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Friday, June 28, 2013

Using a Global Positioning System device to gather evidence of employee misconduct

Using a Global Positioning System device to gather evidence of employee misconduct
2013 NY Slip Op 04838, Court of Appeals

The Department, suspecting that one of its employees was submitting false time reports, attached a global positioning system (GPS) device to the employee's personal automobile. Citing People v Weaver (12 NY3d 433) and United States v Jones(132 S Ct 945, the Court of Appeals ruled that the State's action was a search within the meaning of the State and Federal Constitutions but that under the relevant facts in this case “did not require a warrant.”

The court, however, then proclaimed that “on the facts of this case such surveillance was  unreasonable”

Addressing the lawful used of a GPS, the court noted that the employee’s Department initiated an investigation concerning the individual’s alleged unauthorized absences from duty and the falsification of records to conceal those absences. As a result the employee was served with certain disciplinary charges, found guilty and was suspended without pay for two months.

However, a second investigation was initiated when the Department referred the employee’s efforts to avoid surveillance to the Office of the State Inspector General. The Inspector General's investigation resulted in a second disciplinary proceeding, which resulted in this litigation.

According to the decision, the Inspector General's investigator attach a GPS device to the employee's car without his knowledge while the car was parked in a lot near the Department’s offices. Ultimately GPS devices recorded all of the car's movements for a month, including evenings, weekends and several days when the employee was on vacation. Subsequently the Inspector General’s investigators initiated surveillance of an apartment building the employee was suspected of visiting during working hours, subpoenaed E-Z Pass records and interviewed the employee and his secretary.

The resulted in the Department filing new charges against employee. The hearing officer found the employee guilty of 11 of the charges, eight of which were supported by evidence obtained through the use of a GPS device in whole or in part. The appointing authority adopted the hearing officer’s findings and recommendation and terminated the employee.

In explaining its ruling, the Court of Appeals said:

1. The attachment by law enforcement officers of a GPS device to the automobile of a criminal suspect, and the use of that device to track the suspect's movements, was a search subject to constitutional limitations.

2. The search in this case was a search within the meaning of Article I, §12 of the New York Constitution and the Fourth Amendment

3. The search in this case was within the "workplace" exception to the warrant requirement recognized in O'Connor v Ortega (480 US 709) and Matter of Caruso v Ward (72 NY2d 432).

The court noted that O'Connor involved the warrantless search by a public employer of the office of an employee suspected of misconduct. The United States Supreme Court upheld the search.

Subsequently the Court of Appeals had made it clear that it would follow O'Connor in deciding the constitutionality of searches conducted by public employers, whether for "noninvestigatory, work-related purposes" or for "investigations of work-related misconduct," under the New York as well as the Federal Constitution in its decision in Caruso.

Significantly, the employee did not challenge the existence of a workplace exception to the warrant requirement, but argued that it is inapplicable because the object of the search in this case was the employee's personal car. Accordingly, the employee contended that the court should “confine the exception to ‘the workplace itself, or . . . workplace-issued property that can be seen as an extension of the workplace.’" 

The Court of Appeals rejected this contention “at least insofar as it would require a public employer to get a warrant for a search designed to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.”

The bottom line: the Court of Appeals conclude that “when an employee chooses to use his car during the business day, GPS tracking of the car may be considered a workplace search [and the] Inspector General did not violate the State or Federal Constitution by failing to seek a warrant before attaching a GPS device to [the employee's] car.”

That said, the court then explained that “While the search did not require a warrant, it did not comply with either the State or Federal Constitution unless it was a reasonable search.” According, the court ruled that the State has failed to demonstrate that this search was reasonable.

Use of GPS device, said the court, was conditioned on the employer first making a reasonable effort to avoid tracking the employee using a GPS device outside of business hours. Its failure to do so will result in the search, as a whole, being considered unreasonable.

Accordingly the court said that what is required in this instance is the suppression of the GPS evidence. 

However, the suppression of evidence obtained using a GPS device in this case did not to preclude the employer from disciplining the employee since only four of the 11 charges for which the employee was found guilty depended on GPS evidence. Accordingly only dismissal of those four charges was required.

The court then said that as to the others, the GPS evidence was either substantially duplicated by other records in evidence or was wholly irrelevant. Thus, whether the seven surviving charges warrant the same or a lesser penalty is a matter to be decided, in the first instance, by the Commissioner of Labor.

Accordingly, the Court of Appeals reversed the Appellate Division’s ruling and said that “charges one, two, three and six against [the employee are] dismissed, and matter remitted to the Appellate Division with directions to remand to the Commissioner of Labor for redetermination of the penalty.

The decision is posted on the Internet at:

Good faith test for job abolishment

Good faith test for job abolishment
Christian v Casey, 76 AD 835

Former employees of the City of Yonkers lost their jobs when the City planned to close it jail under its fiscal program.

The jail was never actually closed, however. It continued in operation with a reduced staff, with police officers performing some of the duties of the former employees that served in the titles of jailer or matron. When the employees sued, the Court held that municipal corporation may in good faith abolish civil service positions for reasons of economy.

The assignment of police officers to the jail was held to be a good faith effort to consolidate the arrest procedures and not an attempt to replace the former employees with newly hired personnel.

The fact that some of the duties of the former employees were being performed by police officers serving in the jail was not viewed as bad faith by the Court as “the utilization of existing personnel to carry out those duties which remained after the abolishment of the positions in the wake of a financial emergency cannot amount to a lack of good faith.”

Thursday, June 27, 2013

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA
2013 NY Slip Op 04411, Appellate Division, Third Department

A member of the college's faculty [MF] contended that various members of the faculty and the administration failed to follow the procedures set forth in the collective bargaining agreement [CBA] in considering him for promotion to his professional and economic detriment.

The Faculty Association filed a grievance on MF’s behalf but shortly thereafter decided withdraw its grievance. MR sued, alleging a breach of the CBA. Ultimately Supreme Court dismissed his petition, finding that MF “lacked standing” to bring the action and MF appealed that ruling to the Appellate Division.

MF argued that although he does not contend that the Faculty Association breached its duty of fair representation, he should have standing to pursue a common-law breach of contract action against his employer regarding the alleged violations of the promotion procedures.

The Appellate Division disagreed, holding that "As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract."

Although the court noted “Exceptions [to the general proposition] [1] include where the collective bargaining agreement grants an employee a right to sue directly or [2] where the union fails in its duty of fair representation,” it pointed out that MF acknowledged that he is not alleging that Faculty Association breached its duty of representation but that argued that under the CBA decisions related to promotions are excepted from the grievance procedure and, thus, he contends that he can pursue an action directly against college defendants.

Rejecting MF’s theory, the Appellate Division said that the ultimate decision granting a promotion is not subject to a grievance under the CBA in contrast to the “lengthy procedures” faculty members must follow over several years to become eligible for consideration of a promotion. Such procedures, said the court, “are set forth in the CBA and are not explicitly excepted from the grievance process.”

It is the purported failure to follow these promotion procedures that MF challenged and the CBA, said the court, “does not carve out a separate right regarding these procedures that can be enforced by an employee directly against defendants.”

The decision is posted on the Internet at:

Disqualifying an individual for employment in the public service

Disqualifying an individual for employment in the public service
Ferrine v Bahou, 75 AD2d 669

§50.4 of the Civil Service Law requires notice of the reasons for the disqualification of a person for employment in the public service by the New York State Department of Civil Service, or the municipal commission or personnel officer having jurisdiction, be given to the individual, together with an opportunity to submit an explanation challenging such disqualification.

As the employee in this case, Ferrine, was not provided with an opportunity to submit facts in opposition to his disqualification, the Appellate Division sustained the Supreme Court’s ruling holding that his dismissal was unlawful and the appointing authority was required to reinstate the employee to the position with back salary.

Judge Casey, however, dissented, noting that the basis for Ferrine’s disqualification was that he was unable to meet the age requirements for appointment to the position and thus “The [municipal]  commission had not only a right but a duty to remove him.”

Wednesday, June 26, 2013

Retirement System member retroactively reinstated to Tier I membership not entitled to employee contributions he or she made to the Retirement System as a Tier III member

Retirement System member retroactively reinstated to Tier I membership not entitled to employee contributions he or she made to the Retirement System as a Tier III member
Price v New York State & Local Employees' Retirement Sys., 2013 NY Slip Op 04405, Appellate Division, Third Department

An individual [Member] was employed in various positions by New York State public employers in 1968 until 1975 when he left public service. At no time during such period did Member join the New York State and Local Employees’ Retirement System [ERS] nor, according to the decision, was he advised that he was a “mandatory Tier 1 member” of ERS.

Member reentered New York State public employment in 1980 and joined ERS as a contributory Tier 3 member. In 1997, without notice to Member, ERS administratively granted him Tier 1 membership with service credit for the initial years he had worked (1968-1975). However, upon further review, ERS deemed that Member’s Tier 1 membership automatically terminated in 1975 for inactivity in accordance with the provisions of the Retirement and Social Security Law then in effect, thereby continuing him as a Tier III member of ERS.

Member subsequently applied for, and was approved for, reinstatement to Tier 1 pursuant to Retirement and Social Security Law §645.* He then requested a refund of the contributions he had made since 1980 as a Tier 3 member.

ERS denied his request indicating that “[Member] did not qualify for a refund under the … statute pursuant to which he was reinstated,” (see Retirement and Social Security Law §645[2]). Member then commenced an Article 78 proceeding challenging the Retirement System’s determination denying his request for a refund of the contributions he had made as a Tier 3 member prior to his reinstatement to Tier 1, a noncontributory tier, pursuant to Retirement and Social Security Law §645.

The Appellate Division sustained ERS’s determination, explaining that  “Under the unambiguous terms of [Retirement and Social Security Law §645(2)], ‘[a]ny contribution made to [ERS] pursuant to Article [14] or [15] of this Chapter by a member who rejoined his or her current system on or after [July 27, 1976] shall not be refunded.”" [Emphasis supplied by the Appellate Division.]

Where, as here, said the court, "the Comptroller's application and interpretation of the relevant statutes are not 'irrational, unreasonable or contrary to the statutory language,' the determination will be upheld.”

As to “procedural difficulties” experienced by Member, the court said that “erroneous advice by [Member’s] employer, misplacement [of him] by [ERS] in a contributory tier or [his] delayed reinstatement to a noncontributory tier ‘cannot estop the Comptroller from performing his duties and denying any reinstatement [or refund of contributions] that is contrary to the statutes.’"

The Appellate Division also addressed the various provisions set out in the Retirement and Social Security Law addressing “vesting” of a member's ERS benefits under certain conditions, none of which “conditions,” said the court, were applicable in Member’s situation.

* Retirement and Social Security Law §645, which was adopted in 1998, allows current members of ERS who had reentered public service to apply for reinstatement to their original Tier membership status under certain circumstances.

The decision is posted on the Internet at:

Correction officers locked up for compulsory overtime

Correction officers locked up for compulsory overtime
Cacace v Seniuk, 104 Misc.2d 560

While a somewhat novel way to have overtime work performed, Supreme Court, Nassau County, held that correction officers compelled to work overtime were not denied their constitutional rights.

Although locked up in the jail, as they were during normal working hours, and denied the ability to leave without permission, Supreme Court ruled that such action was within the power of management.

The fact that the employees had received overtime pay or compensatory time off, together with a view that such a procedure was a reasonable and necessary limitation on the correction officers, was enough to support for the Court to hold that correction officers were not entitled to injunctive or declaratory relief.

Indeed, said the court, “In the last analysis, it is doubtful whether it is within the competence of the judiciary to grant the injunctive relief requested in any event. The question of manpower and its deployment is essentially one of management prerogative solely within the discretion of the public employer.”

The Court also found that §161 of the Labor Law was not applicable to correction officers, explaining that a corrections officer is a “peace officer” and “clearly not an employee within the statutory definition, i.e., a “mechanic, workingman or laborer working for another for hire,” set out in §161.

A change in the professional obligation of employees in a collective bargaining unit negotiable

A change in the professional obligation of employees in a collective bargaining unit negotiable
PERB (Case U-4144)

The unilateral reduction of the school district’s administrators’ work year [professional obligation] from 11 to 10 months -- but requiring the performance of essentially the same service -- was held to be a violation of the school district’s duty to negotiate the change with the employee organization representing the administrators’ “negotiating unit”.

The school district was directed to reinstate the administrators’ 11-month professional obligation and pay any back salary due them.

In contrast, a PERB hearing officer held that the unilateral change in a district’s work day for teachers from 8 am to 3 pm to 8:30 am to 3:30 pm following good faith bargaining to impasse on the issue was not a violation of the Taylor Law even though the impasse had not been resolved at the time of the change by the district. (Case U-4294).

Tuesday, June 25, 2013

Jurisdiction of village school crossing guards

Jurisdiction of village school crossing guards
Informal Opinion of the Attorney General 2013-3

The Attorney General’s Assistant Solicitor General in Charge of Opinions, Kathryn Sheingold, advised the Village of Alden’s village attorney, Chris G. Trapp, Esq., that, consistent with General Municipal Law §208-a, a village school crossing guard may control traffic at an intersection within the village that does not abut school property if his or her exercise of such traffic control is to aid in protecting school children going to and from school.

The opinion is posted on the Internet at:

Employee’s prior disciplinary record considered in recommending an appropriate penalty after being found guilty of certain disciplinary charges

Employee’s prior disciplinary record considered in recommending an appropriate penalty after being found guilty of certain disciplinary charges
OATH Index No. 559/13

An OATH Administrative Law Judge found a housekeeping aide guilty of [1] laying down on a clean stretcher in a patient area to make a phone call during work hours and [2] failing to complete his assigned cleaning duties.

However ALJ Faye Lewis dismissed charges that Aide abandoned his post, was discourteous, and did not comply with a directive to clean certain areas in a medical unit.

Taking into consideration employee’s prior disciplinary record, which included 30-day suspensions, ALJ Lewis recommended a 45-day suspension.

The case usually cited as authority for considering the employee's personnel record in recommending a disciplinary penalty is Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470. Further, the employee’s consent is not required in order for the hearing officer or arbitrator to consider the employee’s personnel record in determining an appropriate penalty. 

However, in the event the employee's personnel records will be considered in determining the disciplinary penalty, he or she must be advised of that fact and given an opportunity to explain or rebut anything in that record.

The decision is posted on the Internet at:

Removal of a public officer from his or her position by operation of law

Removal of a public officer from his or her position by operation of law
Greene v McGuire, 683 F.2d 32

§30 of the Public Officers Law provides for the automatic removal of an individual from his or her public office under certain conditions.

A federal district court held that a police officer who was removed from his position following his being convicted of a felony in accordance with Public Officer Law §30.1(e) was entitled to an administrative hearing on the question of reinstatement following the reversal of the conviction

The 2nd Circuit Court of Appeals reversed, indicating that as the state law automatically results in dismissal upon conviction, refusal to provide an administrative hearing following the reversal of the former police officer’s conviction did not deprive the former employee of a property right or liberty interest protected by the 14th Amendment.

However, it should be noted that §30.1(e) provides in the event a public officer* is convicted of a “felony, or a crime involving a violation of his [or her] oath of office …. a non-elected official may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy.”

The statute further provides that “After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted.

“The record of the hearing shall include the final judgment of the court which reversed or vacated such conviction and may also include the entire employment history of the applicant and any other submissions which may form the basis of the grant or denial of reinstatement notwithstanding the reversal or vacating of such conviction.

“Notwithstanding any law to the contrary, after review of such record, the appointing authority may, in its discretion, reappoint such non-elected official to his former office, or a similar office if his former office is no longer available. In the event of such reinstatement, the appointing authority may, in its discretion, award salary or compensation in full or in part for the period from the date such office became vacant to the date of reinstatement or any part thereof;”

A similar principle** was applied in a case where although a principal was initially recommended for tenure, the new superintendent recommended his termination on the grounds that a change in leadership was required.

While there was still 120 days left to the principal’s probationary period, his contract of employment expired and he was terminated by the School Board.

It was held that the principal was not entitled to a termination hearing pursuant to §3020-a of the Education Law, nor did the earlier recommendation for tenure have any effect on the contract provision (See §1709, Education Law).

* A police officer is a public officer. Although all public officers are public employees, not all public employees are public officers.

** See Knight v. Wyandanch Union Free School District, affd. 56 NY2 628

Monday, June 24, 2013

An employee’s disability will not excuse his or her misconduct

An employee’s disability will not excuse his or her misconduct
2013 NY Slip Op 04703, Appellate Division, First Department

The employee [Employee] was served with disciplinary charges alleging misconduct. His defense: his conduct was involuntary because it was the result of illnesses, Tourette's Syndrome and an obsessive-compulsive disorder, from which he suffers, and thus does not constitute misconduct.

A Judicial Hearing Officer (JHO) found Employee guilty and that his misconduct was only partially attributable to these disorders. Based on the JHO’s findings, the appointing authority dismissed Employee from his position.

The Appellate Division, finding that “substantial evidence supports [the agency’s] determination that [Employee] engaged in the misconduct alleged, dismissed Employee’s appeal. The court said that Employee’s argument that his conduct “was involuntary because it was the result of illnesses …  and therefore does not constitute misconduct is unavailing.”

Noting that the JHO found that Employee's conduct was only partially attributable to the disorders he claimed to suffer, the Appellate Division said that “the law does not immunize disabled employees from discipline or discharge for incidents of misconduct in the workplace,” citing Hazen v Hill Bettz and Nash, 92 AD3d 162, leave to appeal denied, 19 NY3d 812.

As to the penalty imposed, dismissal from his position, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, held that under the circumstances, the penalty of termination is not "so disproportionate as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:


A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on


Considering Certificates of Relief from Civil Disabilities, Certificates of Good Conduct or an Executives Pardon in determining eligibility for public employment

Considering Certificates of Relief from Civil Disabilities, Certificates of Good Conduct or an Executives Pardon in determining eligibility for public employment
Anonymous v NYC Human Resources Administration, 154 A.D.2d 233.

In Anonymous v NYCHRA the Appellate Division considered the termination of a public employee because he allegedly made false statements on his application for public employment. The decision involves the inter-relationship and application of portions of the Civil Service Law, the Human Rights Law and the Corrections Law.

Anonymous had been appointed in 1985. Two years later he was discharged of the grounds that he did not "admit his conviction record on his employment application."*

According to the ruling, Anonymous allegedly made a false statement on his application for employment when he stated that his did not have any criminal record. This alleged false statement was claimed to be the "sole basis of [Anonymous'] termination."

Anonymous sued, contending that his termination was arbitrary and that his discharge was in violation of §296 of the Human Rights Law.

Anonymous had been convicted of two misdemeanors. However, he contended that he had provided his employer with actual notice of the existence of his history of conviction of these misdemeanors when he submitted a copy of his Certificate of Relief from Civil Disabilities together with "the dispositions of his criminal cases along with his application."

Although New York courts have generally upheld the termination of an employee upon a finding that he or she falsified a material fact in his or her application form, here the Appellate Division decided that some fact-finding was required. It remanded the matter to the Supreme Court for a hearing. The opinion indicates that the Appellate Division believed that Anonymous "should be enabled to continue to be a valuable member of society, rather than be relegated to a life of crime due to this baseless allegation that he was anything less than forthcoming about his past."

 The court appeared troubled by the summary dismissal of Anonymous' case by the lower court in this instance. The opinion includes a number of footnotes, including one indicating that "it is beyond dispute that [the City] had actual notice of the subject convictions and permitted [Anonymous] to retain his position after questioning." A second footnote indicated that the file of investigator originally involved in the case, whom Anonymous claimed told him that "there would be no further problems with his application [despite the inconsistency regarding his criminal record,] had been misplaced."

As to the protections contained in the State's Human Rights Law in cases involving an individual's "criminal history," except with respect to applicants for employment as a police officer or peace officer, §296.16 of the Executive Law makes it an unlawful discriminatory practice to inquire about an applicant's "criminal history" except with respect to matters then pending or where the individual has been convicted.

Additional protections against discrimination based on a criminal conviction are contained in §752 of the Corrections Law. §752 prohibits "unfair discrimination" against persons previously convicted of one or more criminal offenses. The individual may not be refused employment unless "there is a direct relationship between one or more of the previous criminal offenses and the ... employment sought; or ... granting employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

Another aspect of this case relates to the issuance of a Certificate of Relief from Civil Disabilities [see §702, Correction Law]. Anonymous had obtained such a Certificate from a State court judge.

The granting of such a Certificate by a court removes any bar to employment automatically imposed by law because of conviction of a crime. One exception, however is that such a Certificate does not excuse the impact of the conviction with respect to such an individual's right to retain or be eligible for public office. This exception with respect to public office may be important in certain employment situations. Although all public officers are public employees, not all public employees are public officers.**

Other methods available to a person convicted of a crime by which he or she may seek to obtain relief from certain disabilities imposed by law as a result of his or her conviction is the granting of a Certificate of Good Conduct by the State Board of Parole [§703-a, Correction Law] or the granting of an Executive Pardon by the Governor [Article 4, §4, State Constitution].

In the Anonymous case the Appellate Division said that the action taken against Anonymous by the City "seems contrary to the intent of both the legislature which enacted the statutory relief for the furtherance of public interest [Correction Law §702(2)(c)] and the court which saw fit to grant [Anonymous] a second chance at life."

This suggests that in a §50.4 disqualification proceeding the courts expect the State Department of Civil Service and local commissions and personnel officers to give due weight to the fact that an applicant or an employee may offer a Certificate of Relief from Civil Disabilities or a Certificate of Good Conduct or an Executive Pardon in challenging his or her proposed disqualification form the eligible list or employment in the public service.

* Although the statutory authority for the termination is not specified in the decision, it is assumed that Anonymous was disqualified pursuant to §50.4 of the Civil Service Law. §50.4 permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." Except in cases of fraud, there is a three-year statute of limitation on disqualifications pursuant to §50.4.]

** The Board of Parole is also authorized to issue such Certificates. See §703, Correction Law, for the scope and effect of the issuance of such a Certificate by the Board of Parole.

Sunday, June 23, 2013

Introduction of evidence of a finding of guilt in a prior disciplinary action in the course of a disciplinary hearing

Introduction of evidence of a finding of guilt in a prior disciplinary action in the course of a disciplinary hearing
OATH Index No. 300/13*

As a general rule, evidence of prior disciplinary action taken against an employee may not be admitted at his or her disciplinary hearing to show that the employee “has a propensity to commit the charged misconduct.”

In this case, where the employee was charged with threatening and assaulting a supervisor, OATH Administrative Law Judge Faye Lewis admitted evidence that the employee had earlier pled guilty to prior charges of time and leave violations for the purpose of impeaching or rebutting the employee’s claim that he his supervisor was “scapegoating” him for “non-existent time and leave issues.”

ALJ Lewis noted that there is an exception to the rule barring the introduction of evidence of  “prior disciplinary action” taken against the individual. Such evidence may be may be admitted and considered when [1] it is offered for a different reason or another purpose; [2] where prior violations have independent relevance and [3] the fact-finder is an attorney or a judge trained to consider potentially prejudicial evidence introduced for limited purposes.

Judge Lewis also observed that “four different sets of charges, each with multiple specifications,” were served on the employee. Some of the charges, said the ALJ, were duplicative in that they alleged the same misconduct while citing an alleged violation of  a different rule.

Such duplicative pleadings are “confusing and verbose” said the ALJ. The better practice is to plead misconduct as “a single factual allegation, with citation to the agency rules that are alleged to have been violated

* The decision is posted on the Internet at:

Saturday, June 22, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
Issued during the week ending June 22, 2013  [Click on text highlighted in bold to access the full report] 

DiNapoli Releases Fiscal Stress Scores for Local Communities

Two dozen communities in New York have been designated as fiscally stressed under State Comptroller Thomas P. DiNapoli’s new Fiscal Stress Monitoring System. The listincludes eight counties, three cities and 13 towns. A video release is available here.

DiNapoli Applauds Legislature for Passage of Superstorm Sandy Legislation

State Comptroller Thomas P. DiNapoli Tuesday commended the state Assembly and Senate for passing legislation to help local governments deal with the financial impact of Superstorm Sandy. The three bills submitted by DiNapoli will now go to the Governor. For copies of the complete legislation, visit:

State Comptroller Thomas P. DiNapoli Friday commended the Legislature for passing legislation mandating audits of every special education services program provider for preschool children with disabilities in the state and urged Governor Cuomo to sign the bill to ensure taxpayer monies are spent as intended and to deter further provider fraud. This legislation was a program bill of the Office of the State Comptroller and was sponsored by Sen. John Flanagan (S.5568-A) and Assemblywoman Catherine Nolan (A.7302-A). For copies of the complete legislation, visit:

DiNapoli: NYC Rental Housing Less Affordable

Housing is becoming increasingly unaffordable for rental households in New York City, with only 44 percent of all apartments considered affordable in 2011 for families earning the median income, according to a reportreleased Monday by State Comptroller Thomas P. DiNapoli.

DiNapoli: State Revenue Outpacing Estimates

State tax collections of $12.6 billion through May, rose 25.8 percent from collections during the same period last year, primarily due to non–recurring estimated Personal Income Tax payments made in April, according to the May Cash Report released Friday by State Comptroller Thomas P. DiNapoli.

Friday, June 21, 2013

Employee testified that his use of “Nazi” and “Fascist” directed towards his supervisors constituted profanity and was intended to be offensive

Employee testified that his use of  “Nazi” and “Fascist” directed towards his supervisors constituted profanity and was intended to be offensive
NYC Dept. of Corrections v RM, OATH Index No. 651/13

RM, an employee of the NYC Department of Corrections, was served with disciplinary charges alleging that he acted in a disrespectful manor towards his supervisors, that he failed to obey an order to submit a report, he performed doing less work than his co-employees, that he refused to perform certain duties and that he had made false entries into Department records.

OATH Administrative Law Judge Astrid B. Gloade found that RM called his supervisors “Nazis” and “Fascists,” refused to conduct workshops to assist inmates, and processed less than one percent of the discharge letters issued by his three-person unit.

The ALJ said that RM had testified that the use of “Nazi” and “Fascist” to him amounts to profanity, which Judge Gloade viewed as indicating that RM’s intent was to offend his supervisors.

Further, Judge Gloade said that RM only expressed remorse that his statements, meant to be insults, “might not have hit their mark” because he “realized [his supervisors] didn't even know what [he] was talking about because they weren't even around when Nazis were current events.”

RM’s own testimony, said Judge Gloade, established that he directed highly inappropriate remarks towards his supervisors.

However, the ALJ found the Department did not prove that RM failed to submit a report when ordered to do so nor did it prove that he made false entries in Department documents with the intent to defraud.

Finding RM guilty of the remaining allegations of misconduct, ALJ Gloade recommended that the appointing authority suspend RM for 45 days without pay.

N.B. In Matter of Shafer, 2013 NY Slip Op 04571, Appellate Division, Third Department, an individual dismissed from her employment for “insubordinate behavior” that included rude, disrespectful and hostile conduct,was found guilty of disqualifying misconduct for the purposes of eligibility for Unemployment Insurance benefits by the Unemployment Insurance Appeal Board.

The decision is posted on the Internet at:

Governor Cuomo announces Senate confirmation of a number of individuals he nominated for appointment to various public offices

Governor Cuomo announces Senate confirmation of a number of individuals he nominated for appointment to various public offices
Source: Office of the Governor

On June 20, 2013, Governor Andrew M. Cuomo announced the Senate’s approval of multiple appointments within the administration. Below are the individuals confirmed.

New York State Office of Temporary and Disability Assistance

Kristin Proud
Ms. Proud will serve as Commissioner. She earlier served in Governor Andrew Cuomo’s Office as Deputy Secretary for Human Services, Technology & Operations. She is a member of the Governor’s Olmstead Cabinet and the State’s Mandate Relief Council. She previously served in the Governor’s Office as the Deputy Director of State Operations from November 2007 to August 2009 and the Director of Health and Human Services from January to November 2007. Ms. Proud spent fourteen years in the New York State Assembly, during which time she worked for three Speakers of the Assembly. Ms. Proud was the Deputy Secretary of the Assembly Ways and Means Committee and was also the principal staff advisor to the Speaker and the Assembly Majority on issues related to health and human services. Following that, she served as Senior Director of Community Relations and Planned Giving for the Center for Disability Services, the largest provider of services to individuals with disabilities in the Capital Region. Ms. Proud is a summa cum laude graduate of the State University of New York at Albany. She also attended Florida State University.

Gaming Commission

John A. Crotty
A founding member of Workforce Housing Advisors, a New York City-based development firm with a particular focus on affordable housing. Mr. Crotty has nearly two decades of experience in housing, government and finance in a variety of capacities. Mr. Crotty is a former member of the Board of Directors of the New York City Off-Track Betting Corporation and was appointed by Governor Paterson to a panel to restructure the Off Track Gaming system statewide. Mr. Crotty was also a member of the New York State Franchise Oversight Board, which oversees the finances of The New York Racing Association, Inc.

John J. Poklemba
Served as General Counsel to American Transit Insurance Company, a New York City-based Commercial Automobile Insurer. Previously, Mr. Poklemba was the managing partner of his general practice in Saratoga County for more than a decade. Prior to that, Mr. Poklemba was the principal attorney responsible for governmental relations and litigation for Bartlett, Pontiff, Stewart & Rhodes, P.C. in Glens Falls. Mr. Poklemba also served in New York State government for many years working on criminal justice.

Barry Sample
Mr. Sample recently retired from Governor Cuomo’s Administration as Deputy Director of State Operations where he handled the day-to-day management of state government following nearly two decades in service to New York State. Previously, Mr. Sample served as Deputy Director at the New York State Division of Criminal Justice Services, Deputy Director at the New York State Division of Budget, and Director of Intergovernmental Affairs and Community Relations at the New York State Comptroller’s Office.

Todd R. Snyder

Serves as executive vice chairman of North American Global Financial Advisory and co-head of the debt and restructuring group at Rothschild, Inc., a leading international investment banking and financial advisory firm where he is also Senior Managing Director. Mr. Snyder has been an advisor for Rothschild Inc.’s companies for more than two decades, including work with Emerald Casino, Dow Corning and United Airlines. Mr. Snyder also served as part of Governor Cuomo’s Labor Negotiating Team, where he was instrumental in forging new contracts with the state’s public sector unions. He advised the Bush and Obama administrations on the restructuring of the auto industry.

Justice Center Advisory Council

William Gettman

Mr. Gettman will serve as Chair. He is Executive Director of St. Catherine’s Center, with more than 25 years of experience in the child welfare field in both the public and private sectors. Previously, he was Executive Deputy Commissioner at OCFS, responsible for all child welfare programs throughout the State.

Other appointees include:
Euphemia Strauchn-Adams
Joseph Rich
Snowden Earl Eichelberger
Glen Liebman
Jeremy Klemanski
Leslie Hulbert
Judith O’Rourke
Alfred Kingon
Robert Weisman, DO
Michael Arsham
Shirley Flowers
Peter Pierri
Denise Figueroa
Harvey Rosenthal
Gabrielle Horowitz-Prisco
Walter Joseph, Jr.
David Allen Lamphere
Norwig Debye-Saxinger
Ronald Lehrer
Tanya Hernandez
Christopher Tavella
Delores McFadden
Brian McLane
Scott Salmon
Lisa Goring
Mary Bonsignore
Clint Perrin
Belinda Lerner
Eva Dech

Behavioral Health Services Advisory Council

Paul Samuels, JD

Mr. Samuels will serve as Chair. He is the Director and President of the Legal Action Center (LAC), a non-profit law and policy organization whose mission is to fight discrimination against people with histories of addiction, HIV/AIDS, or criminal records, and to advocate for sound public policies in these areas. Mr. Samuels has served as a member of the NYS Advisory Council on Alcoholism and Substance Abuse Services as Vice-Chairperson.

Other appointees include:
Kunsook Song Bernstein, PhD
John Kastan, PhD
Jennifer Havens, MD
Tino Hernandez
Ralph Fasano
William Gettman, Jr.
Howard Meitiner
Katherine Breslin
Lt. Colonel April Critelli
James Scordo
Stephanie Orlando
Patrice Wallace-Moore
Sharon Gillette
Grant Mitchell, MD
John Lee
Maura Kelley
Euphemia Strauchn-Adams
Andrew Roberts
Deborah Mayo
Michael Martin
Glenn Martin
Robert Cruz
Scott LaVigne

Dormitory Authority of the State of New York (DASNY)

Alfonso Carney, Jr.
Mr. Carney will serve as Chair. He is a principal of Rockwood Partners, LLC, which provides medical consulting services in New York City. He has served as Acting Chief Operating Officer and Corporate Secretary for the Goldman Sachs Foundation and has held senior level legal positions with Altria Group Inc., Philip Morris Companies Inc., Philip Morris Management Corporation, Kraft Foods, Inc. and General Foods Corporation.

Other appointees include:
Beryl Snyder
John B. Johnson

New York Convention Center Operating Corporation (Javits Center)

Henry Silverman

Senior Advisor and Vice Chairman of Investment Management Business for Guggenheim Partners, a diversified financial services firm in New York City, Mr. Silverman will serve as Chair. He currently serves as Chair of the New York Convention Center Development Corporation.

Other appointees include:
Daniel De Vita
Andrew Murstein
David Emil

Civil Service Commission

Jerry Boone
Continuing to serve as Commissioner and President, Mr. Boone is currently the Managing Principal of Boone Consulting, where he has helped develop human resources and operations infrastructure. Previously, Mr. Boone founded Pride Properties, LLC, in 2008, a company based in Memphis, Tennessee, focused on the acquisition and rehabilitation of distressed properties to develop quality, affordable housing for sale or rental to lower to middle income households. Mr. Boone still serves as President of the organization, which also offers financial counseling provided for first-time home buyers.

State Board for Historic Preservation

Robert MacKay, PhD
Executive Director of the Society for the Preservation of Long Island Antiquities in Cold Spring Harbor, where he led the society's evolution and growth from being primarily a manager of traditional house museums to becoming a vibrant regional preservation organization that provides assistance to communities to safeguard and revitalize their historic built environments in the midst of ever increasing development pressure, Dr. MacKay will continue to serve as the Board’s Chair.

Other appointees include:
John Winthrop Aldrich
Randall Crawford
Jay DiLorenzo
Douglas Perrelli, PhD

State Commission of Correction

Thomas A. Beilein
Mr. Beilein, holds the distinction of being the only former sheriff in the history of the Commission to serve as the Commission’s Chair. His experience as the Niagara County Sheriff from 1994 to 2008 – which includes running a jail with an average daily population of 450 – is unique in the annals of Commission history. Mr. Beilein brings a wealth of law enforcement and administrative experience. He has worked as a correction officer, road patrol officer, investigator and administrator.

Other appointees include:
Thomas Loughren 

The Port Authority of New York and New Jersey

Basil Alexander Paterson
Mr. Paterson, a member of the law firm of Meyer, Suozzi, English & Klein and Co-Chair of the firm’s Labor practice, is a Harlem native and former New York State Senator, having first been elected in 1965. A former New York City Deputy Mayor for Labor Relations and Personnel, he was appointed as New York’s first African American Secretary of State in 1979. He previously served on the Port Authority’s Board of Commissioners from 1989 to 1995. Mr. Paterson has also taught at the State University of New York at New Paltz, Fordham University School of Education, and Hunter College. He is a double alumnus of St. John’s University in Queens.

Kenneth Lipper

Mr. Lipper brings years of experience in public and private sector management and investment banking to the Port Authority. Since 1987 he has served as Chairman and Chief Executive Officer of Lipper & Co. LLC, an investment management and investment banking firm. He is has also been a Director of CNH Global NV, a leading agricultural and construction equipment company since 1996. Previously, Mr. Lipper was Executive Vice President and Senior Adviser of the leading global real estate firm Cushman & Wakefield. He also served as Advisor and Deputy Mayor to New York City under Mayor Ed Koch, and is a former adjunct professor at Columbia University’s Graduate School of International and Public Affairs.

Olympic Regional Development Authority (ORDA)

J. Patrick Barrett

Mr. Barrett will continue serving as ORDA Chair. He is Chairman and Chief Executive Officer of CARPAT Investments, a private investment company. Previously, he was Chairman and CEO of Avis.

Other appointees include: 
Jill Ruhm Broderick
Robert Francis Flacke

State Athletic Commission
John Signorile – Commissioner 

Battery Park City Authority
Lester Petracca 

State Council on the Arts
Deborah Ronnen 

Saratoga-Capital District State Parks, Recreation and Historic Preservation Commission
Karen Lee Bilowith
John McEneny

Niagara Frontier Transportation Authority
LaVonne E. Ansari
Anthony Baynes
Peter G. Demakos
Margo Dawn Downey
Michael P. Hughes
Adam W. Perry

Adirondack Park Agency 
Daniel Wilt
Arthur Lussi
William Thomas
Karen Feldman

Allegany State Parks, Recreation and Historic Preservation Commission
Michael Lyons 
Thomas Erlandson 
Michael McLaughlin 

Genesee State Parks, Recreation and Historic Preservation Commission
Frank Allkofer 
Thomas Jennings 
Peter Humphrey 
Martin Miskell 
Loren Penman 

Niagara Frontier State Parks, Recreation and Historic Preservation Commission
Thomas Yots 
Stuart Angert 

Palisades Interstate State Parks, Recreation and Historic Preservation Commission
Howard G. Seitz

Thousand Island State Parks, Recreation and Historic Preservation Commission
James Ransom 

Central New York State Parks, Recreation and Historic Preservation Commission
Stephen Buechner 
Terry Ettinger 
Cornelius B. Murphy 

Finger Lakes State Parks, Recreation and Historic Preservation Commission
Ludi Augustine 
Mitchell Cornish 
Robert Scharf 

New York City State Parks, Recreation and Historic Preservation Commission 
Allison Whipple Rockefeller 
Leisle Lin 
Alexander Durst 
Simon Roosevelt

Niagara Frontier Transportation Authority
Charles (Sam) Gurney
Wesley Hicks, MD 

Workers’ Compensation Board
Frances Libous (Vice Chair)

CUNY Board of Trustees
Alfreida D. Foster-Tolbert

State Insurance Fund
Joseph Canovas 
Barry Swidler

NYS Housing Finance Agency
Nestor Davidson
Joyce Miller 

Tax Appeals Tribunal
Roberta Moseley Nero 

Advisory Council on Agriculture 
Samuel Casella
Lesa Sobolewski 
David Haight 

Albany Pine Bush Commission
John Brust 
Harvey Alexander 
Nancy Pierson 
Steven Rice, PhD

Citizen’s Policy and Complaint Review Council

Nicholas A. LaBella

New York State Council on the Arts 
Laura Aswad

Ogdensburg Bridge and Port Authority 
Samuel James LaMacchia

Thursday, June 20, 2013

Disciplinary action taken under the CBA notwithstanding the teacher’s requesting a hearing pursuant to the CBA “reversed on the law”

Disciplinary action taken under the CBA notwithstanding the teacher’s requesting a hearing pursuant to the CBA “reversed on the law” 
2013 NY Slip Op 04472, Appellate Division, Fourth Department

The Appellate Division reversed a Supreme Court decision that denied a tenured teacher’s [Educator] Article 78 petition seeking to annul the school district’s suspending her without pay for 30 days.

The Appellate Division said it agreed with Educator that the school district failed to comply with the requirements of Education Law §3020(1) when it disciplined her without affording her a hearing pursuant to Education Law §3020-a.

The court explained that “the plain language of Education Law §3020(1) provides that a tenured teacher facing discipline, and whose terms and conditions of employment are covered by a collective bargaining agreement (CBA) that became effective on or after September 1, 1994, is entitled to elect either the disciplinary procedures specified in Education Law §3020-a or the alternative procedures contained in the CBA.”

The court determined that the relevant CBA took effect on July 1, 2006. Accordingly, said the court, Educator was entitled to choose whether to be disciplined under the procedures set forth in the CBA or to elect a disciplinary hearing in accordance with Education Law §3020-a as a matter of law regardless of whether or not the CBA offered such an option.

The school district, however, had denied Educator’s written request for a §3020-a hearing.

Finding that the school district’s action was “incorrect,” the Appellate Division annulled the school district’s imposing a disciplinary penalty suspending Educator for 30 days without pay and directed the school district to [1] reinstate her to her position with back pay and benefits retroactive to the date of her suspension and [2] to remove all references to the discipline imposed from Educator’s personnel file.

Significantly, §3020.1, in pertinent part, provides that any such ”alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after September 1, 1994, must provide for the written election by the employee of either the procedures specified in such §3020-a or the alternative disciplinary procedures contained in the collective bargaining agreement.” [emphasis supplied].

Further, the negotiated alternative disciplinary procedure must provided constitutional due process protections equivalent to those available under the statutory procedure [Antinore v State, 40 NY2d 6].

The decision is posted on the Internet at:


The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State a 2100+ page e-book. For more information click on

Wednesday, June 19, 2013

Local Government Performance and Efficiency Program (LGPEP) grant assistance
Source: Department of State

On June 19, 2013, the New York Department of State announced over $12 million in Local Government Performance and Efficiency Program (LGPEP) grant assistance in recognition of the recurring financial savings generated by 13 projects.  The grants will be distributed in equal parts over three years, and are contingent upon continued demonstration of savings. 

A competitive program, LGPEP rewards local governments for undertaking significant and innovative actions that reduce the property tax burden confronting residents.  The projects recognized today are estimated by applicants to generate $38.2 million in combined annual savings. In accepting an award, these local governments commit to measuring and sustaining the financial impact of these savings. 

The Awards were as follows: 

City of Corning, $279,575.00, Fire Department Efficiency Initiative

Town of Gates, $710,000.00, Health Insurance Consolidation Project

Town of East Hampton, $536,425.00 Re-engineering of Town Government

Village of Liberty, $99,375.00, operations streamlining

Essex County, $244,881.40, Creation of the Office of Community Resources

Madison County, $1,615,724.00, Home Care Services Privatization

Town of Alden, $138,905.00, Town Clerk/Tax Receiver Consolidation Project

Nassau County, $5,000,000.00, Police Department Personnel Reduction and Precinct Consolidation Initiative

Town of New Castle, $194,313.14, Once per Week Garbage Collection

Town of Bethlehem, $776,107.36, Departmental Restructuring of Payment System and Maintenance Staff

Essex County, $984,250.00, Privatization of the Horace Nye Nursing Home

Town of Alden, $72,578.20, Innovative Employee Health Insurance Program

City of Rochester, $1,857,183.30, Neighborhood & Business Development Consolidation and Efficiencies Program

For additional information concerning the grant program please call the Office of the LGPEP Program Manager, (518) 473-3355.

Article 75 petition seeking to confirm an arbitration award holding the current CBA preserved the rights retirees obtained under previous CBAs granted by court

Article 75 petition seeking to confirm an arbitration award holding the current CBA preserved the rights retirees obtained under previous CBAs granted by court
Port Auth. of N.Y. & N.J. v Port Auth. Police Lieutenants Benevolent Assn., 2013 NY Slip Op 50953(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

Due to budget constraints, the Port Authority, effective January 1, 2011, discontinued its free E-Z Pass program available to all Port Authority retirees. As a result, the Port Authority Police Lieutenants Benevolent Association [LBA] filed a grievance under the arbitration provision in its Collective Bargaining Agreement, [CBA] claiming that the Port Authority had violated the CBA by discontinuing the E-Z pass program for retirees.

The Arbitrator framed the issues as follows:

1. Is the grievance substantively arbitrable?

2. If so, did the Employer violated [sic] the Collective Bargaining Agreement (CBA) by discontinuing on or about December 2010 or January 2011 free passage and parking at Port Authority facilities for retirees of the bargaining unit?

3. If so, what shall the remedy be?

The relevant CBA was agreed to in April 2005, effective retroactive to January 21, 2003, through to January 20, 2010. It contained a "Savings Clause," which provides that wages, benefits and conditions of employment "shall remain in full force and effect until a new Memorandum of Agreement [i.e., CBA] is executed." The provision relied upon by the LBA provided “for distribution of free passes for ‘permanent and project employees, retired employees, and employees on military leave for use at tunnels, bridges and some air terminals.’" Retired Lieutenants were provided with free passage “in the form of E-Z Passes.”

Arbitrator Howard C. Edelman found in the LBA's favor, ruling that the Port Authority had "violated the Collective Bargaining Agreement by discontinuing on or about December 2011 free passage and parking for retirees of the bargaining unit." The Port Authority was directed to reinstate the free passage and parking, and reimburse retirees for the monies they had expended on passage and parking since the program was terminated.

The Port Authority filed an appeal pursuant to Article 75 of the CPLR seeking to vacate the award. It contended that the Arbitrator exceeded his powers in ruling that free passage should be applicable to all LBA retirees, because the issue before the Arbitrator was limited to those employees who retired under the CBA 2003-2010 CBA. Accordingly, the Port Authority contended that it was error to apply the Arbitrator’s ruling to all “LBA retirees” and argued that the court should modify the award so as to limit the benefit to employees in the negotiating unit retiring between 2003 and 2010.

Judge Anil C. Singh said the Arbitrator had acknowledged the Port Authority’s argument in the Award but found that under Savings Clause which provided that, "all clauses of the contract ... continue in full force and effect' after the expiration of the [CBA]" and that the CBA thus "requires the continuation of the retiree benefit in question until the parties modify it in collective bargaining."

Judge Singh found that the Arbitrator had not exceeded his power by including pre-2003 retirees in the award where the arbitration was conducted pursuant to the 2003-2010 CBA.

Citing Riverbay Corp. (Local 32-E, S.E.I.V. AFL-CIO), 91 AD2d 509, the court said that “An arbitrator exceeds his or her power by giving ‘a totally irrational construction to the contractual provisions in dispute,’ so as to effectively rewrite the parties' contract.” The court then held that the Arbitrator did not exceed his powers, or rewrite the parties' agreement, when he found that the right to free E-Z Passes and parking applied to more than just retirees who had retired under the 2003-2010 CBA. The decision indicates that the language in CBA’s “Savings Clause” retained the right of retirees from previous MOAs to receive these benefits.

Concluding that the current CBA preserved the rights retirees obtained under previous CBAs, Judge Singh ruled that Arbitrator was not acting irrationally or exceeding his powers when he applied his ruling to past LBA retirees and confirm the LBA’s petition to confirm the award.

The decision is posted on the Internet at:

Tuesday, June 18, 2013

Reimbursment of Medicare premiums paid by retirees participating in their former employer’s health insurance plan
Bryant v Board of Educ., Chenango Forks Cent. Sch. Dist., 2013 NY Slip Op 04379, Appellate Division, Third Department

Supreme Court, Broome County, granted Theodora Q. Bryant’s CPLR Article 78 application to annul a determination of Chenango Forks Central School District to terminate reimbursement of certain Medicare premiums.*

The Public Employment Relations Board directed the School District to rescind its June 2003 memorandum in which it notified employees and retirees that it was terminating its practice of reimbursing Medicare Part B premiums.

In a companion case PERB ruled that the school district must reinstate its former practice of reimbursing retirees for Medicare Part B premiums** -- the same relief sought in the current proceeding.

The Appellate Division noted that PERB's order in the companion case has been upheld by the Court of Appeals [see 2013 NY Slip Op 04039 (2013)]. Accordingly, Bryant received the full relief challenged by School District in the current appeal as a result of that determination, . Accordingly, the court ruled that the instant appeal is now moot.

As to argument advanced under color of an exception to the mootness doctrine, the Appellate Division held that the claimed exception “does not apply in that, although the issue advanced herein may recur and is significant, it is not likely to evade review.”

* The underlying facts are set forth in the Appellate Division’s prior decision (21 AD3d 1134 [2005]) and in the companion case brought by the Chenango Forks Central School District (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479 [2012], affd ___ NY3d ___, 2013 NY Slip Op 04039 [2013]). See, also, NYPPL’s summary of that decision posted on the Internet at

** The reason for reimbursing retirees for Medicare Premiums that they are required to pay is explained in acomment" in NYPPL’s summary of Munger v Board of Educ. of the Garrison Union Free School Dist., 85 AD3d 747, posted on the Internet at:

The decision is posted on the Internet at:

Monday, June 17, 2013

The Statute of Limitations for seeking payment of compensation alleged due an employee pursuant to a contract begins to run when the employee had a legal right to demand such payment

The Statute of Limitations for seeking payment of compensation alleged due an employee pursuant to a contract begins to run when the employee had a legal right to demand such payment
2013 NY Slip Op 04321, Appellate Division, Second Department

The Village Police Commissioner and the Village had signed a contract that provided that the Commissioner was to earn $5,000 more than the highest-ranking lieutenant for each year that he served as Commissioner. In June 2010, the Commissioner learned that he would not be reappointed as Commissioner and alleged that he subsequently learned that his Lieutenants were earning more than he had been earning.

The Commissioner filed a written claim with the Village on November 2, 2010 alleging that the Village had breached its contract with him from 1999 through 2010 and on September 28, 2011commenced an action in Supreme Court pursuant to CPLR Article 78 alleging breach of contract and sought to “recover the wages that allegedly were owed him for those years.”

Supreme Court denied the Village’s motion [1] to dismiss so much of the Commissioner’s complaint that sought to recover payments allegedly due him prior to March 28, 2010 and [2] to transfer the Commissioner’s complaint to District Court, Nassau County. The Village appealed.

The Appellate Division reversed Supreme Court’s ruling and remanded the matter to District Court, Nassau County. In the words of the court, ”the damages sought [by the Commissioner] in connection with the portion of the complaint that is not time-barred fall within the jurisdictional limit of the District Court. Therefore, removal to that court is appropriate.”

Addressing the issue of the timeliness of the Commissioner’s petition, the Appellate Division [1] said that §9802 of the Civil Practice Act and Rules provides that, "no action shall be maintained against the village upon or arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued," and [2] explained that “Where the claim is for the payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses a legal right to demand payment.”

The Village had argued that the Commissioner's causes of action alleging breach of contract accrued at the end of each year that the Commissioner allegedly was not paid in accordance with his contract. The Appellate Division agreed, ruling that as the Commissioner’s action was not commenced until September 28, 2011, the Village established, prima facie, that the action was time-barred to the extent that the Commissioner sought to recover damages accruing prior to March 28, 2010, i.e., 18 months prior to the commencement of his action.

Significantly, the Appellate Division held that the Commissioner’s reliance on “his lack of knowledge that the several breaches had occurred” did not toll the running of the statute of limitations for bringing a timely action.

The decision is posted on the Internet at:

Saturday, June 15, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
Reports issued during the week ending June 15, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli: Watertown Boasts Strong Finances

The City of Watertown has maintained a stable tax base, developed healthy revenue streams and built up rainy day reserves, according to a fiscal profile of the city issued by State Comptroller Thomas P. DiNapoli. The report was released June 12, 2013 in conjunction with the Comptroller’s 2013 Local Government Leadership Institute in Watertown.

DiNapoli: Auditors Uncover $3 Million in Improper Unemployment Insurance

State Comptroller Thomas P. DiNapoli uncovered up to $3 million in inappropriate unemployment insurance payments made by the Department of Labor, including payments to recipients who were ineligible because they were employed, had collected more than the maximum weekly benefits or were not authorized to work in the United States, according to a reportreleased June 14, 2013.

Comptroller DiNapoli Releases Municipal Audits

On June 13, 2013 New York State Comptroller Thomas P. DiNapoli announced that his office completed audits of:

Comptroller DiNapoli Releases Audits

On June 14, 2013 New York State Comptroller Thomas P. DiNapoli announced that his office completed the following audits:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

A Reasonable Penalty Under The Circumstances at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.


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