New Material

Decision No. 18,844

Application of BIBI TRUONG for the removal of James Gounaris as District Registrar, Attendance Officer and Director of Food and Nutrition Services for the Board of Education of the Great Neck Union Free School District.

Decision No. 18,844

(September 8, 2026)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner requests the Commissioner of Education remove James Gounaris (“respondent”) from his employment as District Registrar, Attendance Officer and Director of Food and Nutrition for the Great Neck Union Free School District. The application must be denied for lack of jurisdiction.

Education Law § 306 (1) authorizes the Commissioner to remove “any trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer.” Under the Education Law, the term “school officer” includes any “elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system” (Education Law § 2 [13]; see Appeal of Johnston, 50 Ed Dept Rep, Decision No. 16,184). Respondent is not a “school officer” as defined by section 306, but rather a school district employee (Education Law § 2 [13]; Application of Bradshaw, 62 Ed Dept Rep, Decision No. 18,198; Application of Passer, 57 id., Decision No. 17,274; Appeal of Berman, 46 id. 64, Decision No. 15,442). As such, I have no authority to remove respondent from his position.

Moreover, to the extent petitioner requests an “audit” of the Great Neck Union Free School District, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.D. and L.D., 58 Ed Dept Rep, Decision No. 17,516; Appeal of D.C., 57 id., Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).

In light of this determination, it is unnecessary to address petitioner’s remaining contentions.

THE APPLICATION IS DENIED.

https://www.counsel.nysed.gov/Decisions/volume66/d18844

Decision No. 18,845

Application of JASMINE JAMAL for the removal of Michael Torpey as a member of the Board of Education of the Carmel Central School District.

Brian Shanahan, appellant,

County of Rockland, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-09184, (Index No. 36308/23)

Cheryl E. Chambers, J.P.

William G. Ford

Lillian Wan

James P. McCormack, JJ.

Granger & Associates LLC, New York, NY (Keith O'Donnell of counsel), for appellant.

Bolaños Labor Law LLC, Pittsford, NY (Karlee S. Bolaños and Lindsey Zullo of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for fraud and tortious interference with prospective business relationship, the plaintiff appeals from an order of the Supreme Court, Rockland County (Sherri L. Eisenpress, J.), dated June 7, 2024. The order, insofar as appealed from, granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging fraud and tortious interference with prospective business relationship and denied the plaintiff's cross-motion to change venue of the action or for recusal of the Justice presiding.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In March 2020, the plaintiff applied for a position as a criminal investigator with the Rockland County District Attorney's Office. In June 2020, the Rockland County Department of Personnel (hereinafter the Department of Personnel) informed the plaintiff that it proposed disqualifying him from an eligible list for the criminal investigator position based on the results of a background investigation of him. The plaintiff was given the opportunity to rebut the disqualification. In August 2020, the Department of Personnel rejected the plaintiff's appeal and finalized its determination that he was disqualified from the eligible list for the criminal investigator position.

Thereafter, the plaintiff commenced a proceeding pursuant to CPLR article 78 against the Department of Personnel and the Rockland County District Attorney's Office, contending that his disqualification from the eligible list violated lawful procedure under the Civil Service Law and was arbitrary and capricious. In a judgment dated September 23, 2021, the Supreme Court denied the petition and dismissed the proceeding.

In December 2023, the plaintiff commenced this action against Rockland County, the Rockland County District Attorney's Office, and the Rockland County District Attorney, both in his official capacity and his individual capacity. The complaint purported to assert, inter alia, causes of action alleging fraud and tortious interference with a prospective business relationship, predicated on allegations that the defendants targeted him for disqualification for eligibility for the criminal investigator position. Among other things, the plaintiff alleged that the Rockland County District Attorney's Office failed to disclose to the Department of Personnel a certain email received from the plaintiff's former employer, the United States Drug Enforcement Agency (hereinafter the DEA), which purportedly corroborated the plaintiff's account of his separation from employment with the DEA.

The defendants moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint as barred by the doctrine of res judicata and for failure to state a cause of action. The plaintiff opposed the defendants' motion and cross-moved to change venue of the action or for recusal of the Justice presiding over the matter.

By order dated June 7, 2024, the Supreme Court, inter alia, denied the plaintiff's cross-motion and granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging fraud and tortious interference with prospective business relationship. The court determined, among other things, that the purported causes of action alleging fraud and tortious interference with prospective business relationship were barred by the doctrine of res judicata and, moreover, that the plaintiff had failed to state a cause of action alleging fraud or tortious interference with prospective business relationship. The plaintiff appeals.

Pursuant to CPLR 3211(a)(5), a party may seek dismissal of a cause of action based upon the doctrine of res judicata (see Abakporo v Abakporo, 244 AD3d 665, 666; Sunny v Hossain, 236 AD3d 699, 699-700). "'Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding'" (Harrison DGR44, LLC v Luiso 44 Harrison, LLC, 219 AD3d 1413, 1414, quoting HSBC Bank USA, N.A. v Pantel, 179 AD3d 650, 650-651; see Matter of Josey v Goord, 9 NY3d 386, 389).

Here, contrary to the determination of the Supreme Court, the issues raised in this action were not decided and could not have been raised in the plaintiff's prior CPLR article 78 proceeding. Accepting the facts as alleged in the complaint as true (see Leon v Martinez, 84 NY2d 83, 87), the evidence on which the plaintiff relies was discovered subsequent to entry of the judgment in the prior proceeding (see Altman v Orseck, 235 AD3d 818, 819; Specialized Indus. Servs. Corp. v Carter, 68 AD3d 750, 752). Accordingly, the doctrine of res judicata does not bar litigation of the purported causes of action alleging fraud and tortious interference with prospective business relationship (see Babad v Oratz, 242 AD3d 807, 809).

However, contrary to the plaintiff's contention, the Supreme Court properly determined that the complaint failed to state causes of action alleging fraud and tortious interference with business relationship. "On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" (Granizo v Krystal Fruits & Vegetables, Inc., 238 AD3d 719, 720 [internal quotation marks omitted]; see Congregation Erech Shai Bais Yosef, Inc. v Werzberger, 242 AD3d 945, 947). "Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Franklin D. Nastasi Trust v Bloomberg, L.P., 224 AD3d 804, 808; see Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142). "[T]he court may consider affidavits submitted by the pleading party to remedy any defects in the pleading, and upon considering such an affidavit, the facts alleged therein must also be assumed to be true" (Nationwide HVAC Supply Corp. v Mosby, 244 AD3d 737, 738 [internal quotation marks omitted]; see Island Ordnance Sys., LLC v Amerimex, Inc., 224 AD3d 821, 822). "Nevertheless, conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss" (Jennings v Metropolitan Transp. Auth., 226 AD3d 662, 663 [internal quotation marks omitted]; see Epstein v Cantor, 244 AD3d 937, 939).

"The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages. A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016(b)" (Congregation Erech Shai Bais Yosef, Inc. v Werzberger, 242 AD3d at 947 [internal quotation marks omitted]; see Thomson v Watchtower Bible & Tract Socy. of N.Y., Inc., 198 AD3d 996, 997). "[A]ctual harm is an element of fraudulent inducement" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d at 144; see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559). "With regard to damages, there must be an allegation of actual pecuniary loss sustained as the direct result of the wrong, or what is known as the out-of-pocket rule" (Vice, Inc. v Stapp, 209 AD3d 794, 796 [internal quotation marks omitted]; see Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d at 142). "Damages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained" (Vice, Inc. v Stapp, 209 AD3d at 796 [internal quotation marks omitted]; see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421). Here, the plaintiff failed to allege that he suffered actual pecuniary loss as a direct result of the defendants' alleged wrongs and also failed to allege his justifiable reliance upon the defendants' purported misrepresentations.

"A plaintiff seeking damages for tortious interference with prospective business relations must allege (1) that it had a [prospective] business relationship with a third party; (2) that the defendant knew of that [prospective] relationship and intentionally interfered with it; (3) that the defendant acted solely out of malice or used improper or illegal means that amounted to a crime or independent tort; and (4) that the defendant's interference caused injury to the [prospective] relationship with the third party" (Looks Great Servs., Inc. v Roosevelt, 239 AD3d 627, 629 [internal quotation marks omitted]; see Hersh v Cohen, 229 AD3d 524, 526). Here, the plaintiff did not allege that the defendants acted solely out of malice and failed to adequately allege that the defendants used improper or illegal means that amounted to a crime, independent tort, or other egregious wrongdoing (see Lynch Dev. Assoc., Inc. v Johnson, 219 AD3d 1328, 1330; Law Offs. of Ira H. Leibowitz v Landmark Ventures, Inc., 131 AD3d 583, 586). The complaint also failed to adequately plead that the plaintiff would have been hired as a criminal investigator but for the defendants' allegedly wrongful actions (see Sternberg v Wiederman, 225 AD3d 820, 822; Murphy v City of New York, 59 AD3d 301).

The foregoing determinations render academic the plaintiff's contentions that the Supreme Court erred in denying his cross-motion to change venue of the action or for recusal of the Justice presiding over the matter (see Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 187 AD3d 1437, 1440-1441; cf. Hall v Nassau County, 248 AD3d 35).

CHAMBERS, J.P., FORD, WAN and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

https://www.counsel.nysed.gov/Decisions/volume66/d18845

Application of MICHAEL TORPEY for the removal of Nicholas Magliano as a member of the Board of Education of the Carmel Central School District.

Decision No. 18,846

(September 10, 2026)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Daniel Petigrow and Kimberly A. Abrahall Esqs., of counsel

ROSA., Commissioner.--Petitioner seeks the removal of board member trustee Nicholas Magliano (“respondent”) from the Board of Education of the Carmel Central School District (“board”). The application must be denied as untimely.

An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). The 30-day timeframe also applies to a removal application pursuant to Education Law § 306 (8 NYCRR 277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).

The event of which petitioner complains—respondent’s alleged attempts to coerce him into resigning—occurred during a November 18, 2025 meeting of the board. According to petitioner’s affidavit of service, the petition was served on December 26, 2025, 38 days thereafter. Petitioner did not, as required, set forth good cause for the delay in the petition (8 NYCRR 275.16). As such, the application must be denied as untimely (Application of L.T., 65 Ed Dept Rep, Decision No. 18,679; Appeal and Application of Moss, 60 id., Decision No. 17,955).[1]

Additionally, respondent requests a certificate of good faith pursuant to Education Law § 3811 (1). Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent's powers or the performance of the respondent’s duties as a board member or other official listed in section 3811 (1). The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594). Since the application has been dismissed on procedural grounds without any findings on the merits, I hereby certify that respondent is entitled to the requested certification (e.g. Application of Karimi, 63 Ed Dept Rep, Decision No. 18,345; Appeal and Application of Petrocelli, 62 id., Decision No. 18,223).

In light of this determination, I need not address the parties’ remaining contentions.

THE APPLICATION IS DENIED.

https://www.counsel.nysed.gov/Decisions/volume66/d18846

Appeal of KELLY WATERS from actions of the Board of Education of the Rush-Henrietta Central School District.

Decision No. 18,848

(September 15, 2026)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges actions taken by employees of the Board of Education of the Rush-Henrietta Central School District (“respondent” or “board”) regarding the Leary Community Parent Teacher Organization (“PTO”). The appeal must be dismissed.

At all times relevant to this appeal, petitioner served as president of the PTO. She alleges that the principal of Leary Elementary, a teacher, and the superintendent engaged in “unchecked administrative misconduct” between March and May 2025 by: (1) excluding PTO members from “meetings with school district employees” from March 2025 onward; (2) deleting April 10 and May 8, 2025 posts on the “Leary Community PTO Facebook page”; and (3) revoking petitioner’s administrator privileges to edit said page.[1] For relief, petitioner requests an investigation into the conduct of certain district employees; the creation and implementation of new policies and procedures between parents and the board; and the imposition of “appropriate disciplinary … action” against unidentified individuals “whose actions … undermined trust or fairness in our schools.”

Respondent contends that the appeal must be dismissed, among other grounds, for lack of jurisdiction over the PTO and employee discipline.

First, to the extent petitioner seeks relief involving the PTO, the appeal must be dismissed for lack of jurisdiction. Education Law § 310, in relevant part, provides that “[a]ny party ... aggrieved may appeal ... any ... official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools” (Education Law § 310 [7]). Courts have interpreted this broad grant of authority to encompass only “controversies within the common school system” (Matter of Bowen v Allen, 17 AD2d 12, 15 [3d Dept 1962], affd 13 NY2d 663 [1963]; see Matter of Bd. of Educ. of City School Dist. of City of Rome v Ambach, 118 AD2d 932, 934 [3d Dept 1986] [noting that “the statute deals throughout with the common schools”]). The “common school system” refers to the state’s public elementary and secondary schools, over which the Commissioner has long exercised supervisory powers (Appeal of K.M., 61 Ed Dept Rep, Decision No. 18,063; Appeal of Interfaith Medical Center, 27 id. 405, Decision No. 11,991). Therefore, any sought relief pertaining to the PTO, which respondent identifies as a not-for-profit organization, must therefore be dismissed.

Similarly, “employee discipline is within respondent’s exclusive jurisdiction and is generally subject to procedures established in statute or in applicable collective bargaining agreements and/or employment contracts” (Appeal of X.R.O., 60 Ed Dept Rep, Decision No. 17,904; see Education Law §§ 1709 (16) and (33), 3020, 3020-a; Civil Service Law § 75). Therefore, I lack jurisdiction to impose discipline on respondent’s employees.

Additionally, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).

Turning to the merits, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner has not met her burden of proof. First, petitioner does not identify the “meetings with school district employees” from which PTO members were allegedly excluded. Without further information, I am unable to determine whether PTO members were permitted or required to attend such meetings. Second, petitioner has not shown any error in connection with the deletion of two posts on a Leary Community PTO social media page. The principal of Leary Elementary asserts that other members of the PTO, including an elementary teacher in the school, authorized the removal of the two social media posts at issue herein. The principal further indicates that she recommended that a PTO member delete a May 8, 2025, post by petitioner because it detailed “tension between Leary PTO Board members” and “cited individuals’ names.” As such, the principal concluded that the post “did not benefit Leary Elementary students and families.” Petitioner has not submitted a reply or otherwise explained why this determination was unreasonable. Finally, the principal indicates that petitioner’s administrator privileges “were revoked” on May 8, 2025 because she resigned her position as PTO president a day earlier. Petitioner presents no information to the contrary.[2]

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

https://www.counsel.nysed.gov/Decisions/volume66/d18848

Application of ANTHONY FITZPATRICK for the removal of DR. PAUL J. PADALINO as superintendent of the Board of Education of the City School District of the City of Kingston.

Application of ANTHONY FITZPATRICK for the removal of MARIE ANDERSON as board president and trustee of the Board of Education of the City School District of the City of Kingston.

Decision No. 18,850

(September 15, 2026)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

ROSA., Commissioner.--In two separate applications, petitioner seeks the removal of Dr. Paul J. Padalino as superintendent (“respondent Padalino”) and Marie Anderson as board president and trustee (“respondent Anderson”; collectively, “respondents”) of the Board of Education of the City School District of the City of Kingston (“board”). Because the applications present similar issues of fact and law, they are consolidated for decision (8 NYCRR 275.18). The applications must be denied.

Petitioner was elected to the board in May 2024. In May 2025, the board approved an item appointing an attorney (“attorney A”) to serve as an impartial hearing officer in hearings arising under Section 504 of the Rehabilitation Act of 1973 (“Section 504”).

In June 2025, respondent Padalino filed a workplace violence complaint against petitioner. Soon thereafter, the board appointed attorney A to investigate the complaint.

In August 2025, attorney A concluded that petitioner had not committed an act of workplace violence. Thereafter, petitioner searched board records “to review any other investigative reports” created by attorney A. Petitioner discovered a report from 2016, which he emailed to several elected and appointed officials on November 12, 2025.

In December 2025, the board engaged an outside law firm to consider removal proceedings against petitioner.

By email dated January 5, 2026, petitioner proposed a motion for an upcoming board meeting regarding an “independent ethics review and investigative audit” in connection with the appointment of attorney A. Respondent Anderson declined to add the motion as “[i]t was received after the agenda setting meeting.” She indicated, however, that the motion could “be added to our next meeting.” On January 7, 2026, respondent resigned his position on the board. These applications ensued. Petitioner’s request for interim relief was denied on February 27, 2026.

Petitioner contends that attorney A’s service as an investigator and hearing officer presents a conflict of interest as she previously represented the district. Petitioner further complains that attorney A was hired at a rate that exceeds state regulations. Petitioner additionally argues that respondents “manufactured” a claim of workplace violence “to silence” him. Finally, petitioner alleges that the board retaliated against his advocacy by engaging an outside law firm to consider removal proceedings against him. For relief, petitioner seeks respondents’ removal.

Respondents argue that the applications must be dismissed as untimely. On the merits, respondents deny that they engaged in misconduct warranting their removal from office.

Initially, I must address two procedural matters. First, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed petitioner’s replies, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Second, petitioner’s memoranda of law are untimely. I do not find that petitioner’s explanations—“overlapping and compounding deadlines” and “procedural complexity”— constitute good cause for the delay (8 NYCRR 276.4 [a]). Moreover, petitioner has not “demonstrat[ed] the necessity of such memoranda to a determination of the appeal” (id.). Therefore, I have not considered petitioners’ memoranda of law.

The applications must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). The 30-day timeframe applies to removal applications pursuant to Education Law § 306 (8 NYCRR 277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).

Petitioner commenced these applications on February 6 and 18, 2026, respectively. Petitioner did not, as required, set forth good cause for the delay in either petition (see 8 NYCRR 275.16). While petitioner asserts in the first application that the petition is “timely with respect to [his] constructive discharge,” he has not alleged any facts to suggest that his resignation was anything but voluntary. Additionally, petitioner has neither alleged nor proven that any of the acts of which he complains constitute a continuing wrong (see Appeal of Saracino, 65 Ed Dept Rep, Decision No. 18,747; Appeal of Bello, 65 id., Decision No. 18,699; Application of Nanna, 64 id., Decision No. 18,523).[1] Therefore, the applications must be dismissed as untimely.

In light of this determination, I need not address the parties’ remaining contentions. For the benefit of the parties, I note that the State Education Department does not regulate the rate of compensation for Section 504 hearing officers; the $100 per hour limitation, established by the Division of the Budget, is only applicable to impartial due process hearings under the Individuals with Disabilities Education Act (see 8 NYCRR 200.21 [a]).

THE APPLICATIONS ARE DENIED.

https://www.counsel.nysed.gov/Decisions/volume66/d18850

Decision No. 18,851

Appeal of ABDUL, ISHRA, and HAYYAN RAZZAQ on behalf of their children, from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding a school district boundary.

Decision No. 18,851

(September 15, 2026)

Guercio & Guercio, LLP, attorneys for respondent, Maria G. Casamassa, Esq., of counsel

ROSA., Commissioner.--Petitioners Ishra and Hayyan Razzaq (“petitioners”) appeal from the refusal of the Board of Education of the Plainview-Old Bethpage Central School District (“respondent” or “Plainview”) to consent to a school district boundary alteration. Petitioners also join the owner of the property, Adbul Razzaq, in connection therewith. The appeal must be dismissed.

Petitioners and their two children reside on a parcel in Plainview, New York (the “property”) located within the Bethpage Union Free School District (“Bethpage”). By letter dated March 24, 2026, petitioners requested that respondent alter the district’s boundary line to include their property as it was “in immediate proximity to the boundary” between respondent’s district and Bethpage. By letter dated March 27, 2026, respondent indicated that it could not honor this request because it lacked legal authority to unilaterally alter district boundaries. This appeal ensued.

Petitioners contend that respondent’s denial of their request to change the school district boundary map was arbitrary and capricious because the current map is “fragmented and inconsistent.”[1] Petitioners further assert that respondent has used its discretion to grant similar requests in the past. Petitioners also argue that it would be more convenient for their children to attend Plainview with their neighbors. Petitioners seek a determination that their children are entitled to attend respondent’s schools without payment of tuition.

Respondent argues that the petition should be dismissed, among other grounds, for failure to join a necessary party and because the appeal is not ripe for review. On the merits, respondent argues that petitioners failed to meet their burden of demonstrating a clear legal right to the relief requested.

First, I must address a procedural issue. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed for failure to join Bethpage, a necessary party. A person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such. Joinder requires that a party be clearly named in the caption of the appeal and served with a copy of the notice of petition and petition (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

Petitioners request that I “annul” respondent’s determination and “[d]irect that [p]etitioners’ residence … be recognized as eligible for attendance” within respondent’s district on a “tuition-free” basis. The only method by which this could be accomplished would be through alteration of the boundary line. If the property were removed from Bethpage’s tax rolls, Bethpage would no longer obtain tax revenue therefrom. As such, I find that Bethpage is a necessary party as its rights would be adversely affected by a determination in petitioners’ favor (Appeal of Skiff, 57 Ed Dept Rep, Decision No. 17,191; Appeal of Cole, 57 id., Decision No. 17,186; Appeal of Manes, 46 id. 459, Decision No. 15,551).

For the benefit of the parties, I note that petitioners have not proven that respondent’s refusal to consent to a boundary line change was arbitrary, capricious, or contrary to the educational interests of the students involved (Appeal of Berquist and Rockman, 62 Ed Dept Rep, Decision No. 18,228; Appeal of Bearup, 30 id. 340, Decision No. 12,488; Appeals of Salerni and the Bd. of Educ. of the Saratoga Springs Enlarged City School Dist., 27 id. 393, Decision No. 11,987, affd 152 AD2d 241 [3d Dept 1989]; see especially Matter of McCord, 19 Ed Dept Rep 509, Decision No. 10,230 [allegations of “outdated” and “geographically and socially unsupportable” boundary line coupled with single family’s preference for one district over another deemed insufficient to establish entitlement to boundary alteration]).

In light of this disposition, it is unnecessary to address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

[1] Petitioners do not contest the accuracy of the boundary line, the location of which may be reviewed by a District Superintendent (Education Law § 2215 [1]; see Appeal of Abitabilo, 61 Ed Dept Rep, Decision No. 18,117).

https://www.counsel.nysed.gov/Decisions/volume66/d18851

In the Matter of Robert Reid, Petitioner,

Colleen C. Gardner, as Executive Deputy Comptroller, Respondent.

Decided and Entered:September 17, 2026

CV-25-0121

Calendar Date: September 8, 2026

Before: Pritzker, J.P., Ceresia, Powers, Corcoran And Ryba, JJ.

John F. Clennan, Ronkonkoma, for petitioner.

Letitia James, Attorney General, New York City (Kevin C. Hu of counsel), for respondent.

Ceresia, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's applications for performance of duty and accidental disability retirement benefits.

Petitioner, a former police officer employed by the Village of Hempstead Police Department in Nassau County, filed applications for performance of duty and accidental disability retirement benefits in October 2017, citing that he was permanently disabled as a result of multiple strokes, open heart surgery and pain in his back, right knee, right hip and left shoulder. Petitioner listed an on-duty car accident that occurred on September 20, 2014 as the reason for his claimed disability. He filed another performance of duty application — this one based upon the statutory "heart presumption" (see Retirement and Social Security Law § 363-a) — on the same day. In that application, petitioner noted that he was permanently disabled because of "heart, multiple strokes, [and] open heart surgery," but he failed to list the date or description of incidents which he claimed led to those disabilities. Petitioner's heart presumption application was denied for failure to file notice of the incident as required by Retirement and Social Security Law § 363-c (e). His performance of duty and accidental disability applications were both denied for failure to prove that he was permanently incapacitated from the performance of his duties. Following a hearing for redetermination on the applications, the Hearing Officer upheld all three denials. Respondent then affirmed the Hearing Officer's decision, and petitioner commenced this CPLR article 78 proceeding.

We confirm. "In connection with any application for accidental or performance of duty disability retirement benefits, the applicant bears the burden of proving that he or she is permanently incapacitated from the performance of his or her job duties" (Matter of Hannon v DiNapoli, 226 AD3d 1122, 1123 [3d Dept 2024] [internal quotation marks and citations omitted]; see Matter of Merante v DiNapoli, 246 AD3d 1191, 1192 [3d Dept 2026]). Petitioner testified on his own behalf, indicating that following an on-duty car accident he missed work for a month before returning to "light duty working on the desk." According to petitioner, light duty consisted of working from a desk at police headquarters — accepting complaints, assisting with radio dispatch and doing anything else that is required within the building. He maintained that light duty position until he stopped working altogether almost two years later. Petitioner described how the pain levels in his back prevented him from being able to stand or sit for any extended period of time and prevented him from walking without feeling pain. Following a series of strokes, petitioner started experiencing psychological symptoms as well, including depression, anxiety and feelings of inadequacy.

In contrast to petitioner's testimony, Tal Mednick, a neurologist, testified that after she performed a neurological evaluation of petitioner, she concluded that petitioner was exhibiting symptoms consistent with someone who had suffered a stroke, including right-sided weakness, decreased sensations and diminished motor function, but that he was not permanently incapacitated from performing his light duty work assignment. In addition to Mednick's testimony and report, petitioner's medical records indicated that he was also examined by an orthopedic surgeon who determined that petitioner had "no orthopedic disability" and was "capable of maintaining full employment without restrictions." Following his open heart surgery, a cardiologist also cleared petitioner for "all activities including competitive sports without restriction."

Given the medical evidence presented and petitioner's failure to provide any medical proof to the contrary, petitioner did not prove that he is permanently incapacitated from performing his light duty work and respondent's determination to that effect is supported by substantial evidence (see Matter of Ellrodt v DiNapoli, 169 AD3d 1128, 1129 [3d Dept 2019]; Matter of Maldari v DiNapoli, 160 AD3d 1323, 1324 [3d Dept 2018]). In view of the foregoing, we need not address his remaining argument regarding the heart presumption set forth by Retirement and Social Security Law § 363-a (see Matter of Pellittiere v New York State & Local Police & Fire Retirement Sys., 121 AD3d 1143, 1144-1145 [3d Dept 2014]).

Pritzker, J.P., Powers, Corcoran and Ryba, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_05356.shtml

N.B. As no Internet links were provided to access Decisions of the Commissioner 18,853., NYPPL is posting the Commissioner's decision in its entirety.

Decision No. 18,853

Appeal of Vincent SquItieri from action of the Board of Trustees of the Peninsula Public Library regarding board practices.

Appeal of ARIEL DAHAN from action of the Board of Trustees of the Finkelstein Memorial Library regarding an election.[1]

Decision No. 18,853

(September 22, 2026)

Volz & Vigliotta, PLLC, attorneys for respondent Peninsula Public Library, Tyleana K. Venable, Esq., of counsel

Law Office of Stephanie Adams, PLLC, attorneys for respondent Finkelstein

Memorial Library, Stephanie A. Adams, Esq., of counsel

ROSA., Commissioner.--Petitioner Vincent Squitieri appeals from a decision by the Board of Trustees of the Peninsula Public Library (“Peninsula”) to modify its bylaws to permit appointees to serve the duration of unexpired terms. In a separate appeal, petitioner Ariel Dahan appeals from a decision by the Board of Trustees of the Finkelstein Memorial Library (“Finkelstein”; collectively, “respondents”) to fill a trustee vacancy for the remainder of an unexpired term. Because the appeals present an identical legal issue, they are consolidated for decision (8 NYCRR 275.18). The appeals must be sustained.

Prior to the events described herein, Peninsula’s provisional charter permitted the filling of trustee vacancies for the remainder of an unexpired term, while its bylaws permitted Peninsula to fill vacancies only until the next annual election. On March 12, 2026, Peninsula amended its bylaws to state: “[i]n cases of a vacancy in the office of trustee arising other than by expiration of an incumbent [t]rustee’s term of office, such vacancy shall by filled in accordance with the Library Charter for the balance of the unexpired term by vote of the remaining trustees.” That same day, a trustee resigned and Peninsula appointed a current trustee, whose term was set to expire on June 30, 2026, to carry out the remainder of the vacated seat, which is set to expire on June 30, 2029.

Petitioner Dahan is a resident of the East Ramapo Central School District, the area served by the Finkelstein Memorial Library. He was also a candidate in Finkelstein’s May 2026 library election. On January 29, 2026, a trustee resigned from Finkelstein’s board. Thereafter, on March 17, 2026, the board appointed Oluwaseyi Banjo to fill the vacant seat for the remainder of the term. On April 21, 2026, the library’s personnel officer informed petitioner Dahan that the trustee seat held by Ms. Banjo would not be placed on the May 12, 2026 ballot. These appeals ensued. Petitioners’ requests for interim relief were denied.

Petitioners argue that respondents’ actions violate Education Law § 226 (4), which permits the appointment of trustees to open positions only until the next regularly scheduled election. For relief, petitioner Squitieri seeks orders invalidating Peninsula’s bylaw amendment and directing it to place any trustee vacancies on the ballot at the next library election. Petitioner Dahan seeks, in addition to relief concerning the May 2026 election, an order limiting Ms. Banjo’s term until the next library election.

Peninsula argues that petitioner Squitieri’s appeal should be dismissed for improper service, as untimely, and for failure to join necessary parties. On the merits, respondents contend that the introductory language of Education Law § 226 permits libraries to fill vacancies for the remainder of a trustee’s unexpired term.

Initially, I must address Peninsula’s procedural challenges. First, I decline to dismiss the appeal for improper service. Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. Respondent has the burden of proof to establish any affirmative defenses (8 NYCRR 275.12 [a]; see generally Appeal of Kenton, 54 Ed Dept Rep, Decision No. 16,649; Application of Simmons, 53 id., Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636). Here, respondent alleges that petitioner Squitieri “did not effect personal service on the Library Board of Trustees” by serving the district clerk of the Lawrence Union Free School District. Given the close legal relationship between school district public libraries and the school districts with which they are affiliated,[2] I find that Peninsula appropriately received notice of this appeal through service on the district clerk.[3] Thus, Peninsula has not met its burden of proving improper service of the petition (see Appeal of T.V. and J.V., 62 Ed Dept Rep, Decision No. 18,265; Appeal of T.R., 59 id., Decision No. 17,794; Appeal of D.C., 59 id., Decision No. 17,725).

Second, an appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). Contrary to Peninsula’s contention, petitioner Squitieri’s challenge to its March 12, 2026 bylaw amendment is timely as he filed his appeal within 30 days thereof.

Third, I decline to dismiss the appeal against Peninsula for failure to join necessary parties. As indicated above, petitioner Squitieri challenges Peninsula’s March 2026 amendment to its bylaws. For relief, he seeks annulment thereof—but not the removal of any trustees. Therefore, I find that the board is the only appropriate respondent with respect to this claim.[4]

Education Law § 226 concerns the powers that may be exercised by the trustees of educational institutions. Its introductory language contains a general disclaimer that such powers may be exercised “unless otherwise provided by law or by … charter ….” Subdivision four addresses the power at issue here, indicating that trustees may “[f]ill any vacancy occurring in the office of any trustee by electing another for the unexpired term.” This is immediately followed by language added by Chapter 384 of the Laws of 1965 (“Chapter 384”), which states: “provided, however, that where trustees are elected by the legal voters the person so appointed to fill any such vacancy shall hold office until the next annual election of trustees.”

As indicated in the Assembly’s memorandum of support, the intention of Chapter 384 was to prohibit the existing practice of allowing public libraries to “appoint []” individuals “… for the balance of [an] unexpired term.” The memorandum explains that

many Boards of Trustees of local libraries have chosen to have their members elected by the voters of the district rather than chosen by the members of the board with the board retaining the power to fill vacancies …. It is inconsistent to have the voters of a district elect members to the board and still have the board retain the power to fill a vacancy for the balance of an unexpired term ….

Thus, the Assembly intended to ensure that these elective offices were held by people who were elected.

Given this, I find that the later-enacted language of Education Law § 226 (4) applies rather than the general disclaimer in the statute’s introduction (Appeal of P.B., 63 Ed Dept Rep, Decision No. 18,401 [“a more general statute generally must yield to a more specific statute”]). This is consistent with the manner in which school board vacancies are filled (see e.g. Appeal of Rausch, 41 Ed Dept Rep 351, Decision No. 14,710; see generally Education Law § 260 [trustees of school district public libraries “shall be elected by the legal voters in the same manner as trustees are elected in the school district which established said library”]; Appeal of Crawford, 60 Ed Dept Rep, Decision No. 17,959 [observing that both Education Law §§ 226 [4] and 1709 [7] “prescribe that a vacancy arises on a board where a member is removed from office and that a board may appoint a person to fill such vacancy only until the next election”]).

As the Attorney General observed in a memorandum of no objection, the Legislature could have “more appropriately” accomplished the goal of Chapter 384 by amending section 260 of the Education Law concerning the trustees of public libraries. But “[t]he primary consideration … in the construction of statutes is to ascertain and give effect to the intention of the Legislature” (McKinney’s Statutes § 92; see also id. at § 95). Given the unambiguous intention of Chapter 384, I decline to adopt respondents’ interpretation thereof, which would render its enactment an exercise in futility.[5]

Thus, I find that petitioners have met their burden of showing that respondents’ actions violated State law and, therefore, were arbitrary and capricious. As a remedy, I will direct respondents to place all trustee positions occupied by appointees who are not scheduled to participate in the next annual election of trustees on the ballot in May 2027. Any appointed trustees may continue to serve on, and shall be considered valid members of, their respective boards until that time.

In light of this determination, I need not address the parties’ remaining contentions, including the applicability of Article XIII of the New York Constitution.

THE APPEALS ARE SUSTAINED.

IT IS ORDERED that Peninsula’s March 12, 2026 amendment to its bylaws is annulled; and

IT IS FURTHER ORDERED that respondents modify their charters in conformity with this decision within 60 days; and

IT IS FURTHER ORDERED that respondents place all trustee positions occupied by appointees who are not scheduled to participate in the next annual election of trustees on their respective ballots at the May 2027 election.

END OF FILE

[1] To the extent petitioner Dahan also names the Finkelstein Memorial Library as a respondent, “there is no [legal] difference between the entities” for purposes of this appeal (Appeal of Bello, 65 Ed Dept Rep, Decision No. 18,699).

[2] See New York State Public Library, “Public and Association Libraries: A Comparison,” https://nysl.nysed.gov/sites/default/files/libdev/libs/pltypes.pdf (last accessed Sept. 17, 2026).

[3] In this respect, I take judicial notice that Peninsula’s charter, a record on file with the State Education Department, does not identify an agent for service of process (8 NYCRR 276.6).

[4] In any event, Peninsula would be bound by my interpretation of Education Law § 226 (4), a statute that the State Education Department is tasked with administering.

[5] The opinion of the Comptroller cited by Peninsula, Opinion 90-5, is inapposite as it concerns the process by which public library trustees may increase the size of their boards.

In the Matter of George Lorenz, Petitioner,

Thomas P. DiNapoli, as State Comptroller, Respondent.

Decided and Entered:September 17, 2026

CV-25-1578

Calendar Date: September 9, 2026

Before: Garry, P.J., Aarons, Pritzker, Mcshan And Mackey, JJ.

The Tuttle Law Firm, Clifton Park (James B. Tuttle of counsel), for petitioner.

Letitia James, Attorney General, Albany (Frederick A. Brodie of counsel), for respondent.

Mackey, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for World Trade Center accidental disability retirement benefits.

Petitioner, a former police officer for the Port Authority of New York and New Jersey, participated in search and rescue operations at the World Trade Center (hereinafter WTC) site between September 2001 and May 2002. In October 2002, petitioner was promoted to sergeant and served in that capacity until he took service retirement in January 2010. In April 2021, petitioner filed an application for World Trade Center accidental disability retirement benefits, citing posttraumatic stress disorder (hereinafter PTSD). The New York State and Local Police and Fire Retirement System denied the application upon the ground that petitioner was not permanently incapacitated from performing his duties as a police officer. Petitioner requested a hearing and redetermination of his application. At the hearing, the Retirement System conceded that petitioner's PTSD was causally related to his work at the WTC site, leaving only the issue as to whether petitioner was permanently disabled from performing his job duties due to his condition. Following the hearing, the Hearing Officer upheld the denial of the application, and respondent adopted that decision. This CPLR article 78 proceeding ensued.

Given the Retirement System's concession as to causation, "the sole issue before us is whether petitioner met his burden of proving that his medical condition[ ] rendered him permanently incapacitated from the performance of his job duties" (Matter of Mercurio v DiNapoli, 243 AD3d 1084, 1085 [3d Dept 2025] [internal quotation marks, ellipsis and citations omitted]; see Matter of Diesel v DiNapoli, 185 AD3d 1135, 1136 [3d Dept 2020]). "Respondent is vested with the authority to resolve conflicting medical evidence in that regard and to credit one expert's opinion over another, and his determination will be sustained if supported by substantial evidence" (Matter of Hannon v DiNapoli, 226 AD3d 1122, 1123 [3d Dept 2024] [internal quotation marks, brackets and citations omitted]; see Matter of Merante v DiNapoli, 246 AD3d 1191, 1192 [3d Dept 2026]).

Margaret Mortensen, petitioner's psychologist, who began treating him in November 2020, diagnosed him with chronic PTSD and opined that, due to this condition, he is unable to perform his duties as a police officer due to difficulty in making decisions in situations involving human conflict and unexpected events. Mortensen also referenced petitioner suffering from agoraphobia, that he suffers panic attacks brought on by certain triggers, including being in crowds, loud noises, driving and pictures of New York City, as well as moments when petitioner "blanks out," during which petitioner would not be able to function as a police officer. According to Mortensen, these panic attacks were occurring several times a week but that therapy and medication have helped reduce them to once a week. Mortensen did not provide any treatment records or notes from her sessions with petitioner in support of her opinion.

William Cox, the psychiatrist who examined petitioner and reviewed his medical records on behalf of the Retirement System, also diagnosed petitioner with chronic PTSD resulting from his participation in the WTC search and rescue operations. According to Cox, however, the presence of a PTSD diagnosis "does not automatically translate to a disability" and people may still function with that condition. Cox explained that the fact that petitioner stated that his PTSD symptoms started almost immediately after his participation at the WTC site, and he continued to work for several years without any indication that his symptoms were interfering with his ability to perform his job duties, reflect that he was functioning as a police officer with his condition. Although Cox noted that it was difficult to evaluate petitioner's current ability to perform his job duties due to the significant length of time between when he retired and when he applied for WTC accidental disability retirement benefits and how changes regarding his general health during that time may have materially affected "the trajectory of [petitioner's] PTSD," he maintained that there was "no psychiatric contraindication" preventing petitioner from resuming his job duties at the time he applied for benefits (see Retirement and Social Security Law § 363 [a]; Matter of Mercurio v DiNapoli, 243 AD3d at 1085).FN1 In our view, although there was medical evidence that could support a contrary conclusion, Cox's rational opinion based upon an examination of petitioner and a review of his medical records provides substantial evidence supporting respondent's determination that petitioner did not meet his burden of establishing that he was permanently incapacitated from his job duties due to his medical condition (see Matter of Kennedy v DiNapoli, 175 AD3d 1638, 1639-1640 [3d Dept 2019]; Matter of Del Peschio v DiNapoli, 139 AD3d 1298, 1300 [3d Dept 2016]). Accordingly, the determination is confirmed. Petitioner's remaining contentions have been considered and found to be without merit.

Garry, P.J., Aarons, Pritzker and McShan, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

Footnotes

Footnote 1

Contrary to petitioner's contention, the fact that he continued working for several years after the manifestation of his PTSD symptoms was relevant when considering whether he was permanently incapacitated from performing his job duties at the time he filed his benefits application (see e.g. Matter of Walsh v New York State & Local Empls. Retirement Sys., 176 AD3d 1430, 1432 [3d Dept 2019]).

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_05360.shtml

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Reopening of Appeal to the New York State Commissioner of Education earlier issued

Decision No. 18,749

(May 12, 2026)

Ingerman Smith, LLP, attorneys for respondent, Neil M. Block, Esq., of counsel

ROSA., Commissioner.--Petitioner seeks to reopen Appeal of Moss (65 Ed Dept Rep, Decision No. C), which dismissed his appeal from a determination of the Board of Education of the Brentwood Union Free School District (“respondent”) regarding an administrative position. The application must be denied.

Section 276.8 of the Commissioner’s regulations governs reopening a prior decision of the Commissioner and provides that applications to reopen are addressed solely to the discretion of the Commissioner. The Commissioner will not grant an application to reopen absent a showing that: (1) the original decision was rendered under a misapprehension as to the facts or (2) there is new and material evidence that was not available at the time the original decision was made (8 NYCRR 276.8 [a]). An application to reopen may not augment previously undeveloped factual assertions and arguments, advance new legal arguments, or merely reargue issues presented in the prior appeal (Application to reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314; Application to reopen the Appeal of Lanzilotta, 48 id. 450, Decision No. 15,911).

Petitioner has not met the standard for reopening. The underlying appeal was dismissed as premature since, at the time it was commenced, petitioner remained an eligible candidate for an open position. Petitioner has neither presented evidence that this conclusion rested upon a “misapprehension of fact[]” nor produced “new and material evidence” that would support a different outcome (Application to reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314). Instead, it appears that petitioner seeks to challenge respondent’s subsequent selection of a different candidate for the position in question. Any challenge to this “discrete act,” however, “would have to be the subject of a new appeal under Education Law § 310” (Application to reopen the Appeal of Rickson, 63 Ed Dept Rep, Decision No. 18,358). Therefore, petitioner has not established grounds to reopen Appeal of Moss (65 Ed Dept Rep, Decision No. 18,682) in accordance with the standard set forth in 8 NYCRR 276.8 (Application to reopen the Appeal of T.J., 65 Ed Dept Rep, Decision No. 18,642; Application to reopen the Appeal of Maloney, 33 id. 391, Decision No. 13,089).

https://www.counsel.nysed.gov/Decisions/volume65/d18749

Decision No. 18,750

Appeal of JAMES ASHBY from action of the Board of Education of the Penfield Central School District regarding access to school property.

Decision No. 18,750

(May 13, 2026)

LaDuca Law Firm LLP, attorneys for petitioner, Anthony J. LaDuca, Esq., of counsel

Bond, Schoeneck & King PLLC, attorneys for respondent, Sara E. Colacino, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from a determination of the Board of Education of the Penfield Central School District (“respondent”) concerning, among other things, conditions upon his access to school property. The appeal must be dismissed.

Petitioner’s children (the “students”) are enrolled in respondent’s schools; he is also the administrator for a “social media advocacy page” concerning respondent’s district. By letter dated November 11, 2025, respondent’s superintendent informed petitioner that he would be banned from all district property and that any emails sent to district staff would be blocked through June 30, 2026. This appeal ensued.

Petitioner argues that respondent’s limitations on his access to school property are arbitrary and capricious because his conduct was neither disruptive nor abusive. Petitioner also argues that these restrictions are retaliatory and violate his First Amendment and due process rights. For relief, petitioner seeks annulment of respondent’s restrictions, a directive requiring respondent to remove “all references” to petitioner’s “alleged misconduct” from its records, and an order directing respondent to “cease [its] retaliatory actions” toward him and the students.

Respondent contends that petitioner violated its code of conduct and, further, that its temporary restrictions were necessary given petitioner’s aggressive and inappropriate conduct.

The appeal must be dismissed based upon an election of remedies. I take notice of a lawsuit petitioner filed in Supreme Court, Monroe County, on March 10, 2026, against respondent concerning the same issues and seeking similar relief. That action remains pending. Under these circumstances, it would be contrary to the orderly administration of justice for the Commissioner to decide claims that petitioner has elected to raise in court, particularly where that proceeding seeks the same or similar relief (see Appeal of Moss, 65 Ed Dept Rep, Decision No. 18,649; Appeal of M.F., 61 id., Decision No. 18,122; Appeal of Chen, 60 id., Decision No. 17,914; Appeal of Minaya, 60 id., Decision No. 17,879; Appeal of Moriarty, 57 id., Decision No. 17,265).

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

https://www.counsel.nysed.gov/Decisions/volume65/d18750

May 28, 2026

Appellate Division, Third Department

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

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

Precious Cain, Respondent,

North Country Community College et al., Appellants.

Decided and Entered:May 28, 2026

CV-24-1849

Calendar Date: March 26, 2026

Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Fisher And Mcshan, JJ.

Sugarman Law Firm, LLP, Syracuse (Adam P. Carey of counsel), for North Country Community College and another, appellants.

Letitia James, Attorney General, Albany (Owen Demuth of counsel), for New York State Department of Corrections and Community Supervision and another, appellants.

Finn Law Offices, Albany (Ryan M. Finn of counsel), for respondent.

Aarons, J.P.

Supreme Court (Peter Lynch, J.), entered October 17, 2024 in Albany County, which denied a motion by defendants Department of Corrections and Community Supervision and Victoria Barber [Defendants] to dismiss the complaint, and (2) from an order of said court, entered October 23, 2024 in Albany County, which denied Defendants' motions for summary judgment dismissing the complaint and cross-claims.

Plaintiff, an African-American woman, began working for defendant North Country Community College (hereinafter NCCC) in August 2018 as an adjunct instructor, teaching one business course for the fall 2018 semester. As part of her employment, plaintiff also served as an instructor for the federally funded Second Chance Pell Program providing college-level courses to incarcerated individuals. For the spring 2019 semester, plaintiff taught two courses at NCCC and two courses at Franklin Correctional Facility (hereinafter Franklin CF). Plaintiff resigned from the Second Chance Pell Program and NCCC in July 2019 and January 2020, respectively, following a "series of incidents" which, she claimed, made her working conditions intolerable. These incidents included plaintiff's non-selection for a full-time business instructor position despite her "superior qualifications"; alleged sexual harassment by correction officers during the spring 2019 semester; a June 2019 email inquiry from defendant Victoria Barber, the deputy superintendent of Franklin CF, in which plaintiff claims she was "wrongfully accused of theft and sabotaging a co-worker's desk" after a classroom was found in "disarray"; an incident in July 2019 during which Barber denied plaintiff's entry into Franklin CF based upon plaintiff's hand tremor; a reduction in her NCCC course load from nine credits to zero and her assignment to a tutoring center; and NCCC's alleged provision of false information to the state Department of Labor, resulting in the denial of unemployment benefits during the summer of 2019.FN1

In February 2022, plaintiff commenced this action against NCCC and defendant Tara Evans,FN2 the human resources director at NCCC (hereinafter collectively referred to as the college defendants), as well as defendant Department of Corrections and Community Supervision (hereinafter DOCCS) and Barber (hereinafter collectively referred to as the state defendants), asserting causes of action for racial discrimination, gender discrimination, hostile work environment, constructive discharge and retaliation under the Human Rights Law and requesting punitive damages, among other things.FN3 The state defendants moved to dismiss the complaint, which motion Supreme Court denied. Following discovery, the state defendants and the college defendants moved, separately, for summary judgment dismissing the complaint in its entirety. Supreme Court denied the motions, concluding that "the record depicts a series of escalating events" that, taken together, could lead a reasonable jury to conclude that defendants violated the Human Rights Law. Defendants appeal.

As a threshold matter, we agree with the state defendants that Supreme Court erred in applying the present version of Executive Law § 296-d to plaintiff's claims. Though the present version expands employer liability from sexual harassment of non-employees to any "unlawful discrimination against non-employees in its workplace" (L 2019, ch 160, § 4), that expansion is applicable only to claims that accrued on or after October 11, 2019 — several months after the incidents giving rise to this action occurred (see L 2019, ch 161, § 4 [d]).

That said, Supreme Court properly denied the state defendants' motion to dismiss the complaint against them on the assertion that they were not plaintiff's employer (see CPLR 3211 [a] [7]). When determining who is an employer under the Human Rights Law, the key inquiry is "the alleged employer's power to order and control the employee in his or her performance of work" (Griffin v Sirva, Inc., 29 NY3d 174, 186 [2017] [internal quotation marks and citation omitted]). In her complaint, plaintiff asserted that she worked in DOCCS facilities, that her entry and movement in such facilities was controlled by DOCCS and that DOCCS reduced her course load in retaliation for her complaints about discrimination. Liberally construed and accepted as true, and according plaintiff the benefit of every favorable inference, the complaint sufficiently alleged facts from which to conclude that DOCCS and NCCC, together,FN4 were plaintiff's employer under the Human Rights Law, rendering dismissal of her claims inappropriate (see Cagino v Levine, 199 AD3d 1103, 1104 [3d Dept 2021] [internal quotation marks and citation omitted]; Carr v Wegmans Food Mkts., Inc., 182 AD3d 667, 669 [3d Dept 2020]; Zheng v Liberty Apparel Co. Inc., 355 F3d 61, 72 [2d Cir 2003]).

Turning to the summary judgment motions, and viewing the evidence in the light most favorable to plaintiff as nonmovant, the state defendants failed to establish entitlement to judgment as a matter of law dismissing the complaint on the ground that DOCCS was not plaintiff's employer (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Though there is no evidence that the state defendants had authority over plaintiff's hiring, compensation and other indicia of an employer-employee relationship, the evidence showed that the state defendants exercised a significant degree of control and supervision over her work. In particular, the record shows that correction officers monitored plaintiff's classroom, that the state defendants controlled her access to Franklin CF and on one occasion Barber collected the assignment plaintiff was to distribute and barred her from teaching that day. Accordingly, summary dismissal of the complaint against the state defendants on this ground was unwarranted (see generally Griffin v Sirva, Inc., 29 NY3d at 186).

We turn now to the substance of plaintiff's claims, starting with discrimination. To establish a claim for race or gender discrimination, "plaintiff must show that (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]). "To prevail on [their] summary judgment motion[s], defendant[s] must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for [their] challenged actions, the absence of a material issue of fact as to whether [their] explanations were pretextual" (White-Barnes v New York State Dept. of Corr. & Community Supervision, 214 AD3d 1230, 1231 [3d Dept 2023] [internal quotation marks and citations omitted]; see Kelderhouse v St. Cabrini Home, 259 AD2d 938, 939 [3d Dept 1999]).

None of the incidents of alleged discrimination survive defendants' motions. Initially, there is no dispute that plaintiff is a member of protected classes and that she was qualified to be an adjunct instructor. As for plaintiff's claim of gender and/or racial discrimination in the selection of a full-time business instructor, there is also no dispute that plaintiff met the minimum qualifications for that role when she submitted her application in January 2019, that plaintiff did not receive an interview and that the two open positions eventually went to two white males. Even assuming an inference of discrimination attaches to the college defendants' failure to hire her for one of those positions, Kim Irland, a member of NCCC's search committee, explained in an affidavit that, while plaintiff had the minimal qualifications, the two successful candidates had considerably more teaching experience — a desired quality listed in the job description for the full-time business instructor position. Thus, the college defendants supplied legitimate, nondiscriminatory reasons for passing over plaintiff. Plaintiff did not dispute that the successful candidates had more teaching experience, and she failed to raise a material issue of fact through her testimony that the successful candidates' materials had typing errors, included "opinion" pieces under publications or listed retail jobs under work experience (see Wozniak v Components Assembly Div., 220 AD2d 934, 935 [3d Dept 1995]).

To the extent plaintiff's intentional discrimination claim is based upon Barber's email regarding a classroom left in disarray, the email itself does not constitute an adverse employment action, which "requires a materially adverse change in the terms and conditions of employment" including "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits [or] significantly diminished material responsibilities" (Forrest v Jewish Guild for the Blind, 3 NY3dat 306 [internal quotation marks and citations omitted]; see Golston-Green v City of New York, 184 AD3d 24, 37 [2d Dept 2020]). As to the incident in which Barber refused plaintiff entry to Franklin CF, Barber denied plaintiff's allegation that she yelled at plaintiff, or accused her of alcohol use and reported said alcohol use to others as alleged by plaintiff. Instead, Barber affirmed that plaintiff was denied entry into the prison because plaintiff admitted she had not taken her medication, was nonverbal and was "visibly shaking," which Barber believed to be a safety and security issue, thereby providing a legitimate, nondiscriminatory reason for her actions (see White-Barnes v New York State Dept. of Corr. & Community Supervision, 214 AD3d at 1231). In opposition, plaintiff was required to submit proof raising an issue of fact as to whether "the stated reasons were false and that discrimination was the real reason" (Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 965 [1st Dept 2009] [internal quotation marks and citation omitted], lv denied 14 NY3d 701 [2010]). Plaintiff failed to do so, as she confirmed that she had neglected to take medication for a hand tremor she had recently developed, and her testimony that Barber's alleged accusations of alcohol intoxication were motivated by plaintiff's race, gender or both were conclusory and thus insufficient to meet her shifted burden (see Forrest v Jewish Guild for the Blind, 3 NY3d at 308 n 6; Wozniak v Components Assembly Div., 220 AD2d at 935).

Next, defendants seek summary judgment dismissing plaintiff's claims of a sexually hostile work environment and a race-based hostile work environment. To establish such claims, a plaintiff "must offer proof of a workplace permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive working environment" (Mikesh v County of Ulster, 237 AD3d 1285, 1288-1289 [3d Dept 2025] [internal quotation marks and citations omitted]). Under the existing law at the time of accrual, "[t]he acts alleged to be discriminatory must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive" (White-Barnes v New York State Dept. of Corr. & Community Supervision, 214 AD3d at 1231-1232 [internal quotation marks and citations omitted]; accord Mikesh v County of Ulster, 237 AD3d at 1289).

As to a hostile work environment due to sexual harassment, defendants met their initial summary judgment burden demonstrating that the conduct was not severe or pervasive. Plaintiff testified to "egregious" incidents by three different correction officers over a six-month period. According to plaintiff, one unnamed correction officer at Franklin CF would "take . . . every opportunity he had to be alone" with her and "tell [her] how hot [she] was." He told plaintiff that she "had to be careful around" the incarcerated individuals because "they were nasty guys," but that she "didn't have to worry because he would just . . . whip his c**k out at them." Another correction officer "would always insist on" escorting plaintiff to and from the classroom, and would "joke" that plaintiff was "really hot and you never know what might happen to . . . somebody sexy walking by themselves . . . at nighttime." A third unnamed correction officer informed plaintiff after class that the incarcerated individuals were looking at her backside while she had her back turned writing on the board, and the officer demonstrated plaintiff's movements to illustrate what the individuals saw. Although this alleged conduct was unquestionably inappropriate, these alleged incidents were insufficient as a matter of law to create an actionable sexually hostile or abusive work environment (see Vitale v Rosina Food Prods., 283 AD2d 141, 148 [4th Dept 2001]; compare Minckler v United Parcel Serv., Inc., 132 AD3d 1186, 1188-1189 [3d Dept 2015]).

Plaintiff's further testimony that DOCCS staff "routinely made sexually inappropriate comments" and that unspecified comments about her appearance began "[a]lmost as soon as she started working in the prison[s]" does not alter the analysis. In this connection, "the workplace must be both subjectively and objectively hostile. That is, a plaintiff must not only perceive that the conditions of his or her employment were altered because of discriminatory conduct, but the conduct also must have created an environment that a reasonable person would find to be hostile or abusive" (Pawson v Ross, 137 AD3d 1536, 1537 [3d Dept 2016]; see Reynolds v State of New York, 180 AD3d 1116, 1117-1118 [3d Dept 2020]). Thus, there must be evidence of discriminatory, harassing or demeaning conduct for the jury to assess; in our view, the generalizations and subjective characterizations to which plaintiff testified would not permit a jury to find that plaintiff's workplace was objectively hostile (cf. Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d 708, 712 [2d Dept 2022]).

To the extent plaintiff asserted a racially hostile work environment claim (see generally Forrest v Jewish Guild for the Blind, 3 NY3d at 310), such claim also should have been dismissed. Initially, defendants' evidence established that no employee uttered racially charged remarks or otherwise harassed or demeaned plaintiff based upon her race. Barber sent to plaintiff and others an email regarding a classroom left in disarray and inquired as to whether plaintiff had been issued keys to the classroom, why a file cabinet therein would be unlocked and whether the cabinet contained "anything confidential or of security concern." Notably, Barber did not specifically accuse plaintiff of theft, but instead directed the recipients to interview the incarcerated individuals in plaintiff's class. Further, defendants' proof demonstrated that plaintiff was sent that email because she was the last instructor to use that classroom. Even assuming that Barber's actions in sending the email and, on a different date, barring plaintiff from teaching in the facility one day were motivated by racial stereotypes, plaintiff cannot establish that such alleged discriminatory conduct was so severe or pervasive as to support a racially hostile work environment claim (see id.; Clauberg v State of New York, 95 AD3d 1385, 1388 [3d Dept 2012]).

As to the retaliation claim, defendants seeking summary judgment must either conclusively refute a plaintiff's prima facie claim that "(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action" (Forrest v Jewish Guild for the Blind, 3 NY3d at 312-313; see Matter of Clifton Park Apts., LLC v New York State Div. of Human Rights, 41 NY3d 326, 331 [2024]), or provide legitimate, non-pretextual reasons for the alleged retaliatory conduct (see Graham v New York State Off. of Mental Health, 154 AD3d 1214, 1221 [3d Dept 2017]). Protesting discrimination, whether formally or informally, constitutes protected activity (see Executive Law § 296 [7]).

Here, the record establishes, and defendants cannot seriously dispute, that plaintiff engaged in protected activity by reporting alleged racial discrimination by Barber to her supervisor at NCCC and alleged sexual harassment to a colleague who subsequently reported it to NCCC (see Albunio v City of New York, 16 NY3d 472, 479 [2011]). Viewed in the light most favorable to plaintiff, the record also shows that defendants were aware that plaintiff had voiced concern about discrimination and sexual harassment at Franklin CF, and it was only then that plaintiff began experiencing alleged retaliatory conduct. Some of that conduct — Barber's email regarding the state of the classroom assigned to plaintiff and Barber's denial of her entry to Franklin CF — did not qualify as an adverse employment consequence or came with unrebutted legitimate nondiscriminatory explanations, as discussed above. As to the reduction in plaintiff's fall 2019 course assignments and the college defendants' submission of allegedly false information to the Department of Labor in July 2019, these actions were adverse and so close in time to plaintiff's reports of discrimination and harassment as to not foreclose the possibility of a causal connection (compare Koester v New York Blood Ctr., 55 AD3d 447, 449 [1st Dept 2008]).

Defendants nevertheless established entitlement to dismissal of the retaliation claims as a matter of law through evidence of legitimate, nondiscriminatory and non-pretextual reasons for their conduct (see Graham v New York State Off. of Mental Health, 154 AD3d at 1221). Evans clarified that plaintiff's classes were cancelled due to low enrollment and that NCCC was contractually obligated to prioritize full-time faculty in the assignment of courses. The record confirms that plaintiff was aware of NCCC's policy and informed that her classes were cancelled pursuant to that policy. As to plaintiff's claim respecting her unemployment benefits application in July 2019, plaintiff informed the Department of Labor that she separated from employment for lack of work. Defendants' proof, however, established that plaintiff had been assigned to teach courses in the Second Chance program for the summer 2019 term, that plaintiff had resigned from her instructor position for the summer, and that the college defendants supplied documents to the Department of Labor so indicating. The burden thus shifted to plaintiff to submit proof raising an issue of fact as to whether defendants' proffered reasons were false and pretextual, which plaintiff failed to do (see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 741 [2d Dept 2013]; Pace v Ogden Servs. Corp., 257 AD2d 101, 104-105 [3d Dept 1999]; see also Clauberg v State of New York, 95 AD3d at 1387 [retaliatory hostile work environment]).

In light of the foregoing, plaintiff's constructive discharge claim — which requires a showing that "an employer deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign" — must be dismissed (White-Barnes v New York State Dept. of Corr. & Community Supervision, 214 AD3d at 1232 [internal quotation marks and citations omitted]). Plaintiff's aiding-and-abetting claims against the individual defendants must be dismissed as well (see Graham v New York State Off. of Mental Health, 154 AD3d at 1223). Defendants' remaining contentions are academic.FN5

Pritzker, Reynolds Fitzgerald, Fisher and McShan, JJ., concur.

ORDERED that the order entered October 17, 2024 is affirmed, without costs.

ORDERED that the order entered October 23, 2024 is reversed, without costs, and complaint dismissed.

Precious Cain, Respondent,

North Country Community College et al., Appellants.

Decided and Entered:May 28, 2026

CV-24-1849

Calendar Date: March 26, 2026

Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Fisher And Mcshan, JJ.

Sugarman Law Firm, LLP, Syracuse (Adam P. Carey of counsel), for North Country Community College and another, appellants.

Letitia James, Attorney General, Albany (Owen Demuth of counsel), for New York State Department of Corrections and Community Supervision and another, appellants.

Finn Law Offices, Albany (Ryan M. Finn of counsel), for respondent.

Aarons, J.P.

Appeals (1) from an order of the Supreme Court (Peter Lynch, J.), entered October 17, 2024 in Albany County, which denied a motion by defendants Department of Corrections and Community Supervision and Victoria Barber to dismiss the complaint, and (2) from an order of said court, entered October 23, 2024 in Albany County, which denied defendants' motions for summary judgment dismissing the complaint and cross-claims.

Pritzker, Reynolds Fitzgerald, Fisher and McShan, JJ., concur.

ORDERED that the order entered October 17, 2024 is affirmed, without costs.

ORDERED that the order entered October 23, 2024 is reversed, without costs, and complaint dismissed.

Footnote 1

The determination that plaintiff was disqualified from receiving unemployment benefits was reversed in December 2019 by the Unemployment Insurance Appeal Board.

Footnote 2

Evans is named in the action by her maiden name, Tara Smith.

Footnote 3

Plaintiff previously commenced an action in federal court, asserting violations of both state and federal law. The court dismissed the federal claims and declined to exercise supplemental jurisdiction over the state claims, leading to this action.

Footnote 4

There is no dispute that NCCC was plaintiff's employer.

Footnote 5

Although academic, we note that the college defendants would have been entitled to summary judgment on plaintiff's claim for punitive damages under the law applicable at the time of the alleged conduct (see Executive Law § 297 [former (9)]; Thoreson v Penthouse Intern., Ltd., 80 NY2d 490, 498-499 [1992]; Moccio v Fits Systems, Inc., 25 AD3d 439, 440 [1st Dept 2006]).

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_03340.shtml

Decision No. 18,749

Reopening of Appeal of William KING MOSS III from action of the Board of Education of the Brentwood Union Free School District regarding a personnel matter.

Decision No. 18,749

(May 12, 2026)

Ingerman Smith, LLP, attorneys for respondent, Neil M. Block, Esq., of counsel

ROSA., Commissioner.--Petitioner seeks to reopen Appeal of Moss (65 Ed Dept Rep, Decision No. 18,682), which dismissed his appeal from a determination of the Board of Education of the Brentwood Union Free School District (“respondent”) regarding an administrative position. The application must be denied.

Keith Lilly, Plaintiff-Respondent,

The State of New York, Defendant, Edward Gibbs, Defendant-Appellant.

Decided and Entered: May 26, 2026

Index No. 155539/24|Appeal No. 6720|Case No. 2025-01852|

Before: Manzanet-Daniels, J.P., Friedman, Kapnick, Shulman, Higgitt, JJ.

Phillips Lytle LLP, Buffalo (Craig R. Bucki of counsel), for appellant.

Bantle & Levy LLP, New York (H. David Krauss of counsel), for respondent.

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about March 26, 2025, which denied appellant's motion to dismiss the complaint, unanimously modified, on the law, to dismiss the causes of action for aiding and abetting disability discrimination in violation of the New York State Human Rights Law (the third cause of action) and aiding and abetting disability discrimination under the New York City Human Rights Law (the fifth cause of action), and otherwise affirmed, without costs.

Supreme Court correctly determined that at the prediscovery stage of the litigation, the complaint sufficiently alleges that appellant, a member of the state Assembly, is amenable to suit in Supreme Court for disability discrimination under the New York State Human Rights Law (Executive Law § 296) (the State HRL), the City Human Rights Law (Administrative Code of City of NY § 8-107) (the City HRL), and the Family and Medical Leave Act of 1993 (the FMLA) (29 USC § 2601 et seq.) (see Emengo v State of New York, 143 AD3d 508, 509 [1st Dept 2016]; see also Milord-Francois v New York State Office of the Medicaid Inspector Gen., 635 F Supp 3d 308, 324-325 [SD NY 2022]; cf. Ajoku v New York State Off. of Temporary & Disability Assistance, 198 AD3d 437, 437-438 [1st Dept 2021], lv denied 38 NY3d 908 [2022]). We decline to consider appellant's argument that he is not an "employer" under these statutes, as that argument was raised for the first time in his reply papers in Supreme Court (see Panasia Estate, Inc. v Glazer, 231 AD3d 550, 551 [1st Dept 2024]).

In addition, the complaint sufficiently alleged causes of action under the State and City HRLs, as plaintiff claimed that he suffers from diabetes, that he was hospitalized as a result of this condition in July 2023, and that he was terminated a few days after informing appellant that he would need to remain in the hospital for a while to undergo treatment for his left foot. These allegations, which link the disability with the adverse employment action, state a prima facie case of disability discrimination (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 834 [2014]). Plaintiff also adequately alleged disability discrimination under a theory of failure to accommodate under the State and City HRLs, as he alleged that he informed appellant of his need for time off and that appellant failed to engage in an interactive dialogue with him in an attempt to reach some reasonable accommodation (see Estate of Benitez v City of New York, 193 AD3d 42, 47-49 [1st Dept 2021], lv denied 37 NY3d 906 [2021]; see also D'Amico v City of New York, 159 AD3d 558, 558 [1st Dept 2018]).

Furthermore, plaintiff stated a cause of action for FMLA interference by alleging that it was immediately apparent that he would need a prolonged medical leave of absence and was terminated only a few days before he was eligible to take FMLA leave (see e.g. Shultz v Congregation Shearith Israel of the City of New York, 867 F3d 298, 307 [2d Cir 2017]; see e.g. Pereda v Brookdale Senior Living Communities, Inc., 666 F 3d 1269, 1275 [11th Cir 2012]).

However, Supreme Court should have dismissed plaintiff's causes of action for aiding and abetting violations of the State and City HRLs. Appellant is the only one alleged to have engaged in discriminatory conduct, and he may not be held liable for aiding and abetting his own violations of the State and City HRLs (see Hardwick v Auriemma, 116 AD3d 465, 468 [1st Dept 2014], lv denied 23 NY3d 908 [2014]).

Supreme Court correctly denied appellant's request to strike the allegation in the complaint that he viewed plaintiff as "damaged goods" and "callously terminate[d] [plaintiff] in the midst of [a] health crisis," as the allegation is relevant to the question of whether appellant acted with discriminatory intent when he terminated plaintiff's employment (see New York City Health & Hosps. Corp. v St. Barnabas Community Health Plan, 22 AD3d 391, 391 [1st Dept 2005]; see also Irving v Four Seasons Nursing & Rehabilitation Ctr., 121 AD3d 1046, 1048 [2d Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 26, 2026

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_03270.shtml

In the Matter of Thomas Lent, Petitioner-Appellant,

The City of New York et al., Respondents-Respondents.

Decided and Entered: May 26, 2026

Index No. 158624/24|Appeal No. 6716|Case No. 2025-02225|

Before: Manzanet-Daniels, J.P., Friedman, Kapnick, Shulman, Higgitt, JJ.

Ballon Stoll P.C., New York (Avram Turkel of counsel), for appellant.

Steven Banks, Corporation Counsel, New York (Bo Malin-Mayor of counsel), for respondent.

Judgment (denominated an order), Supreme Court, New York County (Alexander M. Tisch, J.), entered on or about January 10, 2025, which denied the petition to annul a determination of the New York City Police Department (NYPD) not to issue petitioner his badge and firearm upon his retirement on April 29, 2021, granted respondent's cross-motion to dismiss the petition as time-barred, and dismissed this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Upon petitioner's April 29, 2021 retirement, NYPD did not issue petitioner, who was on modified duty at the time, his firearm, badge, or a "good guy letter" affirming his right to carry a firearm. Petitioner later applied for a retiree handgun license, which NYPD denied on March 15, 2022, citing petitioner's lack of a good guy letter. Because NYPD's written denial of the application was a "final and binding" determination (CPLR 217[1]), "the four-month statute of limitations began to run, at the latest, upon [petitioner's] receipt of the" denial (Matter of Baloy v Kelly, 92 AD3d 521, 522 [1st Dept 2012]; see also Matter of MacPherson v O'Neill, 201 AD3d 549, 550 [1st Dept 2022]; Matter of Jones v O'Neill, 197 AD3d 1067, 1068 [1st Dept 2021]). The "possibility of obtaining administrative relief had been exhausted when petitioner retired without a change in his [modified] duty status" (Baloy, 92 AD3d at 522).

Petitioner's May 1, 2024 letter, to which NYPD did not respond, "was a request for reconsideration of the agency's determination, and thus did not extend the statute of limitations" (id.). Nor did the May 1, 2024 letter give rise to a proceeding for mandamus to compel NYPD "to perform its duty" (CPLR 217 [1]). Petitioner asserts no "clear legal right" to a good guy letter (Matter of Anonymous v Commissioner of Health, 21 AD3d 841, 842 [1st Dept 2005]), which NYPD declined to issue in its discretion. Petitioner "cannot circumvent the statute of limitations by demanding that [NYPD] change its determination and seeking mandamus to compel when that demand is refused" (Matter of Stewart v New York City Dept. of Educ., 173 AD3d 585, 585 [1st Dept 2019] [internal quotation marks omitted]).

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 26, 2026

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_03269.shtml

Petitioner alleges that respondent engaged in gender-based discrimination in district-sponsored youth athletic programs, violated its board policy regarding facility use and admission fees, and conducted an inadequate investigation into his claims against the superintendent. Petitioner seeks a wide range of declaratory and injunctive relief.

Respondent argues that the appeal must be dismissed, among other grounds, as untimely. As to the merits, respondents raise several affirmative defenses, including that petitioner’s requested relief is beyond the jurisdiction of the Commissioner.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). A request for reconsideration of the underlying decision or act does not extend the time within which a petitioner may appeal to the Commissioner (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Petitioner commenced this appeal on October 3, 2025, over two months after respondent’s July 15, 2025 determination. Petitioner’s request for respondent to “reconsider its July 15, 2025 response” and “reopen these matters” amounted to a request for reconsideration that did not extend the time to commence an appeal to the Commissioner (Appeal of S.L. and S.L., 65 Ed Dept Rep, Decision No. 18,670; Appeal of Cole, 57 id., Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). Accordingly, the appeal must be dismissed as untimely (Appeal of Santoro, 65 Ed Dept Rep, Decision No. 18,647; Appeal of J.B. and A.B., 64 id., Decision No. 18,503).

I reject petitioner’s contention that the conduct of which he complains constitutes a continuing wrong. Pursuant to the continuing wrong doctrine, the 30-day time limitation does not bar an appeal from an ongoing action that results in a continuous violation of law, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919). The doctrine does not apply where a petitioner challenges a single discrete action, inaction, or decision and the resulting effects, even if continuous, are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, art 78 dismissed Matter of Reyes v Mills [Sup Ct, Albany County 2009, Zwack, J.]). The assessment of rental fees is not an ongoing action that amounts to a continuous violation of law. Thus, I find that the continuing wrong doctrine does not apply (Appeal of Nanna, 64 Ed Dept, Decision No. 18,523; Appeal and Application of A.B., 60 id., Decision No. 18,010).

Even if timely, I lack jurisdiction over many of petitioner’s claims. For example, the Commissioner has previously declined to adjudicate discrimination claims, including those arising under Title IX (Appeal of Brockway, 62 Ed Dept Rep, Decision No. 18,218; Appeal of J.H. and R.H., 57 id., Decision No. 17,317; Appeal of Berman, 46 id. 64, Decision No. 15,442). Similarly, an appeal to the Commissioner is not the proper forum to request protective orders (Application of Brentwood Youth Activities, Inc., 59 Ed Dept Rep, Decision No. 17,821).

https://www.counsel.nysed.gov/Decisions/volume65/d18747

2026 NY Slip Op 02124

April 8, 2026

Appellate Division, Second Department

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

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

In the Matter of Michael Stecker, petitioner/appellant,

New York State Unified Court System-Office of Court Administration, respondent/respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on April 8, 2026

2024-01090 DECISION, ORDER & JUDGMENT, (Index No. 615146/23)

Betsy Barros, J.P.

Angela G. Iannacci

Helen Voutsinas

Elena Goldberg Velazquez, JJ.

Scott Lockwood, Deer Park, NY, for petitioner/appellant.

David Nocenti, New York, NY (Pedro Morales of counsel), for respondent/respondent.

Proceeding pursuant to CPLR article 78 to review a revised determination of the New York State Office of Court Administration dated March 15, 2023, which adopted the report and recommendations of a hearing officer dated June 27, 2022, made after a hearing, finding that the petitioner was guilty of misconduct, and terminated the petitioner's employment as a court officer, which proceeding was transferred to this Court pursuant to CPLR 7804(g) by order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated October 18, 2023, and appeal by the petitioner from the same order. Justice Goldberg Velazquez has been substituted for former Justice Miller (see 22 NYCRR 1250.1[b]).

ORDERED that the appeal is dismissed (see CPLR 5701[b]; 7804[g]); and it is further,

ADJUDGED that the revised determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

The petitioner was employed as a court officer by the New York State Unified Court System (hereinafter UCS) for approximately 14 years. On or about December 21, 2021, the New York State Office of Court Administration (hereinafter OCA) filed a notice of charges against the petitioner, alleging, in one charge, that he had engaged in specified acts of misconduct when, between January 28, 2021, and March 27, 2021, he shared 26 posts on Facebook that featured biased and discriminatory language and images. The petitioner denied the charge.

In March 2022, a disciplinary hearing was held. At the conclusion of the hearing, a hearing officer issued a report and recommendations dated June 27, 2022, finding the petitioner guilty of each specified act of misconduct and recommending that the petitioner's employment be terminated. In a determination dated July 13, 2022, Deputy Chief Administrative Judge Norman St. George adopted the hearing officer's report and recommendations and terminated the petitioner's employment. Thereafter, on March 15, 2023, Deputy Chief Administrative Judge St. George issued a revised determination in which he again adopted the hearing officer's report and recommendations and terminated the petitioner's employment. The petitioner commenced this proceeding pursuant to CPLR article 78 to review the revised determination, and the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).

In a proceeding pursuant to CPLR article 78, "[j]udicial review of an administrative determination made after a hearing required by law, at which evidence was taken, is limited to whether that determination is supported by substantial evidence" (Matter of Afolayan v Industrial Bd. of Appeals, 229 AD3d 698, 699 [internal quotation marks omitted]; see CPLR 7803[4]). "Substantial evidence is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of World Motors, Inc. v Dugan, 226 AD3d 1037, 1039 [internal quotation marks omitted]). This is a "minimal standard, demanding only that a given inference is reasonable and plausible, not necessarily the most probable, and where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently" (Matter of Linksman v New York State Dept. of Motor Vehs., 218 AD3d 685, 686 [alteration and internal quotation marks omitted]).

Here, the finding that the petitioner committed misconduct was supported by substantial evidence. OCA demonstrated that the biased nature of the petitioner's comments, which were connected to a public Facebook profile that identified him as a Sergeant with UCS, violated the internal rules and regulations, as well as the ethical codes, of UCS (see 22 NYCRR 50.1[II][C]). Further, given the public facing nature of the petitioner's position in a system that requires fairness and equality, the administrative record supports the conclusion that the bias illustrated by the petitioner's posts negatively impacted UCS's ability to maintain neutrality and serve vulnerable populations.

Contrary to the petitioner's contentions, the revised determination did not violate his First Amendment right to free speech, as OCA met its burden of establishing that discipline arising out of the petitioner's protected activity was justified (see Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23 NY3d 251, 263-265). Nor did the revised determination violate the petitioner's First Amendment right to the free exercise of religion, because the prohibition on discriminatory speech was neutral with respect to religion and generally applicable to all UCS employees (see C.F. v New York City. Dept. of Health & Mental Hygiene, 191 AD3d 52, 76).

"Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law" (Matter of Maselli v Yonkers Bd. of Educ., 231 AD3d 1029, 1030-1031 [internal quotation marks omitted]). "An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness" (Matter of Guarnieri v County of Rockland, 226 AD3d 1018, 1020 [internal quotation marks omitted]). Contrary to the petitioner's contention, the penalty of termination of employment was not so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Phelps v State of N.Y.—Unified Ct. Sys., 208 AD3d 880, 881; Matter of Sekul v City of Poughkeepsie, 195 AD3d 622, 625).

Accordingly, we confirm the revised determination, deny the petition, and dismiss the proceeding.

BARROS, J.P., IANNACCI, VOUTSINAS and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02124.shtml

Matter of Soudani v County of Orange

2026 NY Slip Op 01972

April 1, 2026

Appellate Division, Second Department

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

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

In the Matter of Martin Soudani, etc., appellant,

County of Orange, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on April 1, 2026

2025-11394, (Index No. 5975/25)

Hector D. Lasalle, P.J.

Linda Christopher

Carl J. Landicino

James P. Mccormack, JJ.

Lewis Baach Kaufmann Middlemiss PLLC, New York, NY (Arthur D. Middlemiss, Marc Frazier Scholl, and Seung Heon Lee of counsel), for appellant.

Richard B. Golden, County Attorney, Goshen, NY (Carol C. Pierce of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Steven M. Neuhaus dated June 16, 2025, determining that the estate of Stewart Rosenwasser is not entitled to defense or indemnification in an action entitled Soudani v County of Orange, pending in the United States District Court for the Southern District of New York, under Case No. 25-CV-4320, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Orange County (Sherri L. Eisenpress, J.), dated September 16, 2025. The order and judgment, in effect, granted the respondents' motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, denied the petition, and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, with costs.

In September 2024, a federal grand jury indicted Stewart Rosenwasser and Mout'z Soudani (hereinafter Mout'z) on charges, among other things, of bribery and conspiracy to commit bribery, based on allegations that Rosenwasser, while employed as a prosecutor with the Orange County District Attorney's Office (hereinafter the OCDA), had accepted at least $63,000 in payments from Mout'z in exchange for using Rosenwasser's position with the OCDA, inter alia, to investigate and prosecute Mout'z's sister, Eman Soudani (hereinafter Eman), and her son, Martin Soudani (hereinafter the petitioner, and together with Eman, the claimants), for allegedly stealing money from Mout'z (hereinafter the federal indictment). Rosenwasser died before he was arrested on the charges.

In May 2025, the claimants commenced a federal action against, among others, the County of Orange, the OCDA, and "John Doe," as the administrator of the estate of Rosenwasser (hereinafter the Estate), among other things, to recover damages for civil rights violations pursuant to 42 USC § 1983. Subsequently, the petitioner was appointed as the temporary limited administrator of the Estate.

Thereafter, the petitioner requested that the County defend and indemnify the Estate in the federal action in accordance with Local Law No. 3 of 1998 of the County (hereinafter Local Law 3). In a determination dated June 16, 2025, the County Executive, Steven M. Neuhaus, upon the advice of the County Attorney, determined that the Estate was not entitled to defense and indemnification in the federal action because the acts alleged therein and in the federal indictment were not within the scope of Rosenwasser's public employment or duties.

Subsequently, the petitioner commenced this CPLR article 78 proceeding against the County and Neuhaus to review Neuhaus's determination. The respondents moved pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition. In an order and judgment dated September 16, 2025, the Supreme Court, in effect, granted the respondents' motion, denied the petition, and dismissed the proceeding. The petitioner appeals.

As relevant herein, Local Law 3 provides that the County "shall provide for the defense of [a County] employee in any civil action or proceeding in any state or federal court . . . arising out of any alleged act or omission which occurred or is alleged to have occurred while the employee was acting within the scope of his or her public employment or duties" (Local Law 3 § 4[1]). The issue of whether such an employee's act was "committed within the scope of his [or her] public employment and the discharge of his [or her] duties raises factual questions" (Matter of Williams v New York, 64 NY2d 800, 802). Under Local Law 3, the determination as to whether a County employee was so acting and, thus is entitled to defense and indemnification, is to be made in the first instance by the County Executive for executive branch employees, such as Rosenwasser, and such a "determination may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious" (Matter of Williams v New York, 64 NY2d at 802; see Matter of DiLeonardo v Nassau County Police Officer Indem. Bd., 148 AD3d 701, 702).

Here, Neuhaus's determination that Rosenwasser was not acting within the scope of his employment or duties with the OCDA in connection with the conduct alleged in the federal action and, thus that the Estate was not entitled to defense and indemnification therein, had a factual basis and was not arbitrary and capricious (see Matter of DiLeonardo v Nassau County Police Officer Indem. Bd., 148 AD3d at 702). In particular, Neuhaus rationally based his determination on the allegations of the complaint in the federal action and in the underlying federal indictment demonstrating that Rosenwasser's actions in investigating and prosecuting Eman and the petitioner were not undertaken as part of Rosenwasser's normal duties as an OCDA prosecutor but rather were undertaken in connection with an illegal bribery scheme carried out with his friend, Mout'z, purely for personal purposes, and which was actively concealed from the OCDA (see id.; Stavitz v New York, 98 AD2d 529, 531).

The petitioner's remaining contentions are without merit.

LASALLE, P.J., CHRISTOPHER, LANDICINO and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_01972.shtml

Matter of Shara v Van Fossen

2026 NY Slip Op 02707

April 30, 2026

Appellate Division, Third Department

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

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

In the Matter of James Shara, Respondent,

Jason R. Van Fossen, as Superintendent of the Maine- Endwell Central School District, et al., Appellants, et al., Respondent.

Decided and Entered:April 30, 2026

CV-25-0883

Calendar Date: March 25, 2026

Before: Garry, P.J., Reynolds Fitzgerald, Powers, Mackey And Ryba, JJ.

Bond, Schoeneck & King, PLLC, Syracuse (Angelo D. Catalano of counsel), for appellants.

Law Office of Ronald R. Benjamin, Binghamton (Ronald R. Benjamin of counsel), for James Shara, respondent.

Ryba, J.

Appeal from an order of the Supreme Court (Joseph McBride, J.), entered February 12, 2025 in Broome County, which, in a combined proceeding pursuant to CPLR article 78 and plenary action, denied certain respondents' motion to dismiss the petition/complaint.

As alleged in the petition/complaint, petitioner was formerly employed as a school bus driver for respondent Maine-Endwell Central School District (hereinafter the School District) while also serving as vice president of the employee organization representing its bus drivers (hereinafter the Union). In 2019, the School District placed petitioner on administrative leave and terminated his employment after he raised various safety concerns on behalf of the Union. The Union thereafter filed an improper practice charge with the Public Employment Relations Board (hereinafter PERB) alleging that the School District's conduct was retaliation for petitioner's participation in protected union activities. Although the Union ultimately prevailed in the PERB proceeding and petitioner was reinstated to his employment effective December 11, 2023, the School District immediately filed disciplinary charges against petitioner upon his return to work. Disciplinary proceedings pursuant to Civil Service Law § 75 ensued, concluding with respondent Board of Education of Maine-Endwell Central School District (hereinafter the School Board) issuing a determination terminating petitioner's employment effective June 14, 2024.

In October 2024, petitioner commenced this combined CPLR article 78 proceeding and plenary action against, as is relevant here, the School District and respondents superintendent, president, vice president and individual members of the School Board (hereinafter collectively referred to as respondents) seeking to annul the determination terminating his employment and alleging retaliatory discharge in violation of Civil Service Law § 75-b as well as due process violations under 42 USC § 1983.FN1 Respondents moved to dismiss the petition/complaint, arguing that petitioner's claims failed to state a cause of action, were improperly asserted against the individual respondents, and were barred by the doctrine of collateral estoppel due to determinations made in the PERB proceeding. Supreme Court denied the motion to dismiss, finding that petitioner sufficiently stated claims for relief pursuant to CPLR article 78, Civil Service Law § 75-b and 42 USC § 1983. With respect to respondents' collateral estoppel argument, Supreme Court found that respondents' failure to offer the record of the PERB proceeding precluded dismissal on this ground. Accordingly, Supreme Court directed respondents to file and serve an answer with the certified record.FN2 Respondents appeal, challenging only the denial of their motion to dismiss petitioner's causes of action asserted pursuant to Civil Service Law § 75-b and 42 USC § 1983.

First, we reject respondents' contention that Supreme Court erred in denying their motion to dismiss the petition/complaint on collateral estoppel grounds. Collateral estoppel, also known as "issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party," regardless of the legal context in which the issue was raised (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999] [internal quotation marks and citation omitted]; see Bryant v Gulnick, 212 AD3d 78, 82 [3d Dept 2022]; Rockwell v Despart, 205 AD3d 1165, 1167 [3d Dept 2022]). The doctrine is, as a result, "applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies" (Ryan v New York Tel. Co., 62 NY2d 494, 499 [1984]; see Matter of Kibler v New York State Dept. of Correctional Servs., 91 AD3d 1218, 1220 [3d Dept 2012], lv denied 19 NY3d 803 [2012]). The preclusive effect of collateral estoppel applies only to identical "issues that were actually litigated, squarely addressed and specifically decided" in the prior matter (Church v New York State Thruway Auth., 16 AD3d 808, 810 [3d Dept 2005] [internal quotation marks and citation omitted]; see Matter of Theopheles v County of Rensselaer,229 AD3d 1026, 1029 [3d Dept 2024]).On a motion to dismiss, "[t]he burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349 [internal quotation marks and citation omitted]; see Matter of Nesconset Ctr. for Nursing & Rehabilitation v Commissioner of Health of the State of N.Y., 225 AD3d 956, 958 [3d Dept 2024], lv denied 42 NY3d 904 [2024]; Abele v City of Albany, N.Y., 214 AD3d 1107, 1109 [3d Dept 2023]).

Here, inasmuch as respondents failed to include the underlying record from the PERB proceeding in support of their motion to dismiss, Supreme Court was unable to evaluate whether and to what extent the issues raised in this matter were identical to those decided in the PERB proceeding. To the extent that respondents seek application of the doctrine of collateral estoppel related to findings made by PERB in the context of petitioner's proceeding to enforce its reinstatement order, the record was also insufficient to render a determination. In view of the above, Supreme Court properly found that respondents failed to demonstrate that dismissal on collateral estoppel grounds was warranted (see e.g. Capitaland United Soccer Club v Capital Dist. Sports & Entertainment, 238 AD2d 777, 780 [3d Dept 1997]).

We likewise reject respondents' argument that the allegations in the petition/complaint were insufficient to state a cause of action for retaliatory discharge pursuant to Civil Service Law § 75-b. That statute prohibits a public employer from, among other things, taking adverse employment actions against an employee in retaliation for reporting what the employee reasonably believes to be improper governmental action (see Civil Service Law § 75-b [2] [a]; Matter of Hardy v Kraham, 224 AD3d 946, 949-950 [3d Dept 2024]). Here, petitioner alleges that he was first terminated after reporting bus safety issues and that, after the Union successfully challenged that termination and PERB directed his reinstatement, the School Board passed a resolution to proceed with new disciplinary charges minutes after reinstating his employment. Liberally construing these allegations in petitioner's favor, affording petitioner the benefit of every favorable inference and accepting the facts alleged as true, we find that they sufficiently state a claim for retaliation in violation of Civil Service Law § 75-b (see Lilley v Greene Cent. Sch. Dist., 168 AD3d 1180, 1182 [3d Dept 2019]). Applying the same liberal pleading standard to the 42 USC § 1983 cause of action, petitioner's allegations that respondents infringed upon his constitutional freedom of association and his property interest in continued employment set forth a cognizable cause of action predicated upon alleged due process violations (see State Emp. Bargaining Agent Coalition v Rowland,718 F3d 126, 132 [2d Cir 2013], cert dismissed 571 US 1116 [2014], cert denied 571 US 1170 [2014]; Ciambriello v County of Nassau, 292 F3d 307, 313 [2d Cir 2002]). Accordingly, Supreme Court properly found that a 42 USC § 1983 claim was sufficiently stated.

However, we reach a different conclusion with respect to that portion of respondent's motion which sought dismissal of petitioner's claims against the individual respondents. To the extent that petitioner's Civil Service Law § 75-b cause of action is asserted against certain of the individual respondents, such a claim cannot be maintained against individual public employees (see Frank v State of N.Y., Off. of Mental Retardation & Dev. Disabilities, 86 AD3d 183, 188 [3d Dept 2011]; Moore v County of Rockland, 192 AD2d 1021, 1024 [3d Dept 1993]). As for the 42 USC § 1983 claim, it is well settled that liability will not attach to a government employee in his or her official capacity (see Corvetti v Town of Lake Pleasant,146 AD3d 1118, 1124-1125 [3d Dept 2017]; Shelton v New York State Liq. Auth.,61 AD3d 1145, 1148 [3d Dept 2009]), and only attaches to such an employee in their individual capacity if they were "personally involved" in the alleged constitutional violation (Lewis v Annucci, 154 AD3d 1025, 1026 [3d Dept 2017] [internal quotation marks and citations omitted]; see Johnson v Collyer, 191 AD3d 1192, 1194 [3d Dept 2021]). To that end, petitioner was required to "allege particular facts indicating that each of the individual [respondents] was personally involved in the deprivation of [his] constitutional rights; mere bald assertions and conclusions of law do not suffice" (Johnson v Collyer, 191 AD3d at 1194 [internal quotation marks and citations omitted]; see Corvetti v Town of Lake Pleasant,146 AD3d at 1126; Shelton v New York State Liq. Auth.,61 AD3d at 1148). The mere assumption that the individual respondents were personally involved simply by virtue of their official positions is insufficient (see Shelton v New York State Liquor Auth.,61 AD3d at 1148-1149). In the present case, petitioner did not articulate specific facts to identify the manner in which each of the individual respondents personally engaged in conduct that violated his constitutional rights. Under these circumstances, Supreme Court should have granted the motion to dismiss with respect to the individual respondents.

We have examined the remaining contentions of the parties and have found them to be without merit or otherwise unnecessary to address.

Garry, P.J., Reynolds Fitzgerald, Powers and Mackey, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as denied the portion of the motion seeking dismissal of the claims against respondents Jason R. Van Fossen, Melinda Spooner, Lynn Ross, Gregg Armezzani, Lindsey Stanton, Michael Chudacik, Megan Gorski, Kathy Baker and Brady Lindsey; motion granted to that extent; and, as so modified, affirmed.

Footnotes

Footnote 1

Petitioner also named counsel for the School District and School Board as a party, but he was not involved in the motion practice at issue here.

Footnote 2

We note that the portion of the petition/complaint challenging the disciplinary determination pursuant to CPLR article 78 was transferred to this Court after the appealed-from order was issued, where it remains pending (2026 NY Slip O

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02707.shtml

Matter of Lurry-Carter v New York State & Local Retirement Sys.

2026 NY Slip Op 02182

April 9, 2026

Appellate Division, Third Department

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

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

In the Matter of Cynthia Lurry-Carter, Petitioner,

New York State and Local Retirement System et al., Respondents.

Decided and Entered:April 9, 2026

CV-24-2021

Calendar Date: February 19, 2026

Before: Garry, P.J., Clark, Pritzker, Mcshan And Corcoran, JJ.

Rosenberg Law Firm, Brooklyn (Morgan Namian of counsel), for petitioner.

Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.

Pritzker, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller denying petitioner's application to change decedent's retirement option.

Petitioner is the widow of James Carter (hereinafter decedent), who was a member of respondent New York State and Local Retirement System. As he was preparing to retire in December 2020, decedent submitted a retirement option selection form to the Retirement System in which he checked the box for the joint allowance full option that would provide for a reduced retirement allowance that would continue to be paid to petitioner, his beneficiary, upon his death (see Retirement and Social Security Law §§ 600 [a]; 610 [a]). He scribbled out that checkmark and wrote "mistake" next to it, however, and checked the box electing to receive retirement benefits under the single life allowance option, "a benefit option that pays benefits only during the member's lifetime and does not include the payment of any postretirement death benefits" (Matter of Whitfield v Avent, 192 AD3d 1250, 1250 [3d Dept 2021]; see Retirement and Social Security Law § 610 [a]). The form was deemed filed when received by the Retirement System on January 19, 2021 (see 2 NYCRR 341.3).

Decedent thereafter submitted an application for service retirement to the Retirement System that was filed on February 18, 2021. A few days later, he prepared, signed and had notarized a second retirement option election form in which he changed his election to the joint allowance full option and named petitioner as his beneficiary. Decedent was waiting for other requested paperwork to be completed before he submitted the form and, as a result, had not sent it in before he died unexpectedly from COVID pneumonia on February 27, 2021. Petitioner, who was required to obtain a death certificate for decedent and other information for the Retirement System, eventually submitted the second option form, and it was filed on June 3, 2021. By that point, however, the Retirement System had already processed the retirement application and notified petitioner that decedent's retirement had taken effect on February 19, 2021 and that he had selected the single life allowance option. Petitioner applied for a hearing and redetermination regarding the option selection and, following that hearing, a Hearing Officer determined that the second retirement option election form was properly rejected as untimely. Respondent Comptroller accepted the Hearing Officer's findings of fact and conclusions of law and denied petitioner's application, and this CPLR article 78 proceeding ensued.

"The Comptroller is vested with the exclusive authority to resolve applications for retirement benefits and the determination must be upheld if the interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence" (Matter of Gallante v DiNapoli, 228 AD3d 1169, 1170 [3d Dept 2024] [internal quotation marks, brackets and citations omitted], lv denied 42 NY3d 909 [2024]; see Retirement and Social Security Law § 74 [b]; Matter of Leisten v McCall, 285 AD2d 897, 898 [3d Dept 2001], lv denied 97 NY2d 605 [2001]). Of note, "[w]here different inferences may be drawn from the proof presented, the determination is for [the Comptroller] to resolve" (Matter of Wilson v DiNapoli, 52 AD3d 931, 933 [3d Dept 2008]).

Here, the statutory language requires that a change in retirement option be filed "no later than [30] days following the date of payability of [the member's] retirement allowance" (Retirement and Social Security Law §§ 90 [e]; 610 [f]). The undisputed hearing evidence reflected that decedent's retirement became effective on February 19, 2021 and that retirement benefits would have been paid for the first time on March 1, 2021. As the statute makes clear that an option form would have to be filed no later than March 31, 2021 under those circumstances, the second retirement option form, which was filed on June 3, 2021, was untimely (see Retirement and Social Security Law § 610 [f]).

However, Retirement and Social Security Law § 90 (bb) (1) grants "the [C]omptroller, for reasonable cause, . . . [the] power to extend the time for the election of an option, for a period or periods which shall expire not later than [60] days immediately after the effective date of a member's retirement" (see Matter of De Deo v McCall, 255 AD2d 683, 684 [3d Dept 1998]). Indeed, at the hearing, one of the Retirement System's employees testified that, pursuant to Retirement and Social Security Law § 90 (bb) (1), "there appears to be authority by a comptroller to extend the time for the option election past that March 31[, 2021] date." This employee went on to testify that, pursuant to this subsection, the Comptroller "reserves up to 60 days to stretch that date out, and that would have been April 20[, 2021]," and thus the second retirement option form, received on June 3, 2021, would still be untimely. Relying on this testimony, the Hearing Officer determined that, even "[w]ith the additional time granted the [C]omptroller to extend the time to elect, that date would have been April 20[, 2021]."

To the extent preserved, petitioner contends that the Comptroller improperly disregarded the possibility that an extension longer than 60 days could be granted under the identical extension provision in Retirement and Social Security Law § 610 (d) (1). We agree. In Matter of Estate of Clifford v New York State Empls. Retirement Sys. (123 AD2d 1 [3d Dept 1986]), this Court affirmed the Comptroller's interpretation of the 60-day time limit on the extension provided by Retirement and Social Security Law § 90 (bb) (1) as discretionary, rather than mandatory, given that the statute "does not expressly limit the authority of the Comptroller to act after the time period in question" (id. at 4). In fact, this Court held that the Comptroller's interpretation that the extension can exceed 60 days "fosters sound policy and in most cases works to the benefit of a retiree" (id.). Thus, the Comptroller's interpretation of the statutory language here as limiting any extension to 60 days, specifically April 20, 2021, "is irrational and, therefore, not entitled to deference" (Matter of Pearlman v Mills, 24 AD3d 837, 838 [3d Dept 2005]; compare Matter of John v Regan, 139 AD2d 827, 828 [3d Dept 1988]). Accordingly, the appropriate remedy is to remit the matter to the Comptroller for a determination as to whether, under the circumstances presented here, reasonable cause exists to extend the time for petitioner to file the second retirement option form, which this Court holds can be extended, at the Comptroller's discretion, beyond the 60-day limit set forth in Retirement and Social Security Law §§ 90 (bb) (1) and 610 (d) (1) (see Matter of Estate of Clifford v New York State Empls. Retirement Sys., 123 AD2d at 4-5; see generally Matter of Pearlman v Mills, 24 AD3d at 838; Matter of De Deo v McCall, 255 AD2d at 684). Given this determination, we need not reach petitioner's remaining assertions.

Garry, P.J., Clark, McShan and Corcoran, JJ., concur.

ADJUDGED that the determination is annulled, without costs, petition granted, and matter remitted to respondents for further proceedings not inconsistent with this Court's decision.

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02182.shtml

Matter of Munson v New York State Div. of Criminal Justice Servs.

2026 NY Slip Op 02017

April 2, 2026

Appellate Division, Third Department

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

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

In the Matter of Emilie Munson et al., Respondents,

New York State Division of Criminal Justice Services, Appellant.

Decided and Entered:April 2, 2026

CV-24-2109

Calendar Date: November 19, 2025

Before: Garry, P.J., Aarons, Pritzker, Powers And Corcoran, JJ.

Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for appellant.

The Hearst Corporation, New York City (Nina N. Shah of counsel), for respondents.

Corcoran, J.

Appeal from a judgment of the Supreme Court (Meagan Galligan, J.), entered November 4, 2024 in Albany County, which partially granted petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to annul a determination of respondent denying petitioners' Freedom of Information Law request.

Respondent maintains a central registry of all police officers and peace officers certified to serve in the state pursuant to Executive Law § 845. For each officer, the registry contains "his or her name, date of birth, social security number, rank or title, employer, and date of successful completion of training" (Executive Law § 845 [1]). Local and state agencies must provide this information to respondent annually and whenever new officers are appointed (see Executive Law § 845 [2] [a]). In August 2022, petitioner Emilie Munson, an Albany Times Union reporter, submitted a request pursuant to the Freedom of Information Law (see Public Officers Lawart6 [hereinafter FOIL]) seeking records for all certified and decertified officers, together with officers' names, city and/or zip code of residence, current and previous employers with current and/or last ranks and positions for each, training history and other information.

Respondent effectively granted Munson's request for information related to decertified officers by referring her to its website, where it publishes the statewide list of decertified officers, i.e., those deemed ineligible for continued police employment. However, respondent asserted that the list of all certified officers was exempt from disclosure pursuant to Public Officers Law § 87 (2) (f) because releasing it "could endanger the life or safety of any person." In denying petitioners' administrative appeal, respondent explained that the registry necessarily includes officers serving in undercover capacities, and that respondent lacks the ability to identify or segregate those officers from the registry.

Petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action challenging respondent's denial of the registry of certified officers. Supreme Court partially granted the petition and directed disclosure of the requested records, subject to redaction of the officers' city or zip code of residence and other identifying information. Respondent appealed, and this Court modified the judgment and remitted the matter to Supreme Court to permit further submissions and in camera review "for determination as to whether further redaction of all identifying information is necessary" (228 AD3d 1119, 1122 [3d Dept 2024]). Upon remittal, Supreme Court adhered to its prior determination granting the petition after finding that respondent did not show a possibility of endangerment to officers listed on the registry. The court directed respondent to disclose the entire registry after redacting information related to undercover training, together with the city or zip code of residence. Respondent again appeals, and we reverse.

"FOIL imposes a broad duty of disclosure on government agencies and all agency records are presumptively available for public inspection and copying unless one of the statutory exemptions applies, in which case the agency may withhold or redact the requested records" (Matter of Whitfield v FOIL Appeals Officer, Dept. of Corr. & Community Supervision, 221 AD3d 1341, 1343 [3d Dept 2023] [internal quotation marks and citations omitted]). "Public Officers Law § 87 (2) (f) exempts from disclosure materials that, if disclosed, could endanger the life or safety of any person, and respondent, the agency in question, need only demonstrate a possibility of endangerment in order to invoke this exemption" (Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 209 AD3d 1208, 1211-1212 [3d Dept 2022] [internal quotation marks and citations omitted], affd 42 NY3d 936 [2024]). Although "[e]xemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]), they "must be given their natural and obvious meaning where such interpretation is consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL" (Matter of Hutchinson v Annucci, 189 AD3d 1850, 1853 [3d Dept 2020] [internal quotation marks and citation omitted]).

"[W]ithholding or denying a request is proper 'where the requested records, when combined with other readily available information, could identify or lead to the identification of information protected under a FOIL exemption' " (Spence v New York State Dept. of Civ. Serv., 223 AD3d 1019, 1020 [3d Dept 2024], quoting Matter of Suhr v New York State Dept. of Civ. Serv., 193 AD3d 129, 136 [3d Dept 2021], lv denied 37 NY3d 907 [2021]). The exemption allows an agency to withhold information that would identify undercover officers (see Matter of Grajales v Lungen,15 AD3d 789, 790 [3d Dept 2005], lv denied 5 NY3d 704 [2005]). Moreover, a law enforcement agency may properly invoke the "life or safety" exemption under Public Officers Law § 87 (2) (f) to withhold information which could be used in combination with other readily available information to estimate the number of undercover officers in a department or the relative staffing levels of police departments or precincts (see Matter of Digital Forensics Unit v Records Access Officer, 214 AD3d 532, 533-534 [1st Dept 2023]; Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin.,2019 NY Slip Op 30643[U], *5 [Sup Ct, NY County 2019], mod 187 AD3d 435, 435-436 [1st Dept 2020], lv denied 36 NY3d 906 [2021]; see also Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218 AD2d 494, 499 [3d Dept 1996]). As explained below, the state registry could be compared to a local law enforcement agency's public payroll database to discern the names and total number of officers working in an undercover or sensitive role because respondent and some police agencies use different procedures to shield this information. Thus, Supreme Court erred in directing respondent to disclose the registry with certain fields redacted because redaction will not adequately minimize the risks of disclosure.

Although respondent may adopt regulations to ensure the integrity of the registry as a public record (see Executive Law § 845; 9 NYCRR part 6056; 6056.3 [a]), the regulations do not address how to handle FOIL requests that implicate sensitive information like undercover assignments or training. As explained by the affidavit of the agency's representative, each law enforcement agency is required to submit to the state registry certain prescribed information for each certified officer it employs, including officers working undercover or in sensitive capacities, though the officer's undercover status is not revealed in this submission. Respondent therefore cannot discern from the registry if a particular officer works undercover. When respondent receives a FOIL request for an officer's registry information, it communicates with the officer's employer to identify any justification for redacting or withholding information, including that the officer works undercover or in a sensitive position. Respondent then discloses the officer's registry profile after redacting statutorily protected information, such as social security numbers and birthdates, as illustrated by the exemplar registry profile annexed to the petition by Munson. This practice is unaffected by this appeal, such that the public and police agencies may verify whether a particular officer maintains current, proper certification by requesting registry information for a particular officer or by reviewing respondent's list of decertified officers.

The in camera submissions reveal that, unlike the state registry, at least one police agency omits from its own public payroll database certain information about certified officers working undercover or in sensitive assignments to protect their safety and preserve confidentiality; again, the police agency submits information about those same officers to the state registry. This distinction in how respondent and a local law enforcement agency account for undercover officers would be evident to one who compares the department's public payroll database to the list attributed by the state registry to that agency. Simply put, comparing the state registry to a local department's publicly disclosed payroll database could reveal names of undercover officers that appear on the state registry but not on their employer's redacted payroll database. Thus, respondent demonstrated that disclosure of the registry could endanger police officers who could be presumptively revealed by name as working undercover, thereby satisfying its burden to trigger the exemption under Public Officers Law § 87 (2) (f).

We next consider the distinct risk to public safety implicated by potential disclosure of the registry with redaction of social security numbers, zip codes, city/town, and undercover training as ordered by Supreme Court.FN1 Disclosure of the current employer of all certified officers, even with other fields redacted, could still reveal the number of undercover officers in a particular department, thereby creating a possibility of endangerment justifying denial of the public information request (see Matter of Digital Forensics Unit v Records Access Officer, 214 AD3d at 533-534; Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 187 AD3d 435, 435-436 [1st Dept 2020], lv denied 36 NY3d 906 [2021]). Such information could be used in conjunction with future requests for equivalent information to estimate increases or decreases in the number of undercover officers, thereby undermining their deterrent effect or hampering law enforcement operations (see Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 187 AD3d at 435-436).

Respondent has demonstrated that these risks are not merely theoretical. For example, the record-keeping and disclosure practices of the New York Police Department (hereinafter NYPD), and the roadmap to deduce the number of officers assigned to undercover operations, were discussed at oral argument and are detailed in Matter of Empire Center,a case cited by both parties here (see Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin.,187 AD3d at 435-436). In that case, the petitioner strategically sought the total amount spent annually by the NYPD on undercover officers by requesting salary information that was not included in the department's searchable public payroll database. The respondent payroll agency submitted an affidavit from a knowledgeable police department official describing generally how and where undercover officers are deployed and how and when they appear in department databases (see id.). The Appellate Division, First Department held that the public safety exemption was triggered by the official's description of how anonymous, aggregate salary data could be compared to the public payroll database to deduce increases or decreases in undercover policing, thus creating a possibility of endangerment to public safety (see id.). Here, comparing a department's public payroll database to the state registry, even with all names redacted, would permit an even more direct calculation of changes in undercover staffing than the one found sufficient to trigger the public safety exemption in Matter of Empire Center.

To the extent petitioners may argue that respondent did not directly articulate this basis for withholding the state registry during administrative review, this Court may still address and rely upon it because "the confidentiality rights of third parties not before the court are implicated by the disclosure determination" (Matter of Hutchinson v Annucci, 189 AD3d at 1855 [internal quotation marks and citation omitted]; accord Matter of Whitfield v FOIL Appeals Officer, Dept. of Corr. & Community Supervision, 221 AD3d at 1344). Regardless, on remittal to consider supplemental materials in camera, some law enforcement agencies addressed disclosure of aggregate information, buttressing the concern described above.

As respondent met its burden of proving that disclosure of the state registry could create a possibility of endangerment under Public Officers Law § 87 (2) (f), Supreme Court erred in granting the petition and ordering disclosure with redactions. Consistent with that finding, there is no basis for awarding counsel fees and costs to petitioners, since they have not "substantially prevailed" (Public Officers Law § 89 [4] [c]; see Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision,209 AD3d at 1214; Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 187 AD3d at 436).

Garry, P.J., and Pritzker, J., concur.

Powers, J. (dissenting).

This Court set forth in no uncertain terms that remittal was not meant to provide respondent "another full bite of the apple" but was intended to afford it the opportunity to demonstrate, out of the public eye, "how the information might be utilized to endanger active undercover officers" and "whether further redaction of all identifying information [was] necessary" (228 AD3d 1119, 1121-1122 [3d Dept 2024]). As this Court should be constrained to consider only the submissions provided in camera upon remittal, which failed to establish how the information may be utilized to endanger undercover officers, we must dissent because denial of disclosure is not supported.

"In a CPLR article 78 proceeding to compel production of records pursuant to FOIL, the government has the burden of establishing the applicability of its asserted exemption" and "[w]e must narrowly construe such FOIL exemptions to ensure maximum public access to government records" (Matter of Russell v Town of Mt. Pleasant, N.Y., ___ NY3d ___, ___, 2026 NY Slip Op 00966, *3 [2026]). "Public Officers Law § 87 (2) (f) exempts from disclosure materials that, if disclosed, could endanger the life or safety of any person, and respondent, the agency in question, need only demonstrate a possibility of endangerment in order to invoke this exemption" (Matter of Munson v New York State Div. of Criminal Justice Servs., 228 AD3d 1119, 1121 [3d Dept 2024] [internal quotation marks and citations omitted]). "A denial of access shall not be based solely on the category or type of such record and shall be valid only when there is a particularized and specific justification for such denial" (Public Officers Law § 87 [2]). As such, conclusory or speculative assertions without factual support are "insufficient to meet [an agency's] burden of demonstrating that [an] exemption applie[s]" (Matter of Wagner v New York City Dept. of Health & Mental Hygiene, 246 AD3d 751, ___, 2026 NY Slip Op 00517, *2 [2d Dept 2026] [internal quotation marks and citation omitted]; see Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 211 AD3d 1382, 1384 [3d Dept 2022]; Matter of Vertucci v New York State Dept. of Transp., 195 AD3d 1209, 1211 [3d Dept 2021], lv denied 37 NY3d 917 [2022]).

To, among other things, "ensure that persons whose names are contained [there]in . . . are lawfully appointed" (9 NYCRR 6056.1 [c]), respondent is required to "collect information to maintain, on a current basis, a registry of all police officers and peace officers in the state. Such registry shall contain, with respect to each officer, his or her name, date of birth, social security number, rank or title, employer, and date of successful completion of training required by [CPL 2.30] and [General Municipal Law § 209-q]" (Executive Law § 845 [1]). At no point during this proceeding has respondent provided even a fully redacted version of the registry it maintains. For that reason, we cannot be certain what data points are contained on the registry, and, therefore, we are guided only by these statutory requirements.FN2

Although an in-depth review of the procedural history of this matter is not necessary, it is relevant that Supreme Court initially granted petitioners' request for disclosure finding that respondent did not make a particularized and specific showing that release of the information sought could identify those who currently serve or have served in an undercover capacity. Supreme Court did find, however, that redaction of the city or zip code of residences was supported.FN3 Respondent appealed to this Court and, in the context of that appeal, we found that "respondent's conclusory and speculative affidavit, averring as it does that the safety exemption justifies denial of access to the requested records, [was] insufficient to deny access to the records sought" (228 AD3d at 1121). Therefore, considering what we perceived to be respondent's "reasonable hesitation to articulate in open court how the information might be utilized to endanger active undercover officers," we remitted the matter to allow the parties to provide in camera submissions and for Supreme Court to determine "whether further redaction of all identifying information [was] necessary" (id. at 1121, 1122). Upon its consideration of these submissions, Supreme Court again found that respondent did not sufficiently establish how disclosure of the registry could potentially identify officers who currently serve or have served in an undercover capacity, provided that relevant training as to undercover work was redacted. Therefore, Supreme Court again granted disclosure of the registry with this limited carveout for the redaction of relevant training. Therefore, up until this point, the only information to be redacted was the certified officer's zip code or city of residence and any training relevant to undercover work.

Without providing a high level of detail as to the submissions provided in camera, an affidavit was supplied by an employee of respondent familiar with the registry. Therein it was affirmed that respondent does not have the ability to identify officers listed on the registry who currently serve in an undercover or sensitive capacity, or may do so in the future, and that it does not receive this information from law enforcement agencies. This affiant asserted broadly that identification of undercover officers may endanger their safety and that of their families and then detailed the attachments provided in support of the affidavit. These attachments describe how any — not just those who may serve in an undercover capacity — officer's name and place of employment may be utilized to discover personal information by harnessing the Internet and, along the same lines, that the Internet can be utilized to find photographs of that individual and those close to them. It was then set forth that, because those recruited to serve in undercover capacities are often experienced officers, it is likely that their name and/or image appears online in connection with their role in law enforcement. The attachments assert that if identities are known, officers may face threats, intimidation and potential harm, again a claim not limited to those who serve in an undercover capacity. Based upon these attachments, the affidavit ultimately opined that release of the registry and training history could endanger undercover officers, as it provides information to those who may seek to uncover the identities of these officers. Therefore, according to respondent, petitioners' request should be denied in its entirety.

The assertions contained in this affidavit mirror, albeit in slightly more detail, those made to Supreme Court in the first instance and the risks described therein are undoubtably true for all officers, not just those who serve in an undercover capacity. Nevertheless, these submissions failed to demonstrate what respondent was required to establish upon remittal: how one may utilize the registry to narrow down who on that list serves in an undercover capacity. Instead, the submissions contain only generalized assertions that when an officer's name is known, the Internet may be utilized to discover personal information and, because of the role undercover officers play, the safety risk is greater to these officers. To the extent the majority asserts that the submissions set forth that at least one agency does not disclose payroll information related to undercover officers, this is not borne directly by the record. Instead, the in camera submissions set forth that certain internal databases do not reflect these officers' information. Moreover, it is not clear how a law enforcement agency's decision to publicize itself and the accomplishments of its officers should be used as a basis to deny access to information which would otherwise be public. Accordingly, these assertions remain speculative and conclusory and, therefore, inadequate to deny access to the requested records (see Matter of Munson v New York State Div. of Criminal Justice Servs., 228 AD3d at 1121; cf. Matter of Mack v Howard, 91 AD3d 1315, 1316 [4th Dept 2012]; Matter of Carnevale v City of Albany, 68 AD3d 1290, 1292 [3d Dept 2009]; see generally Matter of Standardbred Owners Assn., Inc. v New York State Gaming Commission, 237 AD3d 1354, 1356-1357 [3d Dept 2025]).

Based upon the foregoing, we would order disclosure of responsive records with the redaction of social security numbers and any training history related to undercover work. The majority claims that redaction of such training history would highlight the fact that the officer in question may serve in an undercover capacity. Such assertion is based upon the unsupported assumption that respondent has no way to redact documents without making it evident that information has been subject to redaction. This argument is not only speculative but also has not been advanced by respondent during this proceeding or — even more to the point, considering these redactions were ordered by Supreme Court — in its brief on appeal (see generally Matter of Reclaim the Records v New York State Dept. of Health, ___ NY3d ___, 2025 NY Slip Op 03102, *7 [2025]).FN4

In addition to the foregoing, we also find the majority's invocation of the public safety exemption to be improper as this was never raised by respondent as grounds for denial of petitioner's FOIL request. "Judicial review of an administrative determination is limited to the grounds invoked by the agency and the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis" (Matter of Reclaim the Records v New York State Dept. of Health, ___ NY3d at ___, 2025 NY Slip Op 03102, *5 [internal quotation marks, brackets and citations omitted; emphasis added]). While "this principle of administrative law d[oes] not preclude Supreme Court from addressing the applicability of [a]newly raised exemption," that court — and this Court as well — may not replace the grounds raised by respondent with another that has not been (Matter of Rose v Albany County Dist. Attorney's Off., 111 AD3d 1123, 1125 [3d Dept 2013] [emphasis added]). The cases relied upon by the majority to conclude otherwise are readily distinguishable as the exemption under review was raised at some juncture (see Matter of Whitfield v FOIL Appeals Officer, Dept. of Corr. & Community Supervision, 221 AD3d 1341, 1344 n 2 [3d Dept 2023]; Matter of Hutchinson v Annucci, 189 AD3d 1850, 1854-1855 [3d Dept 2020]; see also Matter of Newsday LLC v New York State Educ. Dept., 244 AD3d 1359, 1361 n 2 [3d Dept 2025]; Matter of Cross-Sound Ferry Servs. v Department of Transp., 219 AD2d 346, 350 [3d Dept 1995]; but see Matter of Johnson v New York City Police Dept., 257 AD2d 343, 349 [1st Dept 1999], lv dismissed 94 NY2d 791 [1999]).

Respondent claimed that the records in question were exempt from disclosure pursuant to Public Officer's Law § 87 (2) (f), the same statute from which the public safety exemption is grounded, yet it specifically asserted that the alleged danger was to undercover officers themselves, not the public at large. Accordingly, we disagree with this Court's decision to broaden the basis for exemption invoked by respondent to include a supposed threat to the public as doing so "contravenes Court of Appeals precedent as well as the spirit and purpose of FOIL" (Matter of Aron Law, PLLC v Town of Hempstead, 242 AD3d 880, 882 [2d Dept 2025] [internal quotation marks and citations omitted], lv dismissed 44 NY3d 1072 [2026]) and goes "beyond [this Court's] mandate to judge the propriety of the agency's action solely by the grounds invoked by the agency" (Matter of Union Carbide Corp. v New York State Dept. of Envtl. Conservation, 189 AD3d 1805, 1809 [3d Dept 2020] [internal quotation marks, brackets and citations omitted]; see Matter of Reclaim the Records v New York State Dept. of Health, ___ NY3d at ___, 2025 NY Slip Op 03102, *5; Matter of Aron Law PLLC v Sullivan County, 214 AD3d 1186, 1187 [3d Dept 2023]; Matter of New York Civ. Liberties Union v City of Syracuse, 210 AD3d 1401, 1405-1406 [4th Dept 2022]).

In any event, we would also find that the submissions upon remittal do not support invocation of the public safety exemption (compare Matter of Digital Forensics Unit v Records Access Officer, 214 AD3d 532, 533 [1st Dept 2023]; Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 187 AD3d 435, 435 [1st Dept 2020], lv denied 36 NY3d 906 [2021]).

Accordingly, as we would affirm Supreme Court's order directing disclosure of the requested records, we respectfully dissent.

Aarons, J., concurs.

ORDERED that the judgment is reversed, on the law, without costs, and petition dismissed.

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02017.shtml

k State Assembly v New York State Div. of Human Rights

2026 NY Slip Op 02505

April 24, 2026

Appellate Division, Fourth Department

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

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

IN THE MATTER OF NEW YORK STATE ASSEMBLY, PETITIONER-APPELLANT,

NEW YORK STATE DIVISION OF HUMAN RIGHTS, NICOLE GOLIAS, RESPONDENTS-RESPONDENTS, ET AL., RESPONDENT.

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on April 24, 2026

89 CA 24-01652

Present: Lindley, J.P., Curran, Ogden, Greenwood, And Hannah, JJ.

HARTER SECREST & EMERY LLP, BUFFALO (ROBERT C. WEISSFLACH OF COUNSEL), FOR PETITIONER-APPELLANT.

MELISSA FRANCO, GENERAL COUNSEL, NEW YORK STATE DIVISION OF HUMAN RIGHTS, BRONX (MICHAEL K. SWIRSKY OF COUNSEL), FOR RESPONDENT-RESPONDENT NEW YORK STATE DIVISION OF HUMAN RIGHTS.

SANDERS & SANDERS, BUFFALO (HARVEY P. SANDERS OF COUNSEL), FOR RESPONDENT-RESPONDENT NICOLE GOLIAS.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Donna M. Siwek, J.), entered August 23, 2024, in a proceeding pursuant to CPLR article 78. The judgment, insofar as appealed from, denied the petition.

[*1]

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Respondent Nicole Golias, an employee of petitioner, New York State Assembly, filed a complaint with respondent New York State Division of Human Rights (DHR) alleging that a state assembly member discriminated against her based on her sex and sexually harassed her during her employment. DHR found probable cause to proceed and amended the discrimination complaint to add petitioner as a respondent in the DHR proceeding. Petitioner subsequently commenced this CPLR article 78 proceeding seeking to prohibit DHR from proceeding with the discrimination claim to the extent such complaint is directed at petitioner. Supreme Court, inter alia, denied the petition, and we affirm.

"The extraordinary writ of prohibition is available to address 'whether [a] body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction' " (Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 786 [1993], quoting CPLR 7803 [2]; see Matter of Niagara Frontier Transp. Auth. v Nevins, 295 AD2d 887, 887 [4th Dept 2002]). Prohibition will not lie where the party has access to another adequate legal remedy (see Town of Huntington, 82 NY2d at 786; Niagara Frontier Transp. Auth., 295 AD2d at 887). "[E]rrors of law, which of course may be verbalized, but incorrectly, as excesses of jurisdiction or power, are not to be confused with a proper basis for using the extraordinary writ" (Matter of State of New York v King, 36 NY2d 59, 62 [1975]).

Petitioner contends that DHR did not give petitioner constitutional due process notice of the charges against it because there are no specific allegations of wrongdoing on its part. It therefore contends that DHR is acting in excess of its jurisdiction and thus petitioner does not need to exhaust its administrative remedies. We reject that contention, however, because the "[r]emedy for asserted error of law in the exercise of [DHR's] jurisdiction or authority lies first in administrative review and following exhaustion of that remedy in subsequent judicial review pursuant to section 298 of the Executive Law" (Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789, 791 [1979]; see Matter of Diocese of Rochester v New York State Div. of Human Rights, 305 AD2d 1000, 1001 [4th Dept 2003]). Petitioner "will suffer no irreparable harm . . . by waiting to challenge [DHR's] findings, if necessary, on the merits after [DHR] investigates [Golias's] complaint" (Town of Huntington, 82 NY2d at 786; see Diocese of Rochester, 305 AD2d at 1001; Niagara Frontier Transp. Auth., 295 AD2d at 888).

Entered: April 24, 2026

Ann Dillon Flynn

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02505.shtml

Mosey v Office of Ct. Admin.

2026 NY Slip Op 02538

April 24, 2026

Appellate Division, Fourth Department

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

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

HON. ACEA M. MOSEY, PETITIONER-PLAINTIFF-RESPONDENT,

OFFICE OF COURT ADMINISTRATION, RESPONDENT-DEFENDANT-APPELLANT.

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on April 24, 2026

194 CA 25-00553

Present: Lindley, J.P., Smith, Greenwood, And Delconte, JJ.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (PATRICK A. WOODS OF COUNSEL), FOR RESPONDENT-DEFENDANT-APPELLANT.

FEATHERSTONHAUGH, CLYNE & MCCARDLE, LLP, ALBANY (JAMES D. FEATHERSTONHAUGH OF COUNSEL), FOR PETITIONER-PLAINTIFF-RESPONDENT.

Appeal from a judgment (denominated order and judgment) of the Supreme Court, Erie County (Catherine R. Nugent Panepinto, J.), entered September 10, 2024, in a proceeding pursuant to CPLR article 78 and declaratory judgment action. The judgment, inter alia, declared that the term nonjudicial personnel in Judiciary Law § 211 (1) (d) does not apply to Chief Clerks and Deputy Chief Clerks in Surrogates' Courts.

[*1]

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the decretal paragraphs are vacated, the petition-complaint insofar as it seeks relief pursuant to CPLR article 78 is denied, and judgment is granted in favor of respondent-defendant as follows:

It is ADJUDGED and DECLARED that: (1) the term "nonjudicial personnel" in Judiciary Law § 211 (1) (d) applies to and includes the Chief Clerks and Deputy Chief Clerks of the Surrogates' Courts of the State of New York; (2) article VI, § 28 of the New York Constitution supersedes sections 2605 and 2606 of the Surrogate's Court Procedure Act; and (3) Judiciary Law § 211 and 22 NYCRR 80.1, through the authority of article VI, § 28 of the New York Constitution, vest the Chief Administrator of the Courts with the power and authority to appoint the Chief Clerks and Deputy Chief Clerks of the Surrogates' Courts of the State of New York to the exclusion of the Surrogates.

Memorandum: This hybrid CPLR article 78 proceeding and declaratory judgment action arises from a dispute between petitioner-plaintiff (plaintiff), who is the Erie County Surrogate, and respondent-defendant (defendant) over who has the authority to appoint the Chief Clerks and Deputy Chief Clerks of the Surrogates' Courts—the respective local Surrogates or the Chief Administrator of the Courts (Chief Administrator). Plaintiff commenced this proceeding-action seeking, inter alia, a declaration that she held the authority to make appointments to the Chief Clerk and Deputy Chief Clerk positions in Erie County Surrogate's Court. Supreme Court agreed with plaintiff and, inter alia, granted declaratory relief effectively providing her with the relevant appointment authority to the exclusion of the Chief Administrator. We reverse inasmuch as we conclude that the Chief Administrator, to the exclusion of the respective Surrogates, possesses the power and authority to appoint the Chief Clerks and Deputy Chief Clerks of the Surrogates' Courts.

It is undisputed that the plain terms of Surrogate's Court Procedure Act article 26, enacted in 1966, placed the authority to appoint the Chief Clerks and Deputy Chief Clerks with the respective Surrogates (see SCPA 2605 [1], [2]). Notwithstanding that statutory provision, however, New York Constitution, article VI, § 28, effective in 1977, "expressly vests the Chief Administrator, on behalf of the Chief Judge, with the broad power to supervise the administration and operation of the Unified Court System" (Matter of Met Council v Crosson, 84 NY2d 328, 334-335 [1994]). The Unified Court System includes the Surrogates' Courts (see NY Const, art VI, § 1). "The powers of the Chief Judge are said to be 'complete' and may be exercised fully by the Chief Administrator on behalf of the Chief Judge" (Met Council, 84 NY2d at 335). On behalf of the Chief Judge, those powers include the power to appoint and remove "all nonjudicial officers and employees" with exceptions not presently relevant (22 NYCRR 80.1 [b] [3]; see Judiciary Law § 211 [1] [d]; see also Met Council, 84 NY2d at 335).

Although the Chief Clerks and Deputy Chief Clerks of the Surrogates' Courts possess significant authority, we agree with defendant that they are, nevertheless, nonjudicial officers. The Chief Clerks, for example, have the authority to sign papers or records of the courts, to adjourn matters, to administer oaths, to supervise disclosure and, in certain circumstances, to hear and report matters to the Surrogates (see SCPA 506 [6] [a]; 2609). Such responsibilities, however, are akin to those of referees (see SCPA 506; CPLR 4201), which are themselves "nonjudicial officers of the court appointed to assist it in the performance of its judicial functions" (Met Council, 84 NY2d at 332; see generally CPLR 4312 [5]; People v Davis, 13 NY3d 17, 25-26 [2009]). Thus, given the "nature of the position[s]," we agree with defendant that the Chief Clerks and Deputy Chief Clerks of the Surrogates' Courts are nonjudicial positions and, "[a]s such, they are subject to the constitutional appointment power of the Chief Administrator, notwithstanding [article 26 of the Surrogate's Court Procedure Act]. Since the appointment powers of the Chief Administrator flow from the State Constitution, they cannot be abrogated by statute" (Met Council, 84 NY2d at 335).

Entered: April 24, 2026

Ann Dillon Flynn

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02538.shtml

Broton v County of Onondaga

2026 NY Slip Op 02581

April 24, 2026

Appellate Division, Fourth Department

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

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

SHAWN BROTON, PLAINTIFF-APPELLANT,

COUNTY OF ONONDAGA, WILLIAM J. FITZPATRICK, INDIVIDUALLY AND IN HIS CAPACITY AS ONONDAGA COUNTY DISTRICT ATTORNEY, ROBERT DURR, INDIVIDUALLY AND IN HIS CAPACITY AS ONONDAGA COUNTY ATTORNEY, DUANE OWENS, INDIVIDUALLY AND IN HIS CAPACITY AS ONONDAGA COUNTY COMMISSIONER OF PERSONNEL, AND STEVEN WILLIAMS, INDIVIDUALLY AND IN HIS CAPACITY AS INVESTIGATIVE CONSULTANT TO ONONDAGA COUNTY BOARD OF ETHICS, DEFENDANTS-RESPONDENTS.

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on April 24, 2026

966 CA 25-00216

Present: Curran, J.P., Bannister, Nowak, Delconte, And Hannah, JJ.

GARY J. LAVINE, SYRACUSE, FOR PLAINTIFF-APPELLANT.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (DONALD S. DIBENEDETTO OF COUNSEL), FOR DEFENDANT-RESPONDENT WILLIAM J. FITZPATRICK, INDIVIDUALLY AND IN HIS CAPACITY AS ONONDAGA COUNTY DISTRICT ATTORNEY.

MACKENZIE HUGHES LLP, SYRACUSE (CHRISTOPHER A. POWERS OF COUNSEL), FOR DEFENDANT-RESPONDENT DUANE OWENS, INDIVIDUALLY AND IN HIS CAPACITY AS

Appeal from an order of the Supreme Court, Onondaga County (Gregory R. Gilbert, J.), entered August 30, 2024. The order granted the motions for summary judgment of defendants William J. Fitzpatrick, individually and in his capacity as Onondaga County District Attorney, Duane Owens, individually and in his capacity as Onondaga County Commissioner of Personnel, and Steven Williams, individually and in his capacity as Investigative Consultant to Onondaga County Board of Ethics, and dismissed the second amended complaint in its entirety.

[*1]

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this action asserting, among other things, state and federal constitutional tort claims, plaintiff appeals from an order that granted the motions of defendants William J. Fitzpatrick, individually and in his capacity as Onondaga County District Attorney, Duane Owens, individually and in his capacity as Onondaga County Commissioner of Personnel, and Steven Williams, individually and in his capacity as investigative consultant to the Onondaga County Board of Ethics, for summary judgment dismissing the second amended complaint against them, and also granted summary judgment dismissing the second amended complaint against defendants County of Onondaga (County) and Robert Durr, individually and in his capacity as Onondaga County Attorney. We affirm.

Plaintiff was appointed Deputy Chief of Police by the former Mayor of the City of Syracuse. When a new mayor was elected in 2017, plaintiff was removed as Deputy Chief and requested to be reinstated as a rank-and-file member of the Syracuse Police Department. Owens denied that request on or about December 18, 2017. In July 2019, plaintiff made a complaint to the Onondaga County Board of Ethics (BOE), alleging that Fitzpatrick had improperly influenced Owens to deny plaintiff's request for reinstatement. In January 2020, Williams, the outside counsel hired by the BOE to conduct the investigation into plaintiff's complaint, determined that plaintiff's allegations were unfounded.

Plaintiff commenced this action in January 2022, and in his second amended complaint, he asserts 12 causes of action. Following discovery, Fitzpatrick, Owens, and Williams (moving defendants) separately moved for summary judgment dismissing the second amended complaint against them. Supreme Court determined that, as a threshold issue, all causes of action are untimely and barred by the statute of limitations. The court further concluded in the alternative that the moving defendants are entitled to summary judgment on the merits, and also granted summary judgment dismissing the second amended complaint against the nonmoving defendants, i.e., the County and Durr, with prejudice.

At the outset, we note that on appeal plaintiff has not raised any challenge to the court's determination to dismiss the second amended complaint against Durr or the County, and he has therefore abandoned any such contention (see Ciesinski v Town of Aurora, 202 AD2d 984, 984 [4th Dept 1994]). We further note that, inasmuch as plaintiff does not contend that the 7th, 8th, 9th, 10th, and 11th causes of action were timely commenced, he has thus abandoned any challenge to the dismissal of those causes of action on statute of limitations grounds (see id.), and his contention that he raised issues of fact with respect to those causes of action is academic (see generally Matter of Sportsmen's Tavern LLC v New York State Liq. Auth., 195 AD3d 1557, 1558 [4th Dept 2021]).

On appeal, plaintiff contends that his causes of action against the moving defendants arising under the New York Constitution and 42 USC § 1983 are timely. Plaintiff's state constitutional tort claims, the 1st through 6th causes of action, are subject to a three-year statute of limitations (see CPLR 214 [5]; Brown v State of New York, 250 AD2d 314, 318 [3d Dept 1998]), as is plaintiff's 12th cause of action, asserting various 42 USC § 1983 claims (see CPLR 214 [5]; BL Doe 3 v Female Academy of the Sacred Heart, 199 AD3d 1419, 1420-1421 [4th Dept 2021]). The moving defendants established that those causes of action accrued on December 18, 2017, when Owens denied plaintiff's request for reinstatement. Thus, taking into account tolling of the statute of limitations pursuant to executive orders during the COVID-19 pandemic, the statute of limitations expired on August 3, 2021—228 days after December 18, 2020 (see generally 9 NYCRR 8.202.8 et seq.; State of New York v Williams, 224 AD3d 1356, 1357 [4th Dept 2024]). Plaintiff commenced this action in January 2022, which was after the expiration of the limitations period.

Plaintiff contends that his action was timely based on the continuing wrong doctrine. We reject that contention because the continuing wrong doctrine "does not apply where . . . [the] plaintiff's allegation of damages is predicated on a single specific act" (Fang v Town of Amherst, 238 AD3d 1473, 1475 [4th Dept 2025]) and, here, the damages are predicated on a single act, i.e., Owens' denial of plaintiff's request to be reinstated. Moreover, that doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" (Coe v Village of Waterloo, 229 AD3d 1119, 1121 [4th Dept 2024], lv denied 42 NY3d 912 [2025] [internal quotation marks omitted]), and there are no continuing unlawful acts.

To the extent that plaintiff's causes of action against Williams may have been timely filed, we conclude that, contrary to plaintiff's contention, Williams is entitled to summary judgment dismissing the second amended complaint against him. In support of his motion, Williams submitted admissible evidence establishing that he is not liable under any of the causes of action asserted against him inasmuch as he merely investigated the BOE ethics complaint, did not take any adverse action against plaintiff, and was uninvolved in the decision to terminate plaintiff which occurred some three years before Williams' involvement (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition to Williams' motion, plaintiff has not shown that he was injured by any act or omission of Williams during the course of the BOE investigation, or that the BOE investigation impacted plaintiff's termination some three years earlier. We conclude that "[t]he proof submitted by [plaintiff] in opposition to the motion consisted of unsubstantiated allegations and mere conclusions that were lacking in evidentiary support and thus insufficient to defeat summary judgment" (I.P.L. Corp. v Industrial Power & Light. Corp., 202 AD2d 1029, 1029 [4th Dept 1994]).

We have reviewed plaintiff's remaining contentions and conclude that none warrants modification or reversal of the order.

Entered: April 24, 2026

Ann Dillon Flynn

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02581.shtml

ate Assembly v New York State Div. of Human Rights

2026 NY Slip Op 02505

April 24, 2026

Appellate Division, Fourth Department

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

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

IN THE MATTER OF NEW YORK STATE ASSEMBLY, PETITIONER-APPELLANT,

NEW YORK STATE DIVISION OF HUMAN RIGHTS, NICOLE GOLIAS, RESPONDENTS-RESPONDENTS, ET AL., RESPONDENT.

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on April 24, 2026

89 CA 24-01652

Present: Lindley, J.P., Curran, Ogden, Greenwood, And Hannah, JJ.

HARTER SECREST & EMERY LLP, BUFFALO (ROBERT C. WEISSFLACH OF COUNSEL), FOR PETITIONER-APPELLANT.

MELISSA FRANCO, GENERAL COUNSEL, NEW YORK STATE DIVISION OF HUMAN RIGHTS, BRONX (MICHAEL K. SWIRSKY OF COUNSEL), FOR RESPONDENT-RESPONDENT NEW YORK STATE DIVISION OF HUMAN RIGHTS.

SANDERS & SANDERS, BUFFALO (HARVEY P. SANDERS OF COUNSEL), FOR RESPONDENT-RESPONDENT NICOLE GOLIAS.

[*1]

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Entered: April 24, 2026

Ann Dillon Flynn

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02505.shtml

Mosey v Office of Ct. Admin.

2026 NY Slip Op 02538

April 24, 2026

Appellate Division, Fourth Department

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

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

HON. ACEA M. MOSEY, PETITIONER-PLAINTIFF-RESPONDENT,

OFFICE OF COURT ADMINISTRATION, RESPONDENT-DEFENDANT-APPELLANT.

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on April 24, 2026

194 CA 25-00553

Present: Lindley, J.P., Smith, Greenwood, And Delconte, JJ.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (PATRICK A. WOODS OF COUNSEL), FOR RESPONDENT-DEFENDANT-APPELLANT.

FEATHERSTONHAUGH, CLYNE & MCCARDLE, LLP, ALBANY (JAMES D. FEATHERSTONHAUGH OF COUNSEL), FOR PETITIONER-PLAINTIFF-RESPONDENT.

[*1]

Entered: April 24, 2026

Ann Dillon Flynn

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02538.shtml

With an apology to You've Got Mail, a 1998 American movie film directed by Nora Epheon and starring Tom Hanks and Meg Ryan, NYPPL received some Fan Mail

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Kenneth Maines, Appellant,
v
Cronomer Valley Fire Dept., Inc., et al., Defendants, and Dale Kluger et al., Respondents.

Court of Appeals of New York
Submitted April 22, 1980
Decided June 12, 1980

50 NY2d 535
CITE TITLE AS: Maines v Cronomer Val. Fire Dept.

[*540] OPINION OF THE COURT

Meyer, J.

Section 19 of the Volunteer Firemen's Benefit Law does not bar an action by an injured fireman plaintiff who has accepted compensation benefits against defendant fellow firemen whose injury-causing acts were outside the scope of defendants' employment. The order of the Appellate Division affirming dismissal of plaintiff Maines' complaint should, therefore, be reversed insofar as appealed from,^[1] with costs, and summary judgment as to the individual defendants should be denied.^[2]

The papers on defendants' motions to dismiss establish that on June 12, 1975 plaintiff attended the regular monthly meeting of the Cronomer Valley Fire Department at the company meeting hall, during part of which he and another junior fireman were inducted as senior members. After the meeting formally ended plaintiff remained in the building with others for at least an hour to watch a game of cards. Another group of volunteer firemen left the meeting hall and went to a different building on the premises, referred to as the truckhouse. At about 11:30 P.M. one of the firemen returned from the truckhouse and told plaintiff to come with him because one of the members wanted to speak with him. On their way to the truckhouse, Maines, who had been hazed when he was inducted to junior membership and thus suspected that some type of horseplay awaited him, told the other fireman that "if they were going to do any fooling around not to do it today because [he had his] good clothes on." No response was made. Immediately upon entering the [*541] truckhouse a bedsheet was pulled over plaintiff's head, a leather belt was tied to his waist, his feet were bound together with three- quarter-inch rope, and his arms were held to restrain him from struggling loose. Maines was then carried outside to the parking lot and thrown into a garbage dumpster. Once in the dumpster, grease was thrown at him, he was hosed with water for several minutes, and despite his protestations that he had landed on broken glass and had been severely cut, the lid to the dumpster was closed and he was kept inside for several minutes more. The dumpster was then turned on its side and as plaintiff rolled out the other firemen saw that he had in fact been hurt. They administered first aid and rushed him to the hospital for treatment of his seriously gashed left hand and fingers and injuries to his right wrist. That same night the department chief fined each of the individual defendants $5 for costs, suspended them for 54 days and placed them on probation for six months. One defendant, who was a first lieutenant, lost his rank for a year.

The fire department chief filed notice of the accident with the Workers' Compensation Board. Though plaintiff did not attend the first hearing held by the board, he ultimately did attend at least one later hearing and was awarded and accepted benefits in the amount of $8,332 for the injuries sustained. The decision stated simply that claimant "sustained injury to his left hand in the course of firematic [sic] duties."

Whether compensation is plaintiff's exclusive remedy turns on the interpretation of sections 19 and 20 of the Volunteer Firemen's Benefit Law and of related sections of the Workers' Compensation Law. Section 19 of the former law provides in relevant part that: "The benefits provided by this chapter shall be the exclusive remedy of a volunteer fireman *** for *** injury *** in the line of duty *** as against *** (3) any person or agency acting under governmental or statutory authority in furtherance of the duties or activities in relation to which any such injury resulted" and section 20, which is entitled "Other remedies of volunteer firemen; subrogation," states that: "The provisions of section twenty-nine of the workmen's compensation law to the extent that such provisions are not inconsistent with the provisions of this chapter, shall be applicable as fully as if set forth in this chapter." Section 29 of the Workers' Compensation Law provides, so far as here relevant, in subdivision 1 that "If an employee entitled to compensation under this chapter be [*542] injured or killed by the negligence or wrong of another not in the same employ, such injured employee *** may take such compensation and medical benefits and *** pursue his remedy against such other," and in subdivision 6 that the right to compensation is the exclusive remedy of an employee injured "by the negligence or wrong of another in the same employ."

Viewed solely on the basis of the words used, section 29 of the Workers' Compensation Law, which turns on whether plaintiff and defendant were "in the same employ," gives a coworker greater protection than does section 19 of the firemen's law, which protects only a person acting "in furtherance of the duties or activities in relation to which" the injury resulted, for our decisions have long recognized that an employee may be within the course of employment (and thus in "the same employ") even though not acting strictly in furtherance of his duties or his employer's objectives (see, generally, 1A Larson, Workmen's Compensation Law, §§ 20-23). On its wording section 19 affords no basis for dismissal of the complaint, for a jury could find, there being evidence (both in the disciplining of defendant firemen and in testimony of individual witnesses that such initiation or hazing activities were not an accepted practice in the fire department) that in fact defendants were not acting "in furtherance of the duties or activities" in relation to which plaintiff's injuries resulted (Matter of Ognibene v Rochester Mfg. Co., 298 NY 85; see Matter of Heitz v Ruppert, 218 NY 148, 152-153; cf. 1A Larson, Workmen's Compensation Law, § 23.41). Likewise the disparate wording of the two laws would make section 29 of the Workers' Compensation Law inapplicable because section 20 of the firemen's law applies section 29's exclusivity provision only to the extent not inconsistent with the firemen's law. Nor would the referee's finding estop plaintiff collaterally, for the only finding required by subdivision 3 of section 3 and section 6 of the firemen's law, and indeed the only finding made, was that Maines had been injured "in line of duty."

We prefer not to predicate our ruling on the difference in wording between the two laws, however, because the Memorandum of the Joint Legislative Committee on Fire Laws which accompanied the bill which became the Volunteer Firemen's Benefit Law (NY Legis Doc, 1956, No. 45, reprinted at McKinney's Cons Laws of NY, Book 63B, p 17) contains language suggesting that section 19 was intended to follow the exclusivity rule of the Workers' Compensation Law (NY Legis [*543] Doc, 1956, No. 45, p 26; McKinney's Cons Laws of NY, Book 63B, p 12, see, also, p 29), a conclusion which is consistent with the result we reached in Pollini v Fuller Rd. Fire Dept. (34 NY2d 744).^[3] We leave the question open also because, though the word "employ" does not necessarily import employment for hire, it may be argued that section 19's "furtherance of the duties or activities" phrasing was simply the scrivener's effort to transpose "in the same employ" to a law relating to volunteers, and because, in final analysis, we conclude that even under the broader wording of the Workers' Compensation Law, defendants were not "in the same employ" as that phrase has been construed and, therefore, plaintiff is not barred from suing them.

That plaintiff was "in line of duty" at the time he was summoned to the truckhouse is not open to question. Section 5 of the Volunteer Firemen's Benefit Law includes within the "duties and activities" for which benefits are to be paid "attending or working at meetings of his fire department" (subd 1, par f), and the frequent holding of this and other courts has been that the interpretation of such a provision must not be restricted to the exact hours of the event in question, but should be reasonably, and sometimes liberally, construed in reference to the particular factual context (Wright v Day, 26 NY2d 905; Doyle v Jennings, 26 NY2d 957; Matter of Myslborski v Greenport Fire Dist., Volunteer Firemen's Co., 38 AD2d 646). There is nothing in the instant record to suggest that the board was not wholly justified in finding plaintiff to have been in course of duty when injured, and in any event there has been no appeal from that finding.

But the words "in the same employ" as used in the Workers' Compensation Law are not satisfied simply because both plaintiff and defendant have the same employer; a defendant, to have the protection of the exclusivity provision, must himself have been acting within the scope of his employment and not have been engaged in a willful or intentional tort. Though the cases cited by the courts below (Doca v Federal Stevedoring Co., 280 App Div 940, affd 305 NY 648; Meaney v Keating, 200 Misc 308, affd 279 App Div 1030, affd 305 NY 660; Moakler v Blanco, 47 AD2d 614; Durso v Modern Biscuit Corp., 11 AD2d 1036, 1037) all infer that a common-law action [*544] by an injured employee who has accepted a compensation award is available only if the complaint alleges commission of a willful or intentional act, they are distinguishable because defendant in each, except Moakler, was the employer, and it does not appear from the Moakler opinion that the question whether defendant employee was acting within the scope of his employment was raised as it has been here.

The policy considerations involved in the two situations differ greatly (see, generally, 2A Larson, Workmen's Compensation Law, §§ 71, 72). While compensation law is designed to insure that an employee injured in course of employment will be made whole and to protect a coemployee who, acting within the scope of his employment caused the injury, it has not protected the coemployee, even though the injured employee has accepted compensation benefits, when the coemployee was not acting within the scope of his employment at the time he inflicted the injury (D'Agostino v Wagenaar, 183 Misc 184, affd 268 App Div 912, mot for lv to app den 294 NY 640; Ventrone v Tarancki, 32 AD2d 738; Artonio v Hirsch, 3 AD2d 939; Bonadonna v Barry, 28 Misc 2d 454, affd 13 AD2d 890; Helmic v Paine, 369 Mich 114; Williams v Bebbington, 247 SC 260; see Costanzo v Mackler, 34 Misc 2d 188, affd 17 AD2d 948; 2A Larson, op cit , § 72.20, pp 14-39 ["the immunity attaches to the co-employee only when the co-employee is acting in the course of his employment"]).

The facts of the D'Agostino case are illustrative. There plaintiff was employed as a gardener at a country club and was engaged in mowing grass near the curb of a driveway on the club premises when injured. Defendant was employed by the club as a night watchman at a wage which included room and board. Defendant's hours were from 10 P.M. to 7:30 A.M. The accident occurred at 2 P.M. While defendant was driving his private automobile, kept on the premises with the club's permission, on a personal errand, he ran off the driveway into plaintiff. Defendant's motion to set aside the jury's verdict for plaintiff and dismiss plaintiff's negligence complaint, because barred by the exclusivity provision of subdivision 6 of section 29 of the Workers' Compensation Law, was denied on the ground that defendant was not within the scope of his employment at the time of injury and, therefore, the parties were not "in the same employ."

In the instant case, defendants had so far departed from the "duties and activities" of their positions as volunteer firemen [*545] that a jury may find, the more so in light of defendants' suspensions and other discipline, that they were not acting in furtherance of those duties (or in the "same employ") when plaintiff was injured.

A further basis for our conclusion exists in that the complaint liberally construed may be interpreted as alleging that the individual defendants in throwing plaintiff into the dumpster committed an intentional assault upon him. While the complaint alleges negligence and carelessness, it also charges that defendants "in concert with one another *** caused the plaintiff to be physically restrained," recklessly "failed to discontinue their actions upon plaintiff's resistance, requests and cries," and "used physical force on the plaintiff for no legitimate or lawful purpose." As the First Department held in Mazarredo v Levine (274 App Div 122, 126-127):

"Assuming, however, that the plaintiff was not the aggressor and that the assault arose out of a quarrel between coemployees relating to matters connected with the employment so as to make the plaintiff's injuries compensable as an industrial accident insofar as the employer is concerned, we find nothing in the statute that requires us to construe it as affording to the perpetrator of the assault a defense based on the exclusive remedy of compensation provided for one injured by the negligence or wrong of another in the same employ (Workmen's Compensation Law, § 29, subd. 6). ***

"The commission of an assault by one employee upon another in the course and arising out of the employment may properly be deemed accidental from the standpoint of the employer as an untoward event not expected or intended. The same, however, can hardly be said for the perpetrator of the assault. It seems unreasonable to suppose that the Legislature intended to give statutory protection in the form of immunity from suit for a deliberate and intentional wrongful act." (See Matter of Berenberg v Park Mem. Chapel, 286 App Div 167, 169; cf. Matter of Goldfine v Barsol [Parson] Cab Operating Co., 19 AD2d 672; Lavin v Goldberg Bldg. Material Corp., 274 App Div 690, mot for lv to app dsmd 304 NY 738; Le Pochat v Pendleton, 271 App Div 964; De Coigne v Ludlum Steel Co., 251 App Div 662; see, also, Ann., 21 ALR3d 845, 880.) Moreover, we reject defendants' suggestion that plaintiff must allege that defendants intended to bring about the [*546] harmful consequences that ensued. Whatever may be the rule in an action against an employer (compare Finch v Swingly, 42 AD2d 1035, with Matter of Ward v Typhoon Air Conditioning Co., 27 AD2d 785, 786, mot for lv to app den 19 NY2d 582), the complaint in an action against a coemployee (or fellow fireman) for an assault committed outside the scope of the coemployee's employment (or not in furtherance of the duties of the fellow fireman) need only allege deliberate intent or conscious choice to do the act which results in the injury (see Masters v Becker, 22 AD2d 118; Baldinger v Banks, 26 Misc 2d 1086; Lambertson v United States, 528 F2d 441, 444, cert den 426 US 921; 2 NY PJI 584).

In reaching our conclusion, we are not unmindful of the provisions of section 205-b of the General Municipal Law. That section did not bar a common-law action against a fellow fireman before enactment of the Volunteer Firemen's Benefit Law (Ottman v Village of Rockville Centre, 275 NY 270), nor does it do so when read with that law. Section 205- b, which provides that: "Members of duly organized volunteer fire companies in this state shall not be liable civilly for any act or acts done by them in the performance of their duty as volunteer firemen, except for wilful negligence or malfeasance", by its own terms is not in point. It applies only to acts done "in the performance of *** duty as volunteer firemen." Here, as already noted, in order to escape the exclusive remedy provisions of section 19 of the Volunteer Firemen's Benefit Law, plaintiff must show that his fellow firemen in fact were not acting "in furtherance of their duties and activities."

For the foregoing reasons, the order of the Appellate Division should be reversed insofar as appealed from, with costs, and the motions of the individual defendants for summary judgment should be denied.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order, insofar as appealed from, reversed, etc.

Footnotes

Footnote 1: The orders affirmed by the Appellate Division granted summary judgment to defendant fire department as well. Plaintiff on appeal to us has limited his argument to the contention that summary judgment was improperly granted the individual defendants.

Footnote 2: The complaint is technically defective in failing to allege that the individual defendants were not acting within the scope of their employment (Murray v City of New York, 43 NY2d 400, 407), but plaintiff's brief notes that if the complaint is reinstated he will move at Special Term to amend (CPLR 3025). The defect has not been argued by defendants and for purposes of this appeal is not material.

Footnote 3: Note, however, that Pollini dealt not with the present issue but with whether the defendant, Hicksville Fire Department, was a "person or agency" within the meaning of subdivision 3 of section 19.

https://www.nycourts.gov/reporter/archives/Maines_Cronomer.htm

CORY ZENNAMO, Plaintiff-Appellant, v. COUNTY OF ONEIDA, ANTHONY J. PICENTE, JR., INDIVIDUALLY, PETER M. RAYHILL, INDIVIDUALLY, United States 2nd Circuit Court of Appeals' Decision addresses attorney using employer's equipment during employee's work hours for employer on attorney's personal legal business. https://ww3.ca2.uscourts.gov/decisions/SUM/25-732_so.pdf

Employee terminated for failure to commit to a return-to-work date

Heidi Leibowitz, appellant,

New York County Lawyers Association, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 29, 2026

2024-09482, (Index No. 517381/19)

Francesca E. Connolly, J.P.

William G. Ford

Helen Voutsinas

Laurence L. Love, JJ.

Alexander Markus, Lynbrook, NY, for appellant.

Dentons US LLP, New York, NY (Ned H. Bassen of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination on the basis of gender in violation of Executive Law § 296 and Administrative Code of the City of New York § 8-107, the plaintiff appeals from an order of the Supreme Court, Kings County (Ingrid Joseph, J.) dated July 25, 2024. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In April 2016, the plaintiff, who was employed by the defendant, took a pregnancy-related leave. During the plaintiff's leave, the defendant converted the plaintiff's position from full time to part time. In August 2016, the defendant repeatedly inquired about the plaintiff's planned return-to-work date. On August 9, 2016, after the plaintiff's repeated failure to commit to an exact return date, the defendant terminated her employment, effective September 8, 2016, at the end of her leave.

On August 7, 2019, plaintiff commenced this action alleging, inter alia, employment discrimination on the basis of gender and retaliation under the New York State Human Rights Law (NYSHRL) (Executive Law § 296) and the New York City Human Rights Law (NYCHRL) (Administrative Code of the City of New York § 8-107). The defendant moved for summary judgment dismissing the complaint. In an order dated July 25, 2024, the Supreme Court granted the defendant's motion. The plaintiff appeals.

At the time the plaintiff commenced this action on August 7, 2019, a plaintiff alleging discrimination in violation of the NYSHRL was required to establish that "(1) he or she is a member of a protected class, (2) he or she was qualified to hold the position, (3) he or she suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination" (Niemotko v Mount St. Mary Coll., 241 AD3d 701, 702 [internal quotation marks omitted]; see Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d 708, 709-710). A plaintiff seeking to prove a cause of action alleging discrimination "may raise such an inference by showing that the employer subjected him [or her] to disparate treatment, that is, treated him [or her] less favorably than a similarly situated employee outside his [or her] protected group" (Castro v City Univ. of N.Y., 238 AD3d 1106, 1107 [internal quotation marks omitted]; see Dotson v J.C. Penney Co., Inc., 159 AD3d 1512, 1514). "When plaintiffs seek to draw inferences of discrimination by showing that they were similarly situated in all material respects to the individuals to whom they compare themselves, their circumstances need not be identical, but there should be a reasonably close resemblance of facts and circumstances" (Castro v City Univ. of N.Y., 238 AD3d at 1107-1108 [internal quotation marks omitted]; see Diaz v Minhas Constr. Corp., LLC, 188 AD3d 812, 814). "The key is that they be similar in significant respects" (Castro v City Univ. of N.Y., 238 AD3d at 1108 [internal quotation marks omitted]).

"To prevail on a summary judgment motion in an action alleging discrimination in violation of the NYSHRL, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of triable issue[s] of fact as to whether the explanations were pretextual" (Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d at 710 [internal quotation marks omitted]).

Here, the defendant met its prima facie burden by demonstrating that the plaintiff's employment was terminated for a nondiscriminatory reason, namely her failure to commit to a return-to-work date (see Niemotko v Mount St. Mary Coll., 241 AD3d at 703). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant's reason for terminating her employment was a pretext for pregnancy discrimination (see D'Agostino v MMC E., LLC, 184 AD3d 719, 722).

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging pregnancy discrimination in violation of the NYSHRL.

"Under the NYCHRL, unlawful discrimination must play no role in an employment decision" (Ellison v Chartis Claims, Inc., 178 AD3d 665, 668 [internal quotation marks omitted]; see Wright v White Plains Hosp. Med. Ctr., 237 AD3d 1143, 1146). Thus, a defendant's motion for summary judgment must be analyzed under both the familiar framework of McDonnell Douglas Corp. v Green (411 US 792) and under the newer mixed-motive framework, which imposes a lesser burden on a plaintiff opposing such a motion (see Wright v White Plains Hosp. Med. Ctr., 237 AD3d at 1145; Reichman v City of New York, 179 AD3d 1115, 1117). "A defendant must make a prima facie showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in their challenged actions" (Ellison v Chartis Claims, Inc., 178 AD3d at 668 [internal quotation marks omitted]; see Wright v White Plains Hosp. Med. Ctr., 237 AD3d at 1146). "A plaintiff may defeat summary judgment by coming forward either with evidence that the defendant's stated reasons were a pretext for discrimination or with evidence that discrimination was one of the motivating factors for the defendant's conduct" (Ellison v Chartis Claims, Inc., 178 AD3d at 668; see Wright v White Plains Hosp. Med. Ctr., 237 AD3d at 1146).

Here, the defendant met its prima facie burden by establishing that there was no evidentiary route that could allow any jury to believe that the plaintiff's employment was terminated for discriminatory reasons (see Ellison v Chartis Claims, Inc., 178 AD3d at 669). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the proffered explanation was a pretext for discrimination or whether discrimination was one of the motivating factors for the challenged action (see Wright v White Plains Hosp. Med. Ctr., 237 AD3d at 1146; Reichman v City of New York, 179 AD3d at 1118). Thus, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging gender discrimination in violation of the NYCHRL.

"To make a prima facie showing of retaliation under the NYSHRL, a plaintiff must show that (1) he or she has engaged in protected activity, (2) the employer was aware that the plaintiff participated in such activity, (3) the plaintiff suffered an adverse employment action based upon that activity, and (4) there is a causal connection between the protected activity and the adverse action" (Makharadze v Ognibene, 239 AD3d 844, 846-847 [internal quotation marks omitted]; see Reichman v City of New York, 179 AD3d at 1119). "Under the NYCHRL, the test is similar, except that the plaintiff need not establish an adverse action; rather, the plaintiff must show only that the defendant took an action that disadvantaged him or her" (Makharadze v Ognibene, 239 AD3d at 847). "To establish its entitlement to summary judgment in a retaliation case [under either the NYSHRL or the NYCHRL], a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual" (Reichman v City of New York, 179 AD3d at 1119-1120 [internal quotation marks omitted]; see Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1004).

Here, the defendant met its prima facie by proffering a nondiscriminatory, nonretaliatory reason for the plaintiff's termination of employment, namely the plaintiff's failure to specify a date for her return from maternity leave (see Reichman v City of New York, 179 AD3d at 1120). Additionally, by showing it had cleared a 134-case backlog in the plaintiff's department, the defendant provided a nondiscriminatory, nonpretextual reason for its action of redefining the plaintiff's position from full time to part time. In opposition, the plaintiff failed to raise triable issues of fact as to whether the defendant's proffered reasons for either her termination of employment or the redefinition of her position were pretextual or whether the defendant's conduct was causally related to a protected activity (see Makharadze v Ognibene, 239 AD3d at 847). Therefore, the Supreme Court properly granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action alleging retaliation in violation of the NYSHRL and the NYCHRL.

The plaintiff's remaining contention is improperly raised for the first time on appeal.

CONNOLLY, J.P., FORD, VOUTSINAS and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_04759.shtml

Decision No. 18,799

Appeal of the BOARD OF EDUCATION OF THE HEMPSTEAD UNION FREE SCHOOL DISTRICT regarding an election.

Decision No. 18,799

(July 22, 2026)

Guercio & Guercio LLP, attorneys for petitioner, Anthony J. Fasano and Katerina Martinez Velez, Esqs., of counsel

ROSA., Commissioner.--Petitioner, the Board of Education of the Hempstead Union Free School District (“board”), seeks an order pursuant to Education Law § 2037 annulling the results of the May 19, 2026 election. The appeal must be sustained to the extent indicated.

The petition describes a host of improprieties in connection with the May 2026 election. Most significantly, after the election the board discovered a garbage bag containing “folded ballots” and “ripped up cast ballots” in a dumpster outside of the district’s administrative office. The board also indicates that: (1) the district clerk did not, as required by statute,[1] create a list of absentee/early mail voters; (2) there were numerous discrepancies regarding absentee ballots; and (3) certain ballots for voters “unable to appear personally at the polling place because of illness or physical disability”[2] were mailed beyond the statutory deadline.

To invalidate the results of a school district election, a petitioner must either: (1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or (2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (see Matter of Boyes v Allen, 32 AD2d 990, 991 [3d Dept 1969], affd 26 NY2d 709 [1970]; Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Levine, 24 id. 172, Decision No. 11,356, affd sub nom. Capobianco v Ambach, 112 AD2d 640 [3d Dept 1985]). I find that the above evidence amply paints a “clear and convincing picture of informality” that warrants a new election.

That relief was awarded in an interim order dated June 25, 2026. This order annulled the results of the May 19, 2026 election with respect to the open trustee position, directed the board to conduct a new election within 60 days, and appointed the District Superintendent for the Putnam Northern Westchester Board of Cooperative Services to fulfill the role of district clerk in connection therewith.

I find that the June 25, 2026 order continues to represent appropriate relief for the violations of law and irregularities described in the petition. To the extent they are not addressed herein, petitioner’s remaining requests for relief are denied.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the interim order of June 25, 2026 remains in effect without modification.

END OF FILE

[1] Education Law §§ 2018-b (7), 2018-f (7). See Appeal of Touré, et al., 54 Ed Dept Rep, Decision No. 16,660 (the “failure to maintain ... a list [of absentee voters] is an open invitation to fraud and threatens the integrity of the electoral process”).

[2] Education Law § 2018-a (2) (a) (2).

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