Applying the Doctrine of Legislative Equivalency,

The doctrine of legislative equivalency requires that "[t]o repeal or modify a statute requires a legislative act of equal dignity and import". 

In the instant two "companion" actions the Appellate Division affirmed Supreme Court CPLR Article 78 decisions granting the two employee applications seeking to compel the City of Schenectady to pay the two respective CPLR Article 78 Petitioners the cash value of their respective unused sick leave accruals to which they contended they were entitled upon their discontinuing their employment with the City of Schenectady. 

The Appellate Division noted that in 1986 the City of Schenectady adopted had §87-13 of the Code of the City of Schenectady providing that nonunion employees "shall be entitled to convert 75% of [their] unused sick leave [credits] up to a maximum accumulation of 240 days to cash, upon termination of [their] services as an employee with the City." 

The Appellate Division also indicated that "Subsequently, Local Law No. 2011-05 amended Chapter 13 of the City Charter to grant the City Council the authority to fix and determine salaries, compensation and benefits of all City employees and Officers" and "Separate from this authority to establish salaries in the annual budget process, the local law provides that [a]ll other compensation and benefits shall likewise be determined by the City Council pursuant to . . . General Municipal Law §92 and codified in Chapter 87 of the Code of the City of Schenectady  (emphasis supplied by the Appellate Division)"

Holding the Doctrine of Legislative Equivalency "applies to attempts to amend a [city] code or ordinance by use of a resolution", the Appellate Division ruled that the employees named in the two appeals filed by the City of Schenectady challenging the Supreme Court's Article 78 rulings were entitled to receive appropriate payments for their unused sick leave accruals upon their discontinuing their employment with the City of Schenectady as the Schenectady City Council's attempt to supersede Chapter 87 of the City Code with a resolution "is inconsistent with the doctrine of legislative equivalency".

Click HERE to access the "lead decision" appeal before the Appellate Division, Matter of Koldin, posted on the Internet.

Click HERE to access the "companion decision" appeal before the Appellate Division, Matter of Marney, posted on the Internet.

New York State Employees Retirement System's Online Tools and Tips

Posted on the Internet by NYSERS on December 04, 2025 

Retirement Online is the fastest and most convenient way to access your retirement account information and conduct business with NYSLRS. In many cases, you can use Retirement Online instead of sending forms through the mail or calling. For example, members can estimate their pension or apply for retirement, and retirees can get their 1099-R tax form or update their federal tax withholding.

Recent disciplinary decisions by New York City Office of Administrative Trials and Hearings Administrative Law Judges

Administrative Law Judge [ALJ] Kevin F. Casey recommended a 30-day suspension after finding that a New York City correction officer submitted a false, misleading, inaccurate, or incomplete report regarding a colleague’s use of force. 

Judge Casey, however, did not sustain a companion charge that the officer failed to intervene when the same person allegedly engaged in self-harm. 

In recommending a 30-day suspension, the ALJ noted that the evidence did not support a departure from the employer's Disciplinary Guidelines. 

Click HERE to access the text of Judge Casey's decision setting out his findings  and recommended penalty.

ALJ Orlando Rodriguez recommended termination of employment of a New York City Eligibility Specialist after the employer proved the employee failed to report to her work location for approximately four months, was absent without authorization, ignored supervisory directives, and acted aggressively and discourteously. 

Judge Rodriguez noted that although the employer only proved some of the charges, the employee’s prolonged unauthorized absence alone provided sufficient grounds to terminate her employment. 

Click HERE to access the text of Judge Rodriguez's decision setting our his findings and recommended penalty.

Judge Astrid B. Gloade recommended a 20-day suspension of a supervisor after finding that the supervisor failed to perform her duties efficiently and failed to properly supervise her subordinates. 

The ALJ had determined that the employer had proved that the supervisor sent a letter containing confidential information about an applicant to an incorrect childcare program, that the supervisor provided incorrect guidance to a subordinate and that the supervisor had failed to meet deadlines with respect to performing certain of her responsibilities. 

Judge Gloade, however, had concluded that the employer's requested penalty that the supervisor be terminated from her position was excessive given the proven charges and, in consideration of the supervisor's long service and heretofore unblemished record, recommended that the appointing authority impose a penalty of a 20-day suspension*.

 

Click HERE to access the text of Judge Gloade's decision setting out her findings and recommended penalty.

* A Reasonable Disciplinary Penalty Under the Circumstances - NYPPL's 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Click on http://booklocker.com/books/7401.html for more information.

Disciplinary decision and the penalty imposed remanded for review with instructions to consider only timely charges and specifications

In this appeal of an administrative disciplinary action which found an employee of the New York State Unified Court System [UCS] guilty of the charges filed against him, the Appellate Division notes that where the issue is whether an agency complied with its own internal procedures, the appropriate standard of review is whether the determination was "made in violation of lawful procedure".

Further, opined the court, it is a "fundamental administrative law principle that an agency's rules and regulations promulgated pursuant to statutory authority are binding upon it as well as the individuals affected by the rule or regulation".

The employee [Petitioner] had been served with a notice of charges and specifications alleging that he had engaged in three specified acts of misconduct when he used biased and discriminatory language in three Facebook comments he had posted on the Internet. One such comment, however, was subsequently determined to have been "untimely" at the time it was charged and served.

The Appellate Division's decision notes that where the issue is whether an agency complied with its own internal procedures, the appropriate standard of review is whether the determination was "made in violation of lawful procedure" as it is a "fundamental administrative law principle that an agency's rules and regulations promulgated pursuant to statutory authority are binding upon it as well as the individuals affected by the rule or regulation".

The revised Hearing Officer's findings and recommendation had not distinguished between the sanction initially recommended by the hearing officer in consideration of finding the employee guilty all three alleged charges of misconduct and an appropriate reasonable sanction recommended by the hearing officer to be imposed based on the employee in consideration of the hearing officer's finding the individual guilty of the surviving two timely alleged acts of misconduct. 

The Appellate Division then remitted the matter to UCS for a new determination and recommendation of a penalty to be made by a hearing officer based solely on the two timely specified acts of misconduct, noting that "DILLON, J.P., LOVE and GOLIA, JJ., concur" while DOWLING, JJ., "voted to confirm the revised determination, deny the petition, and dismiss the proceeding on the merits, with a memorandum."

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

Rochester women pleads guilty to stealing nearly $13,000 from the New York State Employees' Retirement System by failing to report her mothers death

On December 1, 2025 New York State Comptroller Thomas P. DiNapoli, Monroe County District Attorney Brian Green and New York State Police Superintendent Steven G. James announced that Karen Walsh, a 68-year-old Rochester woman, pleaded guilty to stealing $12,973 in state pension payments sent to her mother, whose death had not been reported to the pension system. As part of the plea, Walsh was ordered to pay full restitution upfront.

“Ms. Walsh tried to profit off of her mother’s death and defraud the state pension system,” DiNapoli said. “Now, through my partnership with law enforcement, she has been held accountable for her actions and must repay the money she stole. My thanks to D.A. Green and the New York State Police for their work with my office to ensure justice is served.”

“The defendant’s actions represent a misuse of the New York State pension system and, by extension, an offense against the citizens who fund it,” Green said. “Allowing such conduct would undermine the integrity of a system relied upon by countless public servants who dedicated their careers to their communities. I appreciate the thorough work of the State Comptroller’s Office and the New York State Police in this investigation that assisted in today’s resolution. The Monroe County District Attorney’s Office is committed to seeking justice and accountability for all who commit economic crimes against the residents of New York State.”

“Ms. Walsh used her mother’s death to her advantage and continued to inexcusably collect the pension meant to support her mother for the remainder of her life. We will continue to aggressively investigate any case involving financial corruption and those who take advantage of the pension system. I commend the Comptroller’s Office and the Monroe County District Attorney’s Office for their partnership in this investigation,” James said.

Walsh’s mother, also of Rochester, received a monthly payment as the beneficiary of her deceased husband’s state pension. When she passed away in 2020, her pension payments should have stopped, however, Karen Walsh failed to report the death to the pension system and instead pocketed the money.  A total of $19,524 in pension payments went to Walsh’s account.

Walsh stole $12,973 by withdrawing over $4,000 from the account and transferring at least $8,000 to a second account in her mother’s name to which she also had access. She wrote checks from that second account, forging her deceased mother’s name and endorsing the back of the checks with her own signature, before depositing them into her own account. Walsh also used the second account in her mother’s name to make personal credit card payments, pay for home improvements and buy groceries.

Walsh pleaded guilty to petit larceny before Judge Van H. White in Rochester City Court.

###

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 emailing a complaint to investigations@osc.ny.gov 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 Comptroller Thomas P. DiNapoli posts local government audits on the Internet

On November 26, 2025, New York State Comptroller Thomas P. DiNapoli announced the following local government audits were issued.

Click the text highlighted in COLOR to access the audit posted on the Internet

City of Dunkirk – Budget Review (Chautauqua County) The lack of complete, accurate and current accounting and financial records significantly limited this review and precluded auditors from determining the reasonableness of all of the city’s significant revenue and expenditure projections. The city’s most recent Annual Financial Report (AFR) was submitted to the Office of the State Comptroller (OSC) for the 2023 fiscal year; the 2024 AFR was due April 30, 2025.  The most recent available independent audited financial statements were finalized for 2024 in October 2025. The external auditor’s findings reported in the 2022, 2023 and 2024 financial statements further support OSC’s position that the city’s accounting records are not reliable or up to date. These findings also acknowledge the rapid deterioration of the city’s finances and report that officials do not have the ability to effectively monitor the city’s cash position or results of operations, making financial planning and budgeting incredibly difficult.  The city’s most recently completed audited financial statements reported that as of Dec. 31, 2024, the general, water, wastewater, refuse and boardwalk funds had deficit fund balances totaling $15.3 million.  The city’s financial condition continued to decline during the current year because the 2025 adopted budget was not structurally balanced and due to a large unbudgeted $1.8 million payment for the purchase of two pumper trucks. With fund balance depleted, the city has limited options available to fund any increases in operating costs.  City officials were not planning to increase water or wastewater rates to address the deficits in the water and wastewater funds. The 2026 budget includes a proposed tax levy increase of $198,675 (2%) which will exhaust 86.37% of the city’s constitutional tax limit. As a result, the city’s ability to raise taxes going forward will be severely limited. Seaford Union Free School District – Capital Assets (Nassau County) District officials did not maintain complete and accurate capital asset records. Auditors determined that, while assets totaling $1.7 million were inventoried, the district’s inventory records lacked sufficient detail to account for and safeguard the assets. Assets totaling $196,089 were not inventoried, and assets totaling $42,314 were missing and could not be located. The inventory list did not include all necessary information to locate and identify assets. For example, 358 IT assets on the inventory list totaling $1.7 million did not have a serial number. Additionally, 280 assets totaling $630,009 (including 186 IT assets totaling $200,705) did not have the current location recorded on the inventory list.    Town of Kingsbury – Multiyear Planning for Fund Balance and Reserves (Washington County) The board and officials did not develop and adopt a multiyear financial plan, a fund balance policy or a reserve policy. As a result, officials continued to accumulate unrestricted fund balance without defining the amounts the board deemed necessary and without documenting future goals or expectations for the accumulation of funds. Had the board and officials developed and adopted a multiyear financial plan and fund balance and reserve policies, the goals of maintaining an adequate level of fund balance and improving the town’s capital assets over time would have been more transparent to the town’s taxpayers. Without such plans or policies, the board cannot assess revenue trends, expenditure commitments, financial risks and the affordability of new services and capital investments over time. Town of Hornellsville – Financial Management (Steuben County) The board did not effectively manage the town’s fund balance. Despite maintaining significant unrestricted fund balances, the board overrode the tax levy limit each year and adopted budgets that increased real property taxes by a total of 18% in calendar years 2022 through 2025. As a result, the board maintained unrestricted fund balances that, as of Dec. 31, 2024, were sufficient to fund more than five years of water, three years of sewer and half of the combined town-wide (TW) funds’ 2025 budgeted appropriations. In addition, the board did not treat taxpayers equitably because it inappropriately allocated sales tax revenues totaling $1.1 million to the TW funds instead of the town-outside-village funds in calendar years 2022 through 2024. The board also did not adopt a written fund balance policy until Feb. 11, 2025, after the State Comptroller’s audit notification, or adopt comprehensive written multiyear financial or capital plans. Although auditors provided recommendations in their prior audit, the board did not implement adequate corrective action to address the deficiencies.    City of Little Falls – Budget Review (Herkimer County) The tentative budget includes revenues of $966,599 for revenue sharing state aid, $480,000 for garbage collection user fees, $177,000 for the sale of real property, $350,000 for ambulance charges, $60,000 for the sale of timber, $1.4 million for metered water sales, $1.6 million for sewer rents and $138,500 for golf revenues. These revenues may not be reasonable. The budget also does not include a contingency appropriation in any fund. In addition, the budget includes approximately $1.16 million in debt payments, which are likely overestimated by $37,327. The budget also includes retirement appropriations totaling approximately $1.3 million for members of the state retirement system and appropriations totaling $161,398 for workers’ compensation costs. These appropriations were not properly allocated to each of the operating funds. Wyoming County Industrial Development Agency (WCIDA) – Payments in Lieu of Taxes (PILOT) WCIDA officials ensured PILOTs they calculated were accurate and in compliance with the PILOT agreements. During the audit period, WCIDA officials calculated PILOT billings for nine wind and solar energy projects, totaling $971,547. Auditors reviewed the PILOT billings for five of these agreements totaling $280,693 and determined they were accurate and in compliance with the PILOT agreements. Town of Danby – Audit Follow-Up (Tompkins County) A previous audit, Town of Danby – Board Oversight (2022M-127), determined that the board did not seek competition when procuring goods and services and audit claims prior to payment. The audit included 14 recommendations to help officials monitor and improve the town’s purchasing and claims auditing procedures. The board and town officials failed to implement any of the 14 audit recommendations and were unable to provide reasonable explanations for their lack of action. The board also persisted in procuring goods and services that may not have been made in a cost-effective manner and the board’s ability to effectively monitor the town’s financial operations continued to be diminished. ###

Selected items posted on blogs on the Internet during the week ending November 28, 2025

Five Ways Government Leaders Boost Transparency and Trust Learn how public-sector agencies strengthen community confidence through improved transparency and accountability. READ NOW 

Elevating Constituent Services with Connected Experiences This leadership paper explains what your agency needs to create connected experiences and provides several real-world examples of how connected experiences have transformed government services. Read more to find out how your organization can start building connected experiences! DOWNLOAD 

Resilience Blueprint for Local Governments In this comprehensive guide designed for local government leaders, learn actionable strategies to bolster your community's extreme weather resilience, future-proof your energy systems, and ensure continuity of critical services. DOWNLOAD

New Series Premiere: Public Officials of the Year Webcast The first episode of The Common Thread, Governing’s new series hosted by CEO Cathilea Robinett, spotlights L.A. CIO Ted Ross and his bold approach to modernizing one of America’s largest cities. Watch the Premiere Episode

 

Eligibility for receiving financial compensation for health conditions resulting from exposure to hazardous material in the wake of 9/11

The New York State's Court of Appeals held that for the purpose of claiming Workers' Compensation Law benefits as a result of exposure to hazardous materials while participating in 9/11 cleanup efforts, Workers Compensation Law §168 applies only to a claim by a statutorily defined participant in the recovery efforts. 

The Court noted that "[I]n the wake of the terrorist attacks on September 11, 2001, the legislature enacted Article 8-A of the Workers' Compensation Law, which was designed to ensure that both employees and volunteers who participated in rescue, recovery, and cleanup operations at the World Trade Center and other statutorily enumerated sites could recover for health conditions resulting from exposure to hazardous material". 

At issue in this action was a claim for death benefits filed by the spouse of a volunteer who had applied for and received lifetime benefits based on multiple medical conditions he contracted as the result of his working at a designated site. 

Although the statute provides benefits to both employees and volunteers and, in the words of the Court of Appeals, "has ensured that many who served in those vital response efforts received financial compensation", the Court ruled that Workers' Compensation Law §168 applies with respect to a claim by a statutorily defined "participant" in the recovery efforts. 

Click HERE to access the Court of Appeals' decision posted on the Internet.

Former fire department treasurer sentenced to serve 1-3 years in state prison and to make restitution

On November  21, 2025, New York State Comptroller Thomas P. DiNapoli, Oneida County District Attorney Todd Carville, and New York State Police Superintendent Steven G. James announced that the former treasurer of the Durhamville Fire Department, Kimberly Simchik, after pleading guilty to stealing from the fire department. Simchik was sentenced to serve 1-3 years in state prison and to pay $92,000 in restitution. 

“The sentence in this case should be a warning to anyone tempted to abuse their position of trust for their own financial gain. We will find you and you will be held accountable for your actions,” DiNapoli said. “My thanks to Oneida County District Attorney Carville and the New York State Police for their partnership in bringing Simchik to justice.” 

Carville said, “Stealing from our volunteer service is a reprehensible act which is wholly unacceptable and inexcusable. The Oneida County District Attorney’s Office would like to commend the New York State Police and the New York State Comptroller’s Office for their assistance in investigating this matter and in bringing the defendant to justice.”

James said, “Public service requires the highest level of integrity, and any breach of that trust undermines confidence in the institutions that serve our communities. I commend the State Comptroller’s Office and the Oneida County District Attorney’s Office for their thorough work and partnership throughout this investigation. New Yorkers can be assured that when public funds are misused, it will be identified, investigated and prosecuted.”

Simchik, 62, pleaded guilty in September to stealing more than $90,000 from the local fire department. She used the department’s debit card at area casinos and deposited checks meant for the department into her own bank account, spending the money on travel and spa treatments.

When the fire department noticed problems in its account it contacted the New York State Police. The ensuing investigation conducted by the State Police and DiNapoli’s office uncovered the details of Simchik’s crimes.

She was sentenced before Judge Michael R. Nolan in Oneida County Court.

 ###

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Reports of allegations of fraud involving taxpayer money may be filed calling the toll-free Fraud Hotline at 1-888-672-4555; by mailing a complaint to the Office of the State Comptroller,  Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236; or by filing a complaint online by clicking on https://www.osc.ny.gov/investigations; 

Selected items posted on blogs during the week ending November 21, 2025

How Public Sector Leaders Are Reframing Government Cyber Strategy Most cyber strategies fall short for one simple reason: limited visibility. This paper shows how state and local governments are rethinking cybersecurity by prioritizing real-time asset visibility across IT, OT and IoT systems. DOWNLOAD

Leveraging GenAI to Secure Critical Federal Funding One state agency cut weeks off its grant writing timeline--and walked away with $15 million in funding. This case study shows how public sector teams can use AI tools to streamline complex applications without cutting corners or sacrificing compliance.  DOWNLOAD

Firewalls Aren't Enough: Securing Government for the AI Era AI is changing how governments operate — and how cyber threats emerge. Traditional firewalls alone can’t keep up with modern attack surfaces, especially in decentralized, cloud-driven environments. This paper explores why a platform-based security approach is now essential, highlighting strategies like autonomous segmentation, AI model protection and centralized threat detection. DOWNLOAD

On-demand service enhances transit equity in Jersey City Tech-driven service design improves transit equity and job access in Jersey City. Read the full case study on Jersey City's transit innovation.

AI Security Readiness: Insights from 100 Cloud Architects, Engineers, and Security Leaders AI services are everywhere, but the security playbook hasn’t caught up. This report digs into how 100 cloud and security professionals are tackling gaps in AI visibility, governance, and risk. Learn where most teams fall short and what steps leading organizations are taking to regain control in complex cloud environments. DOWNLOAD

Keep Your New York State and Local Retire Pension Safe with Direct Deposit

The New York State and Local Retirement System [NYSLRS] reports having seen an increase in check fraud and the delayed receipt of pension check sent by mail during 2025. NYSLRS is urging all retirees and beneficiaries who still receive pension checks by mail to enroll in its Direct Deposit Program. Read more.

Non-profit institution claim of being exempt from the wage orders under New York States Labor Law §652(3)(b)" rejected

Home health aides [Plaintiffs] employed by the Defendants, alleged, among other things, that Defendants failed to pay them the New York State minimum wage, overtime pay, and spread-of-hours pay in violation of New York State Labor Law §§663 and 650 et. seq. and 12 NYCRR §142-2.4. 

Defendants submitted documentary evidence showing their certifications electing to pay the statutory minimum rate in lieu of minimum wage orders pursuant to Labor Law §652, and claimed non-profitmaking institution status within the meaning of Labor Law §652(3) and thus were "exempt from the wage orders" under Labor Law §652(3)(b).

The Appellate Division said that even if the Defendant's certifications were sufficient to show that Defendants are a non-profitmaking institution exempt from the wage orders under Labor Law §652(3)(b), Supreme Court correctly determined that this exemption is also contingent on Defendants first showing that they "pa[id] and continue[d] to pay" Plaintiffs the statutory minimum wage.

Plaintiffs had alleged that Defendants had paid them for only 13 hours of work when they worked 24-hour shifts, which effectively reduced their hourly rate to an amount "well below New York's statutory minimum wage for the period 2019 to 2021". 

Finding that Defendants failed to submit evidence disputing Plaintiffs' allegations, the Appellate Division unanimously affirmed Supreme Court's decision denying Defendants' motion to dismiss Plaintiffs' Labor Law action, with costs.

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

New York State Comptroller Thomas P. DiNapoli posted local government and school audits on the Internet

On November 20, 2025, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click the text highlighted in COLOR to access the audit posted on the Internet.

Town of Elmira Fire District No.1 – Long-Term Planning (Chemung County)

District officials did not establish or adopt up-to-date long-term capital and financial plans. The district had five vehicles at or beyond their useful life estimates in 2025. Auditors estimated that the total vehicle replacement cost of these five vehicles was approximately $2.3 million in 2025. However, the reserve fund balance totaled $971,000 as of Dec. 31, 2024. If all five vehicles at or beyond their useful life estimates were replaced in 2025, the district may face a shortfall of approximately $1.3 million. 

Because district officials did not maintain a long-term capital plan for vehicles or plan for future financial operations, the board’s ability to effectively manage the district’s finances was hindered. Therefore, potential large increases to real property tax levies may occur when assets are needed in the future. As a result of the audit, the board created a new capital plan that projected reserve contributions, vehicle replacement costs and useful life through 2054.

Richburg-Wirt Fire District – Board Oversight (Allegany County)

The board did not provide adequate oversight of financial operations. Specifically, the board did not develop and adopt required policies, including an investment policy, a procurement policy and a code of ethics. It did not use reserve funds in a transparent manner and could not support that transfers totaling $36,611 were adopted through board resolutions and that public hearings were held, when required. The board also did not audit the treasurer’s records or ensure all of its members completed mandatory oversight training within the required time period. 

In addition, the board did not use competitive bidding for the purchase of an off-road utility vehicle for approximately $28,000 as required, and may have paid more than necessary.

Town of Cherry Valley – Budget Review (Otsego County)

Auditors determined that the town’s preliminary budget significantly underbudgeted the appropriations for the Cherry Valley Community Health Center. Although all other significant revenues and appropriation estimates were considered reasonable and accurate, auditors identified long-term financial concerns regarding the lack of recurring revenues to fund recurring expenditures. 

The 2026 preliminary budget includes an estimate for health center appropriations of $495,000 in the general fund. Auditors’ projection of health center expenditures for 2025 is approximately $1 million. 

The board’s unrealistically low estimate for health center expenditures enabled the board to lower the town’s tax levy in the preliminary budget. However, without a source of additional revenues for the health center, the board could nearly deplete the town’s general fund resources by the end of 2026.

West Irondequoit Central School District – Emergency Drills (Monroe County)

During the school year, district officials must conduct a minimum of 12 evacuation and lockdown drills for each building and three bus drills for each bus to provide staff and students with the training necessary to respond appropriately in an emergency. 

District officials did not conduct all required bus drills and did not ensure all students participated in bus drills. Officials also did not file the required annual certification for bus drills or properly notify parents of drills as required in 2024-25. Without adequate emergency instruction and training, district officials cannot ensure that staff and students are prepared for emergencies. 

Additionally, without properly notifying parents in advance of building drills, parents may not have sufficient information to ask questions about procedures or be prepared to discuss the drills with their children.

Newark Valley Fire District – Audit Follow-Up (Tioga County)

The review assessed the district’s progress in implementing the recommendations in the audit report, Newark Valley Fire District – Board Oversight (2020M-30). The audit determined that district officials, needed to improve controls over hall rentals, did not adopt an investment policy and update the procurement policy, retain documentation of quotes in compliance with the procurement policy, provide for an annual audit of the treasurer’s records and ensure that the treasurer filed its required annual financial information within 60 days of the close of the fiscal year. 

The audit included five recommendations to help officials monitor and improve the district’s financial operations. Of those, two recommendations were implemented, one recommendation was partially implemented, and two recommendations were not implemented.

Hunter-Tannersville Central School District – Audit Follow-Up (Greene County)

The review examined the district’s progress in implementing recommendations in the audit report, Hunter-Tannersville Central School District – Network User Accounts and Information Technology Contingency Planning (2022M-125). The audit determined that district officials did not adequately manage or monitor nonstudent network user accounts or develop a written IT contingency plan. 

To help officials improve their controls over nonstudent network user accounts and be prepared for system disruptions, the audit included a public report that contained five recommendations and confidentially conveyed sensitive IT control weaknesses and recommendations. The district fully implemented all five recommendations contained in the public audit report, auditors determined. 

Auditors also reviewed progress in implementing the recommendations related to the sensitive IT control weaknesses, and communicated those results confidentially to district officials.

###

In seeking to dismiss an action brought under color of CPLR 3211(a)(5) as untimely, the moving party must show that the controlling statute of limitations has expired

In this CPLR Article 78 action Petitioner sought judicial review of a determination of the Town Board [Town] which had adopted the report and recommendation of a disciplinary hearing officer's finding accused Petitioner guilty of 12 specifications of misconduct and incompetence, and terminated the Petitioner's employment as a police officer. Supreme Court, however, issued an order and judgment granting the Town's motion to dismiss the Petitioner's Article 78 action challenging the Town's decision as untimely and dismissed Petitioner's Article 78 action. Petitioner then appealed the Supreme Court's ruling.

The Appellate Division affirmed the Supreme Court's ruling, with costs, explaining:

1. "On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired;

2. "The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period; and

3. "Unless a shorter time is provided in the law authorizing the proceeding, a four-month statute of limitations is generally applicable to proceedings pursuant to CPLR Article 78".

In this instance, the Count's Police Act, as amended, stated that the review of a disciplinary action, the "conviction of any member of such police force" shall be presented to the court "within sixty days after the conviction". 

The Appellate Division's decision, noted that the Town "had established, prima facie", that the instant proceeding was time-barred by showing that the petition was not filed within 60 days from the Town's final  determination and Petitioner failed to raise a question of fact as to whether the proceeding was timely commenced," opined that "[I]t is well settled that an argument 'may not be raised for the first time before the courts in an article 78 proceeding'".

Finding that Petitioner failed to raise his contention that his disciplinary proceeding was not governed by the County Police Act until the Petitioner commenced this Article 78 proceeding, the Appellate Division opined that Supreme Court should not have considered that issue and then concluded that Supreme Court had properly granted the Town's motion pursuant to CPLR 3211(a)(5) and 7804(f) to dismiss the petition as time-barred and correctly dismissed the proceeding.

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

A retirement system member's timely designation of the party or entity to receive the member's death benefit is critical

In an Article 78 action involving the payment of a death benefit by the New York City Employees' Retirement System [NYCERS] involving competing claimants, one of Plaintiffs seeking the death benefit appealed a Supreme Court's decision granting NYCERS' motion pursuant to CPLR 3211(a) to dismiss Plaintiff's cause of action. The Appellate Division affirmed the Supreme Court's ruling.

Plaintiff's claimed decedent [Decedent] had been employed by the New York City Department of Parks and Recreation and was a member of NYCERS. In 1980, Decedent submitted a designation of beneficiary form to NYCERS designating his daughter and his mother as his beneficiaries for an ordinary death benefit [ODB] which was to be paid to the designated beneficiaries if the NYCERS member died while in service.

In 2008, Decedent submitted a designation of beneficiary form designating Plaintiff, Decedent's spouse, as his beneficiary for the ODB. Decedent also checked a box on the 2008 designation form stating that he was nominating his estate as his  beneficiary, which was accompanied by an acknowledgment that a NYCERS member could not designate both an individual and the member's estate as beneficiaries. 

By letters sent in August 2008 through October 2008, NYCERS notified Decedent that the 2008 designation was invalid because he had designated both the Plaintiff and his estate as beneficiaries and that the Decedent needed to complete a new designation of beneficiary form. Decedent failed to complete and file a new designation of beneficiary form with NYCERS.

In early 2017, Decedent submitted an application for service retirement to NYCERS at which time Decedent had the option of designating a beneficiary or beneficiaries to receive a postretirement death benefit [PRDB] upon his death, or in the absence of such an election, NYCERS would issue the PRDB to the beneficiary or beneficiaries who were designated to receive the ODB. Decedent did not designate a beneficiary to receive the PRDB.

Decedent died in May, 2017 and NYCERS then informed the Decedent's daughter and his mother that they were entitled to the PRDB by virtue of their status as ODB  beneficiaries. 

In March 2018 Plaintiff inquired as to her entitlement to the PRDB. NYCERS responded, notifying Plaintiff that although the Decedent had named her as a beneficiary, he had also designated his estate as a beneficiary, and, therefore, the designation was "invalid" and she was not entitled to the PRDB.

In June 2019, Plaintiff commenced the instant action against NYCERS seeking a judgment declaring that NYCERS is obligated to pay the PRDB to the Plaintiff. NYCERS moved to dismiss the complaint as time-barred, contending that Plaintiff could have commenced a CPLR Article 78 proceeding to challenge NYCERS's determination that the 2008 designation was invalid and the Plaintiff was not entitled to the PRDB and that the four-month statute of limitations applicable to such proceedings applied. However, as the action was not commenced within the four-month period, Supreme Court granted NYCERS's motion, determining that the action was time-barred and Plaintiff appealed Supreme Court's ruling.

The Appellate Division, explaining that:

1. On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired; and

2. "The burden then shift[s] to the plaintiff to present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely'".

In addition, the Appellate Division noted that "Where a declaratory judgment [or other] action involves claims that could have been made in another proceeding for which a specific limitation period is provided, the action is subject to the shorter limitations period" and thus where as is here the situation, "a proceeding could have been brought pursuant to CPLR article 78, the four-month statute of limitations applicable to such proceedings applies. The Appellate Division observed that as "Plaintiff correctly concedes," the four-month statute of limitations applicable to a proceeding commenced pursuant to CPLR Article 78 applies, and Plaintiff could have commenced such a proceeding to challenge NYCERS's determination that the 2008 designation was invalid".

In the words of the Appellate Division:

a. "A challenge to an administrative determination must be commenced within four months of the time the determination is 'final and binding upon the petitioner;

b. "A determination is final and binding within the meaning of CPLR 217 when the decisionmaker arrives at a definitive position on the issue that inflicts an actual, concrete injury; and

c. The statute of limitations "does not begin to run until the petitioner receives notice of the [final] determination".

Following further discussion concerning the running of the several statutes of limitations involved in this situation, the Appellate Division concluded that "Supreme Court properly granted the Defendant's motion pursuant to CPLR 3211(a) to dismiss [Plaintiff's] complaint as time-barred".

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