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:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00284.htm

Applying the "relations back" doctrine in an Article 78 action to cure a respondent's claim that the petition was untimely filed

The petitioners in this CPLR Article 78 action relied on the "relations back" doctrine for the purposes the court having assume jurisdiction in the matter. The Appellate Division explained reliance on the relations back doctrine requires that the Article 78 petitioner establish:

1. "that the claims arose out of the same occurrence;

2. "that the later-added respondent[s] [were] united in interest with a previously named respondent;, and

3. "that the later-added respondent[s] knew or should have known that, but for a mistake by petitioner as to the later-added respondent[s'] identity, the proceeding would have also been brought against [them]."

In this instance the issued on which the parties focused was the third prong of this test.

The genesis of the Article 78 action was a collective bargaining representative [Union] filing two improper employer practice charges against the Employer with the Public Employment Relations Board [PERB]. A PERB Administrative Law Judge [ALJ], following a hearing, issued a decision finding that the Employer guilty of one charge but dismissed the other charge. 

The Employer filed exceptions to the ALJ's ruling and, after an administrative appeal, PERB reversed the ALJ's determination. The Union then commenced a CPLR Article 78 solely against PERB seeking to annul its determination. Subsequently, however, the Union filed an amended Article 78 petition adding the Employer as respondents as well as PERB. The Employer contended that the amended petition was untimely, whereupon the Union argued that its petition was timely, relying on the relation back doctrine. PERB submitted a reply arguing that if Supreme Court agreed with the Employer's untimeliness objection, the amended petition should be dismissed against it due to the Union's failure to join necessary parties. 

Supreme Court dismissed the amended petition insofar as asserted against the Employer, finding that it was untimely filed and transferred the remaining portion to the Appellate Division in accordance with CPLR §7804[g]).

The Appellate Division observed "that the record fails to disclose that the failure to name the [Employer as] respondents in the original petition was due to a mistake as to their identity. The explanation provided by [the Union] was that it did not believe that the [Employer] were necessary parties to the proceeding." Citing Windy Ridge Farm v Assessor of Town of Shandaken, 45 AD3d 1099, affd 11 NY3d 725, the Appellate Division explained that such a mistake is a mistake of law not contemplated by the relation back doctrine."

In the words of the court, "[g]iven that [the Union] was aware of the [Employer's] existence and 'failed to appreciate that [they] were legally required to be named in proceedings of this type', [the Union's] reliance on the relation back doctrine is unavailing."

As the Employer was necessary parties to this proceeding and it demonstrated that the amended petition was not timely commenced against it, the Appellate Division ruled that the amended petition must also be dismissed insofar as asserted against PERB in view of the timeline involved in perfecting the Union's underlying Article 78 action. The Appellate Division then dismissed the Union's amended petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00199.htm

An Article 78 petitioner is not aggrieved by an administrative determination made following petitioner's default and may not seek to review such a determination

Supreme Court dismissed the Petitioner's CPLR Article 78 action seeking a review of a determination by the Commissioner of Education [Commissioner], alleging that that the penalties imposed by the Commissioner "were excessive and improper.

The Commissioner had affirmed the decision of a hearing officer that Petitioner had operated an English as a second language school without, among other things, [a] being certified; [b] employing at least one private school agent, [c] paying required fees; [d] submitting required licensure and certification paperwork; and [e] recommended certain civil penalties upon, and restitution by, Petitioner. Supreme Court dismissed the action, finding that Petitioner's default precluded review of the order* and Petitioner appealed.

The Appellate Division, affirmed the lower court's ruling, observing that Petitioner had not answered or otherwise contested the Department's charges and thereafter failed to appear at a hearing before the designated Hearing Officer and, as a result of Petitioner's failure to appear, the Hearing Officer deemed the allegations against Petitioner to be admitted and recommended the imposition of fines totaling $398,000.

The court also noted that Petitioner did not deny that it failed to answer or otherwise appear following service upon it of both the notice of charges and the notice of hearing date nor object to the Hearing Officer's report or otherwise seek to vacate its default prior to the Commissioner's issuance of the order imposing the subject fines.

Citing Matter of Matsos Contr. Corp. v New York State Dept. of Labor, 80 AD3d 924 and other court rulings, the Appellate Division observed that it is well settled that "a petitioner is not aggrieved by an administrative determination made on its default and may not seek to review such a determination."

Addressing a procedural matter, the court noted that "the fact that a determination is final for the purpose of its present execution does not mean it is final for judicial review purposes." In such situations the proper procedure for a petitioner seeking judicial review of the merits underlying an administrative default "is to apply to the agency to vacate the default by demonstrating a reasonable excuse for the default and the existence of a meritorious claim and, if unsuccessful, seek[ing] court review of the agency's denial of that application."

Considering this point, the Appellate Division rejected Petitioner's claim that "(1) Education Law §5003 expressly relieves petitioner from having to submit an application seeking to vacate its administrative default before seeking judicial review of the underlying merits or (2) that the absence of a statutory and/or regulatory procedural mechanism for seeking vacatur of an administrative default precludes the agency from otherwise entertaining such an application."

Rather, noted the Appellate Division, during oral argument counsel for [the Commissioner] conceded that the "Commissioner would readily entertain an application" by Petitioner seeking to vacate the subject default. Thus, said the court, as Petitioner has, to date, not filed an application seeking to vacate its administrative default, "we find that its petition was properly dismissed."

* Petitioner had not answered or otherwise contested the Department's charges and thereafter failed to appear at a hearing before the designated Hearing Officer.

N.B.  In contrast, with respect to disciplinary action initiated by an appointing authority charging an employee with misconduct or incompetence pursuant to law or a provision set out in a collective bargaining agreement, the general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a “hearing in absentia” and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee’s failure to appear at the hearing as scheduled is, in effect, a concession of guilt.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00016.htm

Selective selection for appointment by sex permitted under certain circumstances

The Plaintiff in this  action sought a declaration that the Defendants' failure to consider and appoint female candidate on the eligible list established from a civil service examination for the position of  juvenile counselor with the New York City Administration for Children's Services (ACS) violated the State and City Human Rights Laws (Executive Law §296[1][a]; Administrative Code of the City of NY § 8-107[1][a]). Supreme Court found that the Defendants established prima facie that their selective hiring of male applicants as juvenile counselors did not violate the Human Rights Law because, pursuant to the Prison Rape Elimination Act* [PREA] and "industry best practice," sex is a bona fide occupational qualification [BFOQ] for juvenile counselors, and no reasonable alternative to the preferential hiring of male counselors existed to protect the privacy interests of male juvenile detainees. The Appellate Division unanimously affirmed the lower court's ruling, citing Jennings v New York State Office of Mental Health, 786 F Supp 376.

In Jennings the court opined that "[t]he gender-based assignment policy strikes a balance between the patients' privacy interests and the right of Security Hospital Treatment Assist ands [SHTA] to bid for [the] position," explaining that the requirement that at least one SHTA of the same gender as the patients be assigned to the ward is permissible under Title VII."

Plaintiff in this action, said the Appellate Division, "failed to raise an issue of fact as to the existence of reasonable alternatives to preferential male hiring" based on a selective hiring to save overtime compensation. However, opined, the court, gender-based hiring discrimination was appropriate "because the shortages of male counselors still at times forced the employer to assign female counselors to male residence halls, without the required male counterparts, which resulted in female counselors performing pat searches in violation of PREA and best practice.

Another factor, noted the Appellate Division, was that "mandatory overtime contributed to a 65% attrition rate among male counselors during the two years preceding the preferential hiring, which, combined with the overtime, worsened morale and affected performance among counselors.

In addition, the decision notes that Plaintiff failed to substantiate the assertion that better scheduling of staff could have obviated the need for huge amounts of mandatory overtime and the record belies the assertion that better recruitment could have solved the problem of critical shortages of male counselors.

* See 34 USC Sections 30301-9

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00527.htm

Publication of its investigation report by the New York City Office of Special Commissioner of Investigations on the Internet challenged by a party named in the report

An investigation report prepared by the New York City Office of Special Commissioner of Investigations [SCI] substantiated allegations that a contractor [Plaintiff] had engaged in "theft of services" and recommended that he be deemed ineligible to work as a contractor for New York City Department of Education [DOE]. The report was subsequently posted by SCI on its Internet site. Plaintiff then initiated a CPLR Article 78 seeking a court order compelling SCI to remove the report from its website.

Supreme Court denied the petition filed by Plaintiff and dismissed the proceeding. The Appellate Division unanimously affirmed the lower courts ruling. The Appellate Division ruling that SCI's decision not to remove the report upon Plaintiff's request was not arbitrary and capricious, citing Matter of Peckham v Calogero, 12 NY3d 424. The court also noted that the record demonstrated that SCI considered Plaintiff's "refusal to participate in its investigation, the nature of the conduct it substantiated, and the public interest in exposing the misconduct."

Thus, said the court, "[i]t was not unreasonable for SCI to conclude that [Plaintiff's] untimely rebuttal, submitted to the DOE months after it adopted SCI's recommendations, and the almost 10 years that passed from the report's publication before [Plaintiff's] current request, did not compel the report's removal," Further, said the Appellate Division,  the Special Commissioner is authorized to "issue such reports regarding corruption or other criminal activity, unethical conduct, conflicts of interest, and misconduct, that he or she deems to be in the best interest of the school district," sustaining the SCI's power to publish it report on the Internet.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00033.htm

Where certain disciplinary charges and specifications fail to survive judicial review the appointing authority must determine the appropriate penalty to be imposed based on the surviving charges and specifications

The Appellate Division ruled that dismissal of one or more Charges and, or, specification set out in a §75 disciplinary action required remanding the matter to the appointing authority for reconsideration of the disciplinary penalty imposed on the employee.

The appointing authority filed disciplinary charges against an employee [Petitioner] pursuant to Civil Service Law §75. Charge I consisted of six specifications alleging misconduct and, or, incompetence in connection with the Petitioner's performance in handling "911 calls" on a specified date while Charge II, consisted of five specifications, alleged misconduct and, or, incompetence in  Petitioner's handling of 911 calls on a different specified date.

After Petitioner testified concerning the "911 calls" underlying Charges I and II, the appointing authority directed a further investigation into the Petitioner's handling of other 911 calls. The findings resulting from this "further investigation" led to the appointing authority's filing "seven supplemental charges", Supplemental Charges I through and including VII against the Petitioner. Each such supplemental Charge set out multiple specifications of alleged misconduct in Petitioner's handling of these seven additional "911 calls."

The §75 disciplinary hearing officer designated by the appointing authority found Petitioner guilty of various, but not all, Charges and specifications and recommended that the Petitioner's employment be terminated given "the number and extent of his instances of misconduct and/or incompetence."

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

The Appellate Division explained that judicial review of an employee's 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. Further, the Appellate Division opined that courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exist, or where  different inferences may be drawn, as "the duty of weighing the evidence and making the choice rests solely upon the [appointing authority]."

Here any credibility issues were resolved by the disciplinary hearing officer. Further, 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. Here, however, the Appellate Division ruled that "specifications 3 and 4 of Charge II, and  a portion of specification 6 of Supplemental Charge VII cannot be sustained."

Concluding that the appointing authority had imposed the penalty of termination of Petitioner's employment in consideration of "all of the specifications for which he was found guilty, and [the court had dismissed] three of those specifications," the Appellate Division, citing Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, vacated the penalty of dismissal 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" in consideration of only the Charges and specifications that had survived judicial review.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07582.htm

Exceptions to the "going and coming to work" rule in determining if an injured employee was performing his job duties at the time he suffered an injury

A state park police officer [Claimant] filed an application for performance of duty disability retirement benefits with the New York State and Local Police and Fire Retirement System [System] alleging that he was permanently incapacitated from the performance of his duties as a result of a slip and fall on his employer's premises.

The System denied Claimant’s application, finding that he failed to establish permanent incapacitation. Claimant requested a hearing and redetermination of the Systems determination. The designated Hearing Officer sustained the System’s the denial of Claimant’s application, finding that the Claimant was not in service at the time he suffered his injuries. The Comptroller accepted the Hearing Officer’s findings and conclusions and the Claimant filed a CPLR Article 78 petition challenging the Comptroller’s decision.

The Appellate Division commenced it review of Claimant’s appeal by noting that the claimant bears the burden of proving that he was "[p]hysically or mentally incapacitated [from] performance of duty as the natural and proximate result of a disability . . . sustained in such service" and the individual “was performing job duties at the time of the injury.”*

The court then noted that at the hearing Claimant testimony “made apparent that he was actually on his way into work at the time of his injury, not ‘on duty and at work’ as he stated in his application for benefits.” In the words of the Appellate Division, “[Claimant’s] own testimony establishes that he slipped and fell on icy stairs on his way into work prior to the start of his shift, and we have upheld findings that an employee who is injured before reporting for work and commencing his or her duties is not ‘in service’ when the injuries were sustained.”

Thus, said the court, the Comptroller's determination that claimant was not in service at the time he sustained his injury is accordingly supported by substantial evidence, and it declined to disturb it.

Although the general rule is that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law, there are certain exceptions to this "going and coming" rule. One such exception arises when the employee is engaged in a "special errand" for the employer.

In Neacosia v NY Power Authority, 85 NY2d 471, the Court of Appeals affirmed the Workers’ Compensation Board’s decision that a security officer [Officer], who was injured after he stopped on his way home to leave his work uniform at a cleaning shop, was acting within the scope of his employment and thus was eligible for workers' compensation benefits.

Officer was employed by the New York State Power Authority. The Authority provided its security officers with uniforms and required that they keep the uniforms clean and presentable. To this end the Authority had made arrangements with a number of cleaning establishments to clean their security officers’ uniforms and bill the agency for their services. In the alternative, security personnel could arrange for the cleaning themselves and then submit bills to the Authority for the cost of the cleaning.

Officer was driving home after completing his shift. Under the facts giving rise to Officer’s claim, which were stipulated, the Administrative Law Judge [ALF] found the Officer’s travel had a dual purpose that served to extend the scope of his employment as he was leaving a designated cleaning establishment after leaving his uniforms to be cleaned.

The Workers’ Compensation Board affirmed the ALJ’s determination, illustrating one of the exceptions to the general rule that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law. Here the Board found that Officer  was engaged in a "special errand" for the employer. The Court of Appeals sustained the Workers’ Compensation Board's ruling that Officer was engaged in a "special errand" at the time he was injured and thus eligible for Workers' Compensation benefits.

* See Retirement and Social Security Law §363-c[b][1].

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

http://www.nycourts.gov/reporter/3dseries/2019/2019_09079.htm

Agency's alleged failure to process an employee's contract grievance does not state a claim that the union breached its duty of fair representation

PERB's ruled that petitioner [Employee] in this CPLR Article 78 action failed to state a claim of improper practices against his employer [Agency] and his employee organization [Union] based on his allegation that the Agency "did not process his grievances quickly enough." The Employee appealed but the Appellate Division unanimously affirmed PERB's determination.

Citing Civil Service Bar Association, Local 237 v City of New York, 64 NY2d 188, the Appellate Division explained that PERB had rationally found that Employee failed to allege facts that would show that his Union had engaged in arbitrary, discriminatory or bad faith conduct, which is necessary to state a claim that the Union had breached its duty of fair representation within the meaning of Article 14 or the Civil Service Law, typically referred to as the Taylor Law.

Noting that Employee had acknowledged that a Union representative had sent an email to the Agency seeking to schedule three of Employee's grievances for a "Step II hearing" with respect to Employee's primary complaint that the Agency "did not process his grievances quickly enough," the court opined that such an allegation "does not present a basis for finding that [the Union] breached its duty of fair representation." As the Employee failed to show that the Union had breached its duty of fair representation, he was precluded from litigating directly against the Agency for any alleged improper employer practice within the meaning of Civil Service Law §209-a(1).

Further, said the court, PERB "rationally concluded that [Employee's] charge failed to allege facts that would show that [the Agency] refused to process his grievances on the basis of improper motivation or discrimination. Indeed, the Appellate Division observed that "construed liberally in [Employee's] favor, the allegations in the charge are conclusory and fail to establish that PERB acted arbitrarily and capriciously in dismissing the charge."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00065.htm

Exceptions to the "going and coming" rule in determining if an injured employee was performing his job duties at the time he suffered an injury

A state park police officer [Claimant] filed an application for performance of duty disability retirement benefits with the New York State and Local Police and Fire Retirement System [System] alleging that he was permanently incapacitated from the performance of his duties as a result of a slip and fall on his employer's premises.

The System denied Claimant’s application, finding that he failed to establish permanent incapacitation. Claimant requested a hearing and redetermination of the Systems determination. The designated Hearing Officer sustained the System’s the denial of Claimant’s application, finding that the Claimant was not in service at the time he suffered his injuries. The Comptroller accepted the Hearing Officer’s findings and conclusions and the Claimant filed a CPLR Article 78 petition challenging the Comptroller’s decision.

The Appellate Division commenced it review of Claimant’s appeal by noting that the claimant bears the burden of proving that he was "[p]hysically or mentally incapacitated [from] performance of duty as the natural and proximate result of a disability . . . sustained in such service" and the individual “was performing job duties at the time of the injury.”*

The court then noted that at the hearing Claimant testimony “made apparent that he was actually on his way into work at the time of his injury, not ‘on duty and at work’ as he stated in his application for benefits.” In the words of the Appellate Division, “[Claimant’s] own testimony establishes that he slipped and fell on icy stairs on his way into work prior to the start of his shift, and we have upheld findings that an employee who is injured before reporting for work and commencing his or her duties is not ‘in service’ when the injuries were sustained.”

Thus, said the court, the Comptroller's determination that claimant was not in service at the time he sustained his injury is accordingly supported by substantial evidence, and it declined to disturb it.

Although the general rule is that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law, there are certain exceptions to this "going and coming" rule. One such exception arises when the employee is engaged in a "special errand" for the employer.

In Neacosia v NY Power Authority, 85 NY2d 471, the Court of Appeals affirmed the Workers’ Compensation Board’s decision that a security officer [Officer], who was injured after he stopped on his way home to leave his work uniform at a cleaning shop, was acting within the scope of his employment and thus was eligible for workers' compensation benefits.

Officer was employed by the New York State Power Authority. The Authority provided its security officers with uniforms and required that they keep the uniforms clean and presentable. To this end the Authority had made arrangements with a number of cleaning establishments to clean their security officers’ uniforms and bill the agency for their services. In the alternative, security personnel could arrange for the cleaning themselves and then submit bills to the Authority for the cost of the cleaning.

Officer was driving home after completing his shift. Under the facts giving rise to Officer’s claim, which were stipulated, the Administrative Law Judge [ALF] found the Officer’s travel had a dual purpose that served to extend the scope of his employment as he was leaving a designated cleaning establishment after leaving his uniforms to be cleaned.

The Workers’ Compensation Board affirmed the ALJ’s determination, illustrating one of the exceptions to the general rule that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law. Here the Board found that Officer was engaged in a "special errand" for the employer. The Court of Appeals sustained the Workers’ Compensation Board's ruling that Officer was engaged in a "special errand" at the time he was injured and thus eligible for Workers' Compensation benefits.

* See Retirement and Social Security Law §363-c[b][1].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09079.htm

Employer's evidence in disciplinary hearing found to have failed to prove the alleged misconduct

Three correction officers and a captain, [Respondents], wearing with helmets which had visors and side flaps, responded to an incident between another correction officer and an inmate. The appointing authority, relying on a video of the incident, alleged one of the Respondents punched the inmate "in retaliation for being spat upon," and charged the Respondents of having filed false reports concerning the incident by not reporting a "use of force."

At the disciplinary hearing Respondents testified that as they were escorting the inmate, he turned and spat at an officer. Two individuals who were beside the inmate "immediately took him down," causing the inmate's face to hit a row of chairs.

Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison recommended dismissal of the disciplinary  charges, finding that appointing authority’s evidence neither established that the inmate was struck by the other officer nor that Respondents witnessed a use of force which they failed to report.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2526.pdf 

Searching for abandoned property being held by the New York State Comptroller

The State’s Abandoned Property Law requires banks, insurance companies, utilities, and other businesses to turn dormant savings accounts, unclaimed insurance and stock dividends, and other inactive holdings over to the State. If there has been no activity in the account for a set period of time, usually between two and five years, the money or property is considered unclaimed or abandoned. Although Section 1402 of the Abandoned Property Law has a $20 threshold for such listing, the Comptroller uses a "$50 threshold” for the listings on his Internet website.

Periodically NYPPL provides a sample listing of abandoned property being held by the New York State Comptroller. Below are some randomly selected “New York State” governmental entities currently listed on the Comptroller’s “abandoned property” website. Searching the site requires some “detective skills,” however, as the name of the property owner is not always accurately identified by the entity depositing the property with the Comptroller.

For example, the entity may be reported merely as:

EDUCATION DEPARTMENT

HEADS AND HORNS BUILDING BRONX NY 10460

FLEET BANK N A

 However, more often the names are more accurately reported, such as:

BOCES ADIRONDACK EDUC CTR	711 RT 3 BLOOMINGDALE RD SARANAC LAKE NY 12983	CONAGRA FOODS LAMB WESTON INC
BOCES ADULT & CONTIN UING	0 WILSON ST GOUVERNEUR NY 13642	NIAGARA MOHAWK POWER CORP
BOCES BROOME TIOGA	36038 MAIN STREET BINGHAMPTON NY 13905	NCS PEARSON INC
BOCES CATTARAUGUS AL	1825 WINDFALL ROAD OLEAN NY 14760	ADVISORY SERVICES CORP

SCHOOL DISTRICT 25	30-48 LINDEN PL FLUSHING NY 11354	PEARSON EDUCATION INC
SCHOOL DISTRICT ARDSLEY UNION FREE	500 FARM ROAD ARDSLEY NY 10502	STERLING LIFE INSURANCE CO
SCHOOL DISTRICT NORT	5355 W TAFT RD N SYRACUSE NY	NEW YORK TELEPHONE CO
SCHOOL DISTRICT OF ALBANY	ACADEMY PARK ELK STREET ATTN ACCTS PAYA BLE ALBANY NY 12207	CDW LLC
SCHOOL DISTRICT OF ERIE PA DIEHL ELMNTRY	ATTENTION: REBECCA POWIERZA 148 WEST 21S T STREET ERIE NY 16502	OFFIC

COUNTY OF NEW YORK	60 LAFAYETTE STREET NEW YORK NY 10013	UBS SECURITIES LLC
COUNTY OF NIAGARA	10 ECKERSON AVENUE AKRON NY 14001	EXAMINATION MGMT SERVICES INC
COUNTY OF NY	31 CHAMBERS ST NEW YORK NY 10007	SABRE HOLDINGS CORP
COUNTY OF ONEIDA	DPW DIV OF ENGINEERING 6000 AIRPORT RD ORISKANY NY 13424	DELL USA LP
COUNTY OF ONONDAGA	421 MONTGOMERY ST SYRACUSE NY 13202	ONONDAGA COUNTY DEPT OF FINANCE
CITY OF BINGHAMTON	38 HAWLEY ST CITY HALL BINGHAMTON NY 13901	NATIONWIDE MUTUAL INSURANCE CO
CITY OF BINGHAMTON POLICE DEPT	38 HAWLEY ST BINGHAMTON NY 13901	RELX INC & AFFILIATES
TOWN OF BERGEN HIGHWAY DEPT	PO BOX 591 BERGEN NY 14416	FASTENAL COMPANY
TOWN OF BERLIN	PO BOX 307 BERLIN NY 12022	ACUITY SPECIALITY PRODUCTS INC
TOWN OF BETHLEHEM DPW	143 NEW SALEM RD S VOORHEESVILLE NY 12186	COCA COLA REFRESHMENTS USA INC
TOWN OF BIG FLATS	476 MAPLE ST LOWER FLOOR BIG FLATS NY 14814	SYSTEMAX INC

TOWN OF BINGHAMTON	279 PARK AVE BINGHAMTON NY 13903	OFFICE EQUIPMENT SOURCE INC
VILLAGE OF ALBION	35 E BANK ST # 37 ALBION NY 14411	SAFETY KLEEN SYSTEMS INC
VILLAGE OF ALEXANDRIA BAY	110 WALTON ST ALEXANDRIA BAY NY 13607	AMBIT HOLDINGS LLC
VILLAGE OF ALEXANDRIA BAY MUNICIPAL POLI	110 WALTON ST ALEXANDRIA BAY NY 13607	AMBIT HOLDINGS LLC
VILLAGE OF AMITYVILLE	C/O ATTN DEIRDRE PARKER OFFICE HIGHWAY E MPLOYEES AMITYVILLE NY 11701	AFLAC OF NEW YORK
VILLAGE OF AMITYVILLE	21 IRELAND PLACE AMITYVILLE NY 11701	FIRST AMERICAN TITLE CO

  

Interested entities [including individuals] may begin searches via  http://www.osc.state.ny.us/ouf/index.htm

New York's workplace safety statutes control with respect to work-related injuries suffered working in a building owned by the NY NJ Port Authority

Supreme Court denied the motion of  Port Authority of New York and New Jersey [Authority] to dismiss the New York State's Labor Law §§240(1) and 241(6) claims as against it.

In response to the Authority's appeal, the Appellate Division unanimously affirmed the lower court's ruling, explaining that the lower court had properly rejected the Authority's arguments that as "a bistate entity created by a federally approved compact cannot be held liable under Labor Law §§240(1) or 241(6) for injuries the plaintiff allegedly sustained while working in a building owned by the Authority.

The Compact Clause of the United States Constitution, said the court, 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 (see Cuyler v Adams, 449 US 433,

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00365.htm

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 Attorney 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:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00284.htm