Claimant for unemployment insurance benefits challenged the Unemployment Insurance Appeal Board's denying her application to reopen a prior decision

Claimant, who simultaneously worked as a full-time employee for one employer and as a part-time employee for another employer, filed a claim for unemployment insurance benefits after losing her part-time employment. 

Claimant received, among other things, federal unemployment benefits. The Department of Labor, however, subsequently determined that Claimant was ineligible to receive such unemployment benefits as "she was not totally unemployed" and charged her with recoverable overpayments.

Claimant requested a hearing. The Administrative Law Judge [ALJ] determined that the Department lacked jurisdiction to review her benefit claim and issue the initial determinations more than a year after Claimant received benefits, finding that the evidence failed to establish that she made willful misrepresentations to obtain benefits, and instead revealed that she had been mistaken and had taken steps to address the issue". 

The Department appealed the ALJ's ruling and the Unemployment Insurance Appeal Board reversed the ALJ's determination and reinstated the Department's initial determinations. Claimant then filed an application seeking to reopen the matter pursuant to Labor Law §534, which the Appeal Board denied. Claimant next filed an appeal of the Board's denial of her "application to reopen" with the Appellate Division.

The Appellate Division:

1. Decided that the merits of the Board's original determination were not before it "given that [Claimant's] application to reopen was not made within the 30 days during which the original determination could be appealed"; and

2. Citing Matter of Amer [Commissioner of Labor], 234 AD3d 1233, explained that "a decision as to whether to grant such an application is within the sound discretion of the Board and, absent a showing that it abused that discretion, its decision will not be disturbed".

Noting that no new material or arguments that would affect the Board's decision was presented in Claimant's application to reopen the Board's earlier ruling, the Appellate Division concluded that it found no abuse of discretion in the Board's denial of Claimant's application to reopen the matter.

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

 

Scammers are sending phishing text messages to taxpayers about income tax refunds. The New York State Tax Department does not use text messages, email, or social media to request personal tax information.

Selected items posted on blogs during the week ending September 19, 2025

Alaska Joins the AI Ethics Conversation -- Rochester, New York, Attorney Nicole Black's recent posting on the Internet addresses legal technology and ethics. Read the whole entry  

Disability inclusion in aging law and policy - On October 8. 2025, the Government Law Center at Albany Law School will hold its annual Nancy M. Sills ’76 Memorial Lecture on Aging Law and Policy on its campus and via the Internet  Click HERE to Register. 

Distracted Driving in Government Fleets: The Latest Data - Based on a nationwide survey of CDL operators, this report breaks down the most common distractions, which tech tools and policies drivers actually trust, and what public agencies can do now to increase safety and retain skilled drivers. DOWNLOAD

How Public Agencies Are Using Social Media in 2025 - Social media has become the public sector's front line for resident engagement, but many agencies are still under-resourced and uncertain about what’s working. This new report offers a candid look at which platforms are delivering results, where agencies are falling short, and how the landscape is shifting in 2025. DOWNLOAD

Transforming Water Resource Management - As climate pressures intensify, state governments need better tools to manage water more effectively, equitably, and sustainably. Powered by the largest constellation of Earth observation (EO) satellites in orbit and a flexible cloud-based platform, learn how your agency can gain continual and detailed insights into changes across any region. DOWNLOAD

Unified Data Security for Dummies - Sensitive data is moving faster -- and farther -- than legacy tools can track. This guide breaks down how public agencies can gain visibility across cloud apps, protect regulated information, and reduce the operational burden on security teams. DOWNLOAD

Plaintiff's cause of action alleging unlawful discrimination trigged by requiring all employees of the City of New York to provide proof of COVID-19 vaccination dismissed

Plaintiff in this action sought to recover certain damages, alleging he had suffered employment discrimination on the basis of religion in violation of the New York State Human Rights Law [NYSHRL] and the New York City Human Rights Law [NYCHRL] as the result of the Defendants "intentional tort of forcing unwanted medical care on [the Plaintiff]" as the result of New York City's Commissioner of Health and Mental Hygiene requiring all City employees, among others, to provide proof of COVID-19 vaccination. 

Supreme Court granted the motion of the City of New York, New York City Police Department [NYPD], the New York City Department of Health and Mental Hygiene, and others [Defendants] to dismiss the complaint insofar as asserted against them. Plaintiff appealed the Supreme Court's ruling.

The Appellate Division, noting that both the "NYSHRL and NYCHRL prohibit employment discrimination on the basis of religion", observed that Plaintiff's "complaint's conclusory assertions that the [Defendants] discriminated against the [Plaintiff] based on religion were unsupported by sufficient factual allegations to state a cause of action under either the NYCHRL or the NYSHRL". 

Further, opined the Appellate Division, Plaintiff's "complaint failed to sufficiently allege that the NYCHRL 'required a more robust or individualized dialogue than the process he received'." 

Accordingly, the Appellate Division ruled that Supreme Court "properly granted that branch of the [Defendants'] motion to dismiss the causes of action alleging violations of the NYSHRL and the NYCHRL and "for aiding and abetting violations of those statutes insofar as asserted against them".

Further, the Appellate Division held that:

1. As the vaccine mandate was rescinded in February 2023, the cause of action seeking certain declaratory relief regarding the [Defendants'] "policy and practice" with respect to "religious accommodations to [the Defendants'] vaccine policies," is academic; 

2. The exception to the mootness doctrine is inapplicable here and Supreme Court properly granted that branch of the [Defendants'] motion to dismiss the cause of action seeking "certain declaratory relief insofar as asserted against them";

3. Supreme Court properly granted that branch of the Defendants' motion to dismiss the Plaintiff's cause of action alleging a violation of the Free Exercise Clause of the New York Constitution insofar as asserted against them "as the Plaintiff has no private right of action to recover damages for violations of the New York State Constitution, since the alleged wrongs could be redressed by alternative remedies, including those pursued under the NYCHRL and the NYSHRL in this action"; and

4. Failure to comply with a statutory notice of claim requirement is a ground for dismissal pursuant to CPLR 3211(a)(7) for failure to state a cause of action and in this instance "the notice of claim failed to include any allegations relating to these causes of action". 

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

Disability inclusion in aging law and policy

Join the Government Law Center at Albany Law School on October 8, 2025, for the annual Nancy M. Sills ’76 Memorial Lecture on Aging Law and Policy, featuring leaders and disability advocates from the Office of the Chief Disability Officer of the State of New York. 

This free event is open to the public and includes a reception after the speaking program.

A remote attendance option will be available. This link will be shared after registration.

Click HERE to Register. 

Former president of a snowmobile club pleads guilty to stealing $17,000 which New York State and Fulton County provided to maintain snowmobile trails in the Adirondacks

New York State Comptroller Thomas P. DiNapoli, Fulton County District Attorney Mike Poulin and New York State Police Superintendent Steven G. James announced that the former president of the Snowdrifters of Stratford, Chad Daley, pleaded guilty to stealing $17,000 from the nonprofit. As part of his plea agreement, Daley paid full restitution to the club.

“Chad Daley abused his position to enrich himself with funds meant to support his community,” said DiNapoli. “Any violation of the public’s trust for personal gain is unacceptable. Thanks to our partnership with District Attorney Poulin and the New York State Police in this case, Mr. Daley has been held accountable for his crimes.”

James said, “I commend our State Police members, the State Comptroller’s Office, and Fulton County District Attorney’s Office for their rigorous work on this case. This individual abused the position he was entrusted in, taking thousands of dollars that were meant to keep snowmobile trails and the community safe. We have zero tolerance for those who seek to defraud others and put the unsuspecting public in harm’s way.”

The Snowdrifters of Stratford receives funding from New York state and Fulton County to maintain snowmobile trails in the Adirondacks. Daley was the organization’s president for more than 10 years.

From late 2018 through 2023, Daley stole $5,300 in checks made payable to the “Snowdrifters Club” by depositing them into his own personal bank account. He also transferred over $3,000 in funds from the club’s account to his personal account and wrote a $3,500 Snowdrifters’ check to cash, which was endorsed and cashed by his longtime partner.

Daley also made cash withdrawals of over $5,000 from the Snowdrifters’ bank account without authorization or a corresponding purchase order. He took advantage of the club’s tax-exempt status to purchase snowmobiles and trailers using the organization’s funds while registering the vehicles to himself. Daley used the money he stole to support his personal expenses as well as to purchase a snowmobile for his own use. 

Daley pleaded guilty to petit larceny before Judge Nicholas Rissmeyer in Stratford Town Court.

###

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Report allegations of fraud involving New York 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.

 

Employer's failure to review of the record of the disciplinary hearing and the recommendation of the hearing office held fatal omissions

In this Civil Service Law  §75 disciplinary action the employer did not review the hearing record nor did the employer review the recommendation of the hearing officer and issued a determination terminating the employee without having the availability of the Hearing Officer's complete report and findings.

The employee [Petitioner] challenge to employer's determination contending that the employer failed to conduct a proper review of the evidence and the Hearing Officer's factual findings inasmuch as it did not receive the hearing transcript until after their decision had already been issued. 

In the words of the Appellate Division, following a disciplinary hearing held pursuant to Civil Service Law §75 (2), a hearing officer "shall make a record of such hearing which shall, with his [or her] recommendations, be referred to such officer or body [having the power to remove the employee] for review and decision".

Citing Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d at 387-388, the Appellate Division held that this omission in the instant disciplinary action "would render the requirements of Civil Service Law §75(2) meaningless". 

Reversing the employer's determination, the Appellate Division remitted the matter to the employer for a determination after a de novo review of the record and the Hearing Officer's complete decision and findings.

The Appellate Division's decision is set out below:

Matter of Alexander v City of Albany

2025 NY Slip Op 04949

Decided on September 11, 2025

Appellate Division, Third 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:September 11, 2025

CV-24-1352

[*1]In the Matter of Andre Alexander, Appellant,

v

City of Albany et al., Respondents.

Calendar Date:August 14, 2025
Before:Lynch, J.P. Ceresia, Fisher, Powers and Mackey, JJ.

Daren J. Rylewicz, Civil Service Employees Association, Inc., Albany (Scott Lieberman of counsel), for appellant.

Robert Magee, Corporation Counsel, Albany (Brett T. Williams of counsel), for respondents.

Mackey, J.

Appeal from a judgment of the Supreme Court (Kimberly O'Connor, J.), entered July 12, 2024 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion for dismissal of the petition.

Petitioner was employed as a supervisor for the Department of General Services (hereinafter DGS) of respondent City of Albany. In February 2023, respondent Sergio Panunzio, DGS commissioner, brought 12 charges against petitioner alleging numerous violations of the City's employee manual and standard operating procedures, including, among other things, the unauthorized use of a City-owned vehicle and obstruction of the view of an in-vehicle camera. As a result, petitioner was suspended from his employment and directed to stay away from his workplace and subordinates. Shortly thereafter, petitioner approached his former subordinates and engaged in verbally abusive conduct, resulting in additional charges, including workplace violence.

Following a multiday hearing, a Hearing Officer determined that the City had presented credible evidence in support of the charges and recommended petitioner's termination. The Hearing Officer read his decision into the record and directed the City to "prepare an order for [him] to sign consistent with this decision and opinion." A pro forma order to this effect was signed on June 27, 2023, and received by Panunzio that same day. Roughly three weeks later, and following a further review, Panunzio accepted the Hearing Officer's recommendation and issued his final decision terminating petitioner. Respondents did not receive a copy of the hearing transcript until the following day.

Petitioner thereafter commenced this CPLR article 78 proceeding alleging, among other things, that the decision to terminate him was arbitrary, capricious and affected by an error of law because, in the absence of the hearing transcript, respondents failed to adequately review the record prior to issuing their determination. Respondents moved to dismiss the petition for failure to state a claim, which motion petitioner opposed.^[FN1] Supreme Court granted respondents' motion, finding that the determination terminating petitioner's employment was not made in violation of lawful procedure or affected by an error of law. Petitioner appeals.

Petitioner's challenge to respondents' determination rests upon his contention that respondents failed to conduct a proper review of the evidence and the Hearing Officer's factual findings inasmuch as they did not receive the hearing transcript until after their decision had already been issued. Indeed, following a disciplinary hearing held pursuant to Civil Service Law § 75 (2), a hearing officer "shall make a record of such hearing which shall, with his [or her] recommendations, be referred to such officer or body [having the power to remove the employee] for review and decision" (Civil Service Law § 75 [2]; see Matter of Hardy v Kraham, 224 AD3d 946, 947 [3d Dept 2024]). The resulting administrative [*2]determinations are entitled to a presumption of regularity (see Matter of McKinney v Bennett, 31 AD3d 860, 861 [3d Dept 2006]) and, "in the absence of a clear revelation that the administrative body made no independent appraisal and reached no independent conclusion, its decision will not be disturbed" (Matter of Taub v Pirnie, 3 NY2d 188, 195 [1957] [internal quotation marks and citation omitted]; see Matter of Lake George Assn. v NYS Adirondack Park Agency, 228 AD3d 52, 65 [3d Dept 2024], lv denied 42 NY3d 908 [2024]).

In reaching the determination, the record reflects that Panunzio reviewed the Hearing Officer's undetailed written decision and recommendation, certain evidence presented at the hearing,^[FN2] and discussed the matter with the City's counsel and a DGS representative, both of whom were present at the hearing (compare Matter of Zlotnick v City of Saratoga Springs, 122 AD3d 1210, 1213-1215 [3d Dept 2014]). Panunzio did not, however, review the Hearing Officer's detailed and thorough decision, as such was read into the record at the hearing and the hearing transcript was not received until after the determination terminating petitioner had already been issued. As Panunzio was unable to review the Hearing Officer's complete report and findings, respondents had "no basis upon which to act" and their determination was thus "unavoidably . . . arbitrary" (Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385, 388 [1983]). To be sure, a reviewing officer need not review all evidence presented before the hearing officer or defer to his or her findings (see Matter of Perryman v Village of Saranac Lake, 64 AD3d 830, 836 [3d Dept 2009]; Matter of Pignato v City of Rochester, 288 AD2d 825, 826 [4th Dept 2001], appeal dismissed 97 NY2d 725 [2002], lv denied 98 NY2d 604 [2002]). Nevertheless, to permit respondents to issue a determination without even having the availability of the Hearing Officer's complete report and findings would render the requirements of Civil Service Law § 75 (2) meaningless (see Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d at 387-388). Accordingly, we reverse and remit the matter for a determination after a de novo review of the record and the Hearing Officer's complete decision and findings (see generally Matter of Botsford v Bertoni, 112 AD3d 1266, 1269 [3d Dept 2013]). In view of our decision, we need not address petitioner's remaining contentions.

Lynch, J.P., Ceresia, Fisher and Powers, JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, determination annulled and matter remitted to respondents for further proceedings not inconsistent with this Court's decision.

Footnotes

Footnote 1: Although respondents' pre-answer motion was delineated as a motion to dismiss, Supreme Court essentially treated the motion as one seeking summary judgment and rendered a merit-based determination. On appeal, the parties raise no issues in this regard and treat the judgment as having been made on the merits of the petition (see Matter of Boyle v NYS Dept. of Motor Vehs., 209 AD3d 1222, 1223 n [3d Dept 2022], lv denied 39 NY3d 909 [2023]).

Footnote 2: The GPS and video evidence of the charged misconduct relied upon have not been included in the record on appeal.

New York State's Comptroller posts municipal and school district audits on the Internet

On September 12, 2025, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

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

Rochester Prep Charter School 3 – IT Asset Management (Monroe County) Although the school board contracted with a management company to facilitate the school’s procurement of IT assets and services and to maintain inventory records, school officials did not ensure that company employees maintained complete and accurate inventory records for all IT assets, including for those purchased with federal funds. As a result, the school’s inventory records did not include all IT assets and no records contained adequate information to sufficiently track or identify the school’s IT assets because they were incomplete or inaccurate and lacked asset-identifying information.

West Sparta Independent Volunteer Fire Department Company Number 1, Inc. (Department) – Board Oversight (Livingston County) The board did not provide adequate oversight of financial operations, placing department resources at risk of waste and theft. The board generally did not review the department’s bills before or after they were paid to help ensure that all 230 claims totaling $260,823 were properly supported and for appropriate purposes. The board also did not ensure that the treasurer maintained supporting documentation for all revenues and redeposited startup cash totaling $259,178. The treasurer did not file the 2023 foreign fire insurance (FFI) tax proceeds annual report with the State Comptroller’s office until after auditors asked about it. Auditors determined that disbursements of FFI tax proceeds were not approved by the membership and were used for inappropriate purposes, such as purchasing approximately $4,000 in gift cards.

Town of Windsor – Capital Project (Broome County) The board did not properly manage its highway garage capital project. Although three project construction contracts totaling $4.8 million were properly procured, the board may have made material alterations to bid specifications for two other contracts totaling $1.2 million, which brings into question whether they were properly awarded. Additionally, although not required by the town’s procurement policy, the board could have solicited some type of competition and documented the results to help provide assurance that one professional service contract totaling approximately $382,000 was obtained under the most favorable terms and conditions possible and without favoritism. Town officials partially funded the project with $1.5 million in town-outside-village funds and did not have adequate documentation to support how the funds were used or that the appropriate tax base was charged.

Eastport Fire District – Procurement (Suffolk County) Officials did not obtain competitive quotes in accordance with their procurement policy. The board-adopted policy addresses the procurement of goods and services not required to be bid. However, the policy does not provide guidance or encourage competitive methods for the procurement of professional services and insurance. The board did not use a competitive method to procure professional services and insurance coverage from 10 vendors totaling $203,097. In addition, the district paid 20 vendors for goods and services totaling $96,955, without obtaining quotes as required by the policy. As a result, the district may not have received the best price for the goods and services it purchased.

Town of Danby – Audit Follow-Up (Tompkins County) The purpose of our review was to assess the Town of Danby’s progress as of May 2025 in implementing our recommendations in the audit report Town of Danby – Town Clerk (2022M-8), released in May 2022. The audit determined that the town clerks did not identify tax collection account errors totaling $64,959 and could not account for approximately $1,000 in cash from tax collections. The town clerks also did not maintain adequate supporting documentation for collections and complete monthly bank reconciliations and accountabilities. In addition, the board did not perform an annual audit of the town clerk’s records. Of the 10 audit recommendations, town officials implemented four recommendations, partially implemented one recommendation and did not implement five recommendations.

Starpoint Central School District – Audit Follow-Up (Niagara County)  The purpose of our review was to assess the Starpoint Central School District’s progress as of May 2025 in implementing our recommendations in the audit report Starpoint Central School District – Network Access and Application User Permissions (2022M-101), released in October 2022. The audit determined that district officials did not adequately secure access to the network or properly manage user permissions to the financial and student information applications. Of the five audit recommendations, the Board of Education, district officials, the network manager and district-assigned BOCES coordinator fully implemented one recommendation, partially implemented three recommendations, and did not implement one recommendation. We also reviewed the district’s progress in implementing our recommendations related to sensitive IT control weaknesses, which we communicated to district officials confidentially.

###

Responding to an application for records pursuant to New York State's Freedom of Information law

In its decision in a case involving a demand for "agency records" pursuant to New York State's "Freedom of Information Law" [FOIL, (New York State's Public Officers Law Article 6)], the Appellate Division said that:

1. "When faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search*; and 

2. Public Officers Law §89(3) "does not specify the manner in which an agency must certify that documents cannot be located; and

3. "Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required."

In a proceeding initiated pursuant to CPLR Article 78 to compel disclosure of certain records pursuant to FOIL, Petitioner in the instant matter appealed  a Supreme Court decision, that, in effect, dismissed Plaintiff's complaint. The Appellate Division affirmed the Supreme Court's ruling, with costs.

Petitioner had submitted a request pursuant FOIL seeking "[a]ll communications" during a specific time period between "the Rockland County Clerk's [O]ffice" and several specified entities or offices "regarding issuance of pistol permits and the removal of license restrictions." 

Initially the County denied the FOIL request on the ground that "responsive inter-agency and intra-agency records that are exempt from production have been withheld". Petitioner's appealed. Subsequently the County denied the Petitioner's appeal on different grounds, advising him that no records responsive to his request were found after performing "a new diligent search of emails and hard-copy documents using the search terms 'issuance of pistol permit' and 'removal of license restrictions and issuance of pistol permit'" and interviewing the Rockland County Clerk [County Clerk].

In October 2022, Petitioner commenced the instant proceeding pursuant to CPLR Article 78 against the County to compel disclosure of the records requested by Petitioner pursuant to FOIL. Supreme Court determined that a "hearing [was] required regarding the diligence of the [County's] search" and the County conducted a new search using "36 terms that were supplied by" the [Petitioner], "which yielded documents that the County maintained were protected by the inter-agency exemption".

At the subsequent hearing, which was limited to the issue of whether there had been a diligent search, the evidence at the hearing revealed that the Rockland County Clerk's Office's Records Access Officer and the County Clerk had "confirmed that no paper records responsive to the FOIL request existed and that a search of the County Clerk's emails had been performed at the request of one of the attorneys who testified at the hearing".

Supreme Court reviewed the documents produced and determined that "all of these documents were exempt from disclosure under FOIL". Petitioner appealed, contending that the County failed to perform a diligent search but did not challenge the Supreme Court's determination that the documents disclosed to the court and reviewed by the court were exempt from disclosure.

The Appellate Division opined that "contrary to the [Petitioner's] contention, the County demonstrated that it had satisfied its obligations under FOIL by presenting testimony at the hearing that all potentially responsive documents had been disclosed and that the County had conducted a diligent search for all responsive documents.

Further, observed the Appellate Division, "As the [Petitioner] did not substantially prevail, he was not entitled to an award of attorneys' fees", citing Public Officers Law §89[4][c][i and Matter of Breighner v Suffolk County, 237 AD3d at 930).

* See Matter of Breighner v Suffolk County, 237 AD3d 928, [internal quotation marks omitted]; Public Officers Law §89[3][a]; and Matter of Rattley v New York City Police Dept., 96 NY2d 873 at 875). 

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

No appeal lies from a court order denying a motion to "reargue"

In this action to recover damages for alleged unlawful employment discrimination on the basis of gender and national origin in violation of the New York City Human Rights Law, the Plaintiff appealed:

(1) An order of the Supreme Court dated February 7, 2024, which granted Defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint; and 

(2) An order of the same court dated July 29, 2024, which denied that branch of the Plaintiff's motion for leave to reargue his opposition to the Defendants' prior motion pursuant to CPLR 3211(a) to dismiss the complaint.* 

The Appellate Division:

1. Dismissed the Plaintiff's appeal from so much of the order dated July 29, 2024, as denied that branch of the Plaintiff's motion for leave to reargue, explaining that no appeal lies from an order denying re-argument;  

2. Affirmed the Supreme Court's order dated February 7, 2024; and

3. Awarded one bill of costs to the Defendants.

Plaintiff had commenced this action against two employees of the Department of Education of the City of New York [DOE] in their individual and official capacities in June 2023, seeking to recover damages for employment discrimination alleging violations of the United States and New York State Constitutions, the New York City Human Rights Law, the Administrative Code of the City of New York, and 42 USC §§1981, 1983, and 1985. Plaintiff had alleged that he was discriminated against by the Defendants during his employment with the DOE based on his "gender as male, and national origin as someone born in Haiti."

Pursuant to CPLR 3211(a), Defendants had moved  to dismiss the complaint on the ground, among others, that the causes of action asserted against them by the Plaintiff in their official capacities was barred by the doctrine of res judicata. 

The Defendants argued that in November 2022, Plaintiff had commenced a substantially similar action asserting causes of action identical to those asserted in the instant action against the Defendants' employer, DOE, as well as against the Board of Education of the City School District of the City of New York. Supreme Court had granted DOE's motion in the prior action to dismiss the complaint on the basis of the Plaintiff's default and directed dismissal of the complaint. 

The Appellate Division, noting that "Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding". The Court noted that "the fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims", citing Bayer v City of New York, 115 AD3d 897.

Concluding that Supreme Court had properly granted those branches of the Defendants' motion to dismiss the causes of action insofar as asserted against them in their official capacities, the Appellate Division opined that those causes of action are barred by the doctrine of res judicata as the Defendants "in their official capacities were in privity with their employer [DOE], and the default judgment in the prior action was a final judgment on the merits."

In the words of the Appellate Division:

1. "Supreme Court properly, in effect, denied that branch of the Plaintiff's motion which was to vacate the February 2024 order; and

2. "Supreme Court also properly, in effect, denied that branch of the Plaintiff's motion which was for leave to amend the complaint, as there was no complaint before the court to amend at the time the [Plaintiff] moved for such relief."

* Plaintiff's motions pursuant to CPLR 2221(a) and 5015(a)(1) sought to vacate the order dated February 7, 2024, and pursuant to CPLR 3025(b) for leave to replead or amend the complaint.

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

New York State Comptroller Thomas P. DiNapoli says better Federal coordination needed to avoid making duplicate Social Security Premium Payments

An audit released on September 9, 2025, by New York State Comptroller Thomas P. DiNapoli found multiple issues with how the state identified out-of-state Medicaid members, and found close to $1.2 billion in managed care premiums that were paid for members who may have resided outside of New York. Auditors found that the state Department of Health (DOH) did not properly check to confirm that Medicaid members were New York residents and waited too long to recoup improper payments.

“Medicaid is a vital program and the single biggest expense in the state budget. We cannot afford any wasteful spending,” DiNapoli said. “If a person is enrolled in more than one state at the same time, both states may end up paying premiums to his or her managed care plans. Responsibility for preventing enrollment in more than one state lies at both the federal and state levels, and stronger coordination is needed to reduce improper payments, protect the program’s integrity, and ensure New York is only paying Medicaid costs for its residents.”

Medicaid members are enrolled through the New York State of Health (NYSOH) or through local departments of social services (Local Districts). Most of the state’s Medicaid members are enrolled in managed care plans, which are responsible for ensuring members have access to a range of health care services and reimbursing providers for those services. In exchange, DOH pays the plans a monthly premium for each enrolled member. Generally speaking, if a member who is enrolled in a managed care plan no longer resides in New York, they should be disenrolled from their plan and the plan must return premiums paid for periods when the member was not a resident. The audit examined the period from July 2017 through October 2024.

The audit found that DOH did not start submitting NYSOH’s member data for matching in the federal Public Assistance Reporting Information System (PARIS), which matches enrollment data of public assistance programs like Medicaid across all 50 states, until May 2017, nearly three years after NYSOH started. DOH did not start reviews of the NYSOH PARIS match results until two years later, in October 2019. The audit identified $1.5 billion in premium payments that were made from 2017 to 2019 for unreviewed NYSOH members.

Auditors identified an additional $1.2 billion in managed care premiums paid for members that potentially resided outside New York as follows:

• $509 million in premiums paid for 155,181 members who may have resided outside of New York according to data sources other than PARIS, such as the U.S. Postal Service’s National Change of Address (NCOA) information. For example, a member appeared on a May 2020 NCOA report with a forwarding address in Florida. The individual had no Medicaid services in NY since February 2020, but Medicaid made 45 monthly premium payments totaling $100,859 from June 2020 through February 2024. The member was still active and enrolled in managed care as of the end of the audit.
• $375 million in premiums paid for NYSOH-enrolled members who were identified on a PARIS match but were not reviewed by DOH to confirm residency because of flaws in NYSOH’s processing that caused the omissions.
• $299 million in premiums paid for members whose eligibility was ended due to PARIS matches but the improper premiums were not recovered ($234 million), or the member’s eligibility was flagged to be closed but was not officially ended and premiums continued to be paid ($65 million).

Even when DOH and Local Districts closed the eligibility of members identified by the PARIS match, DOH and the Office of the Medicaid Inspector General (OMIG) did not always take sufficient steps to recover premium payments for the time when the members resided outside the state. OMIG officials indicated they may have lost the opportunity to recover up to $11.4 million of the improper premiums DiNapoli’s office identified due to regulatory look-back provisions. DiNapoli encouraged OMIG to expedite a review of the audit findings to recover improper premium payments made on behalf of people living out-of-state where appropriate.

While all states, the District of Columbia, and Puerto Rico participate in the federal PARIS match, not all of them participate every quarter, which can impact the effectiveness of the identification of out-of-state members.

DiNapoli recommended DOH:

• Verify the residency of members identified by a PARIS match who were not reviewed, as well as members identified as potentially residing outside of the state by other data sources, and recover improper premium payments where appropriate.
• Review the $299 million in premium payments for members whose eligibility was closed or not properly closed, and recover the payments where appropriate.
• Enhance processes to identify members living outside of the state and recover improper premium payments.

In their response, DOH officials generally concurred with the audit recommendations and indicated that it was already taking steps to address them. DOH agreed to explore the use of other data sources, including NCOA, to identify out-of-state members and engage with the federal government about incorporating data that helps establish residency into the PARIS matching process at the federal level.

Click on the text shown below to access the Audit posted on the Internet:

Medicaid Program: Improper Premium Payments Made on Behalf of Managed Care Members Residing Outside the State

Downtown Revitalization Initiative and the NY Forward Program Webinar Reminder

Governor Hochul recently announced the ninth round of the Downtown Revitalization Initiative [DRI], along with the fourth round of NY Forward (NYF), a program targeted at revitalizing smaller and rural communities.

This year, DRI will invest $100 million in 10 new communities, bringing the total amount of funding allocated for all rounds of DRI and NYF to $1.4 billion.

On September 10, 2025, the Office of Planning, Development & Community Infrastructure will host an informational webinar interested. Learn how to apply for funding to catalyze economic growth, enhance quality of life, and strengthen local downtowns! 

How To Apply" Webinar 🗓️

Date of the Webinar: Wednesday, September 10th

Register for Webinar

Petitioners' CPLR Article 78 found untimely as Petitioners failed to bring this proceeding within four-month statute of limitations

In this proceeding pursuant to CPLR Article 78 seeking a court order to annul a determination of a Board of Education and two resolutions of the Board the Petitioners appealed a New York State Supreme Court order and judgment which dismissed such efforts by the Petitioners'.

The Appellate Division affirmed the Supreme Courts rulings with costs.

Petitioners had alleged that the Board of Education had violated the State Environmental Quality Review Act [SEQRA] and challenged the two resolutions of the Board.

Addressing the Supreme Court's rulings with respect to the Board's resolutions, the Appellate Division explained that "[u]nless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact."

Further, citing Matter of Velardi-Ward v New York State Dept. of Envtl. Conservation, 227 AD3d 1090, the Appellate Division noted "Such determination is final and binding when the decisionmaker arrives at a definitive position on the issue that inflicts an actual, concrete injury". 

The Appellate Division noted that the instant proceeding was untimely as Supreme Court had "properly determined that the Petitioners failed to bring this proceeding to challenge the SEQRA determination within the requisite four-month statute of limitations, and the Petitioners' remaining contention was "improperly raised for the first time on" appeal and, in any event, without merit". 

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

Audits of State Departments and Agencies and press releases reporting Jobbery by certain public employees

New York State Comptroller Thomas P. DiNapoli announced that the audits of State departments and agencies listed below were issued issued on September 5, 2025.

Click on the text highlighted in COLOR to access these audits posted on the Internet

Metropolitan Transportation Authority: Long Island Rail Road – Non-Revenue Service Vehicles and On-Rail Equipment (Follow-Up) (2024-F-17)

The Metropolitan Transportation Authority’s (MTA) Long Island Rail Road (LIRR) Engineering Department is responsible for the overall administration of fleet vehicles—cars, SUVs, trailers, trucks, and vans—as well as the maintenance of 396 pieces of on-rail equipment. A prior audit, issued in May 2023, found Engineering did not have written policies or procedures for keeping its vehicle fleet inventory or performing vehicle maintenance, did not always complete preventive maintenance or the required New York State inspections, and did not do a complete analysis of the cost to lease or purchase the vehicles, finding one vehicle cost $81,000 more over the 58 months it was leased than it would have cost to purchase. The MTA made some progress in addressing the problems identified in the initial audit report. Of the initial report’s 13 audit recommendations, three were implemented, four were partially implemented, and six were not implemented.

Metropolitan Transportation Authority – Transformation of the MTA (2022-S-5)

In April 2019, the New York State Legislature enacted changes in the Public Authorities Law requiring the Metropolitan Transportation Authority (MTA) and its affiliated entities to develop and complete a personnel and reorganization plan no later than June 30, 2019. The legislation expected to transform the organization through elimination of redundancies, streamlining processes, and greater collaboration to improve customer service, achieve greater efficiency, and realize cost savings. Auditors found the MTA did not have a working plan for Transformation that identified the tasks to be completed and included specific dates and cost savings. Full Transformation and delivery of the goals the Transformation Plan promised—improved customer service, process efficiencies, and cost reductions—were not supported by the work completed or based on documentation provided by the six departments reviewed.

Department of Corrections and Community Supervision – Controls Over Tablet and Kiosk Usage by Incarcerated Individuals (Follow-Up) (2024-F-28)

To serve the needs of the incarcerated individuals in its custody, the Department of Corrections and Community Supervision (DOCCS) contracted with Securus and its subsidiary JPay Inc. (Provider) to provide access to tablets and kiosks at no cost to incarcerated individuals, which they can use to access DOCCS-approved educational material, purchase DOCCS-approved media, and communicate with family and friends using a fee-based secure messaging system. A prior audit, issued in May 2023, found that DOCCS did not know how many individuals had opted in/out of the tablet program, did not internally monitor the numbers of active tablets at its facilities, did not verify the identity of community members corresponding with incarcerated individuals through secure messaging, did not adequately capture all the risks to incarcerated individuals and others through its secure message content screening process, did not adequately oversee the security and configurations of certain assets, and did not ensure systems were maintained at vendor-supported levels required to preserve the accuracy and integrity of DOCCS information. DOCCS asserted that it was not responsible for the tablet program, which it described as a relationship between the Provider and incarcerated individuals. DOCCS officials made some progress in addressing the problems identified in the initial audit report. Of the report’s seven audit recommendations, one was implemented, three were partially implemented, and three were not implemented.

CVS Health – Accuracy of Empire Plan Medicare Rx Drug Rebate Revenue Remitted to the Department of Civil Service (Follow-Up) (2024-F-24)

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). Individuals who are dual enrolled in the Empire Plan and Medicare have their prescription drug coverage under Empire Plan Medicare Rx. CVS Caremark, which contracted with Civil Service to administer the prescription drug program, is required to negotiate agreements with drug manufacturers for rebates, discounts, and other consideration and remit the rebate revenue to Civil Service. A prior audit, issued in June 2023, identified $10,723,916 in rebates due to Civil Service from CVS Caremark. CVS Caremark made some progress in addressing the issues identified in the initial audit, recovering and remitting $419,233 in rebates to Civil Service. Of the initial report’s two audit recommendations, one was partially implemented and one was not implemented.

Department of Health – Reducing Medicaid Costs for Recipients Who Are Eligible for Medicare (Follow-Up) (2025-F-8)

Individuals who are eligible or appear eligible for Medicare are required to apply for Medicare as a condition of receiving Medicaid. When Medicaid recipients are also enrolled in Medicare, Medicare becomes the primary payer and Medicaid the secondary, which allows for a significant cost avoidance for the Medicaid program. A prior audit, issued in September 2023, found, from July 2016 through June 2021, 13,318 Medicaid recipients who appeared eligible for Medicare based on age were not enrolled in Medicare. Medicaid could have potentially saved $294.4 million on behalf of these recipients for claims that could have been covered by Medicare as the primary payer. At the time of follow-up, auditors found Department of Health officials made little progress in addressing the problems identified in the initial audit report, and additional actions are needed. Of the initial report’s three audit recommendations, one was implemented, one was partially implemented, and one was not implemented.

State Education Department (Preschool Special Education Audit Initiative): UCPA of Cayuga County d.b.a. E. John Gavras Center – Compliance With the Reimbursable Cost Manual (2024-S-10)

UCPA of Cayuga County d.b.a. E. John Gavras Center (Gavras Center), a not-for-profit special education provider located in Auburn, is authorized by the State Education Department (SED) to provide Preschool Integrated Special Class (over 2.5 hours per day) and Preschool Integrated Special Class (2.5 hours per day) education services to children with disabilities who are between the ages of 3 and 5 years. For the three fiscal years ended June 30, 2021, the Gavras Center reported approximately $4.3 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $625,534 in reported costs that did not comply with requirements.

State Education Department (Preschool Special Education Audit Initiative): The Arc Franklin-Hamilton d.b.a The Adirondack Arc – Compliance With the Reimbursable Cost Manual (2024-S-32)

The Arc Franklin-Hamilton d.b.a. The Adirondack Arc (Adirondack), a not-for-profit special education provider located in Tupper Lake, is authorized by the State Education Department (SED) to provide Preschool Special Class (over 2.5 hours per day) education services to children with disabilities between the ages of 3 and 5 years. For the three fiscal years ended June 30, 2021, Adirondack reported approximately $3.9 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $76,812 in reported costs that did not comply with requirements.

Erie County Medical Center Corporation – Security Over Critical Systems (2023-S-48)

Erie County Medical Center Corporation (ECMCC) is a leading health care provider and academic medical center in Western New York. ECMCC’s IT Security Architecture emphasizes key principles such as the least privilege, data classification, and separation of duties. Auditors identified areas where ECMCC could improve certain security controls to minimize risks associated with unauthorized access to its systems and data. Due to the confidential nature of the audit findings, auditors communicated the details of these findings with eight recommendations in a separate, confidential report to ECMCC officials for their review and comment. ECMCC officials generally agreed with the findings and recommendations and, in several instances, indicated they were planning actions to address them.

On September 5, 2025, State Comptroller DiNapoli also reported on two cases involving "jobbery" by public employees.

As noted in previous NYPPL reports of misconduct involving a public employee stealing public funds, such breaches of the public trust are frequently referred to as "jobbery." Merriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain". 

The two most recent cases of jobbery reported by the Comptroller are set out below:

1. State Comptroller Thomas P. DiNapoli, Wayne County District Attorney Christine Callanan and New York State Police Superintendent Steven G. James announced that William Storrs, the former chief and treasurer of the Marbletown Volunteer Fire Department, was sentenced to four months of weekends in the Wayne County Jail and five years of probation for stealing more than $101,000 from the department. He was also ordered to pay a total of $101,394.50 in restitution.

“William Storrs abused the trust of the community he was sworn to serve and protect by stealing over $100,000 in fire department funds for his own profit,” DiNapoli said. “Thanks to our partnership with the New York State Police and District Attorney Callanan, he has been held accountable for his crimes and the money he stole will be recovered.”

Callanan said, “Public funds exist to serve the community, not to line the pockets of those in power. Mr. Storrs’ theft was a serious breach of duty, but today he has been held to account and ordered to repay every dollar he stole. Let this outcome serve as a warning: anyone who abuses their position for personal gain will face consequences, and the resources they took will be restored to the people they belong to.”

James said, “Fire chiefs take an oath to place the well-being of others above themselves, and as such, are held to a high standard. Mr. Storrs had no regard for the department or community and knowingly took advantage of a position he was entrusted in and promised to uphold. I thank our State Police members and partners at the Comptroller’s Office and Wayne County District Attorney’s Office for their diligent work on this case.”

DiNapoli’s office and the New York State Police launched a joint investigation into the Marbletown Fire Department in 2024, looking into allegations of theft. They found Storrs used his position as treasurer and then later as chief to steal $101,000 over four years. From January 2020 to July 2024, he made numerous personal purchases with the fire department’s debit cards and made direct payments from the department’s bank accounts to his personal accounts. He also made payments to his wife’s credit card and purchased items from various retailers.

The theft was discovered when a member of the fire department attempted to make a purchase with the department’s debit card and it was declined due to lack of funds. Fire department officials then reported the unauthorized activity to the State Police who partnered with DiNapoli’s office. In July 2024, Storrs was replaced as chief and suspended from the fire department.

Storrs was sentenced before Judge Richard M. Healy in Wayne County Court.

2. State Comptroller Thomas P. DiNapoli, Wayne County District Attorney Christine Callanan and New York State Police Superintendent Steven G. James announced that William Storrs, the former chief and treasurer of the Marbletown Volunteer Fire Department, was sentenced to four months of weekends in the Wayne County Jail and five years of probation for stealing more than $101,000 from the department. He was also ordered to pay a total of $101,394.50 in restitution.

“William Storrs abused the trust of the community he was sworn to serve and protect by stealing over $100,000 in fire department funds for his own profit,” DiNapoli said. “Thanks to our partnership with the New York State Police and District Attorney Callanan, he has been held accountable for his crimes and the money he stole will be recovered.”

Callanan said, “Public funds exist to serve the community, not to line the pockets of those in power. Mr. Storrs’ theft was a serious breach of duty, but today he has been held to account and ordered to repay every dollar he stole. Let this outcome serve as a warning: anyone who abuses their position for personal gain will face consequences, and the resources they took will be restored to the people they belong to.”

James said, “Fire chiefs take an oath to place the well-being of others above themselves, and as such, are held to a high standard. Mr. Storrs had no regard for the department or community and knowingly took advantage of a position he was entrusted in and promised to uphold. I thank our State Police members and partners at the Comptroller’s Office and Wayne County District Attorney’s Office for their diligent work on this case.”

DiNapoli’s office and the New York State Police launched a joint investigation into the Marbletown Fire Department in 2024, looking into allegations of theft. They found Storrs used his position as treasurer and then later as chief to steal $101,000 over four years. From January 2020 to July 2024, he made numerous personal purchases with the fire department’s debit cards and made direct payments from the department’s bank accounts to his personal accounts. He also made payments to his wife’s credit card and purchased items from various retailers.

The theft was discovered when a member of the fire department attempted to make a purchase with the department’s debit card and it was declined due to lack of funds. Fire department officials then reported the unauthorized activity to the State Police who partnered with DiNapoli’s office. In July 2024, Storrs was replaced as chief and suspended from the fire department.

Storrs was sentenced before Judge Richard M. Healy in Wayne County Court.

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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.