New York State Comptroller announces the New York State Employees' Pension Fund has reached climate agreements with five portfolio companies

On August 27, 2024 New York State Comptroller Thomas P. DiNapoli announced the NY State Pension Fund committed an additional $2 billion to Climate Change Index strategy.

Click on the text in color to access the text of reports posted on the Internet.

Comptroller DiNapoli, releasing the fourth annual Climate Action Plan Progress Report, reported the New York State Common Retirement Fund (Fund) "reached climate-related agreements with five portfolio companies during the 2024 proxy season and added $2 billion to the MSCI World ex-USA Climate Change Index strategy".

“As trustee of the Fund, one of my top priorities is safeguarding the investments made for the benefit of the more than one million participants in the New York State retirement system,” DiNapoli said. “To foster long-term financial success, it is essential to address the climate-oriented investment challenges faced by the Fund’s portfolio. Climate change is an increasingly urgent risk facing all investors.”

The Fund reached agreements with Southwest Airlines Inc. and steel-maker Cleveland-Cliffs Inc. to set greenhouse gas emissions (GHG) reduction targets and publicly disclose climate transition action plans. The utility WEC Energy Group Inc. agreed to publicly disclose a feasibility study on integrating climate metrics into its executive compensation plan. McDonald’s Corp. agreed to assess supply chain water-related business risks and/or set water quality and quantity targets, while Realty Income Corp., a real estate investment trust, agreed to adopt and publish a low-carbon transition plan.

DiNapoli also made an additional investment of $2 billion to a fund tracking the MSCI World ex-USA Climate Change Index, which is designed to address climate-related risks by increasing the weighting of companies that engage in climate solutions and decreasing the weighting of companies that face greater climate transition risks. The index aims to reduce its overall Scope 1, 2, and 3 greenhouse gas emissions intensity by a minimum of 30% relative to its benchmark. The investment follows an initial allocation of $1 billion made to this strategy in March 2023.

Proxy Votes:

In February, the Fund amended its proxy voting guidelines to include updates on the Fund’s expectations for portfolio companies’ climate performance including climate transition plans, and comprehensive disclosure of such plans, climate risks, risk management, governance, targets, metrics, and opportunities. It also provided more clarity regarding physical risk, deforestation, and the potential impacts of biodiversity loss.

During the 2024 proxy season, the Fund withheld support from or voted against 1,900 individual directors at over 600 portfolio companies that lacked robust climate risk management, including ConocoPhillips Co., Lockheed Martin Corp., and Exxon Mobil Corp. The fund also supported the following shareholder proposals: Southern Co., seeking disclosure of short- medium- and long-term operational GHG targets; Chevron Corp., seeking disclosure of how reductions in virgin plastic demand may impact its financial position; and Amazon.com Inc., seeking disclosure of how it is addressing the impact of its climate change strategy on key stakeholders.

SICS Investments:

To date, the Fund has deployed over $22 billion, towards its goal of $40 billion, to specific investment opportunities across asset classes in its Sustainable Investments and Climate Solutions (SICS) program, the majority of which are investments in climate solutions. Investments include actively and passively managed public equity, climate-oriented index funds, green bonds, sustainable infrastructure funds, and real estate investments with energy efficient buildings.

Investments over the past year include:

·                                 Copenhagen Infrastructure V (€300 million), a Danish investment firm specializing in renewable energy infrastructure assets, including onshore and offshore wind, that contribute to a green energy transition.

·                                 Carlyle Renewable and Sustainable Energy Fund II ($200 million), a North American private equity fund that makes targeted investments in renewable energy sources, such as solar, wind, battery energy storage systems and energy transition, electric vehicles, distributed energy resources, and decarbonization technology solutions principally in Organization for Economic Cooperation and Development markets.

·                                 EQT Fund VI ($450 million), a Swedish infrastructure fund that makes private investments with a focus on decarbonization, resource efficiency, and pollution control.

·                                 Fundamental Empire Fund ($375 million), a North American fund that opportunistically makes investments in affordable and workforce housing, renewable energy, infrastructure, and municipal assets.

In 2019, DiNapoli released a Climate Action Plan, a multi-faceted strategy to invest in sustainable companies, pursue climate solution investments, and apply minimum standards to inform engagements and potential divestment decisions. Each year since, DiNapoli has issued a progress report on the plan.

The New York State Common Retirement Fund is one of the largest public pension funds in the United States. The Fund holds and invests the assets of the New York State and Local Retirement System on behalf of more than one million state and local government employees and retirees and their beneficiaries. It has consistently been ranked as one of the best managed and best funded plans in the nation.

Report:

Progress Report on the New York State Common Retirement Fund’s Climate Action Plan

 

Disciplinary decision posted on the Internet by the New York City Office of Administrative Trials and Hearings

OATH Administrative Law Judge Tiffany Hamilton recommended termination of the employment of a Correction Officer [CO] who struck a restrained person in custody. 

CO and another correction officer were escorting a rear-cuffed person in custody when that person in custody spat at CO’s face.CO responded by punching the person in custody three times in the face with a closed fist. 

The ALJ rejected CO's argument that the use of force was necessary to protect himself against imminent bodily harm, finding there was no evidence that the person in custody was about to attack CO  and CO's use of three facial strikes was retaliatory and punitive.

Noting the egregiousness of the misconduct, coupled with CO’s extensive disciplinary record that included two prior uses of force, Judge Hamilton  determined that continued employment would be a threat to the good order of the Department. 

Click HERE to access the Administrative Law Judge's decision and recommendation posted on the Internet.

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A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click the text in color below:

http://booklocker.com/books/7401.html

Advisory Memorandum recently issued by the New York State Department of Civil Service has been amended

The Department of Civil Service has published amended versions Memorandum 24-06, Paid Parental Leave for NYSCOPBA – Security Services Unit (SSU), PBANYS – Agency Police Services Unit (APSU) and Council 82 – Security Supervisors Unit (SSpU) Represented Employees, as amended.

The text of Advisory Memorandum 24-06-Amended is posted on the Internet at:

https://www.cs.ny.gov/ssd/Manuals/SPMM/2800AutoPositPersnl/AdvisoryMemo24-06-A.htm.

 

Memorandum 24-06-Amended, in PDF format is posted on the Internet at:

https://www.cs.ny.gov/ssd/pdf/AM24-06-A.pdf

N.B.: NYPPL's pre-amendment posting of Memorandum 24-06 has been deleted from this LawBlog.  

It is suggested that any downloaded copies of the earlier version of Memorandum 24-06 be discarded.

Plaintiff alleges public employer negligently retained a sworn officer in its employ as a police officer

This action resulted from an incident where an off-duty police officer [Officer] was at a social affair and the Plaintiff [Security Guard] in the action was employed as a security guard at that event. 

The record indicates that there was a dispute between the Security Guard and the Officer. Security Guard alleged that Officer drew a weapon and pointed it at the Security Guard's head, pulled the trigger of the weapon and although Security Guard heard the weapon "click", it did not fire. 

Officer was subsequently subdued, arrested and ultimately convicted of menacing in the Second Degree.

Security Guard initiated the instant action against Officer and Officer's employer [City], contending that, other things, City negligently retained Officer as a police officer, entrusting him with a firearm and the license to carry a firearm. City moved for summary judgment dismissing the complaint insofar as claims asserted against City. 

The Appellate Division's decision notes an earlier incident, the "2016 incident", where Officer [1] unlawfully discharged his service weapon into the air while off duty and intoxicated; and [2] was convicted of a misdemeanor [prohibited use of a weapon]. As a result of that incident, Officer lost his privileges to carry a weapon for approximately one year, was demoted, and was required to complete an alcohol treatment program.

With respect to the 2016 incident, which did not involve aggression or violence towards another person, the Employer contended the event "was insufficient to put the City on notice that [Officer] was disposed to engage in the type of violent behavior that occurred [in the course of the subject] incident."

In opposition to the motion, the Security Guard argued, among other things, that the 2016 incident provided the City with sufficient notice of Officer's violent tendencies and that the City was negligent in retaining Officer and restoring him to active duty with firearms.

Supreme Court granted that branch of the City's motion seeking summary judgment dismissing the cause of action alleging it negligently retained Officer as an employee insofar as asserted against it. Officer appealed Supreme Court's ruling.

The Appellate Division said "[U]nder the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his or her employment. A cause of action for negligent retention, however, requires proof that [1] the employer knew or should have known of the employee's harmful propensities; [2] that it failed to take necessary action; and [3] that this failure proximately caused the plaintiff's injuries."

Addressing the City's motion, the Appellate Division opined that City "established its prima facie entitlement to judgment as a matter of law" by demonstrating that it did not know or have reason to know of Officer's propensity to caused injury as the result of its knowledge of the 2016 incident.

In the course of the 2016 incident Officer discharged his firearm into the air while intoxicated. Such action, opined the Appellate Division, "was insufficient to put the City on notice of any propensity of [Officer] to act violently or aggressively in the manner that he did towards the Security Guard."

The Appellate Division then ruled that Supreme Court "properly granted that branch of the City's motion" seeking summary judgment dismissing the cause of action alleging negligent retention of Officer insofar as asserted against City.

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

New Attendance and Leave Bulletins promulgated by the New York State Department of Civil Service posted on the Internet

Policy Bulletin 2024-07, addressing Paid Parental Leave for Council 82 – Security Supervisors Unit (SSpU) Employees and Policy Bulletin 2024-08, addressing Attendance and Leave Items – 2023–2026 State-District Council 37 (DC-37) Negotiated Agreement have been posted on the Internet by the New York State Department of Civil Service.

The URL for accessing the text of Policy Bulletin 2024-07 is  https://www.cs.ny.gov/attendance_leave/PolBull24-07.cfm

Also available for downloading is a version of Policy Bulletin 2024-07 in PDF format at: https://www.cs.ny.gov/attendance_leave/PB2024-07Combined.pdf

Text of Policy Bulletin 2024-08 is posted on the Internet at:
https://www.cs.ny.gov/attendance_leave/PolBull24-08.cfm

Policy Bulletin 2024-08 in PDF format is posted on the Internet at:
https://www.cs.ny.gov/attendance_leave/PB2024-08.pdf

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Submission of an incomplete record to the Appellate Division results in the court dismissing the appeal

In a proceeding pursuant to CPLR Article 78 to review a determination dated terminating the petitioner's [Member] membership in the respondent Fire Department [Department], the Member appealed from a judgment of the Supreme Court denying Member's Article 78 petition and dismissing the proceeding.

Member challengd the Supreme Court's decision but the Appellate Division dismissed Member's appeal to it, with costs.

Citing Klein v Richs Towing, 213 AD3d 920, the Appellate Division noted "CPLR 5526 requires that a record on appeal contain the papers and exhibits upon which the order appealed from was founded".

Here, said the Appellate Division, the record does not contain the member's underlying reply affirmation or the audio recording of the meeting at which her membership was terminated, both of which were considered by Supreme Court in rendering its determination with respect to Member's petition. 

Although Member's argument before the Appellate Division was that the Supreme Court should have annulled Department's termination of her membership, the Appellate Division opined that it is "the obligation of the appellant to assemble a proper record on appeal", explaining "the record is inadequate to allow it to render an informed decision" and thus Member's appeal must be dismissed.

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

Judicial review of arbitration awards

The Employer [Agency] suspended Petitioner [Employee] from his position without pay and charged him with three disciplinary charges alleging misconduct (Charge 1); sexual harassment in violation of the civilian manual and respondent's sexual harassment policy (Charge 2); and sexual harassment in violation of the state employee handbook (Charge 3). Employee grieved the charges and, after a hearing before an arbitrator, Employee was found guilty of charge 1 but Employee was found not guilty as to charges 2 and 3.

With respect to Charge 1, the arbitrator imposed a penalty of a six-month suspension without pay and, because Employee had already been suspended without pay in excess of "one month", the arbitrator ordered that Employee be reinstated to his position with back pay. 

Employee filed a CPLR §7510 petition seeking to confirm the arbitration award after Agency failed to reinstate him to the position. In response to Employee's petition, Agency sought to vacate the arbitration award with respect to Charges 2 and 3 and to impose a penalty of termination.

Supreme Court confirmed the award with respect to Charge 1 and vacated the award with respect to Charges 2 and 3 as irrational and against public policy. Supreme Court then found Employee guilty of Charges 2 and 3 and remitted the matter to a different arbitrator for the imposition of a new penalty. Employee appealed the Supreme Court's decision.

The Appellate Division observed:

1. "Judicial review of arbitral awards is extremely limited and, thus, arbitration awards may only be vacated in limited circumstances, including where the 'arbitrator . . . exceeded his [or her] power'"; and

2. "[A]rbitrators exceed their power within the meaning of the CPLR only when they issue an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power".

The Appellate Division opined that "An arbitrator that 'imposes requirements not supported by any reasonable construction of the [contract]' has, 'in effect, made a new contract for the parties' rendering the award subject to vacatur as irrational." 

Here, said the Appellate Division, when evaluating Charges 2 and 3, "the arbitrator was required to consider the definition of sexual harassment as provided in the civilian manual and in the employee handbook." In making the ultimate determination as to Counts 2 and 3, the Appellate Division said the arbitrator "disregarded the definition of sexual harassment as contained in the manual and the handbook and supplied additional requirements not contained in either".

Noting that courts can neither "substitute judicial opinion for the arbitrator's decision" nor "rule on either the merits of the underlying allegations or impose a remedy [that  it] feel is appropriate", the Appellate Division opined that "we must reverse those aspects of Supreme Court's order that did both".

Citing CPLR §7511 [d], the Appellate Division vacated "the portions of the award finding [Employee] not guilty of sexual harassment under [Charges] 2 and 3 and remit the matter to a new arbitrator for a new determination as to those charges and the imposition of an appropriate penalty". 

Click HERE to access the Appellate Divisions decision posted on the Internet. 

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A Reasonable Penalty Under The Circumstances - This e-book focuses on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York or a political subdivision of the state found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html.  

Municipal and School District audits released by the New York State Comptroller

On August 23, 2024, New York State Comptroller Thomas P. DiNapoli announced the following Municipal and School District audits were posted on the Internet.

Click on the text in COLOR to access the text of the audit.

Northeastern Clinton Central School District – Transportation State Aid (Clinton County)

District officials did not accurately apply for all applicable transportation aid. As a result, the district was at risk of losing aid totaling $391,494. However, once auditors informed officials of this risk, the school business manager promptly filed accurate aid applications with the State Education Department, and the aid was subsequently approved. Had officials established procedures to ensure transportation aid applications were accurately filed, the district’s aid may not have been delayed.

Northeastern Clinton Central School District – Foster Care Tuition Billing (Clinton County)

District officials did not properly bill tuition for nonresident foster care students enrolled at the district. As a result, as of June 30, 2023, officials had not billed $95,210 of the $129,538 in tuition to which it was entitled for the 2020-21 through 2022-23 school years and made tuition calculation errors totaling $3,036 in the amounts billed.

Campbell-Savona Central School District – Student State Aid (Steuben County)

District officials did not properly claim a total of $65,953 in potential state aid for special education and homeless students, including $29,939 of potential aid the district will not receive because officials did not file claims within the filing timeframes. Specifically, $57,176 in estimated state aid was not properly claimed by the district for some special education students and $8,777 in potential state aid was not properly claimed for some students classified as homeless.

Town of Summit – Town Clerk (Schoharie County)

Although fees were properly recorded, the town clerk did not always deposit or remit fees in a timely manner. Specifically, the clerk did not deposit 98% of the fees collected in accordance with state law which requires the clerk to deposit fees within three business days after total collections exceed $250. The clerk also did not perform monthly bank reconciliations or accountability analyses during the audit period.

Erie 2-Chautauqua-Cattaraugus Board of Cooperative Educational Services (BOCES) – Building Access Badge Accounts

BOCES officials did not properly manage and monitor badge accounts used to access BOCES buildings. Badges that remain active without a purpose can be lost, stolen or misused, potentially resulting in unauthorized building access. BOCES officials did not deactivate 48 badges that were no longer needed out of the 87 active non-employee individual badge accounts. They also created 25 duplicate accounts in the building access system and physical badges for current BOCES employees who already had badges. In addition, they did not deactivate and could not physically locate the badges for 15 of 25 shared accounts selected for testing. Lastly, an additional 48 shared accounts were discovered and deactivated because the badges were lost.

Town of Harpersfield – Claims Auditing (Delaware County)

The board did not properly audit claims to determine whether the claims represented actual and necessary expenditures and whether proposed payments were for valid purposes. Of the 428 claims totaling $478,628 that were paid during the audit period, auditors reviewed 124 claims totaling $400,604 and determined that the board did not properly audit individual claim packets and supporting documentation. Rather, the board reviewed only an abstract of unaudited claims each month and approved the abstracts for payment. Auditors found 30 claims totaling $69,281 were improperly paid before board approval and 22 claims were paid that included sales tax totaling $460.

Town of Otselic – Audit Follow Up (Chenango County)

Town officials have made almost no progress on implementing corrective action proposed in the original audit. Of the 11 audit recommendations, one was fully implemented, one recommendation was partially implemented, and nine recommendations were not implemented, including the recommendation that the board should require the supervisor to provide accurate monthly financial reports.

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Timely compliance with the notice requirements set out in CPLR §9802 critical to proceeding with a CPLR Article 78 action naming a village as a respondent

Upon the dissolution of the government of the Village of South Nyack, the Village police department was disbanded and its three remaining police officers were transferred to the police department of the Town of Orangetown pursuant to a written agreement. The agreement, signed by the three officers as well as representatives of the Village, the Town and the South Nyack Police Association, contained a provisions addressing the Village's officers' unused sick leave accruals. 

After their transfer to the Town police department, the three officers and the South Nyack Police Association [Plaintiffs] initiated a CPLR Article 78 naming the Village and the Village mayor and trustees as Respondents in an effort to compel the Village to compensate each officer for certain unused sick leave accruals. Respondents moved, among other things, to dismiss the proceeding or to dismiss the complaint insofar as asserted against the Village. 

The Supreme Court converted the proceeding into a plenary action and ultimately Supreme Court granted the Respondents' motion to dismiss the complaint insofar as the Village was named a party to the Article 78 action. Plaintiffs appealed the Supreme Court's decision.

The Appellate Division held that Supreme Court properly directed dismissal of the complaint insofar as asserted against the Village for failure to comply with the notice of claim requirements of CPLR §9802, citing Nioras v Village of Rye Brook, 74 AD3d 1036,  The Appellate Division's decision notes that §9802 provides that "no action shall be maintained against the village upon or arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued".

The Appellate Division said that the Plaintiffs failed to file a claim with the Village clerk and that a letter from Plaintiffs' attorney to the mayor of the Village, "did not constitute a claim".The Appellate Division also noted that although Plaintiffs' attorney's letter was dated prior to the dissolution of the Village, it was not filed with the Village clerk or verified "by the claimants ..., did not identify the claimants, and did not refer to a contract claim."

In the words of the Appellate Division, "[Supreme Court] properly granted that branch of the [Respondents'] motion which was to dismiss the complaint insofar as asserted against the Village for failure to comply with notice of claim requirements pursuant to CPLR 9802."

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

New York State and New York City audits posted on the Internet on August 22, 2024

On August 22, 2024, New York State Comptroller Thomas P. DiNapoli announced the following New York State and New York City audits were issued.

Click on the text in BLUE to access the text of the audit.

Department of Agriculture and Markets – Protection of Managed Pollinators (Honey Bees) (Follow-Up) (2023-F-43)
Honey bees are essential to the agricultural industry for the pollination services they provide. The State developed the New York State Pollinator Protection Plan in 2016 to address the high loss of pollinators in the State. A prior audit, issued in January 2023, found that the Department of Agriculture and Markets (Ag&Mkts) could strengthen its actions to combat disease and parasitic organisms within colonies by including additional tests for certain diseases and could improve its efforts to ensure honey bees entering the State are healthy and free from disease. Additionally, Ag&Mkts did not have support or reasonable assurance that it had identified the full population of active apiaries in the State, which is necessary for thorough monitoring and inspection purposes. Ag&Mkts made progress in addressing the issues identified in the initial audit report, implementing both recommendations.

Office of Temporary and Disability Assistance – Reimbursement of Homeless Shelter Providers – Rescue Mission Alliance of Syracuse (Follow-Up) (2024-F-2)
The Onondaga County Department of Social Services contracted with the not-for-profit Rescue Mission Alliance of Syracuse (Rescue Mission) to provide homeless services. The Office of Temporary and Disability Assistance (OTDA) is responsible for reviewing each shelter’s operating budget, working with the local departments of social services (Local Districts) to ensure that all required documents have been included, and assessing budgeted operating costs to verify that they are reasonable and necessary. A prior audit, issued in October 2022, found that, outside of OTDA’s oversight processes for the review and approval of shelter budgets, OTDA had not taken any action thereafter to ensure that shelters’ actual costs claimed for reimbursement complied with the approved budget, State laws and regulations, or OTDA’s own policies. OTDA made some progress addressing the issues from the original report, recovering an overpayment and establishing a system of monitoring controls over Local Districts. Of the initial report’s four recommendations, two were implemented, one was partially implemented, and one was not implemented.

Department of Corrections and Community Supervision – Oversight of Transportation Services and Expenses (Follow-Up) (2023-F-37)
Many of the Department of Corrections and Community Supervision’s (DOCCS) employees operate its vehicles in its day-to-day operations. Five of its 44 correctional facilities, as well as its Central Office and seven regional offices that provide support services for enrollees, exclusively use a centralized procurement contract (Contract) for fleet management and repair services. A prior audit, issued in June 2022, found DOCCS performed limited to no central monitoring of payments made through its Contractor and did not monitor in-house maintenance expenses, instead relying on each facility or office for accurate reporting. DOCCS officials made some progress in addressing the issues identified in the initial report, taking steps to implement procedures to monitor the Contractor’s performance and implementing a process to ensure maintenance costs are reasonable and comply with requirements. Of the initial report’s seven recommendations, two have been implemented, four have been partially implemented, and one has not been implemented.

New York City Department of Finance – Citywide Payment Services and Standards – Controls Over Payments (2022-N-2)
The New York City Department of Finance (DOF) Citywide Payments Services and Standards unit administers a centralized payment repository for accepting payments made to City agencies (System) intended to allow agencies to focus on their core business while helping them save time and money. Auditors found that DOF could improve controls and monitoring for its System to ensure payments are promptly reconciled. Further, they found that DOF does not attempt to determine whether the System promotes time and cost savings for agencies despite these savings being a stated goal of the System.

Office of Temporary and Disability Assistance – Reimbursement of Homeless Shelter Providers – Westhab Inc.’s Coachman Family Center (Follow-Up) (2024-F-1)
The Westchester County Department of Social Services contracted with the not-for-profit Westhab Inc. (Westhab) to operate Coachman Family Center as a certified shelter for families with children. The Office of Temporary and Disability Assistance (OTDA) is responsible for reviewing each shelter’s operating budget, working with the local departments of social services (Local Districts) to ensure that all required documents have been included, and assessing budgeted operating costs to verify that they are reasonable and necessary. A prior audit, issued in March 2022, found that OTDA was not adequately monitoring and properly approving reimbursements for Westhab’s homeless shelter program, nor had OTDA established an effective budget review process for shelter budgets. OTDA officials made some progress in addressing the issues identified during the initial audit, recovering overstated depreciation and establishing a system of monitoring controls to improve oversight of Local Districts’ reimbursement to providers. Of the initial report’s six audit recommendations, two were implemented, one was partially implemented, and three were not implemented.

New York State Health Insurance Program – Anthem Blue Cross – Coordination of Benefits With Medicare (2023-S-3)
The Empire Plan is the primary health benefits plan for the New York State Health Insurance Program, administered by the Department of Civil Service (Civil Service). Civil Service contracts with Anthem Blue Cross (Anthem) to administer the Hospital Program of the Empire Plan, and many enrollees and their dependents have other insurance coverage in addition to the Empire Plan such as Medicare. Coordination of benefits is a process health insurance companies use for paying health care claims when people are covered by more than one insurance plan. For the audit period, auditors found Anthem improperly paid 241 claims totaling $5,259,416 because proper coordination of benefits did not occur. Anthem’s eligibility system was not always updated promptly with members’ Medicare-related information, and weaknesses in Anthem’s and Civil Service’s reconciliation of member enrollment data prevented opportunities for recovery.

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Some critical procedural elements to consider when initiating an Article 78 action challenging an administrative adjudication

Petitioner commenced this proceeding pursuant to CPLR Article 78 to review the Office of Court Administration's [OCA] denial of his grievance conducted pursuant to the relevant collective bargaining agreement's "noncontractual grievance procedure". 

Pursuant to CPLR 3211(a), OCA moved to dismiss the petition, arguing that the proceeding was time-barred by the applicable statute of limitations. Supreme Court granted OCA's motion, denied the petition, and dismissed the proceeding. Petitioner appealed the Supreme Court's decision.

The Appellate Division held that "Supreme Court properly granted OCA's motion pursuant to CPLR 3211(a) to dismiss the petition, denied the petition, and dismissed the proceeding", noting, among other things,:

"A proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding on the petitioner; 

"An administrative determination becomes 'final and binding' when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies;

"OCA's determination denying the [Petitioner's] request 'became final and binding no later than five days after a letter dated January 10, 2022, was mailed (see CPLR 2103[b][2]). The petition was filed in August 2022 and therefore, the proceeding was untimely';

"OCA's denial letter was not ambiguous because it denied the Petitioner's request 'at this time.' The denial letter, which also advised the [Petitioner] that any different determination would require a new request ... 'left no doubt that there would be no further administrative action' "; and

"A statute of limitations is not tolled 'by the invocation of grievance procedure which is merely an alternative remedy'. Here, the noncontractual grievance procedure provided for in the relevant collective bargaining agreement was not mandatory but merely an alternative remedy. Therefore, the [Petitioner's] invocation of that procedure did not toll the [running of the] statute of limitations".

Click HERE to access the entire text of the Appellate Division's opinion posted on the Internet.

Determining an applicant's eligibility for accidental disability retirement benefits

Petitioner in this CPLR Article 78 action, a police detective and paramedic, applied for accidental disability retirement benefits claiming that he was permanently incapacitated from performing his job duties as a result of injuries sustained in three incidents, one which occurred in July 2007, another which occurred in February 2012 and a last one which occurred June 2017. 

Petitioner's application was denied by the New York State Retirement System [System] based on its finding that the incidents did not constitute accidents within the meaning of Retirement and Social Security Law §363.*

Noting that an applicant accidental disability retirement benefits bares the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, and that the System's determination in this regard will be upheld "if supported by substantial evidence", the Appellate Division, citing Matter of Kubala v New York State and Local Retirement Sys., 220 AD3d 993, and other decisions, explained that for the purposes of accidental disability retirement benefits, "an accident is defined as 'a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact' " .

Further, opined the Appellate Division, "An injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury".

With respect to the July 14, 2007 incident and the February 17, 2012 incident, the Appellate Division said it was not persuaded that the resulting injuries were compensable accidents. However, it reached reach a different conclusion regarding the incident on June 22, 2017, during which "the retractable portion of a stretcher jammed causing instantaneous pain and injury to [Petitioner's] shoulder and neck".

The Appellate Division opined that "Although extending the retractable head portion of the stretcher was no doubt part of [Petitioner's] job duties, the precipitating external event, i.e., the jamming of the retractable head section of the stretcher, was sudden, unexpected and not a risk in his ordinary employment duties" and appeared to have been caused by a malfunction in the equipment.

Accordingly, the Appellate Division**, ruled that denial of Petitioner's application with respect to the June 22, 2017, injury on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363 was not supported by substantial evidence.

* Following a hearing, the Hearing Officer upheld the denial of Petitioner's application, finding that the underlying incidents were either a risk inherent in the performance of his duties or foreseeable and, therefore, did not constitute accidents for purposes of accidental disability retirement.

** Lynch, J. (concurring in part and dissenting in part), agreed with the majority, but in his view the February 17, 2012 incident constituted "an accident, not unlike that [described] in Matter of Loia v DiNapoli, 164 AD3d 1513".

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

Compelling the disclosure of certain disciplinary records of sworn officers employed by a police department in New York State

In this CPLR Article 78 to compel the production of records pursuant to the Freedom of Information Law (Public Officers Law Article 6), Petitioner appealed Supreme Court's judgment that denied that branch of the petition seeking the production of certain  records it sought and dismissed that portion of the proceeding. The Appellate Division reversed the Supreme Court's ruling "insofar as appealed from, on the law," with costs, and granted that branch of the petition, which was to compel the production of certain records.

The Police Department had withheld all disciplinary records created prior to June 12, 2020, the date of the repeal of Civil Rights Law §50-a (see L 2020, ch 96, §§ 1-4 [eff June 12, 2020]), and all records related to unsubstantiated allegations of misconduct contending that "disciplinary records related to substantiated allegations of misconduct created on or after June 12, 2020, were not required to be released pursuant to Public Officers Law §87(2)(b)".

Plaintiff administratively appealed the denial of its FOIL request. Respondent [Town Board] granted the appeal insofar as the Plaintiff 's FOIL request sought disciplinary records created after the repeal of Civil Rights Law §50-a and directed the Respondent Town Police Department to disclose records of unsubstantiated allegations of misconduct to the extent that those allegations were not otherwise exempt from disclosure pursuant to the provisions of FOIL, noting that Petitioner's FOIL request did not reasonably describe the records requested as required by Public Officers Law §89(3)(a).

Plaintiff then commenced a CPLR Article 78 proceeding to compel the production of all records responsive to its FOIL request. Supreme Court denied the petition and dismissed the proceeding, concluding that the repeal of Civil Rights Law §50-a did not require the Police Department to produce law enforcement disciplinary records created prior to June 12, 2020, and that the Town Board's determination to deny the disclosure of records of unsubstantiated allegations of misconduct was reasonable on the ground that they were exempt from disclosure pursuant to Public Officers Law §87(2)(b), notwithstanding the repeal of Civil Rights Law §50-a.

The Appellate Division, noting that "To promote open government and public accountability, . . . FOIL imposes a broad duty on government to make its records available to the public", citing Gould v New York City Police Dept., 89 NY2d 267., said FOIL provides that, "unless otherwise specifically exempted, all records of a public agency are presumptively open to public inspection and copying". 

As the limited categories of records which may be withheld are enumerated in FOIL, the exemptions are to be narrowly construed and "the burden rests on the agency to demonstrate that the requested material qualifies for exemption". Citing Luongo v Records Access Officer, 161 AD3d at 1080, the Appellate Division opined that "[t]he standard of review in a CPLR article 78 proceeding challenging an agency's denial of a FOIL request is much more stringent than the lenient standard generally applicable to CPLR article 78 review of agency actions".

While the Police Department denied Plaintiff's request for records of unsubstantiated allegations of misconduct, relying, in part on the privacy exemption, the Appellate Division noted that FOIL provides "a nonexclusive list of categories of information that would constitute an unwarranted invasion of personal privacy if disclosed". Further, said the court, "Where an asserted privacy interest is not enumerated, applicability of the exemption is determined by balancing the privacy interests at stake against the public interest in the disclosure of the information" noting that the privacy exemption also supplies statutory authority for certain redactions, citing Public Officers Law §89[2][a]), and it "directs that "disclosure shall not be construed to constitute an unwarranted invasion of personal privacy" when, among other possibilities, identifying details are deleted."

Explaining that the Supreme Court erred in concluding that the privacy exemption under Public Officers Law §87(2)(b) creates a blanket exemption allowing the custodian to withhold the disciplinary records of unsubstantiated allegations and did not articulate any particularized and specific justification for withholding any of the records, the Police Department "did not meet [it's] burden of establishing that the privacy exemption applies. Further, observed the Appellate Division, the Police Department failed to establish that "identifying details" in the records containing unsubstantiated allegations or complaints of misconduct "could not be redacted so as to not constitute an unwarranted invasion of personal privacy", citing Matter of Aron Law, PLLC v New York City Fire Dept., 191 AD3d 664 at 666).

As to Respondents' contention that the repeal of Civil Rights Law §50-a is not retroactive and that all law enforcement disciplinary records created prior to June 12, 2020, are not subject to FOIL disclosure, effective June 12, 2020, the Appellate Division opined that the New York State Legislature repealed Civil Rights Law §50-a and amended the Public Officers Law to make specific provisions relating to the disclosure of law enforcement disciplinary records and the types of redactions to be made thereto prior to disclosure. Accordingly the statutory exemption under Public Officers Law §87(2)(a) no longer applies to law enforcement personnel records. 

The Court also noted that the bill repealing Civil Rights Law §50-a also made several amendments to FOIL concerning disciplinary records of law enforcement agencies, citing the Laws of 2020, Chapter 96, §§ 2-4, calling attention to Public Officers Law §86 which was amended by adding subdivisions (6) and (7), defining "[l]aw enforcement disciplinary records" and a "[l]aw enforcement disciplinary proceeding." 

In addition, the Appellate Division rejected the Respondents' contention that in amending the Public Officers Law to provide for the disclosure of records relating to law enforcement disciplinary proceedings, the Legislature intended to exclude from disclosure any law enforcement disciplinary records that were created prior to June 12, 2020.

The Appellate Division concluded that Supreme Court should have granted that branch of the petition which was to compel the production of the records sought in the Plaintiff's FOIL request.

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

The New York State Department of Civil Service Attendance and Leave Memorandum posted

The New York State Department of Civil Service recently posted the following items on the Internet: 

Advisory Memorandum 2024-03, Designation of Floating Holidays in Lieu of Election Day and Lincoln's Birthday for Contract Year 2024–2025 

The text of Advisory Memorandum 2024-03 is posted on the Internet at: https://www.cs.ny.gov/attendance_leave/AdvMemo24-03.cfm 

The Advisory Memorandum 2024-03 in PDF format is posted on the Internet at: https://www.cs.ny.gov/attendance_leave/AM2024-03.pdf 

Also posted on the Internet is the New York State Department of Civil Service's listing of the 2025 Legal Holidays and Days of Religious Significance at  https://www.cs.ny.gov/attendance_leave/TM_50.cfm 

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

Seeking summary judgment in adjudicating disability discrimination claims

The Circuit Court of Appeals, Second Circuit, held a federal district court improperly granted summary judgment in the instant matter for two reasons, "one of which is a logical consequence of disposing of the matter based on pre-motion letters".

First, Circuit Court said the district court improperly granted summary judgment by resolving disputed facts that related to the Petitioners claims discrimination because of his alleged disability.

The Second Circuit explained: "It is well established that a district court may grant summary judgment only where '... movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. [See] Fed. R. Civ. P. 56(a).' A district court may not make credibility determinations, or weigh evidence in evaluating a motion for summary judgment. See Anderson  v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ('Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . .'). Rather, [the Second Circuit has] long stated that '[t]he function of the district court [when] considering the motion for summary judgment is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.' Kaytor v. Elec. 20 Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)."

Second, the Second Circuit said it had concluded that the district court further erred by not ensuring that the evidentiary material cited in the parties’ Rule 56.1 statements support their assertions.

In the words of the Second Circuit: "As this Court has explained, a district court 'may not rely solely on the statement of undisputed facts contained in the moving party’s Rule 56.1 statement.' Vt. Teddy Bear Co. v. BEARGRAM Co., 373 F.3d 241, 244 (2d Cir. 2004). Instead, a district court must satisfy itself "that the citation to evidence in the record supports the assertion.": Id. But, there is nothing in the record to show that the district court possessed or reviewed the evidentiary material cited in the parties’ Rule 56.1 statements. Therefore, we cannot discern whether the district court satisfied itself that the evidence cited in the parties’ Rule 56.1 statements support their assertions, nor can we fulfill our appellate obligations given the incomplete record. This is where a substantive reason for avoiding dismissals based on counsels’ arguments at a pre-motion conference can arise: parties not having yet provided the district court with a complete record to review."

The Circuit Court vacated the district court’s judgment granting summary judgment in favor of the Respondent and remanded the matter to the district court for further proceedings.

Click HERE to access the Second Circuit's decision posted on the Internet.