December 31, 2021

Concerning filing motions to reargue and motions to renew

In this decisions the Appellate Division explains that "[n]o appeal lies from the denial of a motion to reargue (see Budin v Davis, 172 AD3d 1676, 1679 [2019]) and, therefore, the only issue before it in its considering this action was the propriety of the Supreme Court's denial of petitioner's motion to renew. 

In this regard, said the court, "[a] motion to renew must be based on new facts not previously offered that would change the prior determination and must contain a reasonable justification for the failure to present such facts on the original motion."

A motion to renew, opined the Appellate Division, is not a second chance to remedy inadequacies that occurred in failing to exercise due diligence in the first instance, and the denial of a motion to renew will be disturbed only where it constituted an abuse of the trial court's discretion" (Walden v Varricchio, 195 AD3d 1111, 1114 [2021] [internal quotation marks and citations omitted]; see Williams v Annucci, 175 AD3d 1677, 1679 [2019]). 

Accordingly, the Appellate Division concluded that there no abuse of that discretion on the part of the lower court.

Click HEREto access the Appellate Division's decision.

The future disease burden of pandemic Covid-19 for individuals, communities, and society

The Environmental Claims Journal, on December 16, 2021, posted Dr. Robert A. Michaels' article entitled The future disease burden of pandemic Covid-19 for individuals, communities, and society. Click HERE to access the Journal's post on the Internet.

This article is also available for download as a pre-print at no charge on ResearchGate by clicking HERE.

Below is the abstract of Dr. Michaels' article. 

Abstract

Pandemic Covid-19 has exposed tension between personal choice and public health policy. Vaccination has damped pandemic inertia in the U.S., but emergence of highly infectious variants such as delta and omicron has increased infection of fully vaccinated people. This worrisome trend justifies vaccine booster eligibility and access for all vaccinated people in a timeframe responding to waning protection.

In restricting booster eligibility, US FDA and CDC statements indicate failure to consider that SARS-CoV-2 might be persistent, meaning that it might remain dormant in immune-privileged “refugia” such as the central nervous system of previously infected people, even if their Covid-19 symptoms had been mild or non-existent. Opportunistic re-activation of dormant viruses can cause severe illness, as in childhood chickenpox producing adult shingles decades later.

External re-infection is unnecessary. Consistent with the “precautionary principle,” the overriding FDA and CDC public health priority should be to prevent as many SARS-CoV-2 infections as possible, not tolerate them, assuming optimistically that they will not impose major public health and associated economic burdens in the future.

We naturally have focused upon our tragic past losses. We also must focus upon the future, learning from Covid-19 to manage pro-actively the inevitable next pandemic.

December 30, 2021

Determining eligibility for accidental disability retirement benefits

A risk inherent in the job duties of the position and the result of the performance of routine employment duties, and which did not involve an unexpected event or hidden danger is not an accident for the purposes of eligibility of Accidental Disability Retirement within the meaning of New York State's Retirement and Social Security Law.

Click HEREto access the Appellate Division's decision.

December 29, 2021

The Rooker–Feldman Doctrine

The Rooker–Feldman Doctrine as announced by the United States Supreme Court in two cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, explains that federal courts other than the Supreme Court of the United States should not sit in direct review of state court decisions unless Congress has specifically authorized such relief and in the absence of such congressional authorization a state court appellant must find a state court remedy or seek to obtain relief from the United States Supreme Court.

Concerning filing motions to reargue and motions to renew

 

In this decisions the Appellate Division explains that "[n]o appeal lies from the denial of a motion to reargue (see Budin v Davis, 172 AD3d 1676, 1679 [2019]) and, therefore, the only issue before it in its considering this action was the propriety of the Supreme Court's denial of petitioner's motion to renew. 

In this regard, said the court, "[a] motion to renew must be based on new facts not previously offered that would change the prior determination and must contain a reasonable justification for the failure to present such facts on the original motion."

A motion to renew, opined the Appellate Division, is not a second chance to remedy inadequacies that occurred in failing to exercise due diligence in the first instance, and the denial of a motion to renew will be disturbed only where it constituted an abuse of the trial court's discretion" (Walden v Varricchio, 195 AD3d 1111, 1114 [2021] [internal quotation marks and citations omitted]; see Williams v Annucci, 175 AD3d 1677, 1679 [2019]). 

Accordingly, the Appellate Division concluded that there no abuse of that discretion on the part of the lower court.

Click HERE to access the Appellate Division's decision.

An effort recover damages for alleged employment discrimination dismissed as untimely

The Appellate Division sustained a Supreme Court decision that, in effect, denied the plaintiff's motion to vacate an order dated September 29, 2016, on the ground that the plaintiff failed to make the motion within a reasonable time, and also denied the plaintiff's motion for leave to enter a default judgment.

Click HERE to access the Appellate Division's ruling.

December 28, 2021

Determining if an employer-employee relationship exists between the parties

Citing Matter of Mayo [Epstein-Commissioner of Labor], 193 AD3d 1199, the Appellate Division opined that the Unemployment Insurance Appeal Board's determination concerning the existence of an employer-employee relationship with respect to the parties involved will be sustained if supported by substantial evidence in the record and determined by considering all aspects of the working arrangement including, but not limited to, "the key question of whether the putative employer exercised control over the results produced by the worker or the means used to achieve the results." 

Click HEREto access the Appellate Division's holding in this case.

December 27, 2021

Reviewing an administrative decision denying an application for accidental disability retirement benefits by the New York State Employees' Retirement System

Citing Matter of Verille v Gardner, 177 AD3d 1068, the Appellate Division confirmed a decision of the New York State Comptroller denying a member of the New York State Employees' Retirement System application for accidental disability retirement [ADR] benefits, explaining that an applicant for ADR bears the burden of showing that his or her "incapacitation from the performance of his [or her] duties was the natural and proximate result of an accident or a disability that was sustained in such service."

Click HERE to access the Appellate Division's determination in this matter.

An effort recover damages for alleged employment discrimination dismissed as untimely

The Appellate Division sustained a Supreme Court decision that, in effect, denied the plaintiff's motion to vacate an order dated September 29, 2016, on the ground that the plaintiff failed to make the motion within a reasonable time, and also denied the plaintiff's motion for leave to enter a default judgment.

Click HERE to access the Appellate Division's ruling.

Reviewing an administrative decision denying an application for accidental disability retirement benefits by the New York State Employees' Retirement System

Citing Matter of Verille v Gardner, 177 AD3d 1068, the Appellate Division confirmed a decision of the New York State Comptroller denying a member of the New York State Employees' Retirement System application for accidental disability retirement [ADR] benefits, explaining that an applicant for ADR bears the burden of showing that his or her "incapacitation from the performance of his [or her] duties was the natural and proximate result of an accident or a disability that was sustained in such service."

Click HERE to access the Appellate Division's determination in this matter.

December 26, 2021

Concerning filing motions to reargue and motions to renew

In this decisions the Appellate Division explains that "[n]o appeal lies from the denial of a motion to reargue (see Budin v Davis, 172 AD3d 1676, 1679 [2019]) and, therefore, the only issue before it in its considering this action was the propriety of the Supreme Court's denial of petitioner's motion to renew. 

In this regard, said the court, "[a] motion to renew must be based on new facts not previously offered that would change the prior determination and must contain a reasonable justification for the failure to present such facts on the original motion."

A motion to renew, opined the Appellate Division, is not a second chance to remedy inadequacies that occurred in failing to exercise due diligence in the first instance, and the denial of a motion to renew will be disturbed only where it constituted an abuse of the trial court's discretion" (Walden v Varricchio, 195 AD3d 1111, 1114 [2021] [internal quotation marks and citations omitted]; see Williams v Annucci, 175 AD3d 1677, 1679 [2019]). 

Accordingly, the Appellate Division concluded that there no abuse of that discretion on the part of the lower court.

Click HEREto access the Appellate Division's decision.

December 25, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending December 31, 2021

Audits issued during the week ending December 24, 2021.

Click on the text highlighted in COLOR to access the complete audit report.

STATE DEPARTMENTS AND AGENCIES

Office of Addiction Services and Supports (OASAS): Oversight of Chemical Dependence Residential Services (2020-S-49) - OASAS is responsible for certifying residential services and issuing operating certificates. A program’s eligibility for certification is contingent on the results of an OASAS inspection. Auditors found OASAS is not adequately monitoring programs, is not meeting the recertification review requirements, and many programs’ operating certificates are past their end date. 

Department of Environmental Conservation (DEC): Management of Invasive Species (Follow-Up) (2021-F-16) - An audit issued in July 2020 found that while DEC had been active in establishing programs to address invasive species, improvements in its oversight, monitoring, and communication relating to boat inspections, permits, and early detection and assessment of invasive species could strengthen its ability to mitigate the spread of invasive species. In a follow-up, auditors found DEC made progress addressing the problems identified in the initial audit report. However, additional improvements are still needed.

Division of Military and Naval Affairs: Lead Contamination of State Armories (Follow-Up) (2021-F-22) - An audit issued in September 2020 found that the division had generally established adequate controls to ensure that the federally funded areas of all armories were tested for lead and that necessary steps were taken to address remediation when high levels were detected. While the division’s controls provided reasonable assurance that the public was not being unnecessarily exposed to lead at most armories, in certain instances, more could be done. In a follow-up, auditors found the division has made progress in addressing the issues identified in the initial audit report. -  

State Education Department (SED) (Preschool Special Education Audit Initiative): Life Skills Home Training Tutorial Program for Preschoolers Inc. – Compliance With the Reimbursable Cost Manual (2020-S-37) - Life Skills is a New York City-based not-for-profit organization authorized by SED to provide full-day Special Class, half-day Special Class, and Integrated Preschool Special Education services to children with disabilities. The New York City Department of Education refers students to Life Skills and pays for its services using rates established by SED. For the three fiscal years ended June 30, 2018, auditors identified $278,815 in reported costs that did not comply with the requirements for reimbursement. 

State Education Department (Preschool Special Education Audit Initiative): These Our Treasures, Inc. (TOTS) – Compliance With the Reimbursable Cost Manual (2020-S-60) - TOTS is a New York City-based non-for-profit organization authorized by SED to provide preschool special education services to children with disabilities. The New York City Department of Education refers students to TOTS and pays for TOTS’ services using rates established by SED. For the three fiscal years ended June 30, 2017, auditors identified $182,856 in reported costs that did not comply with the requirements for reimbursement.    

MUNICIPAL AUDITS

Tompkins County Industrial Development Agency – Project Approval and Monitoring (Tompkins County) - While the board evaluated projects prior to their approval, board members should improve the Tompkins County Industrial Development Agency’s efforts to monitor businesses’ job performance and tax exemptions. Officials did not obtain required documentation to support project owners’ self-reported job performance. As a result, the board has no assurance the reported job performance information is accurate. The board did not ensure payments in lieu of taxes (PILOTs) were billed and paid in accordance with PILOT agreements. As a result, a business was underbilled $78,600, a business was not billed for its agreed upon PILOT totaling $18,900 and another business was overbilled $873.

 

Town of Attica – Payments to Not-for-Profit Organizations (Wyoming County) - The payments town officials made to not-for-profit organizations were not always for appropriate purposes, properly approved or supported by sufficient documentation. Officials used public funds to make donations or impermissible gifts totaling $47,400 to various local community organizations. Officials also paid nine claims totaling $30,150 before board audit and approval. In addition, officials did not ensure sufficient documentation was included with 16 claims totaling $52,550. 

 

SCHOOL DISTRICT AUDITS

 

Longwood Central School District – Overtime (Suffolk County) - District officials did not appropriately approve and document overtime for non-instructional employees. As a result, there is an increased risk that overtime costs totaling $774,499 were more than necessary. Auditors found the Board of Education did not adopt written policies to ensure that all overtime hours worked were pre-approved, adequately recorded and incurred only when necessary. Non-emergency overtime was also not generally preapproved in writing. In addition, officials did not maintain documentation to justify compensatory time earned.

 

New Rochelle City School District – Information Technology (Westchester County) - Officials did not establish adequate controls over network and financial application user accounts to prevent unauthorized use, access and/or loss. In addition to sensitive information technology (IT) control weaknesses which auditors from the Comptroller’s Office communicated confidentially to officials, auditors found officials did not adequately manage network user accounts as 84 former employees/vendors had active user accounts. Auditors also found 35 generic user accounts that had never been used and were unnecessary. In addition, officials did not ensure district procedures were followed to communicate financial application user account changes to the vendor.

 

Schuylerville Central School District – Medicaid Reimbursements (Washington County) - The district did not maximize Medicaid reimbursements by submitting claims for all eligible Medicaid services provided. Claims were not submitted and reimbursed for 382 eligible Medicaid services provided. Had these services been claimed, the district could have realized revenues totaling $6,375. The district also lacked adequate procedures to ensure Medicaid claims were submitted and reimbursed. Service providers did not document all service encounters in the Medicaid billing system.

 

Spencer-Van Etten Central School District – Information Technology (Chemung County, Schuyler County, Tioga County and Tompkins County) - District officials have generally taken adequate steps towards helping to ensure computerized data was safeguarded through managing user accounts, providing adequate training and adopting and distributing a written information technology (IT) contingency plan. However, certain sensitive IT control weaknesses and audit recommendations were communicated confidentially to officials. District officials agreed with the audit results.

 

Three Village Central School District – Financial Operations (Suffolk County) - District officials did not provide appropriate oversight over financial operations. District officials did not properly assign administrative and user access rights to the financial software. Officials also did not establish an electronic banking policy or adequate bank transfers or electronic payment procedures nor did they segregate the treasurer’s duties or provide adequate oversight. In addition, district officials did not present all claims to the claims auditor for review and approval prior to payment. At least $37.9 million in claims were not reviewed or approved, as required, prior to payment. Officials did not ensure $43 million in claims are processed through the normal accounts payable process. The treasurer controlled most aspects of these transactions rather than the accounts payable department. Therefore, there was no segregation of duties.

 

 

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending December 31, 2021

Audits issued during the week ending December 24, 2021.

Click on the text highlighted in COLOR to access the complete audit report.

STATE DEPARTMENTS AND AGENCIES

Office of Addiction Services and Supports (OASAS): Oversight of Chemical Dependence Residential Services (2020-S-49) - OASAS is responsible for certifying residential services and issuing operating certificates. A program’s eligibility for certification is contingent on the results of an OASAS inspection. Auditors found OASAS is not adequately monitoring programs, is not meeting the recertification review requirements, and many programs’ operating certificates are past their end date. 

Department of Environmental Conservation (DEC): Management of Invasive Species (Follow-Up) (2021-F-16) - An audit issued in July 2020 found that while DEC had been active in establishing programs to address invasive species, improvements in its oversight, monitoring, and communication relating to boat inspections, permits, and early detection and assessment of invasive species could strengthen its ability to mitigate the spread of invasive species. In a follow-up, auditors found DEC made progress addressing the problems identified in the initial audit report. However, additional improvements are still needed.

Division of Military and Naval Affairs: Lead Contamination of State Armories (Follow-Up) (2021-F-22) - An audit issued in September 2020 found that the division had generally established adequate controls to ensure that the federally funded areas of all armories were tested for lead and that necessary steps were taken to address remediation when high levels were detected. While the division’s controls provided reasonable assurance that the public was not being unnecessarily exposed to lead at most armories, in certain instances, more could be done. In a follow-up, auditors found the division has made progress in addressing the issues identified in the initial audit report. -  

State Education Department (SED) (Preschool Special Education Audit Initiative): Life Skills Home Training Tutorial Program for Preschoolers Inc. – Compliance With the Reimbursable Cost Manual (2020-S-37) - Life Skills is a New York City-based not-for-profit organization authorized by SED to provide full-day Special Class, half-day Special Class, and Integrated Preschool Special Education services to children with disabilities. The New York City Department of Education refers students to Life Skills and pays for its services using rates established by SED. For the three fiscal years ended June 30, 2018, auditors identified $278,815 in reported costs that did not comply with the requirements for reimbursement. 

State Education Department (Preschool Special Education Audit Initiative): These Our Treasures, Inc. (TOTS) – Compliance With the Reimbursable Cost Manual (2020-S-60) - TOTS is a New York City-based non-for-profit organization authorized by SED to provide preschool special education services to children with disabilities. The New York City Department of Education refers students to TOTS and pays for TOTS’ services using rates established by SED. For the three fiscal years ended June 30, 2017, auditors identified $182,856 in reported costs that did not comply with the requirements for reimbursement.    

MUNICIPAL AUDITS

Tompkins County Industrial Development Agency – Project Approval and Monitoring (Tompkins County) - While the board evaluated projects prior to their approval, board members should improve the Tompkins County Industrial Development Agency’s efforts to monitor businesses’ job performance and tax exemptions. Officials did not obtain required documentation to support project owners’ self-reported job performance. As a result, the board has no assurance the reported job performance information is accurate. The board did not ensure payments in lieu of taxes (PILOTs) were billed and paid in accordance with PILOT agreements. As a result, a business was underbilled $78,600, a business was not billed for its agreed upon PILOT totaling $18,900 and another business was overbilled $873.

 

Town of Attica – Payments to Not-for-Profit Organizations (Wyoming County) - The payments town officials made to not-for-profit organizations were not always for appropriate purposes, properly approved or supported by sufficient documentation. Officials used public funds to make donations or impermissible gifts totaling $47,400 to various local community organizations. Officials also paid nine claims totaling $30,150 before board audit and approval. In addition, officials did not ensure sufficient documentation was included with 16 claims totaling $52,550. 

 

SCHOOL DISTRICT AUDITS

 

Longwood Central School District – Overtime (Suffolk County) - District officials did not appropriately approve and document overtime for non-instructional employees. As a result, there is an increased risk that overtime costs totaling $774,499 were more than necessary. Auditors found the Board of Education did not adopt written policies to ensure that all overtime hours worked were pre-approved, adequately recorded and incurred only when necessary. Non-emergency overtime was also not generally preapproved in writing. In addition, officials did not maintain documentation to justify compensatory time earned.

 

New Rochelle City School District – Information Technology (Westchester County) - Officials did not establish adequate controls over network and financial application user accounts to prevent unauthorized use, access and/or loss. In addition to sensitive information technology (IT) control weaknesses which auditors from the Comptroller’s Office communicated confidentially to officials, auditors found officials did not adequately manage network user accounts as 84 former employees/vendors had active user accounts. Auditors also found 35 generic user accounts that had never been used and were unnecessary. In addition, officials did not ensure district procedures were followed to communicate financial application user account changes to the vendor.

 

Schuylerville Central School District – Medicaid Reimbursements (Washington County) - The district did not maximize Medicaid reimbursements by submitting claims for all eligible Medicaid services provided. Claims were not submitted and reimbursed for 382 eligible Medicaid services provided. Had these services been claimed, the district could have realized revenues totaling $6,375. The district also lacked adequate procedures to ensure Medicaid claims were submitted and reimbursed. Service providers did not document all service encounters in the Medicaid billing system.

 

Spencer-Van Etten Central School District – Information Technology (Chemung County, Schuyler County, Tioga County and Tompkins County) - District officials have generally taken adequate steps towards helping to ensure computerized data was safeguarded through managing user accounts, providing adequate training and adopting and distributing a written information technology (IT) contingency plan. However, certain sensitive IT control weaknesses and audit recommendations were communicated confidentially to officials. District officials agreed with the audit results.

 

Three Village Central School District – Financial Operations (Suffolk County) - District officials did not provide appropriate oversight over financial operations. District officials did not properly assign administrative and user access rights to the financial software. Officials also did not establish an electronic banking policy or adequate bank transfers or electronic payment procedures nor did they segregate the treasurer’s duties or provide adequate oversight. In addition, district officials did not present all claims to the claims auditor for review and approval prior to payment. At least $37.9 million in claims were not reviewed or approved, as required, prior to payment. Officials did not ensure $43 million in claims are processed through the normal accounts payable process. The treasurer controlled most aspects of these transactions rather than the accounts payable department. Therefore, there was no segregation of duties.

 

 

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending December 31, 2021

Audits issued during the week ending December 31, 2021

Click on the text highlighted in COLOR to access the complete audit report.

STATE DEPARTMENTS AND AGENCIES

Office of Addiction Services and Supports (OASAS): Oversight of Chemical Dependence Residential Services (2020-S-49) - OASAS is responsible for certifying residential services and issuing operating certificates. A program’s eligibility for certification is contingent on the results of an OASAS inspection. Auditors found OASAS is not adequately monitoring programs, is not meeting the recertification review requirements, and many programs’ operating certificates are past their end date. 

Department of Environmental Conservation (DEC): Management of Invasive Species (Follow-Up) (2021-F-16) - An audit issued in July 2020 found that while DEC had been active in establishing programs to address invasive species, improvements in its oversight, monitoring, and communication relating to boat inspections, permits, and early detection and assessment of invasive species could strengthen its ability to mitigate the spread of invasive species. In a follow-up, auditors found DEC made progress addressing the problems identified in the initial audit report. However, additional improvements are still needed.

Division of Military and Naval Affairs: Lead Contamination of State Armories (Follow-Up) (2021-F-22) - An audit issued in September 2020 found that the division had generally established adequate controls to ensure that the federally funded areas of all armories were tested for lead and that necessary steps were taken to address remediation when high levels were detected. While the division’s controls provided reasonable assurance that the public was not being unnecessarily exposed to lead at most armories, in certain instances, more could be done. In a follow-up, auditors found the division has made progress in addressing the issues identified in the initial audit report. -  

State Education Department (SED) (Preschool Special Education Audit Initiative): Life Skills Home Training Tutorial Program for Preschoolers Inc. – Compliance With the Reimbursable Cost Manual (2020-S-37) - Life Skills is a New York City-based not-for-profit organization authorized by SED to provide full-day Special Class, half-day Special Class, and Integrated Preschool Special Education services to children with disabilities. The New York City Department of Education refers students to Life Skills and pays for its services using rates established by SED. For the three fiscal years ended June 30, 2018, auditors identified $278,815 in reported costs that did not comply with the requirements for reimbursement. 

State Education Department (Preschool Special Education Audit Initiative): These Our Treasures, Inc. (TOTS) – Compliance With the Reimbursable Cost Manual (2020-S-60) - TOTS is a New York City-based non-for-profit organization authorized by SED to provide preschool special education services to children with disabilities. The New York City Department of Education refers students to TOTS and pays for TOTS’ services using rates established by SED. For the three fiscal years ended June 30, 2017, auditors identified $182,856 in reported costs that did not comply with the requirements for reimbursement.    

MUNICIPAL AUDITS

Tompkins County Industrial Development Agency – Project Approval and Monitoring (Tompkins County) - While the board evaluated projects prior to their approval, board members should improve the Tompkins County Industrial Development Agency’s efforts to monitor businesses’ job performance and tax exemptions. Officials did not obtain required documentation to support project owners’ self-reported job performance. As a result, the board has no assurance the reported job performance information is accurate. The board did not ensure payments in lieu of taxes (PILOTs) were billed and paid in accordance with PILOT agreements. As a result, a business was underbilled $78,600, a business was not billed for its agreed upon PILOT totaling $18,900 and another business was overbilled $873.

 

Town of Attica – Payments to Not-for-Profit Organizations (Wyoming County) - The payments town officials made to not-for-profit organizations were not always for appropriate purposes, properly approved or supported by sufficient documentation. Officials used public funds to make donations or impermissible gifts totaling $47,400 to various local community organizations. Officials also paid nine claims totaling $30,150 before board audit and approval. In addition, officials did not ensure sufficient documentation was included with 16 claims totaling $52,550. 

 

SCHOOL DISTRICT AUDITS

 

Longwood Central School District – Overtime (Suffolk County) - District officials did not appropriately approve and document overtime for non-instructional employees. As a result, there is an increased risk that overtime costs totaling $774,499 were more than necessary. Auditors found the Board of Education did not adopt written policies to ensure that all overtime hours worked were pre-approved, adequately recorded and incurred only when necessary. Non-emergency overtime was also not generally preapproved in writing. In addition, officials did not maintain documentation to justify compensatory time earned.

 

New Rochelle City School District – Information Technology (Westchester County) - Officials did not establish adequate controls over network and financial application user accounts to prevent unauthorized use, access and/or loss. In addition to sensitive information technology (IT) control weaknesses which auditors from the Comptroller’s Office communicated confidentially to officials, auditors found officials did not adequately manage network user accounts as 84 former employees/vendors had active user accounts. Auditors also found 35 generic user accounts that had never been used and were unnecessary. In addition, officials did not ensure district procedures were followed to communicate financial application user account changes to the vendor.

 

Schuylerville Central School District – Medicaid Reimbursements (Washington County) - The district did not maximize Medicaid reimbursements by submitting claims for all eligible Medicaid services provided. Claims were not submitted and reimbursed for 382 eligible Medicaid services provided. Had these services been claimed, the district could have realized revenues totaling $6,375. The district also lacked adequate procedures to ensure Medicaid claims were submitted and reimbursed. Service providers did not document all service encounters in the Medicaid billing system.

 

Spencer-Van Etten Central School District – Information Technology (Chemung County, Schuyler County, Tioga County and Tompkins County) - District officials have generally taken adequate steps towards helping to ensure computerized data was safeguarded through managing user accounts, providing adequate training and adopting and distributing a written information technology (IT) contingency plan. However, certain sensitive IT control weaknesses and audit recommendations were communicated confidentially to officials. District officials agreed with the audit results.

 

Three Village Central School District – Financial Operations (Suffolk County) - District officials did not provide appropriate oversight over financial operations. District officials did not properly assign administrative and user access rights to the financial software. Officials also did not establish an electronic banking policy or adequate bank transfers or electronic payment procedures nor did they segregate the treasurer’s duties or provide adequate oversight. In addition, district officials did not present all claims to the claims auditor for review and approval prior to payment. At least $37.9 million in claims were not reviewed or approved, as required, prior to payment. Officials did not ensure $43 million in claims are processed through the normal accounts payable process. The treasurer controlled most aspects of these transactions rather than the accounts payable department. Therefore, there was no segregation of duties.

December 24, 2021

New York Public Personnel Law handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HEREfor more information.

December 23, 2021

Legislation providing retroactive retirement benefits to former City of Buffalo officer signed into law

On December 23, 2021, Governor Kathy Hochul  announced the signing of legislation providing former Buffalo police officer Cariol Horne, eligibility for retirement benefits. Ms. Horne was rendered ineligible to file for service retirement benefits as the result of her wrongful termination from the City of Buffalo Police Department. 

Although subsequently the termination was corrected and she was reinstated to her former postition, the termination meant she was ineligible for retirement benefits. The legislation, Chapter 800 of the Laws of 2021, grants Ms. Horne a retroactive retirement date of August 5th, 2010 for the purposes of determining her retirement benefits from the New York State and Local Police and Fire Retirement System.


 

Legislation providing retroactive retirement benefits to former City of Buffalo officer signed into law

On December 23, 2021, Governor Kathy Hochul  announced the signing of legislation providing former Buffalo police officer Cariol Horne, eligibility for retirement benefits. Ms. Horne was rendered ineligible to file for service retirement benefits as the result of her wrongful termination from the City of Buffalo Police Department. 

Although subsequently the termination was corrected and she was reinstated to her former postition, the termination meant she was ineligible for retirement benefits. The legislation, Chapter 800 of the Laws of 2021, grants Ms. Horne a retroactive retirement date of August 5th, 2010 for the purposes of determining her retirement benefits from the New York State and Local Police and Fire Retirement System.


 

The anatomy of an Appellate Division's review of a New York State Public Employment Relations Board's decision of an alleged improper practice


Lawrence Union Free School District v New York State Pub. Empl. Relations Bd.


2021 NY Slip Op 07001

Decided on December 15, 2021

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on December 15, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
VALERIE BRATHWAITE NELSON
LINDA CHRISTOPHER
JOSEPH A. ZAYAS, JJ.


2018-03024
(Index No. 3841/17)

In the Matter of Lawrence Union Free School District, petitioner/cross respondent,
v
New York State Public Employment Relations Board, respondent/cross petitioner, et al., respondent.

Minerva & D'Agostino, P.C. (Albert D'Agostino, Christopher G. Kirby, and Morgan, Lewis & Bockius LLP, New York, NY [David J. Butler and Bryan M. Killian pro hac vice], of counsel), for petitioner/cross respondent.

David P. Quinn, Albany, NY (Michael T. Fois of counsel), for respondent/cross petitioner.

Archer, Byington, Glennon & Levine LLP, Melville, NY (Alexandra J. Howell and Marty Glennon of counsel), for respondent International Brotherhood of Teamsters, City Employees Union, Local 237.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Public Employment Relations Board dated November 6, 2017, and, in effect, cross petition by the New York State Public Employment Relations Board to enforce the determination. The determination, inter alia, reversed so much of a decision of an administrative law judge dated November 29, 2016, dismissing, after a hearing, the improper practice charge filed by Local 237, International Brotherhood of Teamsters and United Public Service Employees Union, alleging that the petitioner, Lawrence Union Free School District, inter alia, violated Civil Service Law §209-a(1)(d) with respect to certain security aides, and directed the petitioner, among other things, to make whole those security aides.

ADJUDGED that the determination is confirmed, the petition is denied, the proceeding is dismissed on the merits, the cross petition is granted, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the issuance of an order compelling compliance with this decision and judgment (see Civil Service Law §213[c]).

The petitioner, Lawrence Union Free School District (hereinafter the district), and the respondent International Brotherhood of Teamsters, City Employees Union, Local 237 (hereinafter the union), were parties to a collective bargaining agreement whereby certain classes of employees employed by the district, including security aides, were represented by the union with respect to, among other things, salary and benefit negotiations. The security aides' employment was terminated at the end of the 2015 school year, and the district thereafter contracted with nonparty Summit Security Service, Inc. (hereinafter Summit), to provide security services for the district. Shortly after the security aides were notified that their positions were terminated, the union submitted an improper practice charge to the respondent New York State Public Employment Relations Board (hereinafter PERB), asserting, among other things, that the district violated Civil Service Law §209-a(1)(d) based on its alleged failure to negotiate in good faith with the union concerning the termination of the security aides' employment and the transfer of the security aides' work to Summit employees, who were nonunion employees.

At a hearing before an administrative law judge (hereinafter ALJ), the district stipulated that the exclusivity of the work performed by the security aides, the first element that must be established with respect to a violation based on the unilateral transfer of work, as articulated in Matter of Niagara Frontier Transp. Auth.(18 PERB ¶3083), would not be contested. After the hearing, in considering whether the services performed by Summit were substantially similar to those performed by the security aides, the ALJ found, inter alia, that "[a]part from the inherent similarity in duties aimed at generally protecting District premises, there is a significant difference in the level of services provided by Summit," and dismissed the improper practice charges related to the district's termination of the security aides' employment. The union subsequently filed exceptions to the ALJ's decision, and PERB, in a determination dated November 6, 2017, inter alia, reversed the ALJ's decision in part, and remanded in part. PERB took note of the parties' stipulation with respect to exclusivity of the work, but determined that the scope of this stipulation was ambiguous. PERB found that the stipulation meant, "at a minimum, that 'property protection' duties were exclusively performed by Security Aides," but that based on conflicting testimony, the stipulation was unclear as to whether "personal protection" work was done exclusively by the security aides. PERB then remanded the portion of the charge related to personal protection work to the ALJ. In reversing the ALJ in part, PERB determined that the transfer of the property protection work performed by security aides constituted a violation of Civil Service Law §209-a(1)(d), and directed, inter alia, that this work be restored to the security aides.

The district then commenced this proceeding pursuant to CPLR article 78 to review PERB's determination on the ground that it was not supported by substantial evidence. PERB , in effect, cross-petitioned pursuant to Civil Service Law § 213 to enforce its determination. In an order dated March 8, 2018, the Supreme Court transferred the matter to this Court pursuant to CPLR 7804(g).

"Under the Taylor Law (Civil Service Law art 14), a public employer is obligated to negotiate in good faith with the bargaining representative of its current employees regarding the 'terms and conditions of employment' (Civil Service Law §204)" (Matter of Town of Islip v New York State Pub. Empl. Relations Bd., 104 AD3d 778, 780, mod 23 NY3d 482). "The failure to negotiate in good faith is an improper employment practice" (Matter of Town of Islip v New York State Pub. Empl. Relations Bd., 104 AD3d at 780; seeCivil Service Law § 209-a[1][d]). "Pursuant to this duty to negotiate, where a past practice between a public employer and its current employees is established, involving a mandatory subject of negotiation, the Taylor Law would bar the employer from discontinuing that practice without prior negotiation" (Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, 331), and "PERB is authorized to determine disputes as to improper employment practices, and to take affirmative action to effectuate the policies of the Taylor Law" (Matter of Town of Islip v New York State Pub. Empl. Relations Bd., 104 AD3d at 781; see Civil Service Law §205[5][d]).

In making a determination whether the unilateral transfer of unit work violates Civil Service Law §209-a(1)(d), "the . . . essential questions are whether the work ha[s] been performed by [the] unit employees exclusively and whether the reassigned tasks are substantially similar to those previously performed by unit employees" (Matter of Niagara Frontier Transp. Auth., 18 PERB ¶3083 [footnote omitted]; see Matter of State of N.Y. Dept. of Correctional Servs. v Kinsella, 220 AD2d 19, 22). "If both these [questions] are answered in the affirmative, the work transfer is deemed to be violative of Civil Service Law §209-a(1)(d) unless the qualifications for the job at issue have changed significantly" (Matter of State of N.Y. Dept. of Correctional Servs. v Kinsella, 220 AD2d at 22; see Matter of Niagara Frontier Transp. Auth., 18 PERB ¶3083). "If such a change has in fact occurred, a balancing test is invoked and 'the interests of the public employer and the unit employees, both individually and collectivley, are weighed against each other'" (Matter of State of N.Y. Dept. of Correctional Servs. v Kinsella, 220 AD2d at 22, quoting Matter of Niagara Frontier Transp. Auth., 18 PERB ¶3083).

"Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence" (Matter of Albany Manor, Inc., v New York State Liq. Auth., 44 AD3d 759, 759). Moreover, "[w]hile the findings of an [ALJ] made after a hearing are entitled to deference upon review by an administrative board, the board is entitled to make its own findings provided that they are supported by substantial evidence" (Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 78 AD3d 1184, 1185, affd 19 NY3d 876; see Matter of Simpson v Wolansky, 38 NY2d 391, 394). Substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180), and "consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably—-probatively and logically" (id. at 181). "When there is conflicting evidence or different inferences may be drawn, 'the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'" (Matter of Grimaldi v Gough, 114 AD3d 679, 680, quoting Matter of Berenhaus v Ward, 70 NY2d 436, 444).

The district's challenge to so much of PERB's determination as related to personal protection work, is not ripe for review, as this issue was remanded to the ALJ, and therefore, further administrative action is required (see Stop-The-Barge v Cahill, 1 NY3d 218, 223; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 520; Matter of Patel v Board of Trustees of Inc. Vil. of Muttontown, 115 AD3d 862, 864).

Contrary to the district's contention, PERB's determination that the property protection work performed by Summit employees was substantially similar to the property protection work performed by security aides was supported by substantial evidence (see Matter of Hewlett-Woodmere Union Free School Dist. v New York State Pub. Empl. Relations Bd., 232 AD2d 560). The duties regarding property protection work set forth in the Civil Service job description for security guards, which was testified to by the district as encompassing the duties that were performed by Summit, were substantially similar to the duties actually performed by the security aides, as well as those duties set forth in the Civil Service job description for security aides. Among other things, security aides and Summit employees both patrol and protect school buildings and grounds and perform related duties as required. Both made rounds around the district's buildings and performed traffic control on and around campus.

The district's contention that the transfer of work from security aides to Summit employees involved a substantial change in job qualifications is not properly before this Court (see 4 NYCRR 213.10).

The district's remaining contentions are without merit.

Finally, PERB is entitled to an order compelling compliance with this decision and judgment (see Civil Service Law §§205[5][d]; 213[a], [c]; Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 78 AD3d at 1187; Matter of Hampton Bays Union Free School Dist. v Public Empl. Relations Bd., 62 AD3d 1066, 1069).

Accordingly, we confirm the determination, deny the petition, dismiss the proceeding on the merits, grant the cross petition, and remit the matter to the Supreme Court, Nassau County, for the issuance of an order compelling compliance with this decision and judgment

CHAMBERS, J.P., BRATHWAITE NELSON, CHRISTOPHER and ZAYAS, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

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