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February 14, 2020

STATE COMPTROLLER DiNAPOLI RELEASES ANALYSIS OF EXECUTIVE BUDGET

Click On Text Highlighted In Color To Access Full Text Of These Reports

New York's State Comptroller encourages transparency during Medicaid redesign team's deliberations, raises concerns about accounting changes.

Despite projections for healthy gains in tax receipts and continued growth in the economy, the State Fiscal Year (SFY) 2020-21 Executive Budget reflects significant fiscal challenges related, in part, to higher than expected spending in the Medicaid program, according to an analysis released today by New York State Comptroller Thomas P. DiNapoli. With a budget deadline soon approaching, more than a third of the Executive’s proposed nearly $7 billion gap-closing plan remains to be identified by the Medicaid Redesign Team (MRT), creating uncertainty for Medicaid beneficiaries, providers, local governments and the state budget.

DiNapoli also raised concerns about transparency and accountability, including proposed statutory changes that could distort the reporting of revenue and spending in the state’s financial statements and allow the Executive to spend beyond the amounts approved by the legislature. Other proposals would weaken oversight.

New York’s economy is expanding but the state is still facing a serious budget gap. It’s imperative the Medicaid Redesign Team seek broad input on the root causes and options for addressing rising Medicaid costs,” DiNapoli said. “There is limited time for deliberations before the budget deadline. The state needs to identify long-term solutions for the millions of New Yorkers that rely on Medicaid and the taxpayers who will be footing the bill. Failure to effectively solve the Medicaid problem may result in harmful impacts in other areas of the budget this year and going forward.”

The MRT is charged with identifying savings that can lead to financial sustainability of the program, including meeting the goal of having “zero impact on local governments and zero impact on beneficiaries.” The budget also proposes linking state funding of the local share of certain Medicaid costs to the property tax cap. It is unclear how the budget proposals or any recommendations by the MRT will achieve these potentially conflicting goals.

The Executive budget assumes a second consecutive deferral across fiscal years of $1.7 billion in Medicaid costs. DiNapoli said the deferrals are troubling reminders of historical practices that resulted in a large accumulated structural deficit.

DiNapoli’s analysis also raised concerns about the Medicaid Global Cap. The cap was established in 2011 to promote cost containment efforts, but actions since then have moved various elements of Medicaid spending into or out of the cap. The shifting of the $1.7 billion into SFY 2019-2020, an effort to avoid exceeding the cap, contributed to the ongoing delay in addressing the program’s increasing fiscal challenges.

The financial plan projects SFY 2020-21 total spending at $178 billion, up 1.2 percent. Spending from State Operating Funds is estimated to increase by 1.9 percent. DiNapoli said after adjusting for prepayments and other identifiable budgetary actions, the increase is estimated at 3.1 percent.

The Comptroller urged the Executive to remove language in the 30-day amendment period that seeks to require the comptroller’s cash-basis reports to classify receipts and disbursements in accordance with provisions established by budget legislation. This proposal raises a potential conflict with Article V, Section 1 of the State Constitution, which grants the Comptroller the power to determine accounting methods, and is troubling with respect to transparency and accuracy in financial reporting. Related to this issue, proposed new language would broadly authorize netting of certain revenue against disbursements. Among other concerns, this would cloud the picture of true spending growth and potentially results in significant expenditures beyond the appropriations approved by the legislature.

DiNapoli called the Division of Budget’s plan to deposit $428 million into the Rainy Day Reserve Fund at the end of the current fiscal year a positive step. However, the report noted New York’s rainy day reserves are less than half their authorized levels and no additional deposits are planned. The Comptroller has advanced a proposal to provide a disciplined, consistent approach to building these reserves. This would help ensure that more robust reserves will be available in the event an economic downturn or catastrophic event merits their use. 

The Comptroller’s report also finds:

 School Aid would increase by $826 million, or 3 percent, to $28.5 billion in the coming school year. This increase is less than the 4 percent growth allowable under a statutory limit related to personal income in the state;

 Funding for most local governments aid programs would be held flat, continuing a trend in recent years of decreases or level funding in such areas. These include Aid and Incentives for Municipalities, also known as AIM, the largest unrestricted aid program for local governments, as well as major funding for streets, highways and bridges;

 Total capital spending over the current and next four years is projected at $66.7 billion, little changed from the estimate based on the SFY 2019-20 Enacted Budget. Projected transportation spending is increased $3.3 billion, partly offset by certain unspecified reductions from the previous plan. The budget would appropriate $3 billion for the Metropolitan Transportation Authority’s 2020-2024 capital program, although funding sources are not identified;

● The budget recommends presenting a $3 billion Restore Mother Nature General Obligation (GO) Bond Act to the voters that, if approved, would provide funding to restore habitats, reduce flood risks, improve water quality, protect open space, expand the use of renewable energy and support other environmental projects. DiNapoli said that having voters weigh in on new state debt is a sound approach;

● The budget would authorize an additional $10.3 billion in new state-supported debt, all to be issued by public authorities except the proposed $3 billion Restore Mother Nature GO Bond Act. Outstanding state-supported debt is projected to rise 20.3 percent, and annual debt service 48.4 percent, by SFY 2024-25; and

● The Executive anticipates elimination of 2,500 state prison beds in the coming fiscal year, and a $181.5 million reduction in spending for the Department of Corrections and Community Supervision, partly reflecting budget language that would authorize additional prison closures.

For the full Report click on:
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Determining if benefits set out in a collective bargaining agreement survive the expiration of the agreement


Seven villages entered into "Joint Police Protection Contract" [SVC] establishing a joint police protective service. The SVC was valid for a five-year period and provided that, upon its expiration or upon a village's withdrawal therefrom, each village "remain[ed] obligated to pay its respective pro rata share ... after expiration or withdrawal." It was further provided that such "costs, liabilities and obligations shall include earned termination benefits as described in relevant sections of collective bargaining agreements [CBA] ...."  that provided for certain retiree health insurance benefits, hereinafter referred to as the "2006 agreement." 

Subsequently one village [Respondent] withdrew from the arrangement effective May 31, 2012 and formed its own police force while the remaining six villages [Plaintiffs] extended the SVC for one year, and then executed a new Six Village SVC.

Plaintiffs commenced this action against Respondent to recover damages for an alleged breach of contract, seeking, as its first cause of action, to recover the present value of Respondent's pro rata share of future retiree health care benefits incurred prior to the SVC expiration date, but paid or becoming due after the CBA's expiration date. Plaintiffs moved for summary judgment but Supreme Court granted Respondent's cross motion for summary judgment dismissing that portion of Plaintiff's first cause of action that involved future retiree health care benefits for any time period after May 31, 2012. 

The Appellate Division said the Respondent's met its prima facie burden for summary judgment, dismissing so much of Plaintiff's first cause of action as sought to recover future retiree health care benefits "to the extent such costs are attributable for any time period after its withdrawal from the SVC." The court explained that "As a general rule, contractual rights and obligations do not survive beyond the termination of a collective bargaining agreement." In contrast, opined the Appellate Division, "[r]ights which accrued or vested under the collective bargaining agreement will, as a general rule, survive termination of the agreement".

Further, said the court, although a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms, in determining whether a CBA creates a vested right to future benefits, "courts should not construe ambiguous writings to create lifetime promises" and when a contract is silent as to the duration of retiree benefits, "a court may not infer that the parties intended those benefits to vest for life."

Here, said the Appellate Division, the primary question was whether, by the terms of the controlling SVC, Respondent obligated itself to contribute to the cost of providing health benefits for retired police officers pursuant to the 2006 CBA. As the 2006 CBA is silent as to the duration of the health benefits promised therein, it must be assumed that those benefits were promised only until the expiration of the 2006 agreement. In the words of the Appellate Division, "[a]lthough the parties and the PBA were certainly free to negotiate for continued, enhanced, or reduced benefits in future CBAs," nothing contained in the text of the subsequent CBAs commits Respondent to the payment of any of the benefits in question upon the termination of the 2006 CBA."

Citing Kolbe v Tibbetts, 22 NY3d at page 353, the Appellate Division noted that CBA language in Kolbe provided for retiree benefits "that continued beyond the expiration of the CBA", explaining that the relevant language in the Kolbe CBA provided that "[t]he coverage provided [in retirement] shall be the coverage which is in effect for the unit at such time as the employee retires". 

As there is no comparable language guaranteeing the same level of benefits beyond the expiration of the 2006 CBA, the health care benefits at issue in the instant litigation did not survive beyond the expiration of the 2006 CBA. Further, the fact that Plaintiffs and the PBA may have bargained for equivalent benefits in future CBAs is irrelevant to the discrete issue of Respondent's liability to Plaintiffs under any subsequent SVC. 

Finding that Respondent established, prima facie, that it was not liable for health care benefits beyond the expiration of the 2006 CBA, the Appellate Division sustained Supreme Court's ruling dismissing so much of Petitioner's first cause of action as sought to recover future retiree health care benefits for any time period commencing after May 31, 2012.

The decision is posted on the Internet at:


February 13, 2020

Appointing authority adopts the recommendation of the hearing officer in part


A volunteer member [Petitioner] of a fire department [Department] was served with disciplinary charges alleging gross misconduct and conduct unbecoming a member of the Department as the result of a physical confrontation between Petitioner and another member of the Department.

Following a disciplinary hearing conducted pursuant to §209-l of the General Municipal Law, the hearing officer found Petitioner not guilty of gross misconduct but guilty of conduct unbecoming a member of the Department. The hearing officer then recommended Petitioner be suspended for 60-days. The Board of Fire Commissioners [Board] determined that Petitioner was guilty of both charges and imposed the penalty of expulsion from the Department and "disqualified [Petitioner] from membership for life." 

Supreme Court dismissed Petitioner's appeal of the Board's determination, which decision was sustained by the Appellate Division after it rejected Petitioner's argument that the sanction of expulsion and disqualification from membership for life was an abuse of discretion by the Board. 

Citing DeStefano v Incorporated Vil. of Mineola, 167 AD3d 740, and other decisions, the Appellate Division turned to a procedural issue, noting that Petitioner had  raised the question of whether the Board's determination was supported by substantial evidence. Accordingly, said the court, the lower tribunal should have transferred the proceeding to it without deciding that issue. Notwithstanding this procedural defect, "because the complete record" was now before it, the Appellate Division elected to treat the matter as one that had been transferred to it and reviewed the determination de novo

The Appellate Division then explained the "Upon judicial review of a determination rendered by an administrative body following a hearing, [the Appellate Division's] function is limited to consideration of whether the determination is supported by substantial evidence". Noting that "substantial evidence" means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact," Appellate Division opined that the Board's determination sustaining the charges of gross misconduct and conduct unbecoming a member of the Department was supported by substantial evidence. 

Although Petitioner argued that the confrontation between himself and the other member of the Department constituted "harmless horseplay," it is undisputed that Petitioner causing an injury to that member, in violation of Department policy.

Noting the "judicial review of an administrative penalty" is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law" the Appellate Division, citing Pell v Board of Educ. of Union Free School Dist. No. 1, 34 NY2d 222, concluded that the penalty of expulsion from the Department and disqualification from membership for life is not so disproportionate to the offenses as to be shocking to one's sense of fairness.

The decision is posted on the Internet at:








February 12, 2020

Standing to maintain a proceeding alleging a violation of the Open Meetings Law


Noting that case law addressing the issue of standing to commence a proceeding/action to enforce the provisions of the Open Meetings Law [OML]* is sparse, the Appellate Division, citing Matter of Sanna v Lindenhurst Bd. of Educ., 85 AD2d 157, said in fashioning a remedy for a violation of the OML the reviewing court must focus solely upon the public injury," noting than in Sanna the Appellate Division "expressly centered on the 'public injury' or injury to the 'citizenry' of which Sanna was a member, not on her status as the subject of the board's deliberation.** 

In Friends of Pine Bush v Planning Bd. of City of Albany (71 AD2d 780), Appellate Division, Third Department, found that "[a]s residents of the city, the individual petitioners are persons aggrieved by a decision of the planning board and thus have standing to bring this proceeding", while in Zehner v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 29 Misc 3d 1206[A], the court determined that, as a lawful attendee of the meeting in question, the Zehner was an aggrieved party and had standing to challenge the school board's activities.

Guided by the settled principle that "[w]hen presented with a question of statutory interpretation, a court's primary consideration is to ascertain and give effect to the intention of the Legislature," the Appellate Division opined that the purpose of the OML and the intent of the Legislature in enacting that law dictate that the harm or injury is the alleged unlawful exclusion of the public from a municipal meeting. Citing Public Officers Law § 100, The court said that the OML "plainly confers upon the public the right to attend certain meetings of public bodies."

Accordingly, the harm or injury of being excluded from municipal meetings that should be open to the public is sufficient to establish standing in cases based upon alleged violations of the OML. To require a petitioner to demonstrate an additional personal damage or injury to his or her civil, personal, or property rights in order to assert a violation of the OML would, in effect, interject a counter-intuitive restriction upon the general citizenry's access and participatory freedoms to attend certain meetings of a public body. 

Such a requirement or condition, said the Appellate Division, "would undermine, erode, and emasculate the stated objective of this statute, which was designed to benefit the citizens of this state and the general commonweal, assure the public's right to be informed, and prevent secrecy by governmental bodies."

The Appellate Division the held that the branch of the Village Board's motion to dismiss the Appellants' petition/complaint in this action for lack of standing should be denied. 

The Appellate Division then noted that it found "only that the Appellants established their standing to maintain this proceeding/action" and took no position on the merits of the remaining allegations asserted by the parties, "including whether the Village Board, in fact, violated the Open Meetings Law by excluding the appellants or whether the Village Board properly conducted executive sessions."

* Public Officers Law, Article 7.

** The Court of Appeals later affirmed Appellate Division's decision and order in Sanna, without expressly addressing the issue of standing (Matter of Sanna v Lindenhurst Bd. of Educ., 58 NY2d 626).

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_00864.htm


February 11, 2020

Portions of an arbitration award challenged as moot, exceeding the authority of the arbitrator and "nonfinal and indefinite"


In compliance with an arbitration award, the school district [District] appointed 16 teachers' aides. The District subsequently announced its intention to eliminate 5½ teaching positions for the 2017-2018 school year in order to offset the cost of employing these teachers' aides. 

The Teacher Federation [Union] filed a grievance in an effort to prevent the elimination of the teaching positions on the ground that District's intended conduct was retaliatory. An arbitrator issued an opinion which directed the District to "rescind its decision to eliminate . . . teaching positions . . . for the 2017-2018 school year." 

Citing Hearst Corp. v Clyne, 50 NY2d 707, the Appellate Division vacated this portion of the arbitrator's award explaining that it "is well established that an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment."

Because the 2017-2018 school year had concluded, said the court, a determination in this appeal would have no effect on the parties' rights.

The court also agreed with the District that the arbitrator had exceeded his authority by requiring it to make the elimination of teaching positions in accordance with the "School Based Development Guide", opining that an arbitration award may be vacated where an arbitrator, 'in effect, made a new contract for the parties in contravention of [an] explicit provision of [the] arbitration agreement which denied [the] arbitrator power to alter, add to or detract from" the collective bargaining agreement (CBA). Noting that the CBA does not require the District to make its staffing or budgetary decisions in accordance with the Guide,  the Appellate Division ruled that the arbitrator contravened an express provision in the CBA that denied him the "authority to modify or amend it." 

Finally, the District contended that a paragraph of the arbitration award was nonfinal and indefinite insofar as it directed that "[a]ny future elimination of teaching positions at [the affected school] as a result of hiring teacher aides must be narrowly tailored to meet the economic needs of [the District] and be applied in a Union membership neutral manner." 

The Appellate Division agreed, indicating that an award is nonfinal and indefinite if "it leaves the parties unable to determine their rights and obligations." The court said that here  the language in the award was "nonfinal and indefinite" except to the extent that it prohibited the District from discriminating on the basis of "Union membership status." 

Concluding that the Supreme Court had erred in confirming these parts of the arbitration award challenged by the District, the Appellate Division modified the order and judgment accordingly.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_00794.htm

February 10, 2020

New York State Comptroller releases audits of various public entities

On February 10, 2020, New York State Comptroller Thomas P. DiNapoli issued the following audits.


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


Auditors found an estimated $13 million has not been billed or collected from commercial casinos for oversight costs. The commission also did not have policies regarding dispute resolution procedures when a casino disagrees with oversight cost charges, leaving the commission unprepared to address disputes that may arise.

OGS has made progress in reducing leased warehouse space, having evaluated 29 leased warehouses, resulting in: the consolidation of 14, liquidation of nine, square footage reduction for three, and no changes in the remaining three. The initiative realized cost savings of $1,699,020 during the audit scope and a reduction of 434,266 square feet. However, auditors could not determine the initiative’s overall success, as an inventory of all state warehouses – leased and state owned – did not exist.

Under the Public Authorities Law, the MTA is required to issue an annual report on its mission statement, measurements, and performance indicators. One of the goals the MTA cites in its annual report is to provide on-time and reliable service to customers. Auditors found Transit’s new customer-focused measures do not appear to meet the plan’s goals. For a metric to be relevant, it should be closely connected to the goals, easily understood, and straightforward.

For two key performance measures – mean distance between failures and ridership – auditors identified deficiencies and inconsistencies in MTA’s methodology and calculations that may result in misleading or inaccurate results. 

An audit issued in June 2017, found that the Staten Island Railroad (SIR) documented its inspections of facilities where safety-related incidents occurred and the actions taken to remediate conditions that might have contributed to such incidents. However, in certain instances, responses to safety-related incidents were not documented. In a follow-up, auditors found that SIR officials made progress in addressing the problems identified in the initial audit.


An audit issued in July 2017 found that DOF's Property Division did not conduct necessary inspections for over half of the parcels reviewed and assessors frequently did not document the basis for assessment changes. In a follow-up, auditors found that DOF made progress in addressing the problems identified in the initial report. 


An audit issued in July 2018 found that, while Health and Hospitals generally complied with its policies for the screening of its direct hire and temporary nurses, it had not taken action to ensure that direct hire nurses who began before 2002 or any of its temporary nurses were fingerprinted. Auditors also identified numerous instances of deficient screening and monitoring. In a follow-up, auditors found that of the four recommendations from the initial report, two had been implemented and two had been partially implemented.

For the period Jan. 1, 2016 through Dec. 31, 2016, auditors determined 42 claims (47 percent of the 90 claims sampled) totaling $28,731 were unsupported for the higher level of care billed. United’s method for monitoring out-of-network providers who billed for higher-level services needed improvements. In a follow-up, auditors found United made progress in addressing the problems identified in the initial audit. In particular, United saved the Empire Plan $862,334 through reviews of claims from three of nine providers identified in the initial audit.

The Research Foundation has taken steps to protect SUNY’s interest in the transfer of technology and royalties for projects developed at SUNY schools. The Research Foundation has not developed routine monitoring mechanisms to determine whether a licensee is paying the full royalty owed. Since 1992, Downstate Health Sciences University has accumulated $1,019,390 in campus royalty revenue, none of which has been used to support SUNY research programs.

St. Anne is an SED-approved, not-for-profit private school located in Albany that provides preschool special education services to children with developmental disabilities. Auditor identified $14,204 in in ineligible costs that St. Anne reported for state reimbursement.

Located in Jamestown, CES is a for-profit special education provider that services children with disabilities between three and four years of age. Auditors identified $2,509 in other than personal service costs reported by CES on its for the fiscal year ended June 30, 2015 that were ineligible for reimbursement.


MIM is a for-profit special education provider located in Newburgh. MIM provides preschool special education services to children with disabilities between three and four years of age. Auditors identified $27,970 in costs reported by MIM that were ineligible for reimbursement.

February 9, 2020

Contaminants of Emergent Concern discussed at New York State Bar Association meeting


Dr. Robert A. Michaels, NYPER's Environmental Science Consultant, made an invited presentation to the New York State Bar Association, Energy and Environmental Law Section on January 31, 2020.  

The presentation, titled Contaminants of Emergent Concern, is available for viewing and/or download at no charge, at the following URL: 

The Focus of Dr. Michaels' Presentation

Concern about historic (‘legacy’) contaminants may be emerging as information about their toxic effects and toxic potency increases, and with discovery of their presence at toxic levels in various environmental media. 

Two classes of substances exemplify such concerns: lead (Pb) and its compounds, and perfluorinated compounds (PFAs). PFAs have been termed ‘forever chemicals’, but Pb qualifies as well. 

Concern about these contaminants is emerging because of at least three issues: failures of environmental justice, the need for international agreements regarding globe-trotting contaminants, and the conflict between protecting science and public health exemplified by inadequately probative study designs for identifying cancer clusters.

Click here for summaries of selected articles by Dr. Michaels posted on NYPPL:

You may contact Dr. Michaels at bam@ramtrac.com .


February 7, 2020

Employee found to have acted unprofessionally terminated from the position


A Triborough Bridge and Tunnel Authority Bridge and Tunnel Officer (“BTO”) served with disciplinary charges was found to have acted unprofessionally when she yelled profanities at a motorist and had to be restrained by colleagues. 

The BTO also was found to have failed to safeguard her Authority-issued radio, which wound up in the motorist’s vehicle. The charge that the BTO threw her radio at the motorist, however, was dismissed by OATH Administrative Law Judge Ingrid M. Addison as "not proved."

Judge Addison recommended that BTO be terminated from her position or, in the alternative, be suspended without pay for 60 days provided the BTO enroll in, and complete, an anger management program. 

The appointing authority elected to terminate the BTO.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2691.pdf


February 6, 2020

New York - New Jersey Port Authority subject to New York State's Labor Law

The Appellate Division sustained a Supreme Court ruling that rejected the New York-New Jersey Port Authority's arguments that as a bi-state entity created by a federally approved compact it cannot be held liable under Labor Law §§240(1) or 241(6) for injuries plaintiff allegedly sustained while working in a building owned by the Authority.
The court explained that the Compact Clause of the United States Constitution is not implicated by the application of such New York workplace safety statutes to the Port Authority work site located in New York, which does not encroach on federal supremacy, citing Cuyler v Adams, 449 US 433.
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_00365.htm

February 5, 2020

A retired member is required to repay pension benefits mistakenly paid to him by the New York State Employees Retirement System


The Petitioner in this CPLR Article 78 action began working as an engineer for the New York Power Authority in March 1980. In order increased the pension benefits payable to him by the New York State and Local Retirement System [NYSERS] upon retirement, in January 2001 Petitioner submitted an application to NYSERS in an effort to purchase "military service credit" based on his service as a Naval Reserve Officer from June 1966 until April 1969, during which period he served on merchant ships recommissioned to transport supplies to support the Vietnam war effort pursuant to a Naval Training and Service Agreement. Following such service Petitioner joined a naval reserve unit and was honorably discharged in February 1979.

Although his application was initially denied, NYSERS subsequently advised Petitioner that his application had been approved.Petitioner retired in January 2003 and began receiving NYSERS pension benefits that included the value of the approved military service credit.

In October 2017, however, NYSERS advised Petitioner that it had made an error in granting him military service credit toward his pension benefits. Specifically, he was informed that his service aboard the merchant marine ships did not qualify as military duty within the meaning of the State's Military Law §243 and, consequently, military service credit was not available to him.

In addition, Petitioner was told that [1] his pension benefits would be reduced; [2] his payment of $5,088.10 for the member service credit he purchased would be refunded to him with interest; and [3] he was required to repay NYSERS the amount of the overpayment of benefits that he had already received.

Petitioner sought administrative review and, following a hearing, the Hearing Officer sustained NYSERS' determination. The Comptroller adopted the Hearing Officer's decision and thereupon Petitioner commenced this CPLR article 78 proceeding challenging the Comptroller's decision.

The Appellate Division sustained the Comptroller's decision, explaining:

1. A member of NYSERS, upon application, "may obtain a total not to exceed three years of service credit for up to three years of military duty, as defined in New York State's Military Law §243 if the member was honorably discharged from the military; and

2. §243(1)(b) of the Military Law provides, in relevant part, that military duty includes "service in the merchant marine which shall consist of service as an officer or member of the crew on or in connection with a vessel . . . owned by, chartered to, or operated by or for the account or use of the government of the United States . . . and who served satisfactorily as a crew member during the period of armed conflict [December 17, 1941]to August 15, 1945] aboard merchant vessels."**

Clearly, said the court, "Petitioner's service in the merchant marine from 1966 to 1969 did not fall within the time parameters set forth in the statute." Further, the court opined that Petitioner failed to establish that his service aboard merchant vessels constituted active military duty as a Naval Reserve officer. Citing Matter of McMorrow v Hevesi, 6 AD3d 925, the Appellate Division said that it has only recognized "active duty, which excludes temporary and intermittent . . . service in any reserve . . . force,"  for purposes of claiming member service credit pursuant to Retirement and Social Security Law §1000 and Military Law §243(1)(b).***

Noting that there was evidence in the record that could lead to a different result, the Appellate Division opined that "because substantial evidence supports the Comptroller's determination that [Petitioner] was not entitled to military credit under the governing statutes, [it would] not disturb it."

Addressing Petitioner argument that he was erroneously directed to repay the pension benefits mistakenly paid to him, the court said that the Comptroller "had no choice but to seek recoupment of such benefits, as the Comptroller has a duty to correct errors in order to ensure the integrity of the public retirement system", citing Matter of Mowry v DiNapoli, 111 AD3d 1117. Further, said the Appellate Division, the Comptroller "is not estopped from doing so because of errors committed by [NYSERS] officials."

* In exchange for a nonrefundable payment of $5,088.10, Petitioner was awarded 1.53 years of additional member service credit toward his pension benefits.

** §85 of the Civil Service Law defines "qualifying" military service" for the purposes of eligibility for additional credit allowed veterans in competitive examinations and preference in retention upon the abolition of positions in the public service. [See, also, §85.7(5).]

*** Petitioner conceded that he did not qualify for veteran's benefits as a result of his service on merchant ships during the period June 1966 through April 1969.

The decision is posted on the Internet at:


February 4, 2020

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:

February 3, 2020

A retirement is involuntary when the claimant's disability caused or contributed to the retirement


A police officer [Claimant] suffered and injury to his lower back while working as a police officer in 2012 and never returned to work. Claimant subsequently accepted a performance of duty disability retirement 2015 and then raised the issue of entitlement to awards for lost wages after retiring. Ultimately the Workers' Compensation Board found that Claimant's retirement was causally related and that he had not voluntarily withdrawn from the labor market. The Board further found that Officer remained temporarily totally disabled and was entitled to lost wage awards for the period between March 13, 2015 and July 12, 2017, and remanded for a determination on the issue of permanency. The employer appealed the Board's determination.

The Appellate Division, citing Romanko v New York Univ., 154 AD3d 1031, affirmed the Board's decision, explained "Generally, a claimant who voluntarily withdraws from the labor market by retiring is not entitled to workers' compensation benefits unless the claimant's disability caused or contributed to the retirement." Further, said the court, "Whether a retirement or withdrawal from the labor market is voluntary is a factual determination to be made by the Board, and its decision will be upheld when supported by substantial evidence."

As to the nature of Officer's retirement, the opinion states that "A retirement is involuntary when the claimant's disability caused or contributed to the retirement." Here the Board credited Officer's testimony that he had accepted retirement because his "work-related back injury left him unable to work." Further, the Workers' Compensation carrier's medical consultant opined that Officer "had a temporary total disability and was 'incapable of returning to the workforce in any capacity' and that he anticipated that the condition would be permanent."

Affirming the Board's decision, the Appellate Division said that there was "substantial evidence supporting the Board's conclusion that [Officer's] disability caused or contributed to his retirement and,thus,that it was involuntary.

The decision is posted on the Internet at:

Employee disciplined for allegedly violating agency rules


A New York City sanitation worker [Worker] was found to have violated agency rules by being absent without leave, improperly taking emergency leave, failing to immediately report an accident, failing to report to the clinic as required, performing an unauthorized pickup, and disobeying an order. 

Of the 15 alleged violations of agency rules, only six were sustained.

OATH Administrative Law Judge John B. Spooner recommended that Worker be suspended four days for each sustained violation, for a total of 24 days, reasoning that none of the violations were serious or shown to be disruptive to the unit operations and that the large number of dismissed violations suggested that a few supervisors issued complaints without sufficient justification.

The Appointing Authority adopted Judge Spooner’s findings and recommendations.

January 31, 2020

Seeking a court order limiting the scope of a public official's inquiry


The Nassau County Comptroller' issued a press release announcing the audit of the "finances and operation" of the Town of Hempstead's  animal shelter. The press release indicated that the audit was "precipitated after receiving alarming complaints" alleging "animal neglect, unnecessary deaths, unsanitary conditions, and unqualified staff."

In a proceeding pursuant to CPLR Article 78 characterized as being in the "nature of prohibition,"* the Town's counsel had argued that "any authority of the County Comptroller to audit the Town or its departments was limited to an examination of financial affairs." The County Comptroller, on the other hand, contended that he was authorized to undertake not only financial audits, but also "performance audits" as well.

Supreme Court's ruling prohibited the Comptroller him from "acting in excess of his jurisdiction" and quashed certain subpoenas issued by him served on the Town of Hempstead Animal Shelter.

Finding that the County Comptroller's authority to audit the Animal Shelter was limited to "a fiscal examination only," and that the subpoenas, to the extent they sought information beyond "an examination of [the animal shelter's] balance sheets/budget evidencing its income and expenditures," fell outside the scope of his authority, ruled that the County Comptroller's authority to audit the animal shelter was limited to "a fiscal examination only" and quashed the subpoenas that sought information beyond "an examination of [the animal shelter's] balance sheets/budget evidencing its income and expenditures."

The Comptroller appealed and the Appellate Division said that it disagreed with the Supreme Court's conclusion that certain of the materials which were the subject of the subpoenas fell outside of the County Comptroller's subpoena and audit authority.

The court explained that the Nassau County Charter provides that the County Comptroller shall "examine and audit of his own motion or when directed to do so by resolution of the County Legislature, the accounts and records of any town or special district and make reports from time to time when requested by the County Executive or County Legislature on the financial condition of the county or any [and] all of its political subdivisions."

Further, the Appellate Division noted that the Charter provided that several County officials, including the County Comptroller, "shall have the power to . . . compel the attendance of witnesses and the production of books and papers." Notwithstanding the Town's contentions to the contrary, the Appellate Division said that "under the plain language of the Charter, the County Comptroller's general authority to "examine and audit . . . accounts and records," citing Charter §402[6], "which may be exercised sua sponte, is not restricted by the subsequently stated authority to make reports on financial conditions upon request."

The court opined that "the broad language of the Charter" signifies that the powers and duties conferred upon the County Comptroller "go beyond the verification of financial records and internal controls" and, citing McCall v Barrios-Paoli, 93 NY2d 99, concluded that the Town "failed to demonstrate that the County Comptroller was proceeding in excess of his authority or jurisdiction."

* The writ of prohibition is one of number of the ancient “common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."  Other such ancients writs include the writ of injunction - a judicial order preventing a public official from performing an act; the writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform; "the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:

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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.