May 31, 2024

OATH Administrative Law Judge sustained disciplinary charges alleging that an employee used profane language in an email she sent to her supervisor

New York City Office of Administrative Trials and Hearings Administrative Law Judge Jonathan Fogel recommended a five-day suspension for a project manager who used improper language in an email she sent to her supervisors.

The agency had brought numerous disciplinary charges against the manager, including using profane language in an email, falsifying timesheets and field reports, failing to accurately record her time, disobeying lawful orders, misusing her city position, and recklessly endangering co-workers. The ALJ sustained the charge for using profane language in an email to her supervisors but found that the agency failed to provide sufficient evidence to support the remaining charges.

For the falsifying timesheets allegation, the agency relied on a badge access report listing each time the manager used her employee identification to enter the office, which suggested that the manager was not at the office when she reported to work on 73 dates. 

The ALJ found that the manager provided three credible explanations for the lack of employee identification swipes that were consistent with the badge access report: a co-worker opened the door for her, she worked remotely for a period of time, and she conducted field inspections in the morning before reporting to the office later in the day.

Noting that the employer did not charge the manager with failing to report to the office, the ALJ held that there was insufficient evidence to establish that the manager falsified her timesheets.

Because the employer did not prove most of the charges all of the charges filed against the manager, the ALJ recommended a five-day suspension in lieu of the agency’s requested penalty of termination. 

Click Dep’t of Environmental Protection v. Layman to access Judge Fogel's findings and recommendation.

May 30, 2024

New York State Comptroller releases municipal audits

On May 29, 2024 New York State Comptroller Thomas P. DiNapoli announced the following local government audits were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

Eaton No. 1 Fire District – Board Oversight (Madison County)  District officials did not adequately monitor financial activities or keep appropriate records and reports. The board did not ensure basic accounting records were maintained or that it received written financial reports to manage operations or ensure bank reconciliations were performed. In addition, the board did not ensure that the district’s required annual financial reports were filed in a timely manner or conduct an annual audit of the secretary-treasurer’s accounting records for 2020 through 2022. The board also did not properly audit claims prior to payment. Of the 108 claims totaling $209,006 that auditors reviewed, 55 claims totaling $116,864 (56%) had one or more exceptions.

Neptune Hose Company No. 1 of Dryden, Inc. – Disbursements (Tompkins County)  Company disbursements were not always supported or authorized prior to payment. Auditors reviewed 171 disbursements totaling $381,186 and determined that 34, totaling $30,126, were not processed in accordance with the company’s accounting manual. These disbursements had one or more issues, such as improperly authorized purchase orders or were unsupported. Twenty-three disbursements totaling $24,875 were improperly authorized, ten disbursements totaling $18,974 were approved after payment was made, six disbursements totaling $4,530 lacked a payment authorization date and seven disbursements totaling $1,371 were not adequately supported. In addition, sixteen disbursements totaling $6,564 lacked adequate support such as itemized receipts or invoices. Lastly, five company members received unsupported mileage reimbursements totaling $2,573. Because disbursements were not always authorized or supported, officials approved payments without having sufficient documentation.

City of Amsterdam – Budget Review (Montgomery County)   Based on the results of the review, the significant revenue and expenditure projections in the city’s 2024-25 proposed budget are reasonable. However, there were certain revenue and expenditure projections and other matters that should be reviewed by the mayor and council. In addition, city officials did not implement all of the recommendations in a previous review letter when preparing the 2024-25 proposed budget. The mayor submitted the 2024-25 proposed budget to the council on April 22, 2024, or 21 days after the charter-established deadline. The proposed budgets for the general and recreation funds are not structurally balanced because both budgets include subsidies from other funds to finance their operations. City officials should also continue to evaluate and explore ways to make the recreation fund self-sufficient.


Selected links to items focusing on using Artificial Intelligence [AI] in governmental operations recently posted on the Internet

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Can AI make airplane food better? READ MORE

Colorado Lawmakers Send Bills on AI, Deepfakes to Governor State legislators have agreed on what should be done about protecting residents from artificial intelligence, and against the use of deepfakes in elections. Proposed laws taking action on each have gone to Gov. Jared Polis for his signature. READ MORE

Ethics, Workers’ Rights Central to Fed’s Employer AI Guidelines
The U.S. Department of Labor has released guidance for employers and developers amid the rapid advancement of artificial intelligence. Several focus on protecting and empowering staff. READ MORE

Pilot Will Use AI to Understand Traffic, Safety in Las Vegas The Regional Transportation Commission is working with governments and local police on a test of Advanced Intersection Analytics. It will use AI, predictive analytics, historical data, cameras and sensors to learn about high-risk intersections. READ MORE


RapidSOS Doubles Down on AI and Emergency Data Integration Two new tools from the public safety tech provider, fresh off an Innovation Day, offer AI assistance during emergencies and wider, unified views of data vital to first responders. The move reflects wider gov tech trends. READ MORE


San Jose AI Initiative Boosts Accessibility, but by How Much? The city of San Jose has adopted an AI-powered translation tool to improve accessibility at City Council meetings for people who primarily speak a language other than English. It may see wider use, depending upon its performance thus far. READ MORE

May 29, 2024

New York City's Police Commissioner is afforded "great leeway" in disciplinary matters

The New York City Police Commissioner rejected Plaintiff's negotiated disciplinary penalty of the loss of 30 vacation days and a one-year dismissal probation and set the matter for a disciplinary trial, at which the Police Department intended to "seek [Plaintiff's] dismissal." Plaintiff declined to withdraw his plea and instead proceeded to "a mitigation hearing." Following such hearing an Assistant Deputy Commissioner recommended the Plaintiff's termination from his position, which recommendation the Commissioner adopted.

Supreme Court denied Plaintiff's petition seeking to annul the Commissioner's determination which terminated Plaintiff's employment. Plaintiff appealed the Supreme Court's determination.

Finding that New York City's Police Commissioner is afforded "great leeway" in disciplinary matters, the Appellate Division:

1. Unanimously vacated the Supreme Court's judgment sustaining dismissal of the Plaintiff;

2. Treated the Plaintiff's petition as one which transferred the matter to the Appellate Division for de novo review pursuant to CPLR 7804(g); and

3. Upon such review, the Appellate Division unanimously confirmed the Commissioner's determination, denied the Plaintiff's petition, and dismissed the proceeding brought by the Plaintiff pursuant to CPLR Article 78.  

The Appellate Division's decision in this matter is set out below.

Matter of Bonifacio v Sewell

2024 NY Slip Op 02886

Decided on May 28, 2024

Appellate Division, First 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 and Entered: May 28, 2024
Before: Singh, J.P., Kennedy, Rodriguez, Pitt-Burke, Michael, JJ.

Index No. 152332/22 Appeal No. 2379 Case No. 2022-05305

[*1]In the Matter of Yonathan Bonifacio, Petitioner-Appellant,


Keechant Sewell et al., Respondents-Respondents.

Worth, London & Martinez, LLP, New York (Stuart Gold of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Antonella Karlin of counsel), for respondents.

Judgment (denominated an order), Supreme Court, New York County (Laurence L. Love, J.), entered October 28, 2022, denying the petition to annul the determination of respondent City of New York Police Department (NYPD), dated December 16, 2021, which terminated petitioner's employment, unanimously vacated, the petition treated as one transferred to this Court for de novo review pursuant to CPLR 7804(g), and, upon such review, the determination unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed, without costs.

Because the petition raises an issue of substantial evidence, we treat it as though it had been properly transferred to this Court in accordance with CPLR 7804(g) (see Matter of 16 Cypress Ave Realty LLC v New York City Loft Bd., 215 AD3d 418, 419 [1st Dept 2023]).

Petitioner, who was a probationary NYPD sergeant before he was demoted to officer in connection with this case, pleaded guilty to disciplinary charges and specifications alleging that, in August 2020, he "engaged in conduct prejudicial to the good order, efficiency, or discipline of [the NYPD] by displaying offensive racial material" when he disseminated two memes, without commentary, in a private group chat to his nine subordinates. The first meme used racist language and imagery to mock the May 2020 killing of George Floyd by a police officer, and the second meme stated, among other things, "F—- 'Black Lives Matter'" and "F—- Looting Hoodrats." The Police Commissioner rejected petitioner's negotiated penalty of 30 vacation days and a one-year dismissal probation and set the matter for a disciplinary trial, at which the NYPD intended to "seek[] [petitioner's] dismissal." Petitioner declined to withdraw his plea and instead proceeded to a mitigation hearing. After the hearing, an Assistant Deputy Commissioner (ADC) recommended a penalty of dismissal, which the Commissioner adopted.

Despite petitioner's contention otherwise, he was not disciplined for uncharged misconduct. The charge of disparaging remarks carries a presumptive aggravated penalty of termination, while the charge of displaying offensive material carries a presumptive aggravated penalty of 30 vacation days. The ADC expressly found that petitioner had violated NYPD policy prohibiting the display of offensive racial material, as charged in the charges and specifications. However, the ADC further found that, given the circumstances of petitioner's conceded violation, his conduct was indistinguishable from the type of conduct punishable as a disparaging remarks offense, and therefore determined that the penalties associated with disparaging remarks more appropriately addressed petitioner's conduct.

That the penalty range for disparaging remarks informed the ADC's decision to depart from the presumptive penalties for display of offensive material, a departure that was permissible under the NYPD's disciplinary system penalty guidelines, does not amount to disciplining [*2]petitioner for uncharged misconduct in violation of his due process rights (see Mayo v Personnel Review Bd. of Health & Hosps. Corp., 65 AD3d 470, 472 [1st Dept 2009]). On the contrary, the charges notified petitioner in detail of the conduct charged (see Wolfe v Kelly, 79 AD3d 406, 407, 410 [1st Dept 2010], appeal dismissed 17 NY3d 844 [2011]). In addition, petitioner was on notice that he faced potential dismissal, as the charges and specifications alleged that he "engaged in conduct prejudicial to the good order, efficiency, or discipline of [the NYPD]," which carries an aggravated penalty of termination under the Guidelines. The Commissioner's rejection of the negotiated penalty also specifically notified petitioner that the NYPD would seek dismissal.

Furthermore, respondents' determination is supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). Petitioner's guilty plea, his testimony admitting that he sent the two memes and that he believed them to be offensive, and the facially offensive posts "established such relevant proof as a reasonable mind may accept as adequate to support the determination that petitioner[] [was] guilty of the offenses charged" (Matter of Abbate v Bratton, 232 AD2d 233, 234 [1st Dept 1996]). Petitioner's failure to include any comment on the messages, either contemporaneously or afterward, undermines his argument that he did not intend the memes to be offensive, but to communicate that he disapproved of them.

The penalty of dismissal is not "so disproportionate to the offense as to be shocking to one's sense of fairness" (Matter of Kelly v Safir, 96 NY2d 32, 38 [2001] [internal quotation marks omitted]). Although the penalty exceeded the aggravated presumptive penalty for display of offensive material, it did not exceed the aggravated penalty for conduct prejudicial to the good order and efficiency of the department. In any event, the Commissioner has the discretion to depart from the Guidelines and is afforded "great leeway" in disciplinary matters ( 38 [internal quotation marks omitted]; see also Administrative Code of City of NY § 14-115).



ENTERED: May 28, 2024

May 28, 2024

Court granted school district's motion for summary judgment dismissing the petitioner's complaint based on the school district argument that it could not be held liable as the school district did not owe a special duty of care to the petitioner

Villa-Lefler v Department of Educ. of the City of N.Y.

2024 NY Slip Op 02343

Decided on May 1, 2024

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 May 1, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

(Index No. 1307/11)

[*1]Dianna Villa-Lefler, respondent,


Department of Education of the City of
New York, et al., appellants.

Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Elina Druker and Antonella Karlin of counsel), for appellants.

The Berkman Law Office, LLC, Brooklyn, NY (Kenneth A. Leitner of counsel), for respondent (no brief filed).



In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Katherine Levine, J.), dated February 23, 2022. The order denied the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The plaintiff, an administrative dean at a high school located in Brooklyn, commenced this action against the defendants to recover damages for personal injuries she allegedly sustained in October 2009 when she was attacked by a student in a hallway at the school. The plaintiff alleged, inter alia, that the defendants were negligent in failing to provide adequate security. The defendants moved for summary judgment dismissing the complaint, contending that they could not be held liable as they did not owe a special duty of care to the plaintiff. The plaintiff opposed the motion. In an order dated February 23, 2022, the Supreme Court denied the defendants' motion. The defendants appeal.

"Absent the existence of a special relationship between the defendants and the . . . plaintiff, liability may not be imposed on the defendants for a breach of a duty owed generally to persons in the school system and members of the public" (Morgan-Word v New York City Dept. of Educ., 161 AD3d 1065, 1067; see Vitale v City of New York, 60 NY2d 861, 863). To succeed on a cause of action sounding in negligence, the plaintiff must establish that the defendants owed her a special duty of care (see Ferreira v City of Binghamton, 38 NY3d 298, 317; Wilson v New York City Bd. of Educ., 167 AD3d 820, 820; Destefano v City of New York, 149 AD3d 696, 697).

A plaintiff may demonstrate that a special relationship exists by showing, among other things, that the municipality "voluntarily assume[d] a duty that generate[d] justifiable reliance by the person who benefits from the duty," or that "the municipality assume[d] positive direction and control in the face of a known, blatant and dangerous safety violation" (Wilson v New York City Bd. of Educ., 167 AD3d at 820 [internal quotation marks omitted]; see Thomas v New York City Dept. of Educ., 124 AD3d 762, 763). A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following: "'(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form [*2]of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking'" (Boland v City of New York, 209 AD3d 960, 961, quoting Watts v City of New York, 186 AD3d 1577, 1578; see Koyko v City of New York, 189 AD3d 811, 812; Wilson v New York City Bd. of Educ., 167 AD3d at 820-821).

Here, the defendants established, prima facie, that they did not owe a special duty of care to the plaintiff (see Koyko v City of New York, 189 AD3d at 812; Morgan-Word v New York City Dept. of Educ., 161 AD3d at 1068; Destefano v City of New York, 149 AD3d at 698). The defendants' submissions demonstrated that they did not voluntarily assume a duty toward the plaintiff. The defendants did not make any promises to the plaintiff or take any actions regarding security protocols in the school that amounted to an affirmative undertaking of protection by them on her behalf, nor could the plaintiff have justifiably relied on any such actions (see Vitale v City of New York, 60 NY2d at 863; Wilson v New York City Board of Education, 167 AD3d at 821; Morgan-Word v New York City Dept. of Educ., 161 AD3d at 1068). Notably, the plaintiff testified at her deposition that she had no reason to fear the student who allegedly assaulted her. The plaintiff also testified that, prior to the incident, the student had never made any threats toward her and she never asked the school to provide her with protection from the student. Moreover, the defendants did not take positive direction and control in the face of a known, blatant, and dangerous safety violation (see Sutton v City of New York, 119 AD3d 851, 852-853).

In opposition, the plaintiff failed to raise a triable issue of fact.

Since the defendants did not owe the plaintiff a special duty of care, we need not consider whether the governmental function immunity defense applies (see Brumer v City of New York, 132 AD3d 795, 797; Sutton v City of New York, 119 AD3d at 853).

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.



Darrell M. Joseph

Clerk of the Court

May 24, 2024

Holding that substantial evidence supported the New York City Teacher Retirement System's Medical Board's determination that Petitioner's injury "was not caused by an 'accident' within the meaning of the statutory scheme", the Court of Appeals noted that was declining to adopt a rule that "purposeful conduct by coworkers" can never be the basis for an award of Accidental Disability Retirement at this time


Matter of Rawlins v Teachers' Retirement Sys. of the City of N.Y.

2024 NY Slip Op 02840

Decided on May 23, 2024

Court of Appeals


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 May 23, 2024

No. 47

[*1]In the Matter of Michele Rawlins, Appellant,


Teachers' Retirement System of the City of
New York, et al., Respondents.

Chester Lukaszewski, for appellant.

Janet L. Zaleon, for respondents.


Petitioner Michele Rawlins, a member of the respondent Teachers' Retirement System of the City of New York (TRS) and former school principal, commenced this CPLR article 78 proceeding to annul the determination of the TRS Medical Board that she is entitled to ordinary disability retirement benefits (ODR) but not accidental disability retirement benefits (ADR). We hold that substantial evidence supports the Board's determination that petitioner's injury was not caused by an "accident" within the meaning of the statutory scheme. In reaching this conclusion, we decline to adopt a rule that "purposeful conduct by coworkers" can never be the basis for an award of ADR. When a member's disability is alleged to have resulted from the intentional acts of any third party, the relevant question continues to be whether the injury-causing event was sudden, unexpected, and outside the risks inherent in the work performed.

Petitioner was diagnosed with post-traumatic stress disorder (PTSD) and became unable to perform her job responsibilities following a series of incidents at her former school in which a disgruntled food-service worker left her feeling threatened and harassed. The last such incident occurred in April 2019, when the worker entered the school [*2]after having been transferred to another work location and demanded to speak with petitioner, insisting that she had his "belt and wallet." Petitioner, who overheard this encounter from a nearby room, believed the worker's remarks had "sexual overtones" and felt she was being stalked. She fled the school building and never returned to work following the incident.

The Board denied petitioner's initial application for ADR on the ground that she "did not sustain an accident in the work setting." It based this determination on petitioner's description of the events in question, which occurred over the course of at least three months in early 2019. Petitioner subsequently reapplied for ADR and the Board adhered to its prior determination that no qualifying accident occurred, this time adding that "[p]urposeful conduct by coworkers giving rise to a disabling injury is not an accident within the meaning of the pension statute."

Petitioner commenced this CPLR article 78 proceeding to annul the Board's determination. Supreme Court denied the petition and dismissed the proceeding, holding that the Board's determination had a rational basis and noting that "New York Courts have held that intentional harassment or assault by a coworker does not constitute a service-related accident." The Appellate Division affirmed, reasoning that the Board "rationally found that petitioner's injuries resulted not from an accident in the work setting but from '[p]urposeful conduct' by a former coworker, which 'is not an accident within the meaning of the pension statute' " (205 AD3d 629, 630 [1st Dept 2022]). We granted leave to appeal (39 NY3d 914 [2023]) and now affirm.


To qualify for ADR, a TRS member must show that their disability resulted from an "accident" sustained in the performance of their duties (see Retirement and Social Security Law § 605 [f]; Administrative Code of the City of NY § 13-551). Because the term "accident" is not defined by any applicable statute or regulation, this Court has "adopt[ed] the commonsense definition of a 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact' " (Lichtenstein v Bd. of Trustees, 57 NY2d 1010, 1012 [1982], quoting Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 AD2d 97, 100 [1st Dept 1958], affd 7 NY2d 222 [1959]). Stated differently, an accident is "a sudden, unexpected event that was not a risk inherent in the work performed" (Matter of Kowal v DiNapoli, 30 NY3d 1124, 1125 [2018]; Matter of Kelly v DiNapoli, 30 NY3d 674, 678, 682, 684-685 [2018]). The Medical Board determines in the first instance whether a TRS member suffers from a disability resulting from a service-related accident (see Retirement and Social Security Law § 605 [f]; Administrative Code of the City of NY §§ 13-519, 13-550 [a], 13-551). On article 78 review, the Board's determination to deny ADR generally will not be disturbed if it is based on substantial evidence; that is, if it is rationally supported by the record viewed as a whole (see Kelly, 30 NY3d at 684; Borenstein v NY City Emples. Retirement Sys., 88 NY2d 756, 760-761 [1996]).

Initially, we disagree with the Appellate Division that the Board's determination can be upheld simply because the accident alleged in this case was caused by the purposeful acts of a coworker (see 205 AD3d at 630). We have so far left open the possibility that injuries caused by the intentional acts of a third party might in some cases satisfy the requirements for ADR, and continue to do so today (see Matter of Walsh v Scoppetta, 18 NY3d 850, 852 [2011]; see also McCambridge v McGuire, 62 NY2d 563, 567 [1984] [the focus of the inquiry is on "the precipitating cause of injury"]; Arthur A. Johnson Corp., 6 AD2d at 100 [observing that "an act, deliberate from the point of view of its initiator, may be considered an accident if seen through the eyes of its victim"]). Indeed, respondents do not urge us to hold that ADR is unavailable as a matter of law when an injury is caused by a coworker's purposeful acts; they instead posit that the Board is permitted to evaluate the underlying facts and circumstances in such a case and "find that the event was unpredictable, sudden, and fortuitous, and also clearly beyond the scope of the duties of the member's job." That measured approach parallels our analysis in Kowal, in which we sustained the denial of ADR to a court security officer who was injured when an assailant armed with 40 shotgun shells began to fire indiscriminately into a crowded courthouse lobby. Rather than rely on the assailant's obvious intent to kill or grievously injure, we reasoned that the officer "failed to establish that his injuries were caused by a sudden, unexpected event that was not a risk inherent in the work performed" (30 NY3d at 1125).

Here, similarly, the record supports the Board's determination that petitioner's injuries did not result from an event that was sudden, fortuitous, and unexpected (see id.Kelly, 30 NY3d at 678; Lichtenstein, 57 NY2d at 1012; see also Matter of Picciurro v Board of Trustees of the N.Y. City Police Pension Fund, 46 AD3d 346, 348-349 [1st Dept 2007]; Pisani v Kelly, 30 AD3d 297, 298 [1st Dept 2006]; Sinopoli v McCall, 245 AD2d 868, 869 [3d Dept 1997], lv denied 92 NY2d 803 [1998], rearg denied 92 NY2d 921 [1998]; Impellizeri v Teachers' Retirement Sys., 173 AD2d 389, 390 [1st Dept 1991], lv denied 78 NY2d 859 [1991]). Although petitioner claims that her PTSD was brought on by the April 2019 occurrence, that event was merely the latest of a series of incidents in which the food-service [*3]worker trespassed on school property and acted in a confrontational manner toward petitioner, causing her significant stress and anxiety. As early as February 2019, petitioner informed school officials that the employee was continuously disobeying instructions to keep away from the school and that she was "concerned about the students and the building staff that have to endure his confrontational behavior." Following another incident in March, petitioner wrote that she "d[id] not feel comfortable with [the employee] given his behavior in the school." The Board rejected petitioner's initial ADR application on the ground that "based on the description of the events in question that occurred in the work setting on April 18, 2019, as well as the previous events in the work setting in February and March of 2019, [petitioner] has failed to demonstrate that an accident occurred in the work setting." Because that reasoning is supported by the evidentiary record, the Board's determination to deny ADR will not be disturbed on this appeal.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Order affirmed, with costs. Opinion by Judge Cannataro. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Troutman and Halligan concur.

Decided May 23, 2024


May 23, 2024

Former medical office manager pleads guilty to defrauding New York State Health Insurance Plan

On May 20, 2024, New York State Comptroller Thomas P. DiNapoli and Ulster County District Attorney Emmanuel C. Nneji announced that Gina Bradshaw, an office manager for numerous doctors’ offices in Manhattan, has pleaded guilty to defrauding the New York State Insurance Plan (NYSHIP) out of more than $12,000 by submitting phony medical claims for reimbursement. She was arrested in September 2023 following a joint investigation by Comptroller DiNapoli, the Ulster County District Attorney ’s office, the Federal Bureau of Investigations (FBI) – Hudson Valley White Collar Crime Task Force, and the New York State Police.

“Ms. Bradshaw thought she could game New York State’s employee benefit system by submitting fake claims for reimbursement for personal gain,” said State Comptroller DiNapoli. “Thanks to my partnerships with District Attorney Nneji, the FBI, and the State Police, her scheme was exposed and she has been held accountable.”

Ulster County District Attorney Emmanuel C. Nneji said, “The collaboration among the various agencies that are part of the Hudson Valley White Collar Crime Task Force, as well as between our Office and the New York State Office of the Comptroller, is essential to the detection and prosecution of fraud against New York and Ulster County taxpayers. I thank all the investigators from across the state whose dedicated service led to accountability for the defendant in this case.”

New York State Police Superintendent Steven G. James said, “This guilty plea is a direct result of the cooperative and interactive efforts of the many agencies involved in this investigation. Ms. Bradshaw knowingly took advantage of the health insurance system to profit at her own expense. Financial crimes of any kind will not be tolerated in New York State. I thank the Comptroller’s Office, Ulster County District Attorney’s Office, FBI and Hudson Valley White Collar Crime Task Force for their partnership in exposing this fraud.”

Gina Bradshaw, 50, of Maybrook, N.Y., worked as an office manager for multiple doctors in Manhattan. Through her husband’s employment with New York state, her family was enrolled in NYSHIP. When a NYSHIP member uses an out-of-network health care provider they can have a portion of the medical costs they paid to a provider reimbursed by a check from NYSHIP sent directly to them. In order to obtain unwarranted payments, Bradshaw used her positions to submit false claims to NYSHIP, purporting that services were provided to her by two medical offices where she worked although they never occurred. She received over $12,000  in reimbursement checks through her scheme.

The investigation into her activities began with a complaint from United Healthcare Special Investigations Unit, who assisted with the investigation.

Bradshaw pleaded guilty to Health Care Fraud in the third degree. 


Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.


New York State's Court of Appeals clarifies the operation of the rebuttable presumption set forth in the State's Workers' Compensation Law §21(1), which provides that when an injury arises in the course of a worker's employment it is presumed to arise out of that worker's employment


Matter of Timperio v Bronx-Lebanon Hosp.

2024 NY Slip Op 02723

Decided on May 16, 2024

Court of Appeals


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 May 16, 2024

No. 46

[*1]Justin Timperio, Respondent,


Bronx-Lebanon Hospital et al., Appellants. Workers' Compensation Board, Appellant.

Sarah L. Rosenbluth, for appellant New York State Workers Compensation Board.

Caryn L. Lilling, for appellants Bronx-Lebanon Hospital et al.

Arnold N. Kriss, for respondent Justin Timperio.


In this appeal, we clarify the operation of the rebuttable presumption set forth in Workers' Compensation Law § 21 (1), which provides that when an injury arises in the course of a worker's employment, it is presumed to arise out of that worker's employment and therefore is compensable, absent substantial evidence to the contrary. In cases involving assaults that occur at work, a lack of evidence as to the motivation for the assault does not rebut that presumption. Thus, the presumption applied and was unrebutted here, and the Appellate Division's contrary conclusion was error.


On June 30, 2017, Henry Bello, a former employee of Bronx-Lebanon Hospital (BLH), entered the hospital wearing a doctor's white medical coat, under which he hid a loaded AR-15 rifle, ammunition magazines, and a juice container filled with gasoline. He proceeded to the 16th floor of the hospital, a non-public area, where petitioner Justin Timperio was working as a first-year resident. Bello opened fire, killing one doctor and wounding five members of the medical staff—including Timperio—before killing himself. Bello and Timperio were strangers prior to the shooting; they never worked at BLH at the same time and had no other prior contact.

BLH notified the Workers' Compensation Board (WCB) of Timperio's injuries in July 2017. The hospital subsequently requested an administrative decision from the WCB to establish a claim under the Workers' Compensation Law (WCL) and enter awards. While the matter was proceeding before a Workers' Compensation Law Judge (WCLJ), Timperio filed a negligence action in federal court against BLH and the store that sold Bello the rifle he used in the shooting. After that court rejected BLH's attempt to have the case dismissed, holding that Timperio's injuries were not compensable because "there [was] no evidence suggesting that the shooting originated in work-related differences" (see Timperio v Bronx-Lebanon Hosp. Ctr., 384 F Supp 3d 425, 431-433 [SD NY 2019]), it stayed the action pending resolution of this workers' compensation claim (Timperio v Bronx-Lebanon Hosp. Ctr., 2020 WL 8996683, *1 [SD NY, Mar. 9, 2020, No. 18 Civ. 1804 (PGG)]). In September 2020, a WCLJ determined that Timperio's injuries were compensable under the WCL [FN1]. Timperio appealed to the WCB, which affirmed the decision.

The Appellate Division reversed (203 AD3d 179, 184-185 [3d Dept 2022]). The court applied the correct standard that, to be compensable under the WCL, an injury must have arisen "out of and in the course of a [worker's] employment" and that under WCL § 21 (1), an injury that arose in the course of employment is presumed to have arisen out of employment as well (id. at 184, citing WCL § 10 [1] and Matter of Rosen v First Manhattan Bank, 84 NY2d 856, 857 [1994]). The court also acknowledged our holding that "[a]n award of compensation may be sustained even though the result of an assault, so long as there is any nexus, however slender, between the motivation for the assault and the employment" (id. at 185, quoting Matter of Seymour v Rivera Appliances Corp., 28 NY2d 406, 409 [1971]). The court, however, deemed "such nexus . . . lacking." It held that the lack of record evidence establishing any employment-related animus "was sufficient to rebut the presumption" in WCL § 21 (1) and concluded that the claim was therefore not compensable (id.). We granted leave to appeal (39 NY3d 910 [2023])[FN2]. Because the Appellate Division erred in its application of WCL § 21(1)'s presumption, we now reverse.


Determinations by the WCB must be upheld where they are supported by substantial evidence in the record (see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186, 192-193 [2012]). Workers' Compensation Law § 21 (1) provides that "[i]n any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provision of this chapter."

We have previously addressed the operation of this presumption in several cases involving workplace assaults. Less than a decade after enactment of WCL § 21 (1), we considered the case of a "dairyman's chauffeur" who, while driving his employer's car and delivering cheese, was randomly stabbed by an "insane man" who "stabbed any one near him" (Katz v Kadans & Co., 232 NY 420, 421 [1922]). We concluded that because the chauffeur was "sent into the street on his [employer]'s business" and then injured from "exposure to the risks of the street," the injury "necessarily [arose] out of his employment" and therefore was compensable (id.). Decades later, we affirmed a compensation award to an employee assaulted by a man "he had never previously seen," because under the WCL § 21 (1) presumption, "[w]hen an injury is sustained in the course of employment it will be presumed, as a matter of law, that it did arise out [*2]of the employment" (Slade v Perkins, 42 AD2d 667, 668 [1973], affd 33 NY2d 988 [1974]). More recently, we reiterated the same principle in Matter of Rosen v First Manhattan Bank (84 NY2d 856, 857 [1994]).

As stated in WCL § 21 (1) and recognized by this Court, the presumption is rebuttable by "substantial evidence" establishing that it was not the workplace itself that exposed the employee to harm. But where the assault occurs in the course of employment and there is no evidence as to its motivation, the presumption is triggered and is not rebutted (see McKinney's Cons Laws of NY, Book 64, Workmen's Compensation Law § 21 at 143 [1922 ed] [explaining the presumption of WCL § 21 (1) is "sufficient in a close or evenly balanced case to turn the scale in favor of the employee. And where there is no substantial evidence to overcome the presumption an award will be made"]). Once it has been established that an employee was assaulted "in the course of" employment, the presumption—unless rebutted—obviates the need for an affirmative showing that the assault arose "out of" the employment.

The Appellate Division essentially inverted Seymour's "nexus" standard by requiring the Board to come forward with evidence of a nexus to employment. Instead, as we made clear in RosenSeymour stands for the principle that "an assault which arose in the course of employment is presumed to have arisen out of the employment, absent substantial evidence that the assault was motivated by purely personal animosity" (Matter of Rosen v First Manhattan Bank, 84 NY2d 856, 857 [1994], citing Seymour, 28 NY2d at 409; see also Seymour, 28 NY2d at 409 [presumption cannot be rebutted by the inference of personal animosity "in the absence of substantial evidence to support it"]). To the extent the Appellate Division has read Matter of Seymour to require an additional affirmative showing of a "nexus" with employment when there is a workplace assault, such a showing is not required.

This reading accords with the text of WCL § 21 (1) and the purpose of the WCL, which is to " 'protect[ ] work[ers] and their dependents from want in case of injury' on the job" (Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129, 134 [1994], quoting Post v Burger & Gohlke, 216 NY 544, 553 [1916]). To that end, the WCL establishes a "broad scheme of compensation" intended to ensure a "swift and sure source of benefits to injured employees" (Crosby v State of N.Y., Workers' Comp. Bd., 57 NY2d 305, 313 [1982]), including in circumstances where an employee might not be able to obtain relief through a common law tort action.

Here, it is undisputed that the assault occurred in the course of Mr. Timperio's employment, thereby triggering the WCL § 21 (1) presumption. It is also undisputed that the record includes no evidence of the motivation for the assault or any indication of a prior relationship between the assailant and the claimant; Bello and Timperio never worked together, did not know each other, and had no prior communication. The Appellate Division therefore erroneously disturbed the WCB's determination that the claim is compensable.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the decision of the Workers' Compensation Board reinstated.

Order reversed, with costs, and decision of the Workers' Compensation Board reinstated. Opinion by Judge Halligan. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Troutman concur.

Decided May 16, 2024


Footnote 1: A different WCLJ had found Timperio's injuries compensable in an initial proceeding that neither Timperio nor his counsel attended. That decision was vacated due to Timperio's absence, and the September 2020 proceeding followed.

Footnote 2: Where, as here, an employer or its carrier has filed a Workers' Compensation Law claim on behalf of an employee, requested an administrative determination on the claim, and opposed claimant's arguments that no workers' compensation award should be made, the employer and its carrier are aggrieved by an Appellate Division order reversing an award in claimant's favor and dismissing the claim. To the extent Matter of Parks v Weaver (14 NY2d 546 [1964]) provides to the contrary, it should not be followed.

New York State's Annual Industrial Development Agencies report released by State Comptroller Thomas P. DiNapoli

New York's local Industrial Development Agencies (IDAs) reported 4,320 active projects with a record high total value of $132 billion in 2022, an increase of $5 billion (3.9%), from 2021, according to State Comptroller Thomas P. DiNapoli’s annual report.

“IDAs were created to help grow local economies, businesses and job markets,” DiNapoli said. “The tax breaks they provide businesses can impact local tax collections, however, and New Yorkers should be mindful about weighing the benefits these projects bring to their communities against their cost. My office reports the numbers on local IDAs to help increase their transparency and make them more accountable to taxpayers.”

While the number of active projects has remained relatively stable since 2012, reported project values have risen steadily. County IDAs were responsible for 61.8% of all active IDA projects in 2022, followed by towns (17.7%), cities (12.7%), New York City (7.2%), villages (0.5%) and city-town IDAs (0.2%).

DiNapoli’s report summarizes the most recent annual data, which is self-reported by IDAs through the Public Authorities Reporting Information System. The data is not independently verified by the State Comptroller’s Office. While most IDAs operate on a calendar-year basis, several, including the New York City IDA, do not.

DiNapoli found IDAs reported the following:

  • The 4,320 active IDA projects would create an estimated 213,887 jobs during their lifespan, with a median salary of $42,000. Another 224,234 existing jobs would be retained, with a median salary of $45,430. In addition, the projects are estimated to create 36,607 temporary construction jobs.
  • The number of net jobs gained (reflecting current jobs reported by projects minus initial jobs reported) was 204,147 as of 2022, an increase of 15.2% from 2021.
  • Total tax exemptions for IDA projects in 2022 amounted to nearly $2 billion, up $63 million, or 3.3%, over 2021. Property tax exemptions represented $1.7 billion, or 87.5% of total tax exemptions.
  • Almost $854 million was collected through payment in lieu of taxes (PILOT) agreements in 2022. Net tax exemptions (total tax exemptions minus PILOTs) totaled approximately $1.1 billion, an increase of 4.3% from 2021 and nearly double the $555 million in 2012.
  • On a regional basis, net tax exemptions were much higher downstate, with IDAs in New York City, Long Island and Mid-Hudson regions together reflecting 57.6% of the total. Per capita, the New York City IDA provided the lowest net tax exemptions ($26.58 per person) in 2022. The Capital District had the highest ($99.44 per person).
  • IDAs’ total revenues of $123 million in 2022 were down $9.3 million from 2021. Charges for services accounted for 53.8% of the reported revenues.
  • Total IDA expenses in 2022 were $76 million, down $3.5 million from 2021 (4.4%). The New York City IDA reported the highest expenses ($5.97 million), followed by Genesee County ($4.07 million) and Erie County ($3.86 million). Regionally, IDAs in the Finger Lakes region collectively reported the highest expenses ($12.5 million) while those in the Mohawk Valley had the lowest ($3 million).
  • IDAs reported 336 new projects with approval dates in 2021 or 2022, led regionally by the Finger Lakes (66 new projects), Western New York (50 new projects), and Mid-Hudson (47 new projects).
  • The largest new IDA project in 2022 by project value ($1.4 billion) was Westchester County IDA’s Regeneron Phase II (aka LOOP Road) project. The project is scheduled to end in 2037 and is projected to create 700 permanent jobs.
  • The number of clean energy projects increased 52.9% between 2021 and 2022, from 85 projects to 130 projects. Projects classified as clean energy saw the greatest percentage change in net tax exemptions per project, an increase of 57.7%.

DiNapoli’s office examines IDA costs and outcomes in several ways, including performing audits of the operations of individual IDAs, providing training to IDA officials on various topics, and encouraging improvements in IDA procedures and reporting.

Annual Report
Performance of Industrial Development Agencies in New York State

IDA Data by Region
Office of the New York State Comptroller - 2022 IDA Data by Region

For additional information contact Rebecca Dangoor, 212-383-1388.


Regulation permitting employees appointed under the ‘‘HELP’’ Program to take promotion examinations adopted

NOTICE OF ADOPTION Promotion Examinations I.D. No. CVS-07-24-00002-A Filing No. 395 Filing Date: 2024-05-06 Effective Date: 2024-05-22.

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action: 

Action taken: Amendment of section 4.2(f) of Title 4 NYCRR. Statutory authority: Civil Service Law, section 6(1) Subject: Promotion examinations. Purpose: To permit employees appointed under the ‘‘HELP’’ Program to take promotion examinations.

Text or summary was published in the February 14, 2024 issue of the Register, I.D. No. CVS-07-24-00002-P.

Final rule as compared with last published rule: No changes.

Text of rule and any required statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email:

Assessment of Public Comment: The agency received no public comment.



Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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