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Monday, May 22, 2017

Governor Cuomo announces judicial appointmeants to the Appellate Divisions of Supreme Court


Governor Cuomo announces judicial appointmeants to the Appellate Divisions of Supreme Court
Source: Office of the Governor

Governor Andrew M. Cuomo today appointed the Honorable Rolando Acosta as Presiding Justice of the Appellate Division for the First Judicial Department and elevated nine elected Supreme Court Justices from across New York to the four Appellate Departments of New York State.

In the Appellate Division-First Department Governor Cuomo designated Associate Justice Rolando Acosta to Presiding Justice of the First Department-Appellate Division, and appointed Supreme Court Justices Cynthia Kern, Peter Moulton, Jeffrey Oing and Anil Singh to fill four Associate Justice vacancies. The First Department includes New York and Bronx counties.

For Appellate Division-Second Department the Governor designated Supreme Court Justices Linda Christopher and Angela Iannacci to fill two Associate Justice vacancies on the Appellate Division-Second Department.  The Second Department comprises a ten-county downstate region that includes Kings, Queens, Richmond counties, Long Island and the lower Hudson Valley.  

Appoints to the bench in the Appellate Division-Third Department are as follows: Supreme Court Justices Stanley Pritzker and Philip Rumsey will fill two Associate Justice vacancies on the Appellate Division-Third Department.  The Third Department covers twenty-eight counties in the Eastern and Northern portions of Upstate New York, ranging from the mid-Hudson Valley to the Canadian Border and as far west as Schuyler and Chemung counties in the Southern Tier.  

In the Appellate Division-Fourth Department Governor Cuomo designated Supreme Court Justice Joanne Winslow to fill an Associate Justice vacancy on the Appellate Division-Fourth Department.  The Fourth Department encompasses twenty-two Upstate Counties in the Western and Central portions of the State, stretching as far north as Jefferson County.

Each of the designated Justices were chosen among candidates reviewed and advanced for consideration by Judicial Screening Committees from one of the four Appellate Departments across New York.  These Committee’s undertook a thorough review of all applications and written material, including conversations with numerous practitioners familiar with the candidate’s career and job performance.  In addition, the Committee conducted in-person interviews of dozens of elected Supreme Court justice candidates from across the State, with only those applicants deemed “highly qualified” by the Committees submitted to the Governor for consideration for appointment to Appellate Division.

Under the New York State Constitution and Judiciary Law, the Governor has the authority to appoint Presiding Justices to each Appellate Division from among those who have been elected as Justices of the Supreme Court. These appointments are not subject to Senate confirmation.

Brief biographies of these appointees are set out below:


Appellate Division-First Department

Honorable Rolando T. Acosta

Justice Acosta was elected New York State Supreme Court Justice in 2002 in the 1st Judicial District, and was appointed to the Appellate Division in 2008.  His judicial career began in 1997 as a New York City Civil Court Judge, where he spearheaded the creation of the Harlem Community Justice Center.    Prior to his judicial service, he held various posts with the Legal Aid Society, including Attorney-in-Charge of the largest civil trial office and Director of Government.  Justice Acosta has also served as Deputy Commissioner for Law Enforcement for the New York City Commission on Human Rights. In addition to his judicial responsibilities, Justice Acosta has been an active community servant and worked tirelessly to enhance the legal profession for all participants.  He has served as the President of the Latino Judges Association, during which time he was a mentor and teacher with the Latino Community, and as the Vice President of the New York City Bar Association.  He was selected as the 2004 Judge of the Year by the National Hispanic Bar Association, and is currently a member of the New York State Commission on Judicial Conduct, the Chief Judge’s Task Force to Expand Access to Civil Legal Services in New York, and the City Bar’s Council on the Profession. Justice Acosta was raised in the South Bronx and Washington Heights, after having emigrated from the Dominican Republic at age 14.  He is a graduate of Columbia College and Columbia University School of Law.  He currently serves as a Trustee of Columbia University and as a member of The Dean’s Council of Columbia Law School.

Honorable Cynthia S. Kern

Justice Kern has been a jurist since 2000 when she was first elected to the New York City Civil Court.  In 2008, she was designated an Acting Supreme Court Justice for the Civil Branch in New York County and was re-elected to City Civil Court in 2010.  The next year she successfully ran to fill a vacancy for New York Supreme Court Justice in the First Judicial District and has continued in that capacity since her election.  Prior to taking the Bench, Justice Kern was a practicing attorney for 15 years.  She began as a litigation associate with the law firm of Rosenman, Colin, Freund, Lewis & Cohen, before taking a similar position with Moses & Singer.  As a civil litigator, she focused on commercial and real estate litigation.  In 1992, she became the Principal Court Attorney for the Honorable Joan B. Lobis, New York Supreme Court.  Justice Kern graduated from the State University of New York at Stony Brook in 1982 and received her law degree from New York University School of Law in 1985.

Honorable Peter H. Moulton

Justice Moulton first became a jurist when elected as a Civil Court Judge in New York County on 2003.  In April 2010, Justice Moulton was appointed to be an Acting Supreme Court Justice of the Supreme Court, New York County.  He subsequently was elected to the Supreme Court in 2013.  As a judge, he has also held several leadership positions, including the Supervising Judge of the Civil Court, New York County from November 2010 through January 2014, and since March 2015 has served as both the Administrative Judge for Civil Matters, First Judicial District, and the Coordinating Judge of the New York City Asbestos Litigation.  Prior to sitting on the bench, Justice Moulton was the Principal Law Clerk to the Honorable Leland DeGrasse, Supreme Court Justice from 1995 to 2003.  He began his legal career as a law clerk to Judge Charles E. Stewart, Jr. in the Southern District of New York from 1986 to 1988, before joining the New York City Law Department’s Affirmative Litigation Division as a Staff Attorney.  Justice Moulton graduated from Stanford University in 1983 with a B.A. in International Relations and received his J.D. from Columbia Law School in 1986.

Honorable Jeffrey K. Oing

Justice Oing was elected to serve as a New York City Civil Court Judge in January 2004.  In 2011, he was elected to the Supreme Court of the State of New York in the 1st Judicial District and assigned to the Commercial Division.  Prior to taking the bench, he served as Deputy General Counsel to the New York City Council in 2002 and 2003, and also served as Deputy Director of the New York City Districting Commission.  From 1993 to 2002, Justice Oing worked in the New York Supreme Court in a variety of capacities, including as Law Secretary to Justice Walter B. Tolub (2000-02), Principal Appellate Court Attorney for the First Department (1998-2000), Law Secretary to Justice Marilyn G. Diamond (1995-98), and a Principal Court Attorney (1993-95).  In 1992, Justice Oing served as an Assistant Counsel to New Jersey Governor James J. Florio.  Prior to his public sector legal career, he was an associate at the New Jersey firm of Herold & Haines and began his career with the law firm of Donovan Leisure Newton & Irvine in 1990.  Justice Oing graduated from Columbia College in 1986 with a B.A. in English and received his J.D. from New York University School of Law in 1989.

Honorable Anil C. Singh

Justice Singh has been a jurist since 2003, after being elected as a New York City Civil Court Judge in 2002.  He was designated an Acting Supreme Court Justice in 2010 and was elected to his current role as a New York State Supreme Court Justice in the 1st Judicial District in November 2013.  In April 2015, Justice Singh was appointed to the Commercial Division.  Prior to taking the bench, Justice Singh clerked for the Honorable Alice Schlesinger from 1987 to 2002.  Justice Singh was born in Gazipar, India in 1958 and immigrated to the United States in 1976 and upon this designation, he becomes the first Indian-American elevated to the Appellate Court in New York.  He graduated from Lawrence University in 1980 with a B.A. in Political Science and History and received his J.D. from the Antioch School of Law in 1986. 


Appellate Division-Second Department

Honorable Linda J. Christopher

Justice Christopher has been a jurist since 2002 when she began serving as Acting Justice for the Villages of Upper Nyack and Grandview.  In 2005, Justice Christopher was elected to the Rockland County Family Court where she presided through 2010.  While serving as a Family Court Judge, she also served as Acting Supreme Court Justice for the Integrated Domestic Violence Court from 2006 through 2010.  Since 2011, Justice Christopher has been a Supreme Court Justice and currently serves as the Supervising Judge for Matrimonial Matters for the Ninth Judicial District.  She began her legal career in 1980 as a law clerk for the Honorable Orelle Weeks in Denver Juvenile Court, followed by taking an Associate position with the law offices of Jerome Trachtenberg.  She also served briefly as a Hearing Examiner for Rockland County Family Court before starting her own practice in 1986.  Justice Christopher was in private practice with the Law Offices of Linda Christopher from 1986 to 1992, partnered in the firm of Christopher and Draine from 1992 to 1996, before returning to her private practice until her election to Family Court in 2004.  Justice Christopher graduated from the University of Colorado in 1976 majoring in Political Science before earning her J.D. from Antioch School of Law in 1980.

Honorable Angela G. Iannacci

Justice Iannacci has served as a member of the bench since 2004, when she was elected to Family Court in Nassau County.  Two years later, she was elected a Supreme Court Justice in Nassau County, and currently serves as Associate Justice for the Appellate Term in the 9th and 10th Judicial Districts, a position to which she was appointed in 2009, as well as continuing her Supreme Court docket in the 10th Judicial District.  Prior to taking the bench, Justice Iannacci held several legal positions including Principal Court Attorney to the Honorable Allan L. Winick, as Hearing Officer in Small Claims Assessment Review Proceedings, and fifteen years of extensive private practice with AIG, Rossano, Mose, Hirschhorn & Corleto, P.C., in Garden City, NY, and Gordon & Silber, P.C., in Manhattan concentrating in personal injury, medical malpractice and general liability matters.  She also maintained a solo general practice, Angela G. Iannacci, P.C., of Great Neck, NY while serving as a Hearing Officer from 1996-2001.  Additionally, she has served on the Judicial Committee on Women in the Courts, the NYS Anti-Discrimination Panel, NYS Office of Court Administration’s Best Practices Committee for Matrimonial Judges, the NYS Domestic Violence Task Force, and the NYS Special Commission on Fiduciary Appointments.  Justice Iannacci received her B.A. from George Washington University in 1983 majoring in Political Science and Economics, and her J.D. from Pace University School of Law in 1986. 


Appellate Division-Third Department

Honorable Stanley L. Pritzker

Justice Pritzker has been a jurist since 2005, taking the bench as a multi-court judge for the County, Family, Surrogate, and Drug Treatment Courts in Washington County.  In 2007, he was also designated an Acting Supreme Court Justice presiding over civil actions in Washington County.  In 2013, Justice Pritzker was elected as a Justice of the Supreme Court for the 4th Judicial District.  Prior to his judicial career, Justice Pritzker was in private practice for nearly two decades handling civil, municipal and criminal litigation matters.  He also has extensive experience as a children’s attorney as an advocate in juvenile delinquency, PINS, divorce, custody neglect, and abuse proceedings.  Justice Pritzker began his professional career as a social worker in New York City while attending law school during the evenings.  He graduated from the State University of New York at Buffalo in 1978 with a B.A. in Philosophy and Psychology and earned a Masters degree in Social Work from the same institution in 1980.  He received his law degree from St. John’s University Law School in 1986.

Honorable Philip R. Rumsey

Justice Rumsey was first elected as a Justice of the Supreme Court for the Sixth Judicial District in 1994 and was re-elected to the bench in 2007.  Prior to becoming a jurist, Justice Rumsey practiced law for nearly two decades in both the private and public sectors, beginning as an Assistant District Attorney in Cortland County in 1976.  Other public service roles that he has served include, Assistant County Attorney for Cortland County, Attorney with the Cortland Housing Authority, Staff Counsel for the New York State Senate Standing Committee on Agriculture, Legislative Counsel for New York State Senator James L. Seward, and Town Attorney for the Town of Cortlandville.  He was also a Partner in the law firm of Ryan & Rumsey until taking the bench in 1994.  Justice Rumsey has been a member of the New York Pattern Jury Instructions Committee since 2008, and served in the New York State Army National Guard from 1971 to 1977.  He graduated from Hamilton College in 1971 with a B.A. in Geology and received his J.D. from Syracuse University School of Law in 1975. 


Appellate Division-Fourth Department

Hon. Joanne M. Winslow

Justice Winslow was elected as a Justice of the Supreme Court for the Seventh Judicial District in 2008.  She was assigned to the Matrimonial Part until 2011, before assuming her current assignment in Criminal Part, where she presides over felony indictments from arraignment through sentencing, as well as handling other legal matters.  Prior to her election to the bench, Justice Winslow spent over two decades as an Assistant District Attorney with Monroe County, finishing her tenure at the DA’s office as Bureau Chief for Major Felonies.  Justice Winslow has been recognized for both her professional and civic service activities, receiving accolades for distinguished and dedicated service from Rochester Police Department, Monroe County District Attorney’s Office, Monroe County Sheriff’s Office, and Boy Scouts of America.  This past December, Chief Judge Janet DiFiore named Justice Winslow to serve on the Richard C. Failla LGBTQ Commission.  She graduated from Springfield College in 1981 with a B.S. in Social Studies & Secondary Education, before receiving her J.D. from Albany Law School in 1986.
  

An employee may be subjected to disciplinary action for misusing his or her sick leave accruals


An employee may be subjected to disciplinary action for misusing his or her sick leave accruals
1. Decisions of the Commissioner of Education, Decision 11,111
2. NYC Office of Administrative Trials and Hearings [OATH], OATH Index No. 1468/17

Typically "attendance rules" for public employees permit the employee use his or her sick leave accruals to absent himself or herself from work in the event of personal illness, to care for a family member, including an opposite sex or a same-sex partner or a same-sex spouse, who is ill, for medical appointments, obtaining and training a medical service animal, in connection with pregnancy and other medical situations.

Some jurisdictions permit an employee to absent himself or herself from work without charge to leave credits in the event he or she is subjected to a "medical quarantine" while the availability and use of paid sick leave, sick leave at one-half pay and sick leave without pay by employees in a "collective bargaining unit" pursuant to an employer's "attendance rules" may be subject to provisions set out in a collective bargaining agreement. 

In any event, disciplinary action may be taken being taken against the employee who misuses his or her sick leave benefits.

For example, in Decisions of the Commissioner of Education #11,111, a teacher appealed a disciplinary hearing panel's finding her found guilty of "falsifying records" based on her misusing "family sick leave" benefits and suspending her without pay for nine and one half months.

The panel had found that the teacher had absented herself from work, charging her absence to her sick leave credits for an alleged “family illness” for three days immediately preceding the school district’s spring recess. The teacher, however, chanced to meet her principal at an "out of state" vacation site that they both were visiting on one of the days she had charged to her “family sick leave” leave credits. 

In OATH Index No. 1468/17 OATH Administrative Law Judge John B. Spooner found that a special officer violated his employer's rules when he absented himself from work for seven days using his sick leave accruals in order to remain on the payroll while attending "paid training sessions" being given by a private security company.

Judge Spooner rejected the officer’s claim that he was not working for the private company when he attended its training sessions, explaining that the officer’s signature on a letter accepting a position with the private company and his attending its required pre-employment training program constituted the commencement of an employment relationship with the company.

The judge also sustained charges alleging that the officer disobeyed instructions not to engage in  "outside work" without the prior approval of the Agency.

The ALJ recommended that the officer be terminated from his position with the Agency.

The decision is posted on the Internet at:

Saturday, May 20, 2017

Town Clerk arrested for allegedly attempting to "boost" her retirement benefits


Town Clerk arrested for allegedly attempting to "boost" her retirement benefits
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli reports that Springport Town Clerk Deborah Waldron has been arrested for allegedly trespassing on a town computer in an effort to boost her retirement benefits with the New York State and Local Retirement System.

The Comptroller's audits and investigations have led to over 130 arrests and more than $30 million in restitutions.

Comptroller DiNapoli’s investigations focusing on allegations of retirement fraud alone has led to 24 arrests and the recovery of nearly $3 million in retirement funds since 2011.

Fighting such corruption is among the Comptroller's top priorities and in 2011 he, together with New York State Attorney General Schneiderman, created the Operation Integrity task force. The work of this task force has led to the recovery of unlawfully diverted taxpayer dollars. Among those convicted as the results of these efforts are former State Sen. Shirley Huntley for activities involving "member fraud;" of former Member of the Assembly William Scarborough for campaign and travel fraud; and of six Metropolitan Council on Jewish Poverty executives involving a multi-million dollar embezzlement.

The Comptroller's press release concerning Waldron's arrest is posted on the Internet at:


U. S. Supreme Court decision provides some clarification concerning the legal standard applicable to students with a disability receiving an appropriate public education


U. S. Supreme Court decision provides some clarification concerning the legal standard applicable to students with a disability receiving an appropriate public education
Source: New York Municipalities Blog, Harris Beach, PLLC

On March 22, 2017, in Endrew F. v. Douglas County School District, the United States Supreme Court issued a ruling focusing on the appropriate legal standard when determining if  a student with a disability is receiving an appropriate free public education (FAPE) via the student's individualized education program (IEP).

The New York Municipalities Blog item is posted on the Internet at:

Friday, May 19, 2017

An employee's failure to use the grievance procedure set out in the relevant collective bargaining agreement before commencing an Article 78 action may not be excused by the court


An employee's failure to use the grievance procedure set out in the relevant collective bargaining agreement before commencing an Article 78 action may not be excused by the court
Finkelstein v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2017 NY Slip Op 03850, Appellate Division, First Department

Supreme Court annulled the New York City's Board of Education's [BOE] discontinuing Petitioner's probationary employment and ordered BOE to reinstate Petitioner to her former position "with full salary and benefits retroactive to September 30, 2014."

The Appellate Division unanimously vacated the Supreme Court's ruling, "on the law" with respect to Petitioner's reinstatement to her former position and payment of "full salary and benefits," but, citing Tucker  v Board of Educ., Community School Dist. No. 10, 82 NY2d 274, found that Petitioner was entitled to nine days' pay because she was given inadequate notice of her termination.

The court explained that Petitioner failed to avail herself of the grievance procedure set forth in her collective bargaining agreement before commencing the instant action seeking relief under CPLR Article 78 and thus Supreme Court "erred in relieving [Petitioner] of her obligation to exhaust her administrative remedies."*

In any event, said the court, a probationary employee may be terminated for "almost any reason, or for no reason at all," as long as it is not "in bad faith or for an improper or impermissible reason." Upon such termination "[T]he burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden."

In this instance the Appellate Division found that the record indicated that Petitioner's dismissal was made in good faith and was based on substantiated findings after an independent investigation demonstrating that she neglected her duties and falsified records.

As to Petitioner's claim of the investigator's delay in publishing the written report concerning the matter, the court said that such delay "amounted to a mere technical violation of the collective bargaining agreement," as Petitioner had received timely notice of the allegations, as well as an opportunity to respond, prior to the issuance of the report. The Appellate Division then opined that Supreme Court's "conclusion of bad faith stemming from the lateness of the report was purely speculative."

* However, as the Appellate Division held in Amorosano-LePore v Grant, 56 AD3d 663, the employee's exhaustion of his or her administrative remedies is not required where his or her so doing would constitute an exercise in futility.

The decision is posted on the Internet at:

Thursday, May 18, 2017

An agency investigating a particular complaint on behalf of an employee may not, without prior notice to the employer, make broad findings of fact involving the employer's "over-all operations" and impose sanctions


An agency investigating a particular complaint on behalf of an employee may not, without prior notice to the employer, make broad findings of fact involving the employer's "over-all operations" and impose sanctions
MTA Bus Co. v New York State Div. of Human Rights, 2017 NY Slip Op 03903, Appellate Division, First Department

The New York State Division of Human Rights [SDHR] found that the MTA's policy of disqualifying all employees with bipolar disorder from working as a bus operator was an unlawful discriminatory act. The Division order MTA to pay a civil fine and penalty of $30,000. MTA appealed and the Appellate Division unanimously annulled the Division's decision and dismissed the complaint.

The Appellate Division noted that the record demonstrates, and the SDHR determined, that the "employee complainant" [Complainant], a bus operator, was placed on restricted duty for reasons unrelated to his alleged disability of bipolar disorder and ultimately terminated from his position. The record also indicated that Complainant had a "reckless driving record and that MTA dismissed him for his conduct in vandalizing three buses in passenger service." The court held that MTA "was justified" in terminating Complainant.

The court, however, said that rather than dismissing the complaint, SDHR proceeded to conclude that "[b]ecause MTA has a blanket policy disqualifying all employees with bipolar disorder from being appointed to, or remaining in, the Bus Operator position and passenger service, and because [MTA] does not individually assess the ability of those with bipolar disorder to perform the essential functions of the job, [MTA's] policy violates the Human Rights Law."

SDHR had not advised MTA that its policies with respect to the employment of individuals with a bipolar disorder were going to be reviewed. Such failure on the part of SDHR, said the court, denied MTA its right to due process.

The Appellate Division explained that although SDHR, its own motion, may investigate and file a complaint alleging discriminatory practices, it did not do in this instance. Rather, while investigating the bus operator's complaint, which was filed solely on his behalf and found that he had not been discriminated against, SDHR could not "and at the same time," make broad findings of fact and impose broad sanctions pertaining to MTA's "over-all operations."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03903.htm


Wednesday, May 17, 2017

An employee's unreasonable failure to use an employer-provided preventive or remedial apparatus bars the consideration of his or her complaints of unlawful discrimination


An employee's unreasonable failure to use an employer-provided preventive or remedial apparatus bars the consideration of his or her complaints of unlawful discrimination
Magnusson v. County of Suffolk, et al., USCA, 2nd Circuit, Docket #16-1876-cv

This civil rights action brought pursuant to Title VII and 42 U.S.C. §1983 was founded on allegations of sexual harassment and sexual orientation harassment.*

The United States Court of Appeals for the Second Circuit, however, did not reach the merits of the question of whether the County’s conduct constituted sex discrimination would constitute a violations of Title VII and, or, 42 U.S.C. §1983 because the Plaintiff, Arline Magnusson, "failed to follow the County’s internal grievance procedures" available to her.

The Circuit Court explained that “An employer may defend against [a hostile work environment claim] by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that [Magnusson] unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus.”

The federal district court's decision indicated that "the County maintained a sexual harassment policy for the entire term of [Magnusson] employment" and that Magnusson had received documents instructing her on the Department of Public Work's [DPW] sexual harassment reporting procedures from both the DPW and her own union.  

Magnusson, however, had never provided appropriate County employees with any notice of the alleged incidents of harassment before initiating her action with the Equal Employment Opportunity Commission. Accordingly, even if Magnusson had an otherwise viable hostile work environment claim, the County was protected from Title VII liability by successfully advancing such an affirmative defense.

Although there are instances where an employee’s failure to report sexual harassment can be excused if the employee has a credible fear of retaliation or believes that the complaint would be futile, based on the record the Circuit Court concluded that Magnusson's "conclusory assertions that she feared retaliation or that complaining would be futile fail as a matter of law to constitute sufficient evidence to establish that her fear was ‘credible.'"

Addressing Magnusson 's equal protection claim, the Circuit Court said it agreed with the district court that Magnusson "does not have a viable hostile work environment claim under §1983."

According to the Circuit Court's ruling, the incidents that Magnusson alleged in her complaint had occurred in 2003 and 2012. While presumably inappropriate incidents, the court observed that they had occurred nine years apart and the Magnusson failed to present evidence that these incidents unreasonably interfered with her job performance.

Accordingly, the Circuit Court ruled that Magnusson did not have a viable hostile work environment claim under 42 U.S.C. §1983.

* The court noted that Magnusson's Title VII sexual orientation harassment complaints were timely but that such allegations under §1983 were untimely.

The decision is posted on the Internet at"

Tuesday, May 16, 2017

The basis for challenging a decision by a civil service commission are limited


The basis for challenging a decision by a civil service commission are limited
Agbai v New York City Civ. Serv. Commn., 2017 NY Slip Op 03699, Appellate Division, First Department

Supreme Court granted the NYC Civil Service Commission's motion dismissing a CPLR Article 78 petition seeking to vacate a determination by the Commission the terminated the petitioner's [Petitioner] employment as a New York City correction officer.

The Appellate Division explained that the New York City Civil Service Commission is subject to judicial review only if "the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction," citing New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318.

Supreme Court, said the Appellate Division, "properly rejected Petitioner's argument that the Administrative Law Judge did not have the authority and jurisdiction to conduct the challenged disciplinary hearing."

The decision is posted on the Internet at:


Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position



Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position
Broad v New York City Bd./Dept. of Educ., 2017 NY Slip Op 03691, Appellate Division, First Department

Supreme Court granted a New York City tenured teacher's [Teacher] CPLR Article 75 petition to set aside a determination of an arbitrator that sustained numerous disciplinary charges and specifications filed against her and terminating her employment as a tenured teacher.

The New York City Board/Department of Education appealed and the Appellate Division   unanimously reversed the lower court's ruling "on the law" and reinstated the arbitrator's decision.

The Appellate Division ruled that the arbitrator's decision had a rational basis and was supported by adequate evidence. The court said that he arbitrator reasonably determined that Teacher's performance had been deficient for two years based on the observations and ratings of the school principal and two assistant principals.

Although some of the charges and specifications were not significant, the Appellate Division noted that "the record reflects that petitioner was provided with substantial assistance over a two-year time period to improve her pedagogical skills, but she was unwilling to improve her performance."

As to the penalty imposed by the arbitrator, termination from employment, the court said that the penalty "does not shock our sense of fairness," citing Russo v NYC Dept of Education, 25 NY3d 946.

The decision is posted on the Internet at:


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Challenging Adverse Personnel Decisions - A 765 page electronic book [e-book] focusing on penalties imposed on public employees of New York State and its political subdivisions found guilty of misconduct or incompetence by hearing officers and arbitrators and the judicial review of such penalties. More information is available on the Internet at http://nypplarchives.blogspot.com.
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Monday, May 15, 2017

Governor Cuomo announces refund checks have been issued to retirees deceived by Future Income Payments LLC


Governor Cuomo announces refund checks have been issued to retirees deceived by Future Income Payments LLC
Office of the Governor

As part of consent order with New York State's Department of Financial Services [DFS], Future Income Payments, LLC [FIP] is repaying more than $500,000 to New York pensioners

On May 15, 2017 New York State's Governor Andrew M. Cuomo announced that refund checks totaling $541,835, as well as loan forgiveness information, were issued to 115 retirees deceived by pension advance company FIP as required by FIP and its owner Scott Kohn.

FIP was not licensed to make loans in New York, nor was it licensed as a money transmitter. An investigation by DFS found that the company solicited and made loans to retired consumers at high interest rates in exchange for retirees assigning away several years of their pension benefits to pay for the unlawful loans.

The consent order resolved the investigation by DFS, which found that FIP made loans in New York State without a lending license, charged a usurious rate of interest on loans to New York pensioners, transmitted money to and from New York State without a money transmitter license, misrepresented to New York pensioners the legal status of the transactions by characterizing the loans as sales of an asset, and omitted the annual percentage rate of the loans. The refunds were mailed Friday, May 12, 2017 to 108 New York residents and seven former residents.

In addition to mandating the refunds, the consent order requires FIP to pay a $500,000 fine and stop engaging in all consumer-related transactions within New York State and with any New York resident. FIP was also required to reduce the total amount owed by pensioners to the actual value of the lump sum that was advanced and forgive amounts due above that amount, resulting in forgiveness of more than $6.3 million across 292 transactions.

New York pensioners who entered into agreements with FIP will receive a letter from the third-party administrator, Rust Consulting, Inc. Consumers who entered into an agreement with FIP and do not receive a letter or need more information should visit www.nyfipsettlement.com or contact Rust Consulting, Inc. at (866) 317-8866 or info@nyfipsettlement.com.

DFS urges anyone who suspects that they have been the victim of a pension advance scheme to contact the DFS Consumer Help Line at (800) 342-3736 or log onto www.dfs.ny.gov for assistance.
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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