ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

December 31, 2019

Audits issued by New York State on December 30, 2019.

New York State Comptroller Thomas P. DiNapoli issued the audits listed below on December 30, 2019

The department’s program has rapidly expanded opportunities for industrial hemp production in the state. However, the department does not always follow established practices when reviewing applications, conducting inspections, and sampling plants. The department inspected only 57 percent of growers in the program and tested plant THC levels for only 58 percent of the growers during 2018. Incomplete records and unreliable data systems further hinder its ability to effectively monitor program requirements.

Auditors found that while CUNY recognizes the importance of compliance with payment card industry standards and is committed to maintaining strong internal controls, it has not provided its colleges with sufficient guidance and direction for addressing and maintaining compliance with data security requirements.

Overall, auditors determined that while DOF identifies parking summonses to be processed, its collection of payments for parking fines needs to be improved. Many parking summonses are dismissed as defective due to errors that occurred when the summonses were issued. Until October 2018, DOF expended minimal effort to collect amounts due for summonses issued to vehicles with diplomatic plates. These amounts due include $15.6 million for summonses issued before Nov. 1, 2002.

An audit released in March 2018 found that SIR was not in compliance with the requirements of the induction and refresher training established for its engineers and conductors. In a follow-up, auditors found MTA-SIR officials made progress in addressing the problems identified in the initial audit.

In general, DMV is appropriately allocating, billing, and collecting nearly all the expenses related to administering the acts. However, auditors identified areas for improvement.

United's automated claims processing system uses only the two most recent rate periods (i.e., reimbursement rates from the prior 12 months) to process all claims – even claims for services that occurred before those rates took effect. From a sample of 100 claims, auditors calculated a potential cost savings of $214,008 for 84 claims that were paid using a rate period that was not in effect on the date of the service.

Auditors found Empire did not pay for special item claims according to the terms of its contract with LIHN. From a sample of 874 claims, Empire overpaid LIHN hospitals $3,597,688 for 722 special item claims (83 percent of the claims sampled). As of July 23, 2019, Empire had recovered $262,467.

NFTA officials have not developed policies and procedures to ensure that its systems are regularly reviewed and kept up to date. Auditors identified unsupported systems used by NFTA on 66 devices.

Auditors found ORA lacks proper fiscal controls over fines and settlements. There is limited assurance that all monies due the state are received and accounted for because of system, process, and policy weaknesses. ORA does not exercise its full authority to collect outstanding fines more timely. As of April 2019, there were at least $346,000 in outstanding fines. Harassment fines were imposed in only 12 out of the 684 harassment cases (2 percent) filed during the audit scope.

An audit issued in May 2018 found that DHS lacks strong internal controls – most notably DHS-specific standard operating procedures. A review of four sampled providers’ security expenditures alone identified nearly $2.2 million in insufficiently documented or questionable security expenses, indicating that significant monitoring gaps exist. In a follow-up, auditors found DHS officials have made progress in addressing the issues identified in the initial report.

An audit issued in September 2018 identified opportunities for improved oversight, particularly regarding contractor performance, of the state’s obesity and diabetes prevention programs. In a follow-up, auditors found DOH officials have made significant progress in correcting the problems identified in the initial report.

Auditors identified opportunities to improve documentation of on-site assessments, for which Wadsworth has taken corrective action. However, auditors did not find a significant amount of other non-compliance with ELAP procedures and protocols in the areas reviewed that would cause us to question the sufficiency of Wadsworth’s processes for certifying, monitoring, and enforcing regulations over environmental laboratories.

December 30, 2019

Guidelines controlling the judicial review of an arbitrator's ruling


A labor union [Union] representing employees of a public library [Union] filed a grievance, alleging that the Board of Trustees of the library [Board] violated an article of the parties' collective bargaining agreement [CBA] by failing to retroactively correct a salary inequality between the library employees and certain employees of the city. The CBA article in question, refer to as the "pay parity provision," required the Board to "actively pursue" funding "to maintain the historic link between the salaries of the library employees and the relevant employees of the city represented by the Union and such funding was to be applied retroactively if necessary "to correct an inequality."

The grievance procedure set out in the CBA did not resolve the dispute and the parties submitted to an arbitrator to determine if the Board violated the pay parity provision of the CBA, as well as the question of, if a violation was found, what was the appropriate remedy. After a hearing, the arbitrator determined that the Board had violated the provision of the CBA relied on by the Union, and that the Library employees were therefore entitled to a retroactive salary increase. The arbitrator then directed that the retroactive salary increase would be conditioned upon excision of the pay parity provision from the CBA going forward.

The Board initiated a CPLR Article 75 to vacate the portion of the arbitration award which called for excision of the pay parity provision from the CBA. Supreme Court granted the petition and remitted the matter to a different arbitrator for a new hearing and determination of the manner and timing of the "parity payments." The Board then appealed the Supreme Court's ruling.

The Appellate Division, affirming the lower court's ruling, explained that "[J]udicial review of arbitration awards is extremely limited", citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, and courts may only vacate an arbitrator's award on the grounds specified in CPLR §7511(b). As the Board had advanced as its ground for vacatur under that statute "an excess of power," the court further explained that an arbitrator's award may only be vacated where it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332.

Supreme Court had concluded:

1. The Union's interpretation of the pay parity provision was correct;

2. The CBA provision had been violated;

3. A retroactive salary increase for employees in the Union's collective bargaining unit was warranted; but

4. The arbitrator exceeded his power by essentially rewriting the parties' contract by eliminating the "pay parity provision going forward."

As the Appellate Division agreed with the lower court's findings and its determination vacating the portion of the arbitration award that conditioned relief upon excision of the pay parity provision from the CBA and remitting the matter to a different arbitrator for a new hearing and determination on limited issues, it sustained the lower court's rulings.

The decision is posted on the Internet at:


December 23, 2019

Making it right notwithstanding two wrongs


In the event two or more employees are found guilty of being involved in a wrongdoing, one individual might decide to sue one or more of the other wrongdoers for redress or damages.

In a case involving Person A lending some money to a friend, Person B. Person B later refused to repay a loan contending that the repayment of the money is not judicially enforceable because the loan was funded by the proceeds of illegal gambling, which resulted in Person A suing Person B seeking a court order mandating that Person B repay the loan to Person A.

The Court of Appeal, affirming a ruling by the Appellate Division, held:

'The doctrine of waiver does not preclude consideration of [Person B's] challenge here to the enforceability of the loan on the ground that it was funded by illegal gambling proceeds. Nevertheless, that defense was properly rejected on the merits. Given our strong public policy favoring freedom of contract, agreements are generally enforceable by their terms (159 MP Corp. v Redbridge Bedford, LLC, 33 NY3d 353, 359-361 [2019]). There is an affirmed finding, supported by the record, that the parties entered into a bona fideloan agreement and the facts do not support voiding the agreement on public policy grounds.

"Neither the terms of the agreement nor [Person A's] performance — i.e., loaning money to a friend — was intrinsically corrupt or illegal. Although the loan was funded by the parties' illegal gambling operation (for which both were criminally prosecuted), the record does not support a characterization of their conduct as "malum in se, or evil in itself" (Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124, 128 [1992]) and the source of funds used for a loan is not typically a factor in determining its validity.

"[Person B] argues the agreement should be deemed unenforceable because the courts should not assist a party in profiting from ill-gotten gains. But, here, where both parties were involved in the underlying illegality, neither enforcement nor invalidation of the contract would avoid that result. Indeed, if the loan is not enforced, [Person B] receives a windfall despite his participation in the criminal acquisition of the funds. We have been reluctant to reward "a defaulting party [who] seeks to raise illegality as a sword for personal gain rather than a shield for the public good'" (id., quoting Charlebois v Weller Assoc., 72 NY2d 587, 595 [1988]; cf. McConnell v Commonwealth Pictures Corp., 7 NY2d 465 [1960]). Although we do not condone [Person A's] illegal bookmaking business, for which he was prosecuted and fined, the circumstances presented here do not warrant a departure from this tenet."

The decision is posted on the Internet at:


December 20, 2019

Courthouse Sanctuary for litigants

On December 19, 2019, a New York federal district court judge denied the U.S.government's motion to dismiss a lawsuit challenging the constitutionality of the U.S. Department of Homeland Security's Office of Immigration and Customs Enforcement [ICE] attempts to effect arrests in court houses located in New York State.

U.S. District Judge Jed Rakoff declined to dismiss a lawsuit challenging the constitutionality of ICE's efforts to effect such arrests. Judge Rakoff rejected the government’s arguments that [1] implied the arrests were “none of this Court’s business" and [2] that even if it were within the jurisdiction of the court, "the common law privilege against courthouse arrests doesn’t apply to ICE."

Below is a portion of a New York State Supreme Court ruling that, in pertinent part, addresses the doctrine.

North Fork Bank, Plaintiff,
v
Raymond Grover et al., Defendants.

District Court of Suffolk County, Third District,
January 23, 2004, 3 Misc 3d 341

APPEARANCES OF COUNSEL

Raymond Grover, defendant pro se. Diane Grover, defendant pro se. 
Halpern, Halpern, Axelrod, Kirschenbaum & Phillips, P.C., Mineola (Elliot Phillips of counsel), for plaintiff.

OPINION OF THE COURT
[Addressing "Courthouse Sanctuary"]

C. Stephen Hackeling, J.

The court explained:

"Despite antagonistic dicta to the contrary, most modern era precedent dealing with the issue of "Courthouse Sanctuary" from service of process has held that New York State residents receive no such immunity protections. (Baumgartner v Baumgartner, 273 App Div 411 [1st Dept 1948]; Department of Hous. Preserv. {**3 Misc 3d at 343}& Dev. of City of N.Y. v Koenigsberg, 133 Misc 2d 893 [Civ Ct, NY County 1986]; Ford Motor Credit Co. v Bobo, 1 Misc 3d 901[A], 2003 NY Slip Op 51464[U] [Nassau Dist Ct, Miller, J.].) These cases hold that the courthouse sanctuary is only available to foreign state residents who come into New York's courts to contest jurisdiction. This doctrine has been slightly expanded to include New York residents who enter the jurisdiction of a New York court of limited territorial jurisdiction to contest jurisdiction. (See Palazzo v Conforti, 50 NYS2d 706 [Civ Ct, NY County 1944]; Singer v Reising, 154 Misc 239 [Mun Ct, Queens County 1935].)

"The Baumgartner Appellate Division panel (at 413) also acknowledges a limited "Courthouse Sanctuary" rule for New York residents if such service would "constitute a disturbance directly tending to interrupt the proceedings of the court or to impair the respect due to its authority." This rule by itself would not be applicable to the instant case as service of process was effected in the courtroom but outside the court's presence and in between calendar calls.

"State Residency Immunity Distinction?

"The English common law made no New York state residency distinction. The doctrine of immunity from arrest of a litigant attending a trial of an action to which he is a party found early recognition and dates back to the Year Book of 13 Henry IV, I, B (Sampson v Graves, 208 App Div 522 [1st Dept 1924]). This is for the obvious reason that Englandhad no sovereign states. The privilege is not a creature of statute, but was created and deemed necessary for the due administration of justice. (See Matthews v Tufts, 87 NY 568, 570 [1882], citing Van Lieuw v Johnson, Ct App, Mar. 1871 [unreported].)*

The logical question now arises, exactly when did New York's appellate courts recognize a residency distinction for application of the "Courthouse Sanctuary"? The answer is that the Court of Appeals never established such a rule. In contra point of fact, the Court of Appeals has opined that "[i]t is the policy of the law to protect suitors and witnesses from arrests upon civil process while coming to and attending the court and while returning home. Upon principle as well as upon authority their immunity from the service of process for the commencement of civil actions against them is absolute eundo, morando et redeundo." (Person v Grier, 66 NY {**3 Misc 3d at 344}124, 125 [1876].)

"In this unanimous opinion, the Court of Appeals expressly addressed the New York Stateresident immunity distinction and established in its dicta (at 126) that "whether any distinction should or does in fact exist, is at least doubtful. This immunity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process." It is noted that Person involved a foreign state resident. In establishing the sanctuary doctrine, the Court stated that (at 125) "this rule is especially applicable in all its force to suitors and witnesses from foreign States . . . ." By direct implication, the Court of Appeals is also applying the protective rule to New York residents.

"The basis of the "Courthouse Sanctuary" rule is that parties should be allowed to contest jurisdiction without submitting to it. "Allowing Re-service . . . makes a mockery of the traverse hearing and essentially allows the plaintiff to use a defective default judgment as a weapon to compel the defendant to submit to service of process." (Ford Motor Credit Co. v Bobo, supra at *2.) The location of an individual's residence does little to legitimize such a mockery. Absent the compulsion of clear controlling precedent, this court will not condone such a situation."

* As memorialized by the Latin phrase eundo, morando, et redeundo  [Latin]  [Going, remaining, and returning], a phrase was used to describe a person (for example, a witness or legislator) who is privileged from arrest while traveling to the place where assigned duties are to be performed, while remaining there, and while returning. 

Judge Hackeling decision is posted on the Internet at:


December 19, 2019

Procedural error results in the dismissal of an appeal to the Commissioner of Education

§310 of the Education Law provides for an aggrieved party filing an appeal or petition challenging an act or omission with the Commissioner of Education and the Commissioner is "authorized and required to examine and decide" issues involving, but not limited to, an act or omission at a school district meeting; by a district superintendent and other officers, and official act or decision of any officer, school authorities, or meetings concerning any other matter addressed by the Education Law.

In this appeal, a school superintendent [Petitioner] asked the Commissioner of Education to remove the president and member of the board [President] from the School Board. The Commissioner dismissed the Petitioner's appeal, explaining appeal must be rejected and the application denied because Petitioner's application failed to include proper notice to the President as required by §277.1(b) of the Commissioner’s regulations,* citing Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,482 among other Decisions of the Commissioner of Education.

The notice of petition serves to alert a party to the fact that he or she is the subject of removal proceedings and a notice of petition that fails to contain the required language is fatally defective and does not secure jurisdiction over the respondent.

* See 8 NYCRR Part 877, Practice on application for removal of school officers.

The Commissioner's decision is posted on the Internet at:


December 16, 2019

Applying the Doctrine of res judicata


Plaintiffs brought a putative class action against their employer, the New York City Housing Authority [“NYCHA”], and their labor union, Defendant-Appellee Union Local 237, I.B.T. [the “Union”] alleging that NYCHA paid them less than similarly situated white employees and that their Union tacitly approved and encouraged this discriminatory compensation scheme, in violation of 42 U.S.C. §1981, the Equal Protection Clause, and the New York City Human Rights Law [“NYCHRL”].

In March 2017, the District Court [Schofield, J.] granted summary judgment in favor of NYCHA and the Union, finding that the record contained insufficient evidence of discriminatory animus.

The Circuit Court of Appeals, Second Circuit, affirmed this judgment on appeal [See Wynn v. New York City Hous. Auth., 730 F. App’x 92].

Plaintiffs then filed a second action against the Union [“Wynn II”], this time alleging that the Union violated Title VII, 42 U.S.C. § 2000e et seq., by allowing NYCHA to pay them less than similarly situated white employees.

The District Court dismissed Plaintiffs’ amended complaint under Rule 12[b][6], concluding that their claims were precluded by res judicata. Plaintiffs then filed this timely appeal.

In Wynn II, Plaintiffs seek to hold the Union liable for “acquiesc[ing]” to NYCHA’s allegedly discriminatory compensation scheme. Plaintiffs’ Title VII claims are therefore based on their labor union’s failure to advocate for higher wages, not on their employer’s decision to pay them less than the prevailing wage rate. As a result, Plaintiffs cannot benefit from the Ledbetter Act, which, as this Court and other circuits have recognized, was directed “to a very specific type of claim: that the employer is ‘paying different wages or providing different benefits to similarly situated employees.’”

As the Ledbetter decision specifically dealt with a pay-discrimination claim that was cognizable without regard to other adverse employment actions, the Circuit Court found that the Ledbetter Act’s reference to ‘discrimination in compensation’ was to traditional pay-discrimination claims rather than to a pay reduction that flows from another adverse employment action.”

Accordingly, said the court, the Ledbetter Act does not save Plaintiffs’ Title VII claims from the application of res judicata.

The decision is posted on the Internet at:

December 13, 2019

Constitutional grounds for presidential Impeachment.


The report by the majority staff of the House Committee on the Judiciary is posted on the Internet at:

New York State Division Of Human Rights achieves settlement agreement in investigation into denial of marriage license to same sex couple


On December 13, 2019, the New York State Division of Human Rights (DHR) announced today that it has reached a settlement agreement with the Town of Root, New York. The agreement follows the denial of a marriage license to a same sex couple by the Town Clerk in Montgomery County

Governor Andrew M. Cuomo directed DHR to investigate the matter which concluded that the Town of Root had failed to meet their obligation to not discriminate under state law.*

On July 30, 2018, Town of Root residents Dylan Toften and Thomas Hurd sought to obtain a marriage license from their Town Clerk, Sherrie Eriksen.  Even though Mr. Toften and Mr. Hurd had the requisite documents with them, Ms. Eriksen refused to process their application. On August 1, 2018, Governor Cuomo directed DHR to open an investigation into the denial of the marriage license.

DHR’s investigation revealed that couples were treated differently by the Clerk’s office based on their sexual orientation. DHR determined that there was probable cause the Town of Root violated that state law, which mandates that no application for a marriage license be denied on the grounds that the parties are of the same sex and prohibits government entities from treating individuals seeking to get married differently because of their sexual orientation.

Under the terms of today’s settlement, the Town of Roothas agreed to pay a civil fine and penalty to New York State.  The Town has also agreed to adopt new non-discriminatory policies that will ensure that all individuals in the Town have an equal opportunity to obtain a marriage license.  In addition, the Town will train its current and future employees on the provisions of the State Human Rights Law and will be required to post the Division’s anti-discrimination poster in a conspicuous and public location in the Town building.  In a previously announced agreement, the Town of Root also paid a settlement of $25,000 to Mr. Toften and Mr. Hurd and Town Clerk Eriksen issued a public apology.

* Governor Cuomo and his administration have long been committed to supporting LGBT rights and ensuring that no one suffers discrimination because of their sexual orientation.  In October 2019, he signed legislation conforming laws in estate planning and surrogates court procedures to the Marriage Equality Act.  Under his administration, DHR, in 2014, achieved the settlement of a discrimination complaint against a town in the Finger Lakes region that allegedly denied a spot on a local planning board to an attorney because she was a lesbian.  In 2014, DHR also issued an order finding that an marriage venue in Rensselaer County had discriminated against a same-sex couple by denying the opportunity to have their wedding onsite.  

December 12, 2019

Determining if the alleged violation of a provision in a collective bargaining agreement is arbitrable


In New York State the court's apply the tests applied to determine if an alleged violation of a term set out in a collective bargaining agreement [CBA] entered in by a public entity and a recognized or certified employee organization may be submitted to arbitration are as follows:

1. Initially, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance; and

2. If there is no prohibition against arbitrating the issue, the court then considers the parties' CBA and determines if the parties, in fact, agreed to arbitrate the particular dispute.

In examining the CBA courts merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA. Further, in the event the court rules the matter arbitrable and that the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, it may not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.

In this action the Employer  and an Employee Organization [EO1] were parties to a CBA that provided that Employer was to pay members of EO1 in the collective bargaining unit a certain percentage more than the rate of pay of certain employees in a different collective bargaining unit.

Subsequently a different union representing the employees in a different collective bargaining unit [EO2] entered into an agreement with  Employer to increase the salaries of its members in that collective bargaining unit, including salary increases for years past, 2016 and 2017. However, the EO2 CBA also provided for a waiver of the receipt of retroactive pay for those years. 

The EO1 filed a grievance on behalf of its members seeking payment for retroactive salary increases for the years 2016 and 2017 for its members in EO1.

Employer denied the grievance, finding that the CBA did not contain a provision requiring it to pay EO1 members a retroactive salary based on the retroactive pay increases Employer had negotiated with EO2 for the employees in the collective bargaining unit EO2 represented. When EO1 demanded Employer's decision be submitted arbitration Employer commenced a CPLR Article 75 seeking to stay the arbitration. EO1 cross-moved to compel arbitration.

When Supreme Court denied Employer's petition and granted EO1's cross motion, Employer appealed the Supreme Court' ruling to the Appellate Division. 

As Employer did not contend that arbitration of the grievance was prohibited by law or public policy, the Appellate Division ruled that only issue before it was whether the parties agreed to arbitrate this particular grievance. 

The Appellate Division concluded that the arbitration provision of the CBA at issue was broad and that there was a reasonable relationship between the subject matter of the dispute, which involves the EO1's claim that its members are entitled to certain payments for retroactive salary increases, and the general subject matter of the CBA.

Noting that some uncertainty existed as to whether the subject matter of the dispute is encompassed within the salary provisions of EO1's CBA or whether the parties contemplated that a separate agreement would be required for wage increases to be paid retroactively, the Appellate Division, citing Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912, explained that any alleged ambiguity in the EO1 CBA "regarding the coverage of any applicable provision is ... a matter of contract interpretation for the arbitrator to resolve."

The decision is posted on the Internet at:

December 09, 2019

Constitutional Grounds for Presidential Impeachment


The report by the majority staff of the House Committee on the Judiciary dated December, 2019, is posted on the Internet at:

December 05, 2019

Seeking a preliminary injunction to prevent compliance with a Congressional subpoenas issued to a party


This appeal raises an important issue concerning the investigative authority of two committees of the United States House of Representatives and the protection of privacy due the President of the United States suing in his individual, not official, capacity with respect to financial records.

The specific issue is the lawfulness of three subpoenas issued by the House Committee on Financial Services and the House Permanent Select Committee on Intelligence (collectively, “Committees” or “Intervenors”) to two banks, Deutsche Bank AG and Capital One Financial Corporation (“Capital One”) (collectively, “Banks”).

The issue of the lawfulness of the three subpoenas arises on an expedited interlocutory appeal from the May 22, 2019, Order of the District Court for the Southern District of New York denying Plaintiffs’ motion for a preliminary injunction to prevent the Banks’ compliance with the subpoenas and denying Plaintiffs’ motion for a stay pending appeal.

The Circuit Court affirmed the Order in substantial part to the extent that it denied a preliminary injunction and order prompt compliance with the subpoenas, except that the case is remanded to a limited extent for implementation of the procedure set forth in this opinion concerning the nondisclosure of sensitive personal information and a limited opportunity for Appellants to object to disclosure of other specific documents within the coverage of those paragraphs of the Deutsche Bank Subpoenas listed in this opinion.

The court noted that the Committees agreed not to require compliance with the subpoenas pending the appeal, once the appeal was expedited.

In her partial dissent, Judge Livingston stated that she preferred a total remand of the case for “creation of a record that is sufficient more closely to examine the serious questions that the Plaintiffs have raised” and to “afford the parties an opportunity to negotiate.”

The majority opined that such a remand would run counter to the instruction the Supreme Court has given to courts considering attempts to have the Judicial Branch interfere with a lawful exercise of the congressional authority of the Legislative Branch. 

The decision is posted on the Internet at:


December 04, 2019

Audits released on December 3, 2019 by the New York State's State Comptroller



On December 3, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits had been issued:


Click on the text in blue to access the text of the full report.


.


Department of Health (DOH): Oversight of Public Water Systems (Follow-Up) (2019-F-34)


An audit issued in September 2018 found DOH has taken various actions to safeguard the quality of drinking water delivered to public water system customers. However, auditors identified opportunities for improved oversight. In a follow-up, auditors found DOH implemented both recommendations contained in the original report.






Department of Health: Oversight of Resident Care-Related Medical Equipment in Nursing Homes (Follow-Up) (2019-F-35)


An audit issued in September 2018 found DOH completed inspections in a timely manner and reported deficient practices to the public, as required. However, auditors identified gaps in DOH’s procedures that weaken its ability to effectively monitor nursing homes’ equipment inspection, testing and maintenance programs. In a follow-up, auditors found DOH officials made progress in addressing the problems identified in the initial audit.






Metropolitan Transportation Authority: Long Island Rail Road (LIRR): Fare Collection (2018-S-53)


LIRR employees did not always follow the required fare collection procedures. Between December 2018 and May 2019, auditors noted that train service personnel did not collect non-commutation fares 26 percent of the time (78 of 301 rides). Auditors also found that employees often collected incorrect fare amounts (for example, when no onboard surcharge was collected).






Metropolitan Transportation Authority: New York City Transit: Selected Safety and Security Equipment at Subway Stations (Follow-Up) (2016-F-17)


An audit released in March 2018 found that the transit unit was not in compliance with the requirements of the training curriculum established for its train crews, and that train operators and conductors did not always meet or complete refresher training requirements. In a follow-up, auditors determined that MTA officials made some progress in addressing the problems identified in the initial audit report. However, improvements are still needed.






New York City Department for the Aging (DFTA): Congregate Meal Services for the Elderly (Follow-Up) (2019-F-3)


An audit issued in January 2018 found that the DFTA needed to improve its oversight of senior centers. For example, officials could not demonstrate that they contracted with optimally located senior centers to maximize the number of eligible senior citizens who had access to congregate meals. In a follow-up, auditors determined DFTA officials have made some progress in addressing the issues identified in the initial report.






New York State Health Insurance Program: UnitedHealthcare: Overpayments for Out-of-Network Anesthesia Services Provided at In-Network Ambulatory Surgery Centers (Follow-Up) (2019-F-38)


An audit issued in August 2018 identified $991,357 in overpayments that occurred because United paid for out-of-network anesthesia services that should have been done by in-network anesthesia providers. In a follow-up, auditors found United officials recovered $780,478 of the $991,357 in overpayments.






Office for People With Developmental Disabilities (OPWDD): Oversight of Young Adult Institute (YAI) Inc.'s Family Support Services Contracts (Follow-Up) (2019-F-42)


An audit issued in September 2018 found that OPWDD needed to improve its fiscal oversight of the YAI Network. For example, OPWDD had not established controls to ensure the expenses claimed by the YAI Network were reasonable, necessary, allowable, supported, and consistent with requirements. In a follow-up, auditors found OPWDD officials made significant progress in addressing the problems identified in the initial audit.




December 02, 2019

New York City Office of Administrative Trials and Hearings' administrate law judge finds Appointing Authority failed to prove the disciplinary charges filed against an employee


An employee of the New York Department of Correction [Employee] was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging Employee was guilty of insubordination and inefficient work performance as the result of his leaving his assigned work tasks before their completion on two occasions.

With respect his leaving work on one of the two occasions charged Employee testified that he had asked his supervisor to reassign him to a different work assignment when he felt unsafe working in an inmate area without another employee present.

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Joycelyn McGeachy-Kuls credited the  Employee’s testimony that he was reassigned to another task that day over the supervisor’s testimony that Employee "did nothing for the rest of the day."

With respect to the second occasion, Employee told his supervisor that he objected to his assignment which required him to work in an inmate area. His supervisor then offered Employee two options:

[a] Employee could request a transfer; or

[b] Employee could return to work.

Employee elected to request a transfer.

Judge McGeachy-Kuls found that the appointing authority had failed to prove any of the §75  disciplinary charges filed against Employee. Accordingly the ALJ  recommended that the Appointing Authority dismiss all disciplinary charges filed against Employee

ALJ McGeachy-Kuls explaining that in this disciplinary proceeding the Appointing Authority had the burden of proving its case by a fair preponderance of the credible evidence and that preponderance has been defined as “the burden of persuading the triers of fact that the existence of the fact is more probable than its non-existence.”

Citing Rinaldi & Sons, Inc. v Wells Fargo Alarm Service, Inc., 39 N.Y.2d 191, Judge McGeachy-Kuls observed that in earlier OATH proceedings the presiding ALJ had ruled that "where the evidence is equally balanced, the charges must be dismissed."

The decision is posted on the Internet at:

November 29, 2019

The lawfulness of subpoenas issued by the House Committee on Financial Services and the House Permanent Select Committee on Intelligence


This appeal raises an important issue concerning the investigative authority of two committees of the United States House of Representatives and the protection of privacy due the President of the United States suing in his individual, not official, capacity with respect to financial records.

The specific issue is the lawfulness of three subpoenas issued by the House Committee on Financial Services and the House Permanent Select Committee on Intelligence (collectively, “Committees” or “Intervenors”) to two banks, Deutsche Bank AG and Capital One Financial Corporation (“Capital One”) (collectively, “Banks”).

The issue of the lawfulness of the three subpoenas arises on an expedited interlocutory appeal from the May 22, 2019, Order of the District Court for the Southern District of New York denying Plaintiffs’ motion for a preliminary injunction to prevent the Banks’ compliance with the subpoenas and denying Plaintiffs’ motion for a stay pending appeal.

The Circuit Court affirmed the Order in substantial part to the extent that it denied a preliminary injunction and order prompt compliance with the subpoenas, except that the case is remanded to a limited extent for implementation of the procedure set forth in this opinion concerning the nondisclosure of sensitive personal information and a limited opportunity for Appellants to object to disclosure of other specific documents within the coverage of those paragraphs of the Deutsche Bank Subpoenas listed in this opinion.

The court noted that the Committees agreed not to require compliance with the subpoenas pending the appeal, once the appeal was expedited.

In her partial dissent, Judge Livingston stated that she preferred a total remand of the case for “creation of a record that is sufficient more closely to examine the serious questions that the Plaintiffs have raised” and to “afford the parties an opportunity to negotiate.”

The majority opined that such a remand would run counter to the instruction the Supreme Court has given to courts considering attempts to have the Judicial Branch interfere with a lawful exercise of the congressional authority of the Legislative Branch. 

The decision is posted on the Internet at:

November 22, 2019

Public officer is removed from the position by operation of law should he fail to timely file his oath of office upon appointment or reappointment


§30.1[h] of the Public Officers Law, "Creation  of vacancies," provides, in pertinent part, that an office shall be vacant upon the individual's "refusal or neglect to file his official oath or undertaking ...  within  thirty  days  after  notice  of  his appointment, or within thirty days after the commencement of such  term ...."*

A superintendent of schools, [Petitioner], employed pursuant a written employment contract for a four-year term, was served with "41 charges and specifications" which charges and specifications were later supplemented "with 45 amended charges and specifications."

An impartial hearing officer was designated to conduct a disciplinary arbitration proceeding  “to determine whether charging party [School Board] sustained its burden of proving that [Petitioner] materially breached [his employment contract], acted negligently or engaged in gross misconduct” while serving as superintendent, thereby entitling the School Board to remove him from his position as permitted "pursuant to ... his employment contract.”

The School Board 's general counsel, after reviewing the minutes of School Board meetings for the relevant periods of time, determined there was no indication that Petitioner executed, and timely filed, his required an oath of office with the School District's District Clerk.**

Ultimately the School Board adopted a resolution as follows:

"Resolve, that the office of the District’s Superintendent of Schools is deemed vacant pursuant to N.Y. Public Officers Law §30.1.h and pursuant to [the Commissioner’s decision in Application of Karpen; and further

"Resolve, that the office of the District’s Superintendent of Schools, held by [petitioner], is declared vacant; and further

"Resolve, that the contract between the District and [petitioner] is hereby determined to be void, nullified, and of no force and effect ...."

Petitioner appealed the School Board's action to the Acting Commissioner of Education, Beth Berlin, contending that its resolution was pretextual and a mere attempt to terminate a qualified Superintendent in that "he took and filed an oath of office nunc pro tunc after learning of the requirement" and that “custom and past practices prove that [School Board’s] district clerk has historically administered and filed the oaths of office in a bound oath book for all appointed or elected superintendents, board trustees and officers” – but did not do so for Petitioner." As redress, Petitioner asked the Commissioner to direct his reinstatement to his former position with back pay.

Finding the Petitioner's appeal was timely filed, the Commissioner, nevertheless, dismissed Petitioner's appeal "for lack of proper verification." The Commissioner explained that 8 NYCRR §275.5 requires that all pleadings in an appeal to the Commissioner be verified and if not properly verified, dismissed. Here, said the Commissioner, rather than Petitioner verifying the appeal, the appeal was verified by Petitioner’s attorney.  In words of the Commissioner, "Petitioner’s counsel is not a petitioner in this appeal; therefore, his verification is improper, and the appeal must be dismissed."

Although the Commissioner did not rule on the merits of the School District's argument that Petitioner's failure to file a timely oath of office resulted his removal from his position "by operation of law," it is worth noting that in Lombino v Town Board, Town of Rye, 206 A.D.2d 462, [leave to appeal denied, 84 N.Y.2d 807] the court held that the mandates of §30.1(h) are to be strictly construed in the event the jurisdiction declares a public office vacant because of the failure of the incumbent to file his or her oath of office in a timely manner. Further, the failure to file a timely oath cannot be cured by subsequently filing the required oath [Opinion of the Attorney General, 86-41, Informal]. 

* Subject to other provisions of law, the neglect or failure of any state or local officer to execute and file his or her oath of office and official undertaking within the time limited therefor by law shall not create a vacancy in the office if such officer was on active duty in the armed forces of the United States and absent from the county of his or her residence at the time of his or her election or appointment.

** Public Officers Law §15 provides that the acts of a public officer done without his or her taking or filing an official oath are valid and that this section has been interpreted to confer a right to "the statutory compensation therefor" [Opinions of the Attorney General, 1903 Ops Atty Gen 487 and 1979 Ops Atty Gen 29].

The decision is posted on the Internet at:

November 21, 2019

Court's dismissal of one or more specification set out in a disciplinary charge requires remanding the matter to the appointing authority for reconsideration of the disciplinary penalty imposed on the employee


The appointing authority filed disciplinary charges against a public safety dispatcher [Petitioner] pursuant to Civil Service Law §75. Charge I consisted of six specifications alleging misconduct and, or, incompetence in connection with the Petitioner's handling of a request for assistance on a specified date and Charge II, consisted of five specifications, alleged misconduct and, or, incompetence in connection with the Petitioner's handling of a request for assistance on a different specified date. Petitioner testified that, aside from the two "911" calls forming the bases of Charges I and II, he had never hung up on callers or yelled at callers.

The appointing authority then directed a further investigation into the Petitioner's handling of other 911 calls. As a result in this investigation the appointing authority filed "seven supplemental charges", Supplemental Charges I through and including VII against the Petitioner, each consisting of multiple specifications, arising from the seven additional calls.

Ultimately the designated disciplinary hearing officer found Petitioner guilty of specifications 5 and 6, as well as a portion of specification 4, of charge I; specifications 3, 4, and 5 of charge II; specification 4 of Supplemental Charge II; specification 4 of Supplemental Charge III; specification 4 of Supplemental Charge IV; specifications 4 and 5 of Supplemental Charge V; specification 4 of Supplemental Charge VI; and specification 4, as well as a portion of specification 6, of Supplemental Charge VII. The hearing officer recommended termination of the Petitioner's employment given "the number and extent of his instances of misconduct and/or incompetence" demonstrating that he is "not a reliable or responsible 9-1-1 dispatcher." The appointing authority adopted the hearing officer's findings and recommendation, and terminated the Petitioner's employment.

Petitioner then initiated a CPLR Article 78 action in Supreme Court seeking a judicial review the appointing authority's determination. Supreme Court transferred the matter to the Appellate Division pursuant to CPLR §7804(g).

The Appellate Division commenced its review of Petitioner's appeal by noting that judicial review of an Article 78 proceeding involving employee discipline made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence. The court then explained that "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists."

Here, said the court, any credibility issues were resolved by the hearing officer and substantial evidence in the record supports the determination that the Petitioner was guilty of the misconduct alleged in certain, but not all, Charges and Specifications, holding that specifications 3 and 4 of Charge II, and  a portion of specification 6 of Supplemental Charge VII cannot be sustained.

As the appointing authority had imposed a penalty of termination of Petitioner's employment in consideration of "all of the specifications for which he was found guilty, and [the Appellate Division had dismissed] three of those specifications," the court, citing Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, vacated the penalty of dismissal imposed on Petitioner and remitted the matter to the appointing authority "to consider the appropriate penalty to be imposed upon the remainder of the charges and specifications for which he was found guilty, and the imposition of that penalty thereafter."

The decision is posted on the Internet at:
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A Reasonable Disciplinary Penalty Under the Circumstances
Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence.
For more information click on http://booklocker.com/7401.html
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November 20, 2019

State Joint Commission on Public Ethics sued by individual claiming not to be a lobbyist and thus not subject to the filing requirements applicable to professional lobbyists



§1-c of Article 1-A of the Legislative Law, the Lobbying Act, provides as follows: 

"As used in this article unless the context otherwise requires: (a) The term 'lobbyist' shall mean every person or organization retained, employed or designated by any client to engage in lobbying. The term 'lobbyist' shall not include any officer, director, trustee, employee, counsel or agent of the state, or any municipality or subdivision thereof of New York when discharging their official duties; except those officers, directors, trustees, employees, counsels, or agents of colleges, as defined by section two of the education law."*


An individual [Plaintiff] is suing the New York State Joint Commission on Public Ethics alleging the Commission is conducting an “improper and abusive” investigation into her activities concerning  her efforts to raise awareness about sexual assault and support for the State Legislature's passing the Child Victim’s Act in 2018. Plaintiff claims that she was not involved in lobbying within the meaning of the Lobbying Act and thus is not subject to the filing requirements mandated for professional lobbyists.*


A similar argument was raised by an individual [Petitioner] who was deemed to be a lobbyist under Missouri Law. After a five-year legal battle in federal courts the individual, who claimed he was merely a person spreading his own ideas on limited government and not a paid advocate for others, prevailed.


The full bench of the Circuit Court ruled that Petitioner did not have to register as a lobbyist before speaking to lawmakers, reversing an earlier decision by a three-member panel in a dispute that was reported to have resulted from a complaint against Petitioner filed by the Society of Governmental Consultants.

* See, also, §§1-15 of the Unconsolidated Law.

The text of the Circuit Court's decision is posted on the Internet at:

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