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

Department of Agriculture and Markets: Oversight of Industrial Hemp (2018-S-32)

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.

City University of New York (CUNY): Compliance With Payment Card Industry Standards (2018-S-61)

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.

New York City Department of Finance (DOF): Selected Aspects of Parking Violations Operations to Collect Fines and Fees (2017-N-8)

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.

Metropolitan Transportation Authority (MTA) - Staten Island Railway (SIR): Operational Training and Medical Assessments of Train Crews (Follow-Up) (2019-F-18)

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.

Department of Motor Vehicles (DMV): Allocation, Billing, and Collection of Expenses of Administering the Motor Vehicle Financial Security Act and the Motor Vehicle Safety Responsibility Act (2019-S-5)

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

New York State Health Insurance Program: UnitedHealthcare: Reasonable and Customary Reimbursement Rates for Delayed Claims (2018-S-60)

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.

New York State Health Insurance Program: Empire BlueCross: Improper Payments for Special Items Billed by Hospitals Within Long Island Health Network (LIHN) (2017-S-43)

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.

Niagara Frontier Transportation Authority (NFTA): Use of Vendor-Supported Technology (2019-S-40)

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.

Homes and Community Renewal: Office of Rent Administration (ORA): Collection of Fines Related to Tenant Complaints (2018-S-58)

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.

New York City Department of Social Services: Oversight of Security Expenses in Single Adult and Adult Family Homeless Shelters (Follow-Up) (2019-F-31)

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.

Department of Health (DOH): Oversight of Obesity and Diabetes Prevention Programs (Follow-Up) (2019-F-43)

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.

Department of Health: Wadsworth Center Environmental Laboratory Approval Program (ELAP) (2018-S-1)

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.

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:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09262.htm

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:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09058.htm

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:

http://www.nycourts.gov/reporter/3dseries/2004/2004_24045.htm

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:

http://www.counsel.nysed.gov/Decisions/volume59/d17803

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:

http://www.ca2.uscourts.gov/decisions/isysquery/941a3a25-6d0d-4540-a4b1-7239a06af994/14/doc/19-962_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/941a3a25-6d0d-4540-a4b1-7239a06af994/14/hilite/

Constitutional grounds for presidential Impeachment.

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

https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/HCM%20FINAL%20v.3.pdf

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.  

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:

http://www.nycourts.gov/reporter/3dseries/2019/2019_08845.htm

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:

https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/HCM%20FINAL%20v.3.pdf

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:

http://www.ca2.uscourts.gov/decisions/isysquery/12ac7ad1-cdf8-401a-9cc7-6bbff1917c9c/2/doc/19-1540_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/12ac7ad1-cdf8-401a-9cc7-6bbff1917c9c/2/hilite/

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.

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:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1861.pdf