prior determination to dismiss the article 78 petition", citing Henry v Peguero, 72 AD3d 600, appeal dismissed, 15 NY3d 820.

Notwithstanding Petitioner's contention that a Kings County Supreme Court issued an order in an April 2025 ruling indicating that Petitioner "resigned from his position rather than being terminated" did not constitute new evidence, citing LFR Collections LLC v Blan Law Offs., 117 AD3d 486 and noting that the Appellate Division had affirmed the dismissal of Plaintiff's petition then at issue, opining that "the Administration for Children's Services properly elected to disregard [Petitioner's] resignation and prosecute the charges of misconduct against him under 4 NYCRR 5.3(b)"*, citing Matter of Patterson v City of New York, 173 AD3d 540. 

In the words of the Appellate Division, "The finding by the Kings County Supreme Court that [Petitioner] resigned therefore does not change the outcome in any of the prior decisions in this case", again citing LFR Collections, 117 AD3d at 487.

*4 NYCRR 5.3(b), in relevant part, provides "Notwithstanding the provisions of this subdivision, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation."

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

Requesting the reconsideration of an administrative decision does not extend the running of the statute of limitations to appeal that decision

In this action to recover damages for alleged employment discrimination on the basis of disability in violation of the New York State Human Rights Law and the New York City Human Rights Law, Supreme Court granted the Employer's [Defendant] motion to dismiss the Plaintiff's complaint. Plaintiff appealed the Supreme Court's decision.

The Appellate Division, noting that:

1. Actions alleging discrimination under the NYSHRL and NYCHRL must be commenced within three years after the alleged unlawful discriminatory practice or act of discriminatory harassment; and 

2. An employment discrimination claim accrues on the date that an adverse employment determination is made and communicated to the plaintiff. 

Plaintiff failing to establish his entitlement to a disabled veteran's credit started the running of the applicable statute of limitations. 

Plaintiff's written request seeking administrative reconsideration of Defendant's decision to withdraw the Plaintiff's disabled veteran's credit did not toll the statute of limitations, nor did it allow the Plaintiff to circumvent the statute of limitations by demanding that the Defendant change its determination and thereafter commencing an action when that demand was refused. Indeed, the Appellate Division's decision points out the Plaintiff commenced the instant action almost five years after Defendant notified the Plaintiff that he was ineligible for a disabled veteran's credit.

In the words of the Appellate Division: "Supreme Court properly granted the [Defendant's] motion pursuant to CPLR 3211(a) to dismiss the complaint and dismissed Plaintiff's appeal of the Supreme Court's decision.

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

Selected New York State Education Law §§306 or 310 administrative decisions by New York State's Commissioner of Education

Decision No. 18,854 - Application for the removal of a trustee of the Board of Education of the Enlarged City School District of the City of Middletown. Click HERE to access the Commissioner's decision posted on the Internet. 

Decision No. 18,855 - Application for the removal of trustees of the Board of Education of the Enlarged City School District of Middletown. Click HERE to access the Commissioner's decision posted on the Internet.

Decision No. 18,860 - Appeal from action of the Board of Education of the Pine Valley Central School District regarding financial practices. Click HERE to access the Commissioner's decision posted on the Internet. 

Decision No. 18,861 - Appeal of action of the Board of Education of the Kenmore-Tonawanda Union Free School District regarding a personnel matter. Click HERE to access the Commissioner's decision posted on the Internet.  

Selected items posted on the Internet during the week ending October 16, 2026

As of May 2026, the more than 1.9 million New York students participated in the school lunch program are at risk  According to a report prepared by New York State's Comptroller Thomas P. DiNapoli, recent federal changes (Public Law 119-21) in 2025 restricts eligibility to the Supplemental Nutrition Assistance Program [SNAP] and Medicaid MORE

Improving Emergency Response with Modern Cellular Networks This e-book features real-world examples from police, fire, EMS, and 911 agencies that have strengthened connectivity across vehicles, stations, and temporary command sites. DOWNLOAD

Modernize Government Operations Evaluate AI infrastructure needs with NVIDIA RTX PRO™ 4500 Blackwell Workstation Edition. Learn More

Protecting Yourself and Your Team: Coverage Essentials for Businesses The New York State Workers' Compensation Board continues its monthly webinar series for employers and human resources (HR) representatives and there is still time to register for this Thursday, October 22, 2026 12:00 p.m. – 1:00 p.m. free session Register here

Modernize Government Operations Evaluate AI infrastructure needs with NVIDIA RTX PRO™ 4500 Blackwell Workstation Edition. Learn More

A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness

The New York State Division of Human Rights [Division] initiated this proceeding pursuant to Executive Law §298 to enforce a determination of the Commissioner of the New York State Division of Human Rights. The Commissioner's determination adopted the recommendation and findings of an Administrative Law Judge, made after a hearing, finding that the Respondents unlawfully discriminated against the Plaintiff on the basis of her sex, inter alia, and awarded her compensatory damages in the principal sum of $75,000 for mental anguish and attorneys' fees in the principal sum of $24,640.50, and assessed a civil fine and penalty against the Respondents in the principal sum of $50,000.

The Appellate Division granted Division's petition, without costs or disbursements, and confirmed the Division's determination finding that the Respondent unlawfully discriminated against Plaintiff on the basis of her sex. The Court directed the Respondent to pay the Plaintiff compensatory damages in the principal sum of $75,000 for mental anguish, plus interest at the rate of 9% per year from February 24, 2023, and $24,640.50 for attorneys' fees, plus interest at the rate of 9% per year from February 24, 2023, and to pay the New York State Division of Human Rights the principal sum of $50,000, plus interest at the rate of 9% per year from February 24, 2023, as a civil fine and penalty.

The text of the Appellate Division's decision is set out below:

In the Matter of New York State Division of Human Rights, petitioner

v

Boston Market Corporation, et al., respondents.

Supreme Court of the State of New York, Appellate Division, 

Second Judicial Department

Decided on October 14, 2026

2025-01314, (Index No. 9158/24)

Colleen D. Duffy, J.P.

Deborah A. Dowling

Janice A. Taylor

Laurence L. Love, JJ.

Melissa Franco, Bronx, NY (Abbey J. Marr of counsel), for petitioner.

DECISION & JUDGMENT

Proceeding pursuant to Executive Law § 298 to enforce a determination of the Commissioner of the New York State Division of Human Rights dated February 24, 2023. The determination adopted the recommendation and findings of an administrative law judge dated April 28, 2022, made after a hearing, finding that the respondents Boston Market Corporation and Nicholas Foreman unlawfully discriminated against the complainant on the basis of her sex, inter alia, awarded her compensatory damages in the principal sum of $75,000 for mental anguish and attorneys' fees in the principal sum of $24,640.50, and assessed a civil fine and penalty against the respondents Boston Market Corporation and Nicholas Foreman in the principal sum of $50,000.

ADJUDGED that the petition is granted, without costs or disbursements, to the extent that the portion of the determination finding that the respondent Boston Market Corporation unlawfully discriminated against the complainant on the basis of her sex and awarding her compensatory damages in the principal sum of $75,000 for mental anguish and attorneys' fees in the principal sum of $24,640.50, and assessing a civil fine and penalty against the respondent Boston Market Corporation in the principal sum of $50,000 is confirmed, the determination is otherwise annulled, the petition is otherwise denied, the proceeding is otherwise dismissed, and the respondent Boston Market Corporation is directed to pay the complainant compensatory damages in the principal sum of $75,000 for mental anguish, plus interest at the rate of 9% per year from February 24, 2023, and $24,640.50 for attorneys' fees, plus interest at the rate of 9% per year from February 24, 2023, and to pay the New York State Division of Human Rights the principal sum of $50,000, plus interest at the rate of 9% per year from February 24, 2023, as a civil fine and penalty.

The complainant filed a complaint with the New York State Division of Human Rights (hereinafter the SDHR) against the respondents, Boston Market Corporation (hereinafter Boston Market) and Nicholas Foreman, alleging that they subjected her to a hostile work environment on the basis of her sex. After a public hearing, an administrative law judge made a recommendation and findings that the respondents unlawfully discriminated against the complainant on the basis of her sex by subjecting her to a hostile work environment, awarded her compensatory damages in the principal sum of $20,000 for mental anguish and attorneys' fees in the principal sum of $24,640.50, and assessed a civil fine and penalty against the respondents in the principal sum of $10,000. Thereafter, the Commissioner of the SDHR (hereinafter the Commissioner), in a determination dated February 24, 2023, adopted the liability finding and the award for attorneys' fees of the administrative law judge, but awarded the complainant compensatory damages in the principal sum of $75,000 for mental anguish and assessed a civil fine and penalty against the respondents in the principal sum of $50,000. The SDHR subsequently commenced this proceeding pursuant to Executive Law § 298 to enforce the determination, and the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).

Initially, the Supreme Court erred in transferring so much of the proceeding as sought enforcement against Foreman to this Court pursuant to Executive Law § 298. Foreman defaulted in answering the complaint, and the determination against him was made following a hearing pursuant to Executive Law § 297(4)(b) (see Matter of New York State Div. of Human Rights v Village Plaza Family Rest., Inc., 59 AD3d 1038, 1038; Matter of New York State Div. of Human Rights v Atlantic City Sub Shop, 27 AD3d 853, 854). Nevertheless, in the interest of judicial economy, this Court will decide so much of the proceeding as sought enforcement against Foreman on the merits (see Matter of Sahara Constr. Corp. v New York City Off. of Admin. Trials & Hearings, 242 AD3d 998, 1000; Matter of New York State Div. of Human Rights v Village Plaza Family Rest., Inc., 59 AD3d at 1038).

An enforcement proceeding initiated by the SDHR raises the issue of whether its determination was supported by sufficient evidence in the record (see Matter of State Div. of Human Rights v Elite Dental Care, P.C., 237 AD3d 835, 836; Matter of New York State Div. of Human Rights v Boro Park Senior Living Community, LLC, 213 AD3d 671, 672). "The scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination of the SDHR is supported by substantial evidence in the record" (Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d 898, 899). "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 331 [internal quotation marks omitted]; see Matter of Town of Hempstead v New York State Div. of Human Rights, 215 AD3d 973, 976). "[C]ourts may not weigh the evidence or reject [SDHR's] choice where the evidence is conflicting and room for a choice exists" (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 331 [internal quotation marks omitted]; see Matter of CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69, 75).

Here, there is substantial evidence in the record to support the Commissioner's determination that Boston Market subjected the complainant to a hostile work environment based on her sex (see Executive Law § 296[1][h]; Matter of State Div. of Human Rights v Adler, 229 AD3d 555, 556; Matter of New York State Div. of Human Rights v Team Taco Mexico, Corp., 140 AD3d 965, 966). However, Foreman may not be held individually liable for the damages awarded by the Commissioner (see Doe v Bloomberg L.P., 36 NY3d 450, 457-458; Matter of Hilal v New York State Div. of Human Rights, 57 AD3d 898, 899). Accordingly, so much of the petition as sought enforcement against Foreman must be denied.

The award of compensatory damages for mental anguish is reasonably related to the wrongdoing, supported by substantial evidence, and comparable to other awards for similar injuries (see Matter of State Div. of Human Rights v Steve's Pier One, Inc., 123 AD3d 728, 729; Matter of State Div. of Human Rights v Koch, 60 AD3d 777, 777).

A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Head Injury Assn., Inc. v New York State Div. of Human Rights, 241 AD3d 1335, 1338; Matter of Thomas v Town of Southeast, N.Y., 168 AD3d 955, 957). Here, we perceive no basis for disturbing the civil fine and penalty assessed (see Matter of New York State Div. of Human Rights v Boro Park Senior Living Community, LLC, 213 AD3d at 673; Matter of New York State Div. of Human Rights v Team Taco Mexico, Corp., 140 AD3d at 967).

The amount of the attorneys' fees awarded to the complainant was reasonable (see Executive Law § 297[10]).

DUFFY, J.P., DOWLING, TAYLOR and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

The obligations of a hearing officer conducting a New York State Civil Service Law §75 disciplinary hearing

An employee [Petitioner] of the Town was working as a systems administrator for the Town overseeing the transition to a new telephone system for its offices. It was subsequently discovered that certain Town office telephones had been enabled to record the user's conversation in contravention of a Town Board resolution prohibiting such recording except for calls made to "the Police Department for purposes of police investigations."

Following an investigation, a disciplinary charge was filed against Petitioner alleging three specifications of misconduct and incompetence.  After a disciplinary hearing conducted pursuant to Civil Service Law §75, the Hearing Officer sustained the charge and recommended the Petitioner's termination. The Town adopted the Hearing Officer's findings and recommendation as to the penalty to be imposed and terminated Petitioner. Petitioner commenced the instant CPLR Article 78 proceeding seeking a court order to annul his termination and directing his reinstatement to his former position, with back pay and benefits. 

The Appellate Division observed that:

1. "Pursuant to Civil Service Law §75(1), a civil service employee shall not be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing upon stated charges";

2. "The employer bears the burden of proving misconduct or incompetency and any determination of same 'must be based on the written charges' and specific factual findings;

3. A court's review of that determination is limited to whether substantial evidence supports the determination;

4. A court cannot conduct such a review unless the hearing officer makes sufficiently specific factual findings to identify the basis for the determination; and

5. A court may not supply factual findings that are absent and in the instant hearing the Hearing Officer did not provide the requisite specificity.

Accordingly, the Appellate Division annulled the Town's dismissal of the Petitioner and remitted the matter to the Town for further proceedings, noting that it was undisputed hearing evidence reflected that Petitioner was the contact person with the telephone vendor selected for the project, in setting up the Town's new telephone system nor was there any question that telephone calls to nonpolice extensions — including calls to the town supervisor, the town supervisor's confidential secretary and the town attorney — were being recorded despite the Town's resolution prohibiting such recordings.

The Appellate Division, however, noted that there were sharp factual disputes regarding Petitioner's alleged culpability, if any, that the Hearing Officer needed to resolve. Although the Hearing Officer stated generally that he found the testimony of Town's witnesses more credible than that of Petitioner and the Vendor's employee, he did not make sufficient factual findings to permit meaningful review by the Court as the Hearing Officer:

1. Failed to discuss each misconduct specification separately; and

2. Never stated the factual findings he relied upon to establish each finding of guilt. 

In the words of the Appellate Division, "This failure was particularly glaring when distinguishing between intentional and negligent misconduct, as the Hearing Officer never determined when, how or why telephone calls were improperly recorded and left doubt as to whether he faulted [Petitioner] for intentionally disregarding the [Town's] resolution when the telephone system was set up, for later advising the town supervisor how to turn recording on in violation of that resolution, or for negligently failing to monitor the telephone system in general."

The Appellate Division opined that the "absence of adequate findings further obscured whether the Hearing Officer inappropriately shifted the burden of proof from [the Town] to [the Petitioner]; he cursorily acknowledged that [the Town] bore the burden of proof but then faulted [the Employee] for not documenting his engagement with the [Vendor] or the town supervisor's inquiry about how to activate recording on certain extensions."

Absent specific factual findings as to what occurred and an explanation of the basis for sustaining each specification, the Appellate Division said it "could not determine whether substantial evidence supports the [§75 disciplinary] determination".

Accordingly, the Appellate Division ruled that the Town's determination "must be annulled and the matter remitted for the development of appropriate findings", and, in order to assist the Hearing Officer in rendering an adequate decision upon remittal, Appellate Division "briefly addressed" the Petitioner's remaining arguments to clarify the applicable legal principles, noting:

a. The respondent bears the burden to establish the charged misconduct under Civil Service Law §75; and

b. A Hearing Officer should also be mindful that "seriously controverted" hearsay evidence ... cannot constitute substantial evidence for the determination by itself".

The Appellate Division annulled the Town's determination and remitted the matter to the Town "for further proceedings not inconsistent with this Court's decision".

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

Proposed amendments to New York State's Ethics Training Requirements for Lobbyists and Clients

 PROPOSED RULE MAKING 

New York State Ethics Training 

Requirements for Lobbyists and Clients

NO HEARING(S) SCHEDULED 

Proposed Action: Amendment of Part 943 of Title 19 NYCRR

Statutory authority: Legislative Law, section 1-d(h) and (i) 

Subject: Amendments to the Ethics training requirements for Lobbyists and Clients. 

Purpose: Implement the statutory amendments included in Part U of Chapter 55 of the Laws of 2026 relating to ethics training for lobbyists and clients and the imposition of late fees for failing to complete such training within the required time. 

Text of proposed rule and any required statements and analyses may be obtained from: Megan Mutolo, Esq., Commission on Ethics and Lobbying in Government, 540 Broadway, Albany, NY 12207, (518) 486-7593 

Data, views or arguments may be submitted to: Same as above. 

Public comment will be received until: 60 days after publication of this notice.