Employees provisionally appointed to their position pursuant to §65 of New York State's Civil Service Law typically so serve at the pleasure of the appointing authority

Supreme Court granted Plaintiff's petition seeking to annul the decision of the New York City Department of Correction [DOC] to remove Plaintiff from his Assistant Deputy Warden position to which he had been provisionally appointed and restore him to his former employment status of permanent Captain. 

DOC appealed and the Appellate Division "unanimously reversed the Supreme Court's ruling "on the law," denied Plaintiff's petition and dismissed Plaintiff's action brought pursuant to CPLR Article 78.

Explaining that Supreme Court should have denied Plaintiff's petition seeking to annul DOC's decision to discontinue his employment from his provisional appointment as Assistant Deputy Warden to his former position in which he held permanent appointment as a Captain, the Appellate Division noted that provisional appointments made pursuant to Civil Service Law §65 "carry no expectation nor right of tenure" and provisionally appointed incumbents are not entitled to the protections in the position afforded permanent employees pursuant to Civil Service Law §75. 

Citing Mahinda v Board of Collective Bargaining, 91 AD3d 564, the Appellate Division's decision notes that an employee serving in a position as a provisional employee may "be terminated at any time, without a hearing, for almost any reason, or for no reason at all," so long as the termination does not violate any constitutional or statutory provision and is not arbitrary and capricious or done in bad faith."

In addition, the Appellate Division pointed out that Plaintiff's provisional appointment did not ripen into a permanent one after a one-year probationary period as [such] appointments are mere stop-gaps" and may be succeeded by a permanent appointment only as a result of an examination and eligibility in accordance with New York State's Civil Service Law.

The Appellate Division's decision also pointed out that the fact that Plaintiff was served with disciplinary charges and specifications and notice him of his right to a hearing "does not suggest that his appointment as assistant deputy warden was permanent as Petitioner's underlying permanent appointment to the position of captain entitled him to such charges and a hearing before being removed from his Captain's position or subjected to an other disciplinary penalty such as a loss of vacation days in contrast to Plaintiff's being subject to removal from his provisional appointment as assistant deputy warden at any time without charges preferred, a statement of reasons being given or a hearing being held.

Turning to other arguments advanced by Plaintiff, the Appellate Division found that Plaintiff's race, gender, and disability discrimination claims pursuant to State and City Human Rights Laws failed because the record contained no evidence giving rise to an inference of unlawful discrimination and Plaintiff presented no evidence that DOC's decision to restore him to his permanent position of Captain following Plaintiff's violating a number of DOC's rules and regulations was arbitrary and capricious or done in bad faith.

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

Selected GovTech Webinars for the week of July 20, 2026

 

Your weekly lineup of learning is here! Can’t watch live? Register anyway to catch the session on-demand whenever it fits your schedule.

TUESDAY, JULY 21 | 10:00 AM PT, 1:00 PM ET - Next-Level Constituent Service: How AI Can Transform Government Contact Centers Join for a discussion of how leading public-sector organizations are putting AI to work in contact centers and other resident-facing operations. Click here to REGISTER WEDNESDAY, JULY 22 | 11:00 AM PT, 2:00 PM ET - From Myth to Mission: How Evolving AI Is Transforming Public Sector Outcomes AI is accelerating cyber threats. Learn how Zero Trust and breach containment can limit impact and protect critical systems. Click here to REGISTER

Appellate Division finds that Plaintiffs, alleging violations State and Federal Civil Rights Law, failed to sufficiently allege a cause of action to recover damages

In this action by certain employees to recover damages for allegedly having to work in an hostile work environment and had been subjected to "retaliation" because the had complained, the Professional Staff Congress [Union] and other named respondents [Defendants] appealed a Supreme Court's order denying Defendants' motion to dismiss the Plaintiffs complaint insofar as asserted against them.

Plaintiffs, employees of New York City Kingsborough Community College,  had commenced the instant action against the Union and certain officers of the Union representing the Plaintiffs seeking to recover damages for alleged religious discrimination. Plaintiffs alleged, among other things, that their employer, The City University of New York [CUNY], certain individual coworkers, and the Union had engaged in discrimination against them in the workplace because of the Plaintiffs' religion.

Noting a work environment is generally controlled by the employer, the Appellate Division said "labor unions have 'no affirmative duty' to prevent harassment or discrimination within the confines of the workplace" and the union's obligation not to discriminate arises "only when the union is performing an agency function in a representational capacity". The Appellate Division opined that "A union can only be liable pursuant to Title VII for situations in which the union is responsible for discrimination against or creating a hostile environment because of the member's protected characteristic".

Pointing out that Title VII, the NYS Human Rights Law, and the NYC Human Rights Law all require a plaintiff suing a union for discrimination to demonstrate actions or activities which may be properly imputed to a union such as:

(1) "The Union breached its duty of fair representation to plaintiff:

(2) "[The] Union's conduct was motivated by animus toward the plaintiff's protected status"; and

(3) "[A union representative's] role in causing or attempting to cause a hostile work environment".

Further, the Appellate Division explained that a plaintiff must show not only that the union had actual or imputed knowledge of the improper conduct, but also that the union representative's conduct related to union activity and that in acting in such a manner, the representative breached the union's duty of fair representation.

Observing that in the instant matter "there were no allegations in the [Plaintiffs]  complaint that any of the alleged discriminatory acts were undertaken by union representatives acting on behalf of the union or that any of the alleged acts were related to union activity, and no allegations [in the Plaintiffs' complaint] that the union breached its duty of fair representation", the Appellate Division said that the Supreme Court should have granted that branch of the Union's motion pursuant to CPLR 3211(a)(7) to dismiss allegations of a hostile work environment insofar as asserted against the Union.

As to alleged "retaliation", the Appellate Division noted that "To make out a prima facie case of retaliation by a union, a plaintiff must show that (1) [the plaintiff] was engaged in an activity protected under Title VII and known to the union; (2) [the plaintiff] suffered adverse union action; and (3) there was "a causal connection between the protected activity and the union's actions". In the words of the Appellate Division, "Supreme Court also should have granted that branch of the motion of the union defendants which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging retaliation insofar as asserted against them".

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

Selected Internet blog posts for the week ending July 17, 2026

The Next Benefits Cliff Isn’t Fraud. It’s Overload. Rising federal verification mandates are overwhelming state agency infrastructure. Here’s why legacy systems are failing and how consent-based and automated tools can close the gap. READ NOW

4 Essential Steps for Building Scalable Transportation Infrastructure Explore four steps agencies can take to build a scalable foundation for the future. DOWNLOAD

AI can improve efficiency and fairness But only with strong oversight and accountability. READ NOW 

How Branded Communications Can Improve Government Billing Learn how consistently branded communications can increase constituent trust, improve engagement and support stronger government billing. DOWNLOAD

Better Prepare Your Agency with Data Automation Automate more verifications in advance of new eligibility requirements using data-first solutions. Learn More

Cities invest in architecturally striking museums Critics are asking whether landmark buildings are eclipsing the art, history and public purpose they were meant to serve. Read More

Essential Steps to Building a Strong Grant Compliance Framework From internal controls to reporting and monitoring, this guide explores the key components of a stronger, more sustainable approach to grant compliance. DOWNLOAD

Building the Exact Applications Government Agencies Need Learn how NH Housing replaced manual workflows with 7 custom low-code web portals seamlessly. See How They Did It

Balancing Speed and Flexibility in Public Sector IT Explore the scalable, phased roadmap to transforming government apps without mission disruption. Read the Whitepaper

A toolkit from a national commission Emphasizes the importance of partnerships between public health leaders and elected officials. Read More

New York State's Comptroller posted audits of the State Departments, Agencies and programs on the Internet.

On July 16, 2026, New York State Comptroller Thomas P. DiNapoli posted audits of the State Departments, Agencies and Programs listed below on the Internet.

Click on the text highlighted color to access the audit.

Battery Park City Authority – Access Controls and Vulnerability Management Over Critical Systems (2025-S-8) The Battery Park City Authority (BPCA) is a New York State public benefit corporation responsible for the planning, development, and maintenance of the 92-acre Battery Park City neighborhood in lower Manhattan. BPCA generates revenue primarily through ground leases and event permits, managing the latter through its own system, while various other functions utilize third-party vendors. Auditors evaluated BPCA’s information technology governance and security posture and identified areas where BPCA could improve overall governance and certain security controls to minimize the risks associated with unauthorized access to its system and data.

Public Service Commission – Application Review and Site Permitting for Major Renewable Energy Projects (Follow-Up) (2025-F-27) Under the Climate Leadership and Community Protection Act (Climate Act), the Public Service Commission (PSC) was required to establish a renewable energy program by the end of June 2021 to meet two requirements: by 2030, a minimum of 70% of statewide electric generation secured by load-serving entities to meet their customers’ demand must be generated by renewable energy systems; and by 2040, the statewide electrical demand system must be zero emissions. In April 2020, the Office of Renewable Energy Siting (ORES) was created to undertake the review of proposed major renewable energy facilities to meet the State’s goals. ORES was intended to reduce the time to site major renewable energy projects and bring them online faster. A prior audit, issued in April 2024, found that, while the overall time between application and final siting permit had improved since the creation of ORES, the process took significantly longer than originally envisioned because certain aspects of the process were not considered. PSC officials made significant progress in addressing the problems identified in the initial audit report and implemented the initial report’s one recommendation.

New York State Health Insurance Program – UnitedHealthcare: Accuracy of Payments for Surgical Procedures Involving Multiple Providers (2024-S-15) The Empire Plan is the primary health benefits plan for the New York State Health Insurance Program, and UnitedHealthcare Insurance Company of New York (United) administers the medical/surgical benefit of the Empire Plan. Surgical procedures sometimes require multiple providers, such as co-surgeons (two or more physicians who work together as primary surgeons performing distinct parts of a surgical procedure) or surgical assistants (physicians or other qualified health care professionals who assist physicians performing a surgical procedure). United’s reimbursement policies require co-surgeons and surgical assistants to report their roles during a surgical procedure to ensure claims are paid appropriately. For the period from January 2019 to June 2024, auditors identified nearly $12.5 million in potential overpayments for surgical procedures involving co-surgeons or surgical assistants.

Office of Children and Family Services – Child Care Stabilization Grants (Follow-Up) (2026-F-4) The Office of Children and Family Services (OCFS) administers several child care grant programs. Between May and June 2021, OCFS received $1.8 billion from the American Rescue Plan Act, plus $469 million from the Coronavirus Response and Relief Supplemental Appropriations Act. OCFS used the money to fund several COVID-19 response programs, awarding $1.173 billion in two rounds for grants to stabilize the child care sector and the child care workforce. A prior audit, issued in November 2024, found weaknesses in OCFS’ monitoring of grantee expenses claimed under the program to provide assurance that funds were used for allowable expenses. OCFS officials made progress in addressing the problems identified in the initial audit report. Of the initial report’s three audit recommendations, one was implemented, and two were partially implemented.

New York State Health Insurance Program – Anthem Blue Cross: Coordination of Benefits With Medicare (Follow-Up) (2025-F-25) The Empire Plan is the primary health benefits plan for the New York State Health Insurance Program, and Anthem Blue Cross administers the Hospital Program of the Empire Plan. Many enrollees and their dependents have additional insurance coverage, such as Medicare, and Medicare typically pays claims as primary (Empire Plan typically pays secondary) for enrollees who are age 65 and older and retired. A prior audit, issued in August 2024, found that Anthem improperly paid $5,259,416 because benefits were not properly coordinated. Anthem has made progress in addressing the problems identified in the initial audit report. Of the initial report’s four audit recommendations, one was implemented, and three were partially implemented.

State Education Department (Preschool Special Education Audit Initiative) – Shield of David: Compliance With the Reimbursable Cost Manual (2020-S-24) Shield of David (Shield), d.b.a. The Shield Institute, is a New York City-based organization authorized by the State Education Department (SED) to provide full-day Special Class and full-day Special Class in an Integrated Setting services to children with disabilities who are between the ages of 3 and 5 years (referred to as SED preschool cost-based programs). For the audit scope, Shield reported approximately $10.3 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $221,752 in reported costs that did not comply with requirements.

Department of Environmental Conservation – Monitoring of Air Quality (Facility Permits and Registrations) (Follow-Up) (2025-F-13) The Department of Environmental Conservation (DEC) issues air pollution control permits and registrations in accordance with its federally approved Air Pollution Control Permitting Program (Program), and its Environmental Justice Permitting Policy (Policy) (designed to address the fair treatment of all people regardless of race, income, national origin, or color, with respect to environmental laws, regulations, and policies) outlines DEC’s responsibilities for incorporating environmental justice into its review of air permit applications. A prior audit, issued in September 2023, found weaknesses in several aspects of DEC’s oversight of the Program—namely, implementation of the Policy and monitoring of permitted and registered facilities—that undermine its ability to ensure compliance with the Program and protect the State’s air from harmful pollutants. DEC officials made progress in addressing the problems identified in the initial audit report. Of the initial report’s four audit recommendations, two were implemented, and two were partially implemented.

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