October 31, 2022

Challenging the confirmation of an arbitration award

Supreme Court a petition submitted pursuant to CPLR §7510 to confirm an arbitration award and denied the Respondent's cross petition to vacate the award. Respondent appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

Respondent challenged the confirmation of an arbitration award alleging Petitioner "committed perjury during the arbitration proceeding."

The Appellate Division explained that Respondent's disagreement with the arbitrator's conclusion that Petitioner did not give perjurious testimony or false responses to discovery demands "was not a proper basis for setting aside the arbitration award under CPLR 7511(b)(1) or on grounds of public policy."

As a general rule, courts will not second-guess the factual findings or the legal conclusions of the arbitrator." Respondent, said the court "has not offered sufficient reason why an exception to that rule exists in this proceeding."

Further, the Appellate Division observed that courts "may not substitute their own credibility determinations for those of the arbitrator", citing Matter of Noralez v New York City Dept. of Educ., 187 AD3d 475.

Addressing Respondent's contention that Petitioner submitted "false responses to discovery demands", citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, the court opined that "there was at least 'a barely colorable justification' for the arbitrator's conclusion that there was a lack of competent evidence to support [Respondent's] claim of false discovery disclosures".

Click HERE to access the Appellate Division's decision posted on the Internet.

October 29, 2022

"Editor's letter" published in the October 22, 2022 issue of The Week magazine.

Talking Points

No, it's not over

New Omicron subvariants are headed our way.

I was talking to a neighbor the other day about COVID, and he said with vehemence he wasn't getting the new booster. He'd already had COVID twice, despite being vaccinated with the original two shots in 2021. Since COVID hadn't killed him, he said, why bother with more shots? I reminded him that more than 1 million Americans have died of COVID, and that boosters have been proven to dramatically reduce the risk of serious illness. That led him to launch into a riff on "Fauci" laced with conspiracy theories; if that damn Fauci wanted him to get boosted, well, hell, forget it. These views, of course, are shared by tens of millions of people who've absorbed the same deluge of disinformation, and who've bought into the deadly notion that the other tribe gets shots, and ours doesn't. Besides, the pandemic is over, isn't it?

Sorry, but it isn't. COVID deaths and hospitalizations have fallen dramatically, thanks to the immunity produced by hundreds of millions of vaccinations and tens of millions of COVID infections over the past year. But immunity from infection and shots wanes after four to six months, and every winter, indoor gatherings fuel surges of infectious disease. A new swarm of subvariants has evolved to evade immunity, and are spreading rapidly; hospitals in the U.K., Europe, and Singapore are filling up with COVID cases. One of the new subvariants, BQ.1, already makes up 10 percent of new cases in the U.S., according to the CDC. A substantial portion of the millions who may be infected in coming months may develop long COVID — especially those who are unvaccinated or get COVID multiple times. Fortunately, the new "bivalent" booster will help shield people from serious illness, death, and long COVID. But so far, only about 7 percent of 209 million eligible Americans have gotten the new booster, out of COVID fatigue, tribal loyalty, or not knowing it's available. Don't roll the COVID dice. Go get a booster.

This Editor's Letter posted in The Week magazine is reprinted here, with permission, as a public service.

October 28, 2022

Determining a nonscheduled Workers' Compensation award payable following the injured employee's death

The initial paragraph of this ruling by the Court of Appeals states "It is well settled that some categories of workers' compensation benefits may pass, in certain circumstances, to the beneficiaries of injured employees who die from causes unrelated to the work injury." The court then noted that unaccrued portions of a nonschedule award under Workers' Compensation Law (WCL) §15(3)(w) do not so pass, explaining that the statute "does not provide for any unaccrued portion of a nonschedule award to remain payable following an injured employee's death."

The Employee had sustained an injury in a work-related accident classified as having a nonschedule permanent partial disability. Employee received an award pursuant to WCL §15(3)(w) in the amount of $500 per week.

Pursuant to statutory caps imposed on the period for which nonscheduled awards may be paid, Employee was to receive this amount for no longer than 350 weeks. Employee, however, passed away due to unrelated causes after 311.2 weeks. Employee's minor son  [Claimant] sought the accrued unpaid amounts of his father's award, as well as benefits for the 38.8 weeks that remained before Employee's award would have reached the statutory durational cap.

The Workers' Compensation Board affirmed an administrative law judge's ruling denying these benefits sought by Claimant explaining that "no additional award is payable to the decedent's surviving child" because "[t]o be entitled to the awards the [employee] must have causally related lost time," and "[w]ith [an employee's] death, there are no future earnings to lose," so "no posthumous award is warranted".

In the words of the Court of Appeals, "[t]here is no dispute that, pursuant to WCL §33, Claimant is entitled to the accrued, unpaid portion of the award which his father should have received during his lifetime, in the amount of 311.2 weeks at $500 per week. [Claimant, however] is not entitled to $500 per week for an additional 38.8 weeks" sought by Claimant.

The court explained that under WCL §15 (4), where an injured employee dies from causes other than the injury, an award "made to a claimant under subdivision three" may pass, as relevant here, to "a surviving child ... under the age of eighteen years." WCL §15(3) provides for two categories of awards for injuries resulting in permanent partial disability. A "schedule loss of use" [SLU] award, provided for in §15(3)(a)-(u), is designed to "compensate for loss of earning power, rather than the time that an employee actually loses from work or the injury itself".

The nature of nonschedule awards, dependent on an employee's actual earnings and the continuance of the disability, is such that there is no remaining portion of the award that can pass through to a beneficiary. Accordingly, the Court of Appeals held that "the Workers' Compensation Board's 2021 decision and so much of the Appellate Division order brought up for review" in the instant appeal should be reversed, with costs, "and the Workers' Compensation Board's 2019 decision reinstated."

Click HERE for the instant decision by the Court of Appeals.

 

October 27, 2022

Administrative procedures to be followed are negotiable within the meaning of the Taylor Law

In this action, the Court of Appeals addressed the question whether Article 14 of the Civil Service Law, typically referred to as the Taylor Law, requires a public employer to engage in collective bargaining to determine the administrative procedures to be followed in determining if an employee placed on "workers' compensation leave" pursuant to Section 71 of the Civil Service Law may be terminated from the position if the individual is "absent from work for more than a year due to an injury sustained in the line of duty".

The decision notes that in Matter of City of Schenectady v New York State Public Employment  Relations Board, 85 NY2d 480 [Schenectady] the Court of Appeals held that "a city's authority under section 207-c to make initial determinations about those matters is not 'subject to mandatory bargaining' but left open the question of whether 'the procedures for implementation of the requirements of [section] 207-c' are a subject of collective bargaining."

The Court of Appeals then noted that it "answered that question in the affirmative five years later" in Matter of City of Watertown v State of New York Public Employment Relations Board, 95 NY2d 73 [Watertown], holding that "the procedures for contesting the City's determinations under section 207-c are a mandatory subject of bargaining."

Distinguishing its ruling in Schenectady, in Watertown the court concluded that "[u]nlike the initial determinations themselves - which were at issue in Schenectady 'the text of section 207-c says nothing about the procedures for contesting those determinations'" and explained that "'based on the text and history of section 207-c, it was evident that [t]he Legislature expressed no intent - let alone the required 'plain' or 'clear' intent - to remove the review procedures from mandatory bargaining".

Opining that it is undisputed that the City's right to terminate the employee is not a  mandatory negotiation subject of collective bargaining, the Court of Appeals held that the City must negotiate the administrative procedures necessary to implement that right, concluding that in this instance "collective bargaining is required."

Click HERE to access the Court of Appeal' ruling in the instant action.

 

October 26, 2022

New leave polices for employees of the State of New York as the employer issued

The New York State Department of Civil Service has announced the publication of the new Attendance and Leave Policy Bulletins listed below: 

Policy Bulletin 2022-04, World University Games – Paid Leave for Volunteers 

Policy Bulletin 2022-05, Implementation of the Productivity Enhancement Program for 2023 

If you wish to print Policy Bulletin 2022-04, a version in PDF format is available at: https://www.cs.ny.gov/attendance_leave/pb2022-04.pdf 

If you wish to print Policy Bulletin 2022-05, a version in PDF format is available at:https://www.cs.ny.gov/attendance_leave/PEP2023_Combined.pdf 

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

Procedural errors and omissions result dismissial of the action without addressing the merit of the complaint

Supreme Court denied Plaintiff's amended petition seeking a court order annulling her former employer's denial of her request to withdraw her resignation and dismissed the proceeding brought pursuant to CPLR Article 78. Plaintiff appealed but the Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division explained Plaintiff had attempted to file an "amended" Article 78 petition two years after filing her initial petition without first obtaining a "leave to amend" was improper.

Further, said the court, Plaintiff's was petition untimely, as she "failed to file it within four months of the employer's decision to deny her request to withdraw her resignation.

Significantly, the Appellate Division noted the Plaintiff's claim that her initial filing tolled the statute of limitations was unavailing "because the time to commence an Article 78 proceeding is not extended by her eventual pursuit of administrative remedies," citing Matter of Mendez v New York City Dept. of Educ., 128 AD3d 584.

Noting the decision in Sumner v Hogan, 73 AD3d 618, the Appellate Division opined that Plaintiff's petition also failed because she did not exhaust her administrative remedies prior to initiating her Article 78 proceeding as required by the relevant collective bargaining agreement. 

Click HERE to access the text of the Appellate Division's decision.

October 25, 2022

Seeking a court order to annul discontinuation of educator's employment during the probationary period

Probationary educator's [Probationer] Article 78 challenging to the Department of Education of the City of New York [DOE] decision to discontinue her employment prior to the end of her probationary employment was dismissed  by Supreme Court. Probationer appealed but the Appellate Division affirmed the lower court's decision. The court explained that Probationer "failed to show that her termination was for a constitutionally impermissible purpose, in violation of a statute, or done in bad faith."

In contrast, opined the Appellate Division, there was ample evidence in the record indicated that the DOE's decision to discontinue Probationer's employment "was made in good faith, as her yearly Measures of Teacher Practice scores reflected a lack of consistent improvement, despite receiving significant professional support."

The court also rejected Probationer's argument that DOE's had failed to obtain her signature on every written assessment made of Probationer's performance in the course of the review process. In the words of the Appellate Division, the failure of DOE to do so simply "constitutes a mere deficiency in the review process that does not require annulment of the decision to discontinue her employment".

York v McGuire, 63 NY2d 760, sets out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.” 

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. 

Should the appointing authority elect to terminate a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Click HERE to access the text of the Appellate Division's ruling.

 

October 22, 2022

Disability Benefits for fire, police and other public sector personnel

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.

Topics Considered

Ability to perform light duty - discontinuation of GML §207-c benefits
Administrative procedures
Age discrimination
Agreement to retire.
Allowing the arbitrator to exceed authority
Applicants for §207-c benefits -a "direct causal relationship"
Application for an accident disability retirement - tie vote by review board
Applications for accidental disability retirement benefits must show event
    that resulted in the disability was "accidental"
Appointing authority not authorized file an “employer application” for
    ordinary disability retirement of behalf of a police officer while the
    officer is receiving Section 207-c benefits
Appointing authority required to consider the fact that an applicant for
General Municipal Law §207-a Performance of duty disability retirement benefits
Appointing authority’s adoption of hearing officer’s findings and
    recommendation a “final determination” for purposes of appeal
Approving Section 207-c benefit claims
Arbitrating a return to light duty
Arbitration
Arbitrator finds a probationary employee at the time of his injury, is not
    eligible for the salary increases and benefits for purposes of GML
    §207-a
Assignment of personnel
Automatic 207-a benefits
Back salary and benefits
Benefits after Felony Conviction
Benefits provided to a police officer under General Municipal Law §207-c
    are exclusive, and a CBA will not be construed to implicitly expand
    such benefits
Causality of infirmity.
Challenge to a denial of Section 207-a benefits is to be made by an action in
    the nature of “mandamus to compel”
Challenge to decision following a hearing conducted pursuant to procedures
    instituted by the employer to be heard by Supreme Court
Challenge to probation
Challenging the discontinuation of a Section 207-a salary supplement paid to
    retired firefighter not authorized by statute
Challenging the result of a GML 207-a/c hearing conducted pursuant to the
    terms of the collective bargaining agreement
Charging lost time to leave credits
Chiropractic Treatment
Collecting Section 207-a(2) benefits.
Collective bargaining
Collective bargaining agreements
Collective bargaining issues
Compulsory arbitration demand
Conflicting medical opinions
Congenital condition's impact on eligibility
Continuing §207-c benefits if an individual refuses to perform light duty
Contradictory testimony
Controlling law
Court review of denial of General Municipal Law §207-a benefits
Court sustains arbitrator’s Section 207-a benefits award
Credit for medical expenses
Death benefits
Definition of accident
Denial of benefits distinguished from revocation of Section 207-c benefits
Determination of "on the job" injury
Determination of permanent disability
Determining General Municipal Law Section 207-a benefits
Determining line-of-duty disability
Determining Section 207-a benefits
Determining the impact of a disability
Differing medical testimony
Disability benefits
Disability benefits and light duty
Disability benefits and Section 207-
Disability Leave and the Taylor Law
Disability resulting from cancer
Disability retirement
Disability retirement and Section 207-c
Disciplinary actions and Section 207 benefits
Discontinuing disability benefits
Discontinuing Section 207-a benefits
Discontinuing Section 207-c benefits
Discrimination against probationer
Discrimination and Civil Rights
Disqualification for Section 207-a
Due process and Section 73, Civil Service Law determinations
Due process requirements - filing an employer’s application for disability
    retirement
Eligibility for §207-c benefits only requires the applicant to show a direct
    causal relationship between job duties and the resulting illness or
    injury
Eligibility for Disability Benefits
Eligibility for FMLA leave
Eligibility for Section 207 benefits
Employer applications for disability retirement
Employer may not summarily terminate an individual’s Section 207-c
    disability benefits
Employer’s medical evidence rebuts GML Section 207-m presumption that
    heart condition was job related
EMT Differential
Entitlement to benefits
Establishing a right to Section 207-c benefits
Evaluating disability claims
Evaluating the application of the §207-k presumption that a heart condition
    was job related
Evaluation of degree of injury
Exaggerating injury
Exhausting administrative remedy
Exhausting leave accruals
Failure to follow the negotiated Section 207-a appeals procedure
Firefighter who returned to duty not eligible for Section 207-a(2)
    supplement upon his subsequent retirement for disability
Firefighter's rule and municipal liability
Forfeiting Section 207-a benefits
Fraud - selective prosecution
Fraud in claiming a Section 207-c benefit
Grievance challenging the denial of §207-a (2) benefits
Health and life insurance for retirees
Health insurance coverage under
Health insurance for disabled
Hearing loss
Hearing Officer -- conflicting medical evidence
Hearings provided by local law
Heart Disease
Holiday pay
Improper practice claims
Injured police officer’s settlement with the insurance company
Injury at social event
Injury by co-worker
Injury in official vehicle
Injury in parking lot
Injury while leaving work
Interpreting contract language
Involuntary disability leave
Involuntary disability retirement
Involuntary retirement
Law in place at the time of administrative decision controls
Layoffs and Accidental Disability Retirement application deadlines
Light Duty and the Taylor Law
Light duty as an accommodation
Light duty requirements
Light-duty as an accommodation
Line of duty determination
Line of duty injury
Longevity Pay
Longevity salary increases
Medical Board contradictions in its recommendation
Medical evidence of disability
Medical examination
Mental stress and workers'
Multiple Agencies - assisting a neighboring jurisdiction's police force
Municipality obligated to continue to pay the “207-a salary differential”
Municipality's refusal to honor retirement system's decision
Named beneficiaries
Need for independent determination
Negligence of employer in injury
Negotiating benefit requests procedures
Negotiating Section 207-a procedures
Negotiations after the contract expires
New hearing after denying employee’s application for GML 207-c benefits
No "Line of duty injury" applicable to General Municipal Law §207-a
Non-service-related disability
Not all tasks performed at work constitute the performance of official duties
Obligations under other laws or agreements
Occupational hearing loss
Off-Duty Coverage
Off-duty employment of peace officers
Off-duty incurred disability
Off-duty injuries
Offset for disability benefits
On-call employees being off-duty
Overtime assignments
Pay Raises for Disabled Firefighters
Payroll deductions for withholding taxes
Police officer denied Section 207-c benefits unrelated to line-of-duty injury
Police officer eligible to receive unemployment insurance benefits while
    simultaneously receiving GML Section 207-c benefits
Police officer forfeits §207-c disability pay benefits
Police officer must show a causal connection to heart attack
Post-traumatic stress and Workers' Compensation
Power of Arbitrator
Pre-benefit medical examination
Pre-denial hearing - Section 207-c
Preexisting nonwork-related conditions may not always bar recovery under
    General Municipal Law §207-c
Preferred list status and Section 363, RSSL
Presumption of work-connected heart attack
Pre-termination hearings -- Section 73 of the Civil Service
Pre-tour accidents
Prior litigation does not bar revaluation of disabled employee’s ability to
    perform the duties of the position
Probationary Period
Probationer's claim for disability retirement
Probationer's disability discrimination claim
Procedure - accidental disability retirement application
Proposals for de novo arbitral review to resolve disputes not mandatory
    subjects of collective bargaining
Providing Section 207-c benefits
Psychological disability
Psychological evaluation
Qualification for employment is critical to Section 207-c benefits
Reasonable accommodation
Rebutting a presumption
Recall from GML 207-a/c Leave
Recall to light duty
Recapturing retirement benefits
Record required for court to adjudicate a petition
Recovering Section 207-c overpayments
Recovering Section 207-c payments
Re-employment examination
Refusal to take medical examination
Refusal to undergo surgery
Refusing a "light duty" assignment
Reimbursement for medical expenses
Reimbursement from workers' compensation
Reimbursing Section 207-c benefits
Reinstatement after light duty
Reinstatement following disability
Reinstatement from Section 72 leave
Request for reconsideration of an administration decision does not toll the
    running of the statute of limitations
Requirement to undergo surgery
Residence
Residence requirements
Retirees as employees
Retiree's health insurance premiums
Retirement and Social Security Law
Retirement benefits and divorce
Retroactive benefits
Retroactive benefits under 207-a(1)
Retroactive disability retirement
Retroactive payments of 207-a/207-c benefits
Return to duty after an injury
Rulings by the Workers' Compensation Board
Salary Adjustments
Section 207-a administrative decisions
Section 207-a payments may not be discontinued notwithstanding the terms
    of a collective bargaining agreement
Section 207-a salary adjustments violations of ADA
Section 207-a. payment of salary, medical and hospital expenses
Section 207-a/207-c determinations
Section 207-a/207-c exclusive remedy for co-worker negligence
Section 207-a/207-c hearings by the court
Section 207-c administrative hearings
Section 207-c hearing officer’s evaluation of the evidence entitled to great
    weight
Section 207-c line of duty disability
Section 207-c. Payment of salary, wages, medical and hospital expenses
Seeking a lien against the proceeds of negligence settlement
Self-insurance plan
Service requirement
Sick leave
Sick leave vs. Section 207 benefits
Smoking and coronary disease
Social Security provides disability benefits if the employee is "disabled
Stopping health insurance benefits
Stress and 207-a/207-c
Stress disorder
Stress-Related Disability Retirement
Sudden events as accidents
Supplementing a retirement allowance
Taxability of Disability Pay
Taxability of Survivor Benefits
Taylor Law and 207-a, 207-c
Terminating disability benefits
Termination of 207-a benefits for age
Termination of disabled individuals
The procedure for challenging a retirement system service credit
The statutory presumption in General Municipal Law §207-k
Time limits - accidental disability retirement
Timing of payments
Transfers
Unequal treatment
Use of leave credits
Vacation Accruals
Village hearing before reducing or withholding Section 207-c  benefits
Where did the accident occur
Workers' Compensation
Workers' Compensation Law
Workers' compensation rulings

 

October 21, 2022

Denial of an application for disability retirement benefits must be supported by substantial evidence

In Matter of Kelly v DiNapoli, 30 NY3d 674, the Court of Appeals held that "For the purpose of Retirement and Social Security Law, the applicant bears the burden of establishing that the disability was the result of an accident, which is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact". This standard requires an applicant for accidental disability retirement benefits to "demonstrate that [the] injuries were caused by a precipitating event that was sudden, unexpected and not a risk inherent in [the individual's] ordinary job duties"

Petitioner in this Article 78 action, an administrative law judge [ALJ] for the Department of Corrections and Community Supervision, sustained injuries when she was leaving a hearing room and was hit on her left leg by a very heavy, self-closing, security door.

Following a hearing on the ALJ's application for accidental disability retirement benefits, the Hearing Officer denied the application, finding that the ALJ did not meet her burden of establishing that the incident constituted an accident within the meaning of Retirement and Social Security Law § 605. The Comptroller sustained the hearing officer's findings and decision and the ALJ appealed.

The Appellate Division disagreed. In its view, the incident as described by the ALJ constituted an accident. The court said that "Although [the ALJ] was aware of the hazard posed by the heavy, self-closing door, she reasonably expected that the supervisor, who was holding the door open, would continue to do so as [the ALJ] walked through."

Thus, said the Appellate Division, the ALJ demonstrated that her injuries were caused by a "sudden [and] unexpected" precipitating event — the supervisor letting go of the heavy, self-closing door while the ALJ walked through it — which was not a risk inherent in her job duties.

The court distinguished the facts in this case from a situation in which it determined that strong wind blowing shut a heavy, self-closing door and injuring the applicant for accidental disability retirement benefits did not constitute an accident, citing Matter of Rizzo v DiNapoli, 201 AD3d at 1100.* The Appellate Division opined that "a distinction must be drawn between a naturally occurring event such as wind" and the instant case in which the ALJ had a reasonable expectation that the supervisor would not release the door until she was safely through.

Accordingly, the Appellate Division concluded that the Comptroller's determination is not supported by substantial evidence.

Click HERE to access the text of the Appellate Division's decision.

* Matter of Rizzo v DiNapoli, 2022 NY Slip Op 06027, posted on the Internet at https://www.nycourts.gov/reporter/3dseries/2022/2022_06027.htm, in which the Court of Appeals held "Substantial evidence supports the determination that the precipitating cause of petitioner's injuries was not an accident." 

============

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.


October 20, 2022

Challenging the results of a union election of its officers

Citing Palladino v CNY Centro, Inc., 23 NY3d 140, the Appellate Division noted that "the law is well settled" that suits for breaches of agreements or for tortious wrongs against officers of unincorporated associations, including unions, are limited to situations in which "the individual liability of every single member can be alleged and proven".

The court then sustained Supreme Court's granting Local 461, District Council 37's motion to dismiss the Plaintiffs' amended petition seeking to annul a 2021 election of the Local's officers and that the court direct that new elections be conducted.

The Appellate Division explained that the Plaintiffs' petition, which interposed claims alleging breach of contract and violation of the common law of elections in New York, failed to plead "that each individual union member authorized or ratified the [allegedly] unlawful actions," citing Charter Communications, Inc. v Local Union No. 3, 166 AD3d 468.

Click HERE to access the Appellate Division's ruling.

 

October 19, 2022

Failure to allege any adverse employment action fatal to unlawful age discrimination complaint

Citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, the Appellate Division held that Supreme Court properly dismissed Plaintiff's age discrimination claim brought pursuant to the New York State Human Rights Law [Executive Law §296] because Plaintiff "failed to allege an adverse employment action." The court noted that investigations into various alleged acts of misconduct by Plaintiff and Plaintiff's reassignments to other work locations "did not rise to the level of actionable adverse employment actions."

Further, the Appellate Division opined that nothing in Plaintiff's complaint indicated that his suspension and placement on modified duty were for any reason other than disciplinary actions taken after his arrest for domestic violence.

With respect to Plaintiff's discrimination claim under the New York City Human Rights Law [Administrative Code of City of NY §8-107], the court held that the conduct of which Plaintiff complained amounted to no more than "petty slights and trivial inconveniences" and an alleged stray remark by an employee of the Employer that Plaintiff was "old enough to retire" did not, without more, give rise to an inference of  bias because of Plaintiff's age.

Finally, as Plaintiff failed to allege discriminatory animus, the Appellate Division concluded that his hostile work environment claims were properly dismissed by Supreme Court, as was his claim of retaliation, as his general complaints of mistreatment and harassment did not convey that Plaintiff had complained of unlawful discrimination.

Click HERE to access the text of the Appellate Division's decision.

October 18, 2022

Government Technology Webinars for the week of October 17, 2022

New! Lightning Webinar! Tuesday, October 18, 2022 | 12:00pm Eastern

The Lightning Round: What is Zero Trust?

In The Lightning Round, a new webinar series from Government Technology [WT], WT is explaining emerging concepts and demystifying gov tech one buzzword at a time. If you’ve got 15 minutes, WT will get you up to speed on a key concept in public sector IT. This time, WT is taking on Zero-Trust security – what it is, where it’s headed and what it means for your organization.

Register to attend

 

Tuesday, October 18, 2022 | 1:00pm Eastern

Managing Cyber Risks: Exploring Cybersecurity as a Managed Service

More and more governments are turning to a managed services model for cybersecurity. But in what cases does cybersecurity-as-a-service make sense? When is it a bad idea? Who’s liable when a breach occurs? What questions should you ask before partnering with a cybersecurity service provider? Join WT for a valuable webcast tackling these questions and many more.

Register to attend

 

Tuesday, October 18, 2022 | 2:00pm Eastern

Frictionless Airport Experiences with Virtual Queue Technology

One of the most frustrating aspects of air travel is getting stuck in a long, snaking security line. With virtual queuing software, however, passengers can reserve a spot in line ahead of time and then breeze through when it’s their turn. Cities across the U.S. (and the world) are beginning to implement smart queuing technology at airports to improve the passenger experience and make air travel easier, safer, smoother – and a lot less frustrating. Join WT for a 30-minute webinar on virtual queuing – and how cities are putting it to use.

Register to attend

 

Wednesday, October 19, 2022 | 1:00pm Eastern

Centering Constituent Concerns with an Environmental, Social and Governance Framework

When people think about improving their communities and addressing the major issues that impact daily life, they look to governments – not corporations or individuals – as the institutions responsible for meeting that mission. Cementing an Environmental, Social, and Governance (ESG) framework into government processes can help agencies standardize the tracking of sustainability metrics and deliver services that exceed public expectations. Join WT for part one of a two-part discussion on how an ESG framework can help organizations build positive and long-lasting relationships with constituents.

 

Wednesday, October 19, 2022 | 1:00pm Eastern

Centering Constituent Concerns with an Environmental, Social and Governance Framework

When people think about improving their communities and addressing the major issues that impact daily life, they look to governments – not corporations or individuals – as the institutions responsible for meeting that mission. Cementing an Environmental, Social, and Governance (ESG) framework into government processes can help agencies standardize the tracking of sustainability metrics and deliver services that exceed public expectations. Join WT for part one of a two-part discussion on how an ESG framework can help organizations build positive and long-lasting relationships with constituents.

Register to attend

 

Friday, October 21, 2022 | 2:00pm Eastern

Accelerating Improvements in the Constituent Experience with APIs

Seamless user experiences are important to constituents. An Application Programming Interface (API) can help governments bring any service or transaction online in one easy-to-use interface, improving user experiences. Learn how agencies can use APIs to deliver a payment solution for every constituent during WT's webinar.

Register to attend

 

Sneak Peek at Next Week’s Webinars:

Halloween Special: Register and attend any of these webinars next week to be entered for a chance to win one of five $50 Amazon gift cards!

The Power of Procurement: Smarter Strategies for Controlling Your Spend

Think Like a Hacker: Defend Your Organization Against Ransomware-as-a-Service Attacks

Improving Equity in Public Infrastructure

What is an ESG Framework and How Does It Apply to Governments?

Modernizing Your Network in the Age of Zero Trust 

 

To view upcoming and on-demand webinars, visit webinars.govtech.com.

For assistance with registration, contact:
Jeremy Smith, jsmith@erepublic.com (916) 932-1402 direct

 

October 17, 2022

State, Municipal and School District Audits and Reports issued by the New York State Comptroller during the month of September, 2022

New York State Comptroller Thomas P. DiNapoli issued audits and reports of the State Departments and Agencies, the City of New York, Municipalities, BOCES and School Districts listed below during the month ending September 30, 2022:

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


State Departments and Agencies and the City of New York

Subject: Accuracy of Medicaid Eligibility Determined by NY State of Health (Follow-Up)
Agency: Health, Department of (Medicaid Program)
Issued: 09/30/22

Subject: Oversight of Afterschool and Summer Youth Employment Contracts (Follow-Up)
Agency: Youth & Community Development, New York City Department of
Issued: 09/30/22

Subject: Empire Plan Members With Dual Family Coverage (Follow-Up)
Agency: Civil Service, Department of
Issued: 09/26/22

Subject: Employee Qualifications, Hiring, and Promotions (Follow-Up)
Agency: Metropolitan Transportation Authority
Issued: 09/26/22

Subject: Housing Trust Fund Corporation: Internal Controls Over and Maximization of Federal Funding for Community Development Block Grant & HOME Investment Partnerships Programs
Agency: Homes and Community Renewal
Issued: 09/16/22

Subject: New York City Department of Homeless Services – Oversight of Contract Expenditures of Institute for Community Living, Inc.
Agency: Social Services, New York City Department of
Issued: 09/16/22

Subject: Selected State Agencies’ Roles in Financial Literacy
Agency: Aging, Office for the
Issued: 09/14/22

Cost Saving Opportunities on Payments of Medicare Part C Claims (Follow-Up)
Agency: Health, Department of (Medicaid Program)
Issued: 09/08/22

Subject: Improper Medicaid Payments for Terminated Drugs (Follow-Up)
Agency: Health, Department of (Medicaid Program)
Issued: 09/08/22

Subject: Improper Medicaid Payments Involving Fee-for-Service Claims for Recipients With Multiple Client Identification Numbers (Follow-Up)
Agency: Health, Department of (Medicaid Program)
Issued: 09/08/22

Subject: Oversight of Construction Management Contracts (Follow-Up)
Agency: Parks, Recreation and Historic Preservation, Office of 
Issued: 09/08/22

Subject: Oversight of the Farm-to-School Program (Follow-Up)
Agency: Agriculture and Markets, Department of
Issued: 09/08/22

Subject: Oversight of Building Construction Site Safety
Agency: Buildings, New York City Department of
Issued: 09/01/22

Municipal and School District Audits

Audit No: 2022M-89, Release Date: 09/30/2022

Jurisdiction: Irvington Union Free School District - Fixed Assets (School)

Summary: District officials did not properly monitor and account for 63 percent of the 105 fixed assets reviewed that cost $595,118. This can be attributed to District officials last conducting a physical inventory in 2018.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/30/irvington-union-free-school-district-fixed-assets-2022m-89


 

Audit No: 2022M-110, Release Date: 09/30/2022

Jurisdiction: Le Roy Central School District - Reserve Funds (School)

Summary: Although the Board and District officials properly established reserve funds that have balances totaling $3 million, they did not comply with the District's reserve policy or transparently fund reserves. In addition, the Board did not take an active role in managing and overseeing reserve fund activity and did not transparently use or maintain all reserves at reasonable levels.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/30/le-roy-central-school-district-reserve-funds-2022m-110


 

Audit No: 2022M-109, Release Date: 09/30/2022

Jurisdiction: Norfolk Fire District - Board Oversight (Fire)

Summary: The Board did not audit and approve all claims prior to payment, annually audit the Treasurer's records and ensure the Treasurer filed annual financial reports timely.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/fire-district/2022/09/30/norfolk-fire-district-board-oversight-2022m-109


 

Audit No: 2022M-100, Release Date: 09/30/2022

Jurisdiction: Sharon Springs Central School District - Fund Balance (School)

Summary: The Board and District officials did not effectively manage fund balance and need to improve their budgeting practices and be more transparent with District residents and taxpayers.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/30/sharon-springs-central-school-district-fund-balance-management-2022m-100


 

Audit No: 2022M-42, Release Date: 09/30/2022

Jurisdiction: Town of Owego - Shared Services Facility Capital Project (Town)

Summary: The Board did not properly plan, authorize or monitor the Shared Services Facility Capital Project (Project).

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/town/2022/09/30/town-owego-shared-services-facility-capital-project-2022m-42


 

Audit No: 2022M-115, Release Date: 09/23/2022

Jurisdiction: Fly Creek Fire District - Non-Payroll Disbursements (Fire)

Summary: While the District's non-payroll disbursements were supported, for proper District purposes and audited prior to payment, the Board of Fire Commissioners (Board) did not ensure purchases were made at the best price.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/fire-district/2022/09/23/fly-creek-fire-district-non-payroll-disbursements-2022m-115


 

Audit No: 2022M-97, Release Date: 09/23/2022

Jurisdiction: Jamestown City School District - Fund Balance and Reserves (School)

Summary: The Board and District officials did not properly manage fund balance and reserves and need to improve their budgeting practices and transparency with District residents and taxpayers.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/23/jamestown-city-school-school-district-fund-balance-and-reserves-2022m-97


 

Audit No: 2022M-63, Release Date: 09/23/2022

Jurisdiction: Town of Hempstead - Procurement (Town)

Summary: Officials did not always seek competition for professional services and ensure bid specifications were met.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/town/2022/09/23/town-hempstead-procurement-2022m-63


 

Audit No: 2022M-90 Release Date: 09/16/2022

Jurisdiction: Cheektowaga Central School District - Capital Project Management (School)

Summary: The Board and District officials did not manage the Project in a transparent manner and did not provide adequate oversight.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/16/cheektowaga-central-school-district-capital-project-management-2022m-90


 

Audit No: 2022M-87, Release Date: 09/09/2022

Jurisdiction: Binghamton Housing Authority - Oversight of Financial Operations (PA)

Summary: The Board and Director did not provide adequate oversight of financial operations. The Board did not adopt written policies and the Director did not develop proper internal controls over cash disbursements and electronic payments or financial system user access.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/public-authority/2022/09/09/binghamton-housing-authority-oversight-financial-operations-2022m-87


 

Audit No: 2022M-73, Release Date: 09/09/2022

Jurisdiction: Liberty Central School District - Information Technology (School)

Summary: The Board and District officials did not adequately safeguard computerized data from unauthorized use, access and loss. In addition to sensitive IT control weaknesses that were communicated confidentially to officials.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/09/liberty-central-school-district-information-technology-2022m-73


 

Audit No: 2022M-71, Release Date: 09/09/2022

Jurisdiction: Lyons Central School District - Payroll (School)

Summary: District officials did not ensure employees' salaries and wages were always paid accurately.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/09/lyons-central-school-district-payroll-2022m-71


 

Audit No: 2022M-77, Release Date: 09/09/2022

Jurisdiction: Nassau Board of Cooperative Educational Services (BOCES) - Network User Account Controls (School)

Summary: BOCES officials did not establish adequate controls over network user accounts. As a result, BOCES has an increased risk of unauthorized access to and use of the BOCES network and potential loss of important data. In addition to sensitive information technology (IT) control weaknesses that were confidentially communicated to officials.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/boces/2022/09/09/nassau-board-cooperative-educational-services-network-user-accounts-2022m-77


 

Audit No: 2021M-93, Release Date: 09/02/2022

Jurisdiction: Copiague Fire District - Mechanic Shop Operations (Fire)

Summary: The Board and District officials did not adequately monitor the Shop's financial condition or safeguard District assets, resulting in a 36-month operational deficit totaling $676,389. As a result, District taxpayers are paying for the majority of the costs for providing services that do not benefit them.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/fire-district/2022/09/02/copiague-fire-district-mechanic-shop-operations-2022m-93


 

Audit No: 2022M-68, Release Date: 09/02/2022

Jurisdiction: East Bloomfield Central School District - Network and Financial Software Access Controls (School)

Summary: District officials did not ensure that network and financial software access controls were adequate to protect District IT systems and data from unauthorized access or loss. Sensitive network and financial software access control weaknesses were communicated confidentially to officials.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/02/east-bloomfield-central-school-district-network-and-financial-software


 

Audit No: 2022M-25, Release Date: 09/02/2022

Jurisdiction: Town of Hempstead - Vehicles and Fuel Usage (Town)

Summary: Town officials did not adequately monitor Town vehicles and fuel usage. As a result, Town officials did not know if Town vehicles and fuel were only used for Town business.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/town/2022/09/02/town-hempstead-vehicles-and-fuel-usage-2022m-25


 

Audit No: 2022M-82, Release Date: 09/02/2022

Jurisdiction: Town of Saratoga - Budgeting and Fund Balance Management (Town)

Summary: The Board did not adopt realistic budgets or effectively manage fund balance.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/town/2022/09/02/town-saratoga-budgeting-and-fund-balance-management-2022m-82


 

Audit No: 2022M-67, Release Date: 09/02/2022

Jurisdiction: Union Springs Central School District - Safeguarding of Personal, Private and Sensitive Information on Mobile Computing Devices (School)

Summary: District officials did not adequately safeguard MCDs to help prevent unauthorized access to PPSI. In addition to sensitive information technology (IT) control weaknesses that were communicated confidentially to officials.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/02/union-springs-central-school-district-safeguarding-personal-private-and


 

Audit No: 2022M-75, Release Date: 09/02/2022

Jurisdiction: Worcester Central School District - Fund Balance Management (School)

Summary: The Board and District officials did not effectively manage the District's fund balance.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/02/worcester-central-school-district-fund-balance-management-2022m-75

 

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