Circuit Court of Appeals sustains district court's denial of plaintiff further leave to amend his submissions to that court because such further amendment would have been futile

As relevant to this appeal before the U.S. Circuit Court of Appeals, Second Circuit, Plaintiff alleged violations of federal, state, and local anti-discrimination laws, breach of contract, and violations of New York General Business Law §§349 and 350. 

The federal district court had granted the Respondents' motions to dismiss the action and did so "with prejudice".

Reviewing de novo the district court’s dismissal of Plaintiff's complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the Plaintiff’s favor”, the Circuit Court, citing Mazzei v. The Money Store, 62 F.4th 88, observed that “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 

Noting the Plaintiff “has been pro se throughout", and that the Circuit Court it had viewed his pleadings, and his other filings with the district court were interpreted, to raise the strongest claims they suggested, the court said:

1. It agreed with the district court that Plaintiff failed to state a claim of racial, religious, national-origin, or gender discrimination under federal, state, or city law;

2. Plaintiff's Second amended complaint did not include any factual allegations indicating that any of these protected characteristics played a role in his exclusion "from the startup competitions or alumni benefits";

3. Plaintiff did not "sufficiently allege that similarly situated persons of a different race, religion, national origin, or gender fared better" than Plaintiff; 

4. Plaintiff failed to state a claim under New York General Business Law §§349 or 350 which requires alleging the defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered thereby; and 

5. Plaintiff failed to plausibly allege that Respondent made any statements that would be materially misleading to a consumer.

The Circuit Court then said Plaintiff's breach of contract claims premised on discrimination "necessarily warranted dismissal on the same basis as his discrimination claims."

As to Plaintiff's breach-of-contract claims, the Court Plaintiff did not allege that any of the asserted breaches were part of the consideration that Defendant promised him as part of a validly formed contract. Rather, opined the Circuit Court, Plaintiff, "at most, alleges that they were failures to fulfill gratuitous promises; but he does not allege that he relied on these promises to his detriment".

Lastly, the Circuit Court, citing Cuoco v. Moritsugu, 222 F.3d 99, said the federal district court "properly denied [Plaintiff] further leave to amend because amendment would have been futile".

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

Police officer terminated after being found guilty of having wrongfully caused inaccurate entries in official records

A New York City police officer [Petitioner] was found guilty of "wrongfully caused inaccurate entries in official records regarding his confrontation with a civilian and improperly caused her arrest based on such entries" after a disciplinary hearing and was terminated from his position. Petitioner appealed the New York City Police Commissioner: termination his dismissal from the Department but the Appellate Division "unanimously confirmed" the Commissioner's action.

The Appellate Division noted that substantial evidence supported the determination that Petitioner was guilty of the charges and specifications alleged, "including that [Petitioner] wrongfully caused inaccurate entries in official records regarding his confrontation with a civilian and improperly caused her arrest based on such entries" and the Deputy Commissioner of Trials [DCT] "properly determined that the body camera footage of the confrontation was inconsistent with [Petitioner's] claim that the civilian assaulted him with intent to injure."

Addressing specifications relating to incidents involving Petitioner's former girlfriend (Complainant), which resulted in her filing two domestic incident reports against Petitioner. The DCT found the two reports "to be credible", noting that Complainant's demeanor and conduct during her interviews with investigating officers were consistent with her claims of domestic violence.

Notwithstanding Petitioner's contentions to the contrary, the Appellate Division opined that NYPD can "impose discipline for a broad range of 'conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer,' even if that conduct is not criminal."

Finding no basis to disturb the DCT's credibility determinations, the court observed "the penalty of dismissal from the NYPD is not disproportionate to the seriousness of the multiple violations involved", citing Matter of Kelly v Safir, 96 NY2d 32 and other decisions.

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

________________________

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New York State's Workers' Compensation Board has issued updates to its Forms C-300.5 and C-312.5 and which are now in effect

The New York State Workers' Compensation Board (Board) has updated its  Stipulation (Form C-00.5) and Agreed Upon Findings and Awards for Proposed Conciliation Decision (Form C-312.5).

Both updated forms, which are currently in effect, now include fields to: 

• Provide information on claimant representatives, substitutions, and related fee requests/agreements.   

• Denote whether the case has a pending appeal. 

In addition, Form C-312.5 now includes the date the RB-89 was filed and will hereby be withdrawn when the Board decision becomes final. 

The Board requests that those filing such forms ensure that these updated forms are used to avoid processing delays. 

Translated versions of these forms will be posted on the Board's website when they become available. 

Nota bene: Older versions of the C-300.5 and C-312.5 forms will not be accepted after Monday, July 7, 2025.

Need More Information 

If you have any questions or concerns regarding these updates, please contact the officeofgeneralcounsel@wcb.ny.gov.  

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

On April 7, 2025, the New York State Department of Civil Service [DCS] posted the following Attendance and Leave items on the Internet:

• Advisory Memorandum 2025-01, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU)
• Advisory Memorandum 2025-02, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2025
• Policy Bulletin 2025-01, Rights of Employees to Express Breast Milk in the Workplace

The text of Advisory Memorandum 2025-01 is posted at:
Advisory Memorandum 2025-01

If you wish to print Advisory Memorandum 2025-01 DCS offers a version in PDF format at Advisory Memorandum 2025-01 PDF

The text of Advisory Memorandum 2025-02 is posted at:
Advisory Memorandum 2025-02

If you wish to print Advisory Memorandum 2025-02 DCS offers a version in PDF format at Advisory Memorandum 2025-02 PDF

The text of Policy Bulletin 2025-01 is posted at:
Policy Bulletin 2025-01

If you wish to print Policy Bulletin 2025-01 DCS offers a version in PDF format at Policy Bulletin 2025-01 PDF

To view previous Attendance and Leave bulletins issued by DCS click on the following URL:  https://www.cs.ny.gov/attendance_leave/index.cfm

New York State's Comptroller Thomas P. DiNapoli issues the second in a series addressing the use of Artificial Intelligence (AI) in New York Government. This a 2023 audit of New York City’s AI Governance

On April 3, 2025, New York States Comptroller Thomas P. DiNapoli reported that New York State’s centralized guidance and oversight of agencies’ use of Artificial Intelligence (AI) is inadequate and creates a risk that the technology could be used irresponsibly. The Comptroller concluded that "Improved Guidance" is needed for State Agencies using AI to avoid risks. 

The audit looked at the state’s overall AI policy and how AI was used at four state agencies: the Office for the Aging (NYSOFA), the Department of Corrections and Community Supervision (DOCCS), the Department of Motor Vehicles (DMV), and the Department of Transportation (DOT).

The audit, the second in a series on AI Use in New York Government, follows a 2023 audit of New York City’s AI Governance.

“New York state agencies are using AI to monitor prisoners’ phone calls, catch fraudulent driver’s license applications, assist older adults, and support government services,” DiNapoli said. “Our audit found insufficient central guidance and oversight to check that these systems are reliable and accurate, and no inventory of what AI the state is using. This audit is a wake-up call. Stronger governance over the state’s growing use of AI is needed to safeguard against the well-known risks that come with it.”

While the state has moved to implement AI systems, guardrails for these technologies have not kept pace. Without adequate guidelines and oversight, AI systems that are meant to help expedite and expand services can, for example, expose data to unintended sources and create inequalities in decision-making and the delivery of services.

In New York State, use of AI is governed by the Office of Information Technology Services (ITS), which issued its Acceptable Use of Artificial Intelligence Technologies Policy (AI Policy) in January 2024. The AI Policy requires agencies to assess the risks in the AI systems they use. DiNapoli’s audit highlights a disconnect between the state’s eight-page AI Policy and how agencies understand AI and their responsibilities. While New York’s AI Policy gives an overview of responsible AI use, it lacks any detailed guidance on its implementation and instead simply directs agencies to federal guidelines for further information.

A major problem with the AI Policy is that it leaves agencies free to determine what is, or is not, responsible use of AI. Conflicting and confusing guidance regarding use of confidential information with AI systems as well as lack of staff training also create opportunities for inadvertent noncompliance and contribute to concerns about unintended uses and consequences.

The U.S. Government Accountability Office (GAO) has cautioned that AI “has the potential to amplify existing biases and concerns related to civil liberties, ethics, and social disparities,” but the state’s AI Policy contains only two sentences dedicated to bias management, failing to address both the data used to set up AI systems and the monitoring of already implemented systems for fairness and equity.

ITS also does not have an inventory of AI systems in use by state entities and is still developing a process for creating one, more than a year after releasing the AI Policy and. Officials told auditors they become aware of AI systems when an agency makes a procurement request or reaches out for support, leaving it to them to determine whether the system they are using is AI and has to follow the state’s AI Policy. That was the case with NYSOFA, which had an AI system, but did not know the system fell under the AI Policy.

Knowing what AI systems are in use, how they’re being used and what data they’re drawing from is critical to ensuring this technology is being used ethically and responsibly.

Finally, ITS officials said state entities are responsible for their own AI review, risk assessments, reporting and compliance with the AI Policy requiring human oversight of AI systems and outcomes. There is, however, no mechanism for ITS to ensure these are done or done properly.

Agencies Use of AI 

Auditors found that while NYSOFA, DOCCS, and DOT use ITS’ definition of AI, they do not have in-house policies or specific procedures to govern how AI is authorized, developed or used, for ensuring the data is unbiased and reliable, or have formal requirements of human oversight. DOT has an AI working group that first met in June 2024, but it has not yet issued any formal policies.

DMV does have internal policies to assess AI risks and oversee its use, but no specific procedures to ensure these policies are carried out. It also has an AI Governance Committee and created its own definition of AI, but exempted its facial recognition software - which it said it did not consider to be an AI system - from AI oversight. It has not consulted with ITS on that decision, although ITS’ definition of AI explicitly considers a system using computer vision (i.e., that gathers information from digital images) and making recommendations based on that data to be AI.

DMV and DOT provided an informal inventory of the AI they have in use or in development. None of the agencies maintained a formal AI inventory.

DOCCS uses AI software that monitors inmates’ phone calls to ensure inmates are only making calls as authorized. DOCCS’ contract bars use or sharing of this information without its consent and owns the recordings. However, the agency does not have a plan for addressing potential AI risks, and the contract does not address reducing biases to decrease the possibility that an inmate could be unfairly or unnecessarily subjected to further investigation. The vendor explained to auditors how it mitigates biases in the system, but it was not clear if those efforts work because DOCCS does not monitor or measure the system’s error rates.

NYSOFA uses a voice-activated device that acts as an AI companion to combat social isolation and loneliness and foster independence among older people. It initiates conversations and remembers what users say. NYSOFA shared satisfaction surveys with auditors that reported a 95% reduction in loneliness among those using the device in 2023.

NYSOFA was uncertain if its use of the device met the definition of AI under the AI Policy, which it does. The policy requires human oversight by the agency, however since the devices are provided directly to users, the only human oversight is the user. NYSOFA officials said the quality of the product’s interactions is open to interpretation, based on each user’s experience. They also said the vendor is responsible for ensuring the device’s responses are accurate and appropriate, although that is not written into their contract, and NYSOFA does not conduct a review to check. When asked about data security and privacy of the data generated, NYSOFA stated that the developers of the product own the performance metric data and recorded data, and that the vendor can use and access this data. NYSOFA officials did not know if the vendor was allowed to use the data to build or improve other systems elsewhere.

The vendor for the system auditors reviewed at DOT stated that the system does use AI for other clients, but the way it was implementing the technology for DOT did not include AI. Ultimately, there was insufficient information to determine if the example case was in fact AI. However, DOT is piloting three AI systems.

None of the agencies have conducted periodic reviews or audits of their AI systems to determine if they are accurate, reliable, and free of biases. Only DMV has a policy requiring such a review. In addition, while the agencies have trained staff on using their AI systems, none have trained employees on the risk of inaccuracies or biases in AI.

Recommendations 

The audit made seven recommendations, including that ITS strengthen its AI Policy by including guidance for agencies on adopting AI, work with agencies to support their responsible use of AI, and implement training. The recommendations for the other agencies included creating AI governance structures and policies and coordinating with ITS. The audit also recommended that DMV review its facial recognition system with ITS to determine if it’s complying with the state’s AI Policy.

Agencies Responses 

ITS stated that it was reviewing the recommendations and considering improvements and was creating training materials on AI for state entities. NYSOFA, DOCCS and DOT generally agreed with the recommendations and said they would create IT governance and consult with ITS. DMV generally disagreed with the findings, but agreed with the recommendations. Their full responses are available in the audit.

DiNapoli's audit, along with a previous audit of New York City AI governance, underscores the importance of independent oversight to ensure that AI governance is appropriately designed and complied with by agencies. DiNapoli will be advancing a bill to the state legislature that would require regular, independent audits of state agencies' AI governance and their development, use, and management of AI tools and systems. If enacted, the legislation would help safeguard against risks and improve the likelihood that AI technologies are used responsibly, ethically and transparently.

Audit 
Office of Information Technology Services, New York State Office for the Aging, Department of Corrections and Community Supervision, Department of Motor Vehicles, Department of Transportation: New York State Artificial Intelligence Governance

Related Audit 
NYC Office of Technology and Innovation: Artificial Intelligence Governance (Feb. 2023)

TO BE EDITED

1. AI, EVs Behind Steep Increase in Future Electricity Demand A new study from the National Electrical Manufacturers Association predicts a significant rise in electricity demand, driven by the growth of data centers and increased electric vehicle adoption. READ MORE How AI Transforms Collaboration & Communication AI is transforming every corner of public service -- and communication is no exception. This paper explores how state and local agencies can harness AI-powered communication tools to modernize service delivery, streamline internal collaboration and improve the constituent experience. DOWNLOAD Grant Award Closeout Explainer: From Overwhelming to Manageable Award closeout can feel overwhelming, but understanding the key requirements makes it more manageable. This Explainer breaks down the legislation driving the requirements, what is required, who's responsible, and how to meet reporting and compliance expectations with less stress. DOWNLOAD Growth of State Rainy-Day Funds Has Slowed Down The median balance increased by 7 percent last year, a big comedown from 31 percent growth in 2023. Still, half the states could operate solely on rainy-day accounts for longer periods of time. READ MORE Louisiana Jury Orders Chevron to Pay $744M in Landmark Coastal Restoration Case The jury found the oil giant liable for environmental damages from decades ago. Business groups said the decision could have a chilling effect on the state's oil and gas industry. READ MORE Sioux Falls, S.D., Looks Inward for Better Digital Experience The focus for South Dakota’s most populous city is improving the user experience for digital government operations. Officials are starting with a closer look at the experience staffers have on the city systems they use. READ MORE Where Is Government When It Comes to Cloud in 2025? A new report just released by Forrester highlights the growing cloud footprint in the public sector globally, along with challenges ahead in areas such as security and modernizing core applications. READ MORE AI, EVs Behind Steep Increase in Future Electricity Demand A new study from the National Electrical Manufacturers Association predicts a significant rise in electricity demand, driven by the growth of data centers and increased electric vehicle adoption. READ MORE How Will Maryland Implement Its New 3 Percent Tech Tax? With Maryland lawmakers scheduled to give final approval to a new tax on certain technology services, questions remain about how the state will implement and enforce the new policy. READ MORE Indiana County, Penn., Power Plant to Be Converted for AI A shuttered power plant is slated to be rebuilt to generate electricity for artificial intelligence. The state Senate majority leader called the move “historic,” but observers raised concerns about strain on the grid. READ MORE  Applying for accidental disability retirement benefits  The Petitioner, a police officer, applied for accidental disability retirement benefits. His application was denied by the New York State Employees' Retirement System. Following a hearing, a Hearing Officer upheld the System's denial of the application, finding that the underlying incident and injuries sustained by Petitioner arose from risks inherent in the performance of his duties as a police officer and, therefore, did not constitute an accident for purposes of accidental disability retirement.  The Executive Deputy Comptroller adopted the Hearing Officer's decision and Petitioner initiated a CPLR Article 78 proceeding challenging the Executive Deputy Comptroller's decision. The Appellate Division affirmed the Executive Deputy Comptroller's determination, opining: 1. As the applicant, Petitioner bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law; 2. The Executive Deputy Commissioner's determination that Petioner's disability was not the result of an accident will be upheld if supported by substantial evidence in the record as a whole; 3. An event which is a risk inherent in the work performed is not an accident for purposes of [accidental disability retirement] benefits"; and,  4. An event that is not a risk inherent in one's job must be a sudden, unexpected occurrence in order to amount to an accident.  As explained by the Court of Appeals, "a precipitating event that could or should have reasonably been anticipated by a person in [petitioner's] circumstances is not an accident for purposes of [accidental disability retirement] benefits". Thus, "an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury" Consequently, "where the injury-causing event constitutes a risk inherent in a police officer's duties, it is not unexpected and, thus, not an accident"  Petitioner's application was denied upon a finding that the incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363.  ADJUDGED that the determination is confirmed, without costs, and petition dismissed. https://nycourts.gov/reporter/3dseries/2025/2025_01856.htm Matter of Kolash v New York State Div. of Human Rights 2025 NY Slip Op 01462 Decided on March 14, 2025 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on March 14, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: WHALEN, P.J., CURRAN, GREENWOOD, DELCONTE, AND KEANE, JJ. 67 TP 24-00161 [*1]IN THE MATTER OF JOSEPH D. KOLASH, PETITIONER, v NEW YORK STATE DIVISION OF HUMAN RIGHTS AND UNIVERSITY OF ROCHESTER, RESPONDENTS. EISENBERG & BAUM, LLP, NEW YORK CITY (ANDREW ROZYNSKI OF COUNSEL), FOR PETITIONER. OSBORN, REED & BURKE, LLP, ROCHESTER (AIMEE LAFEVER KOCH OF COUNSEL), FOR RESPONDENT UNIVERSITY OF ROCHESTER. Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Monroe County [Kevin M. Nasca, J.], entered January 22, 2024) to review a determination of respondent New York State Division of Human Rights. The determination dismissed the complaint. It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed. Memorandum: Petitioner commenced this proceeding pursuant to Executive Law § 298 seeking to annul the determination of respondent New York State Division of Human Rights (DHR) dismissing his complaint against respondent University of Rochester (University). Petitioner, who was born deaf, alleges that the University unlawfully discriminated against him in violation of Executive Law § 296 by treating him differently because of his hearing disability at its medical center, a place of public accommodation, and denying him an accommodation for his disability. DHR's determination, which adopted the recommendation of the Administrative Law Judge [ALJ], dismissed petitioner's complaint on the ground that he failed to establish that he was excluded from or denied access to services of a place of public accommodation because of his disability. The New York State Human Rights Law protects individuals with disabilities from "discrimination in the form of denial of services, or unequal access to service, advantages or privileges by a place of public accommodation" (Matter of Staten Is. Alliance for Mentally Ill v Tolbert, 306 AD2d 31, 32 [1st Dept 2003]; see Executive Law §§ 292 [9]; 296 [2]). A discriminatory practice includes a refusal "to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities" (§ 296 [2] [c] [i]), or "to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services" (§ 296 [2] [c] [ii]). Our review of a DHR determination made after a hearing "is limited to the issue whether it is supported by substantial evidence" (Matter of Hirsch v New York State Div. of Human Rights, 232 AD3d 1248, 1249 [4th Dept 2024]; see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 331 [2003]). "It is peculiarly within the domain of the [DHR] Commissioner, who is presumed to have special expertise in the matter, to assess whether the facts and the law support a finding of unlawful discrimination" (Hirsch, 232 AD3d at 1249 [internal quotation marks omitted]; see Matter of Garvey Nursing Home v New York State Div. of Human Rights, 209 AD2d 619, 619 [2d Dept 1994]). Thus, we are not permitted to "weigh the evidence or reject DHR's choice where the evidence is conflicting and [*2]room for a choice exists" (Hirsch, 232 AD3d at 1249 [internal quotation marks omitted]; see Matter of Clifton Park Apts., LLC v New York State Div. of Human Rights, 41 NY3d 326, 333 [2024]; Matter of Jones v New York State Div. of Human Rights, 122 AD3d 1387, 1387 [4th Dept 2014]). Here, we conclude that substantial evidence in the record supports the determination that petitioner failed to establish that he was excluded from or denied access to services of a place of public accommodation because of his disability. Petitioner asserted in his complaint that he arrived at the University's medical center to pick up his friend following completion of her medical procedure and that he had to wait in the lobby for 15 minutes because the reception desk was unstaffed and there were no auxiliary services available to him, but he failed to introduce evidence at the hearing demonstrating that a non-disabled individual would not have had to wait for the same length of time. We have considered petitioner's remaining contentions and conclude that they are without merit. Entered: March 14, 2025 Ann Dillon Flynn Clerk of the Court https://nycourts.gov/reporter/3dseries/2025/2025_01462.htm Matter of Aron Law PLLC v Rochester City Sch. Dist. 2025 NY Slip Op 01519 Decided on March 14, 2025 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on March 14, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: LINDLEY, J.P., CURRAN, OGDEN, NOWAK, AND KEANE, JJ. 665 CA 23-01893 [*1]IN THE MATTER OF ARON LAW PLLC, PETITIONER-APPELLANT-RESPONDENT, v ROCHESTER CITY SCHOOL DISTRICT, RESPONDENT-RESPONDENT-APPELLANT. ARON LAW, PLLC, BROOKLYN (JOSEPH H. ARON OF COUNSEL), FOR PETITIONER-APPELLANT-RESPONDENT. BOND, SCHOENECK & KING, PLLC, ROCHESTER (JEREMY M. SHER OF COUNSEL), FOR RESPONDENT-RESPONDENT-APPELLANT. Appeal and cross-appeal from a judgment (denominated order and judgment) of the Supreme Court, Monroe County (Sam L. Valleriani, J.), dated October 23, 2023, in a proceeding pursuant to CPLR article 78. The judgment granted in part and denied in part the petition and denied the motion of respondent to dismiss the petition. It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reinstating the petition insofar as it seeks disclosure of communications, subject to redaction pursuant to particularized and specific justification under Public Officers Law § 87 (2) and granting the petition to that extent, and by reinstating the petition insofar as it seeks an award of attorney's fees and costs pursuant to Public Officers Law § 89 (4) (c), and as modified the judgment is affirmed without costs. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to compel respondent to disclose records pursuant to the Freedom of Information Law ([FOIL] Public Officers Law § 84 et seq.)—including video footage, police reports, and certain communications—concerning a shooting that took place at or near Franklin High School in the City of Rochester. Petitioner also sought an award of attorney's fees. Petitioner appeals and respondent cross-appeals from a judgment that granted the petition only to the extent that it sought to compel disclosure of the requested video footage and police reports, subject to redaction. Under FOIL, "[a]ll government records are . . . presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87 (2)" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274-275 [1996]; see Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 225 [2018], rearg denied 31 NY3d 1125 [2018]). The exemptions are to be " 'narrowly construed' " (Gould, 89 NY2d at 275; see Matter of Hawley v Village of Penn Yan, 35 AD3d 1270, 1271 [4th Dept 2006], amended on rearg 38 AD3d 1371 [4th Dept 2007]), and the government agency bears the burden of demonstrating that " 'the material requested falls squarely within the ambit of one of [the] . . . exemptions' " (Abdur-Rashid, 31 NY3d at 225; see Matter of National Lawyers Guild, Buffalo Ch. v Erie County Sheriff's Off., 196 AD3d 1195, 1196 [4th Dept 2021]). To invoke one of the exemptions, the government agency "must articulate 'particularized and specific justification' for not disclosing requested documents" (Gould, 89 NY2d at 275; see Matter of Nix v New York State Div. of Criminal Justice Servs., 167 AD3d 1524, 1525 [4th Dept 2018], lv denied 33 NY3d 908 [2019]). Addressing first the cross-appeal, we reject respondent's contention that Supreme Court [*2]erred in granting the petition insofar as it sought to compel disclosure of the requested video footage and police reports, and we conclude that the court properly determined that redaction of certain portions of those materials may be appropriate. To the extent that the video footage constitutes an education record that is specifically exempted from disclosure by federal statute (see Public Officers Law § 87 [2] [a]), here the Federal Educational Rights and Privacy Act, respondent should redact any personally identifiable information contained in those records (see 20 USC § 1232g [b] [2]; 34 CFR 99.31 [b] [1]; Easton Area Sch. Dist. v Miller, 659 Pa 606, 627-632, 232 A3d 716, 728-731 [2020]; Matter of Jewish Press, Inc. v Kingsborough Community Coll., 201 AD3d 547, 549 [1st Dept 2022]) and submit the redacted records to the court to conduct an in camera comparison of the redacted and original records. Although respondent contends that the video footage and police reports are exempt from disclosure under Public Officers Law § 87 (2) (e) (i) and (f), we conclude that respondent's broad allegation "is insufficient to overcome the presumption that the records are open for inspection . . . and categorically deny petitioner all access to the requested material" (Matter of Konigsberg v Coughlin, 68 NY2d 245, 251 [1986]). Respondent may, however, submit the video footage and police reports to the court for an in camera comparison of the redacted records to the originals if it believes certain material is contained within them is exempt from disclosure under Public Officers Law § 87 (2) (e) (i) and (f). If respondent establishes that the requested records contain material exempt under Public Officers Law § 87 (2) (a), (e) (i), or (f), "the appropriate remedy is . . . 'disclosure of all nonexempt, appropriately redacted material' " (Matter of Pflaum v Grattan, 116 AD3d 1103, 1105 [3d Dept 2014], quoting Gould, 89 NY2d at 275). We agree with petitioner on its appeal that the court erred in denying the petition insofar as it sought to compel respondent to provide petitioner with access to the requested communications, and we therefore modify the judgment accordingly. In response to petitioner's FOIL request, respondent failed to demonstrate that the requested material qualifies for an exemption inasmuch as it did not articulate a " 'particularized and specific justification' for not disclosing" the requested communications (Gould, 89 NY2d at 275). Respondent now asserts for the first time that the requested communications were not reasonably described. Our review of the administrative determination, however, is limited to the grounds invoked by the agency in denying the FOIL request (see Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 74-75 [2017]; Matter of Barry v O'Neill, 185 AD3d 503, 505 [1st Dept 2020]). Respondent therefore must provide the requested communications to petitioner "subject to any redactions or exemptions pursuant to a particularized and specific justification" for exempting any portion thereof (Matter of New York Civ. Liberties Union v City of Syracuse, 210 AD3d 1401, 1407 [4th Dept 2022]). In light of our determination, we agree with petitioner that the court erred in denying that part of the petition seeking attorney's fees and costs pursuant to Public Officers Law § 89 (4) (c), and we therefore further modify the judgment by reinstating the petition to that extent. Nevertheless, we further conclude that petitioner's contention that the court erred in failing to grant that part of the petition seeking attorney's fees and costs pursuant to Public Officers Law § 89 (4) (c) is premature (see Matter of Lane v Port Wash. Police Dist., 221 AD3d 698, 708 [2d Dept 2023]; see also Matter of Forsyth v City of Rochester [appeal No. 1], 185 AD3d 1499, 1500-1501 [4th Dept 2020]). Entered: March 14, 2025 Ann Dillon Flynn Clerk of the Court https://nycourts.gov/reporter/3dseries/2025/2025_01519.htm Cunningham v City of New York 2025 NY Slip Op 02002 Decided on April 03, 2025 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: April 03, 2025 Before: Kern, J.P., Moulton, Kapnick, Gesmer, Pitt-Burke, JJ. Index No. 150564/18|Appeal No. 3696-3697|Case No. 2023-01735 2023-06039| [*1]Timothy Cunningham, Plaintiff-Appellant, v The City of New York et al., Defendants-Respondents. Sobo & Sobo, LLP, Middletown (Mark P. Cambareri of counsel), for appellant. Mauro Lilling Naparty LLP, Woodbury (Jessica L. Smith of counsel), for The City of New York, respondent. Ahmuty, Demers & McManus, Albertson (Nicholas P. Calabria of counsel), for Liro Engineers Inc., Liro Holdings, Inc., Liro GIS and Survey, P.C., respondents. Kahana Feld LLP, New York (Daniel Rosenblum of counsel), for TC Electric, LLC, respondent. Judgment, Supreme Court, New York County (Lyle E. Frank, J.), entered May 3, 2023, dismissing the complaint, and bringing up for review an order, same court and Justice, entered on March 22, 2023, which granted the motions of defendants The City of New York, Liro Engineers, Inc., Liro Constructors, Inc., Liro Gis and Survey, P.C., and Liro Holdings, Inc. (collectively, Liro), and TC Electric, LLC (TCE) for summary judgment dismissing plaintiff's complaint and denied plaintiff's motion for partial summary judgment on his claims pursuant to Labor Law §§ 240(1) and 241(6), unanimously affirmed, without costs. Appeal from March 22, 2023, order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Plaintiff, an environmental inspector employed by the New York City Transit Authority (NYCTA), was not engaged in work covered by Labor Law §§ 240(1) or 241(6) when he was injured (see Martinez v City of New York, 93 NY2d 322, 325-326 [1999]; Fabrizio v City of New York, 306 AD2d 87, 87-88 [1st Dept 2003]). Plaintiff was taking samples from a subterranean electrical closet in downtown Manhattan in advance of a project to repair damage incurred during Superstorm Sandy. Those samples would be sent for testing, and then, only after the area was found clear of asbestos or an asbestos contractor engaged by NYCTA had performed mediation would defendant TCE begin its contracted for work. As was the case in Martinez, "none of the activities enumerated in the statute[s] [were] underway" when plaintiff was injured (93 NY2d at 326). Plaintiff's work as an environmental inspector was merely investigatory, terminating prior to the actual commencement of any subsequent asbestos removal work, and was not encompassed by the statute. Plaintiff's reliance on our decision in McNeill v LaSalle Partners (52 AD3d 407 [1st Dept 2008]) is misplaced. At the time he was injured, the plaintiff in McNeill was monitoring ongoing asbestos abatement in an active construction worksite (id. at 409 [the plaintiff's approval was necessary for asbestos abatement work to "continue" during the "construction phase" of the Grand Central Terminal renovation project]). Plaintiff is also unpersuasive in arguing that, as an employee of NYCTA, he was under the supervision and control of NYCTA's contractors. He testified that neither Liro nor TCE directed or supervised his work, and that he took direction only from NYTCA. The testimony further established that NYCTA employees, including plaintiff, had authority to bar the contractors from entering the manhole that led to the electrical closet. The contracts also show that NYCTA retained ultimate control over its property and employees. Neither TCE, a contractor, nor Liro, the construction manager, were permitted in the area until after asbestos sampling by NYCTA employees and asbestos remediation by other NYCTA contractors had been completed. Thus, TCE and Liro, who were present for survey purposes but had not yet been [*2]in the electrical closet, had no responsibility regarding the preexisting conditions in that closet, and plaintiff's Labor Law § 200 claim against them was properly dismissed (see Coaxum v Metcon Constr., Inc., 93 AD3d 403, 404 [1st Dept 2012]; Campuzano v Board of Educ. of City of N.Y., 54 AD3d 268, 269 [1st Dept 2008]). As to the City, it was an out-of-possession landlord who cannot be liable under the facts here (see Arteaga v City of New York, 101 AD3d 454, 454 [1st Dept 2012]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 3, 2025 https://nycourts.gov/reporter/3dseries/2025/2025_02002.htm Matter of New York Civ. Liberties Union v Suffolk County 2025 NY Slip Op 01933 Decided on April 2, 2025 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on April 2, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department BETSY BARROS, J.P. ROBERT J. MILLER DEBORAH A. DOWLING LOURDES M. VENTURA, JJ. 2024-00939 (Index No. 201521/22) [*1]In the Matter of New York Civil Liberties Union, respondent, v Suffolk County, et al., appellants. Christopher J. Clayton, County Attorney, Hauppauge, NY (Lisa Azzato of counsel), for appellants. Kirkland & Ellis LLP, New York, NY (Aaron H. Marks, Aulden Burcher-DuPont, Yaffa A. Meeran, Hannah C. Simson, and New York Civil Liberties Union Foundation [Robert Hodgson and Lisa Laplace], of counsel), for respondent. DECISION & ORDER In a proceeding pursuant to CPLR Article 78 to compel the disclosure of certain records pursuant to the Freedom of Information Law (Public Officers Law Article 6) and for an award of attorneys' fees and litigation costs, Suffolk County and Suffolk County Police Department appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County (Maureen T. Liccione, J.), dated January 5, 2024. The order and judgment, insofar as appealed from, in effect, granted that branch of the petition which was to compel the production of certain law enforcement officer investigatory and disciplinary records, subject to any authorized redactions or exemptions. ORDERED that the order and judgment is affirmed insofar as appealed from, with costs. On September 15, 2020, the petitioner filed a request pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL), inter alia, for the production of certain law enforcement officer investigatory and disciplinary records of the Suffolk County Police Department (hereinafter the SCPD) relating to allegations of police officer misconduct. In response, the SCPD, among other things, denied so much of the FOIL request as involved investigatory and disciplinary records related to allegations of police officer misconduct classified as "[u]nsubstantiated," "[u]nfounded," or "[e]xonerated" on the ground that such records were exempt from disclosure pursuant to Public Officers Law § 87(2)(b). The SCPD also granted so much of the FOIL request as involved disciplinary records related to allegations of police officer misconduct classified as "substantiated," with redactions premised on Public Officers Law §§ 87(2)(b) and 89(2-b)(a) and (b). After an administrative appeal, the petitioner commenced this proceeding pursuant to CPLR article 78 against the SCPD and Suffolk County (hereinafter together the appellants) to compel production of the withheld and redacted records and for an award of attorneys' fees and litigation costs. In an order and judgment dated January 5, 2024, the Supreme Court, among other things, in effect, granted that branch of the petition which was to compel production of the withheld [*2]and redacted investigatory and disciplinary records, subject to any authorized redactions or exemptions. This appeal ensued. "'To promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public'" (Matter of New York Civ. Liberties Union v Village of Freeport, 229 AD3d 629, 630, quoting Matter of Lane v County of Nassau, 221 AD3d 1008, 1010; see Public Officers Law § 84). "'FOIL proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government'" (Matter of Newsday, LLC v Suffolk County Police Dept., 231 AD3d 728, 729 [internal quotation marks omitted], quoting Matter of Lane v County of Nassau, 221 AD3d at 1010). "Accordingly, '[a]ll government records are thus presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87(2)'" (id. [internal quotation marks omitted], quoting Matter of Tuckahoe Common Sch. Dist. v Town of Southampton, 179 AD3d 929, 930). Contrary to the appellants' contention, the withheld records of unsubstantiated, unfounded, or exonerated allegations of police officer misconduct "were not categorically exempt from disclosure" (id.; see Matter of Gannett Co., Inc. v Town of Greenburgh Police Dept., 229 AD3d 789, 792). "'[T]here is no categorical exemption from disclosure for unsubstantiated allegations or complaints of police officer misconduct'" (Matter of Newsday, LLC v Suffolk County Police Dept., 231 AD3d at 730 [internal quotation marks omitted], quoting Matter of New York Civ. Liberties Union v Village of Freeport, 229 AD3d 629, 630; see Matter of Gannett Co., Inc. v Town of Greenburgh Police Dept., 229 AD3d at 791; Matter of Newsday, LLC v Nassau County Police Dept., 222 AD3d 85, 91). Disclosure of the withheld records of unsubstantiated, unfounded, or exonerated allegations of police officer misconduct was therefore required "unless those records '[fell] squarely within the ambit of one of [the] statutory exemptions [under Public Officers Law § 87(2)]'" (Matter of Newsday, LLC v Suffolk County Police Dept., 231 AD3d at 730 [internal quotation marks omitted], quoting Matter of Newsday, LLC v Nassau County Police Dept., 222 AD3d at 90). Here, in denying so much of the FOIL request as involved investigatory and disciplinary records related to allegations of unsubstantiated, unfounded, or exonerated allegations of police officer misconduct, the SCPD relied on the privacy exemption of Public Officers Law § 87(2)(b). The privacy exemption "authorizes an agency to deny access to records or portions of such records that 'if disclosed would constitute an unwarranted invasion of personal privacy'" (Matter of Gannett Co., Inc. v Town of Greenburgh Police Dept., 229 AD3d at 791, quoting Public Officers Law § 87[2][b]; see Matter of Newsday, LLC v Suffolk County Police Dept., 231 AD3d at 729), and "directs that 'disclosure shall not be construed to constitute an unwarranted invasion of personal privacy' when, among other possibilities, identifying details are deleted" (Matter of Gannett Co., Inc. v Town of Greenburgh Police Department, 229 AD3d at 792, quoting Public Officers Law §§ 89[2][c]). "'Consistent with the policy of broad public access, the exemptions are to be narrowly construed, and the burden rests on the agency to demonstrate that the requested material qualifies for exemption'" (Matter of Newsday, LLC v Suffolk County Police Dept., 231 AD3d at 729, quoting Matter of Newsday, LLC v Nassau County Police Dept., 222 AD3d at 89; see Public Officers Law § 89[4][b]). "'To meet its burden, the party seeking exemption must present specific, persuasive evidence' that the materials falls within the exemption" (Matter of Gannett Co., Inc. v Town of Greenburgh Police Department, 229 AD3d at 792, quoting Matter of Markowitz v Serio, 11 NY3d 43, 51). "'Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed'" (Matter of Newsday, LLC v Suffolk County Police Dept., 231 AD3d at 730 [internal quotation marks omitted], quoting Matter of New York Civ. Liberties Union v Village of Freeport, 229 AD3d at 631). Inasmuch as the SCPD withheld the requested records containing unsubstantiated, unfounded, or exonerated allegations of police officer misconduct in their entirety and did not articulate any particularized and specific justification for withholding any of those records, the appellants did not meet their burden of establishing that the privacy exemption applied (see id.; Matter of Gannett Co., Inc. v Town of Greenburgh Police Dept., 229 AD3d at 792; Matter of Newsday, LLC v Nassau County Police Dept., 222 AD3d at 92). Accordingly, the Supreme Court [*3]properly directed the appellants to disclose the subject records of unsubstantiated, unfounded, or exonerated allegations of police officer misconduct, subject to any authorized redactions or exemptions. The parties' remaining contentions are without merit. BARROS, J.P., MILLER, DOWLING and VENTURA, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court https://nycourts.gov/reporter/3dseries/2025/2025_01933.htm Matter of Charbrut v City of New York 2025 NY Slip Op 01924 Decided on April 2, 2025 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on April 2, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department BETSY BARROS, J.P. ROBERT J. MILLER DEBORAH A. DOWLING LOURDES M. VENTURA, JJ. 2023-09094 (Index No. 712077/23) [*1]In the Matter of Justin Charbrut, appellant, v City of New York, respondent. Decolator, Cohen & DiPrisco, LLP, Garden City, NY (Carolyn M. Canzoneri of counsel), for appellant. Muriel Goode-Trufant, Corporation Counsel, New York, NY (Ingrid R. Gustafson and Shane A. Magnetti of counsel), for respondent. DECISION & ORDER In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Queens County (Tracy Catapano-Fox, J.), entered July 28, 2023. The order, in effect, denied the petition and dismissed the proceeding. ORDERED that the order is affirmed, with costs. On December 5, 2022, the petitioner, a police officer with the New York City Police Department, allegedly sustained injuries while lifting a moped from the street and placing the moped into the back of a police van. According to the petitioner, the negligence of the respondent City of New York caused his injuries. The petitioner had until March 6, 2023, to serve a timely notice of claim upon the City (see General Municipal Law § 50-e[1][a]; General Construction Law § 25-a[1]) but failed to do so. In June 2023, the petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim. The City opposed the petition. By order entered July 28, 2023, the Supreme Court, in effect, denied the petition and dismissed the proceeding. The petitioner appeals. "Pursuant to General Municipal Law § 50-e(1)(a), a party seeking to sue a public corporation . . . must serve a notice of claim on the prospective defendant 'within ninety days after the claim arises'" (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 460, quoting General Municipal Law § 50-e[1][a]). "The notice of claim requirement [serves] to give public corporations . . . an opportunity for timely and efficient investigation of tort claims, as well as to protect them against stale claims" (Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 143 [citation omitted]). However, "General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time for a petitioner to serve a notice of claim" (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 460-461). "In determining whether to exercise discretion to extend the time for a petitioner to serve a notice of claim, the court must consider all relevant facts and circumstances, including, but not limited to, whether (1) the municipality or public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the delay would substantially prejudice the [*2]municipality or public corporation in its defense, and (3) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim" (Matter of Balbuenas v New York City Health & Hosps. Corp., 209 AD3d 642, 644 [internal quotation marks omitted]). "Neither the presence nor absence of any one factor is determinative, although it is generally recognized that the question of whether the municipality acquired timely, actual knowledge is of great importance" (Matter of Galicia v City of New York, 175 AD3d 681, 682; see Matter of Romero v County of Suffolk, 208 AD3d 662, 663). "[A] public corporation's knowledge of [an] accident and [resulting] injury, without more, does not constitute actual knowledge of the essential facts constituting the claim, at least where the incident and the injury do not necessarily occur only as the result of fault for which it may be liable. In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim[, although it] need not have specific notice of the theory or theories themselves" (Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 147-148 [citations and internal quotation marks omitted]; see Matter of Lang v County of Nassau, 210 AD3d 773, 774). In other words, to satisfy the actual knowledge factor, the public corporation must acquire information within the 90-day period after the claim arose, from which it must be able to "readily infer . . . that a potentially actionable wrong [was] committed by [its] employee" (Matter of Thill v North Shore Cent. Sch. Dist., 128 AD3d 976, 977 [alteration and internal quotation marks omitted]; see Matter of Steward v City of New York, 226 AD3d 912, 914). Here, the Supreme Court properly concluded that the petitioner failed to demonstrate that the City acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter (see General Municipal Law § 50-e[5]; Matter of Clark v City of New York, 139 AD3d 849, 849-850). Contrary to the petitioner's contention, the line-of-duty injury report, aided report, and witness statement generated shortly after the incident "merely described the circumstances [thereof] without making a connection between the petitioner's injuries and the respondent's alleged negligent conduct" (Matter of Clark v City of New York, 139 AD3d at 850). These materials therefore did not permit the City "to readily infer . . . that a potentially actionable wrong had been committed by" its employees (Matter of Wright v City of New York, 66 AD3d 1037, 1038). Similarly, the involvement of the City's employees in the accident—the petitioner and a fellow officer, who witnessed the accident—did not, without more, serve to impute the requisite actual knowledge to the City (see Matter of Jaime v City of New York, 41 NY3d 531, 540). "While the actual knowledge factor generally should be given great weight in the analysis," as previously noted, the petitioner's failure to satisfy that factor, standing alone, was not fatal to his petition (Matter of Balbuenas v New York City Health & Hosps. Corp., 209 AD3d at 645 [internal quotation marks omitted]; see Matter of Galicia v City of New York, 175 AD3d at 682). "Accordingly, analysis of the other factors is required" (Matter of Balbuenas v New York City Health & Hosps. Corp., 209 AD3d at 645). However, the petitioner did not even attempt to provide an excuse for his delay, let alone establish a reasonable excuse (see Matter of Lang v County of Nassau, 210 AD3d at 775; Matter of Kelley v New York City Health & Hosps. Corp., 76 AD3d 824, 826-827). Therefore, even assuming that the petitioner satisfied his "threshold burden of presenting some evidence or plausible argument that support[ed] a finding of no substantial prejudice" and that the City failed to meet its opposition burden (Matter of Balbuenas v New York City Health & Hosps. Corp., 209 AD3d at 645 [internal quotation marks omitted]), we conclude that "the balance of relevant factors militate[d] against granting the petition" (Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 153). Accordingly, the Supreme Court providently exercised its discretion by, in effect, denying the petition and dismissing the proceeding. BARROS, J.P., MILLER, DOWLING and VENTURA, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court https://nycourts.gov/reporter/3dseries/2025/2025_01924.htm Tittel v City of New York 2025 NY Slip Op 01902 Decided on April 01, 2025 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: April 01, 2025 Before: Friedman, J.P., Kapnick, Gesmer, González, Higgitt, JJ. Index No. 300526/15|Appeal No. 583-M-4993|Case No. 2022-05546| [*1]Laura Tittel, Plaintiff-Appellant, v The City of New York, Defendant-Respondent, Corizon Health Inc., et al., Defendants. Kelner & Kelner, New York (Joshua D. Kelner or counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondent. Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered August 18, 2022, which granted plaintiff's motion to strike defendant City of New York's answer for spoliation of evidence solely to the extent of directing an adverse inference charge, unanimously modified, on the law, the facts, and in the exercise of discretion, to also preclude defendant from introducing evidence at trial concerning the contents of the missing video, and otherwise affirmed, without costs. The court providently exercised its discretion in declining to strike the City's answer and directing an adverse inference charge since the missing video was neither the sole source of information about the incident in which plaintiff was injured nor the sole means by which she can establish her case (see Alleva v United Parcel Serv., Inc., 112 AD3d 543, 544 [1st Dept 2013]). Moreover, plaintiff did not show that the missing video was intentionally destroyed or that records beneficial to the City's defense were selectively preserved. Plaintiff's testimony and the conflicting accounts of the incident in the reports prepared by Department of Corrections employees are sufficient to enable the jury to properly evaluate credibility (see E. W. Howell Co., Inc. v S. A. F. La Sala Corp., 36 AD3d 653, 655 [2d Dept 2007]). Nevertheless, permitting the City's witnesses to testify to the contents of the missing tape would provide it with a tactical advantage from the spoliation. Accordingly, defendant is also precluded from presenting evidence concerning the contents of the missing tape (see Strong v City of New York, 112 AD3d 15, 24 [1st Dept 2013]). We have considered the remaining arguments and find them unavailing. M-4993 Tittel v City of New York, et al. Motion to lift stay imposed on this appeal based on the bankruptcy of defendant Corizon Health Inc., granted. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 1, 2025 Tittel v City of New York (2025 NY Slip Op 01902)

Matter of FDNY Local 2507, DC-37, AFSCME v City of New York

2025 NY Slip Op 01867

Decided on March 27, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 27, 2025
Before: Moulton, J.P., Gesmer, Scarpulla, Rosado, Michael, JJ.

Index No. 160063/17|Appeal No. 3978|Case No. 2023-04900|

[*1]In the Matter of FDNY Local 2507, DC-37, AFSCME, et al., Petitioners-Respondents-Appellants,

v

The City of New York, et al., Respondents-Appellants-Respondents.

Muriel Goode-Trufant, Corporation Counsel, New York (Susan Paulson of counsel), for appellants-respondents.

The Kurland Group, New York (Erica T. Healey-Kagan of counsel), for respondents-appellants.

New York States' Freedom of Information Law does not require the creation of records not in existence or not in the possession of the entity

The New York City Department of Citywide Administrative Services [DCA] denied Petitioners' FOIL requests for records pursuant to New York State's Freedom of Information Law, Public Officers Law §§84-90 seeking "[a] list containing the name, race, gender, current salary, current job title, city start date, salary on city start date, [and] title start date, of all employees of" several City agencies over a period of 10 years. Petitioners appealed DCAS' decision.

Supreme Court directed DCAS to produce certain records Petitions had demanded and denied the petition to annul a determination of submitted by the Respondent Fire Department of the City of New York (FDNY). The Appellate Division "unanimously modified, on the law," Supreme Court's ruling to the extent of denying the petition with respect to the FOIL requests Petitioners had submitted to DCAS. The Appellate Division sustained DCAS's denial of Petitioner's FOIL requests and, citing Matter of Oustatcher v Clark, 217 AD3d 478, opined that DCAS's rejection of the Petitioners' FOIL request was not "affected by an error of law".

Explaining the Supreme Court had improperly ordered DCAS to produce information possessed by another agency, the Financial Information Systems Agency [FISA], the Appellate Division explained that FOIL does not require an agency "to prepare any record not possessed or maintained by" that agency DCAS's witness gave unrebutted testimony that several of the eight categories of requested information are maintained in a separate database by FISA, not DCAS. Accordingly, said the court, DCAS is "under no obligation to provide" that information" and Supreme Court improperly required DCAS to undergo a process that would constitute the creation of a new record. 

Addressing another aspect of Petitioners'  FOIL request, the Appellate Division observed that Petitioners had also sought FDNY "... records[] pertaining to cases initiated by the Bureau of Investigations and Trials ('BIT[S]')" . . . , including . . . details of all BIT[S] cases initiated against members of the FDNY, with a breakdown of each case identified by: [c]ase number; [b]ureau . . . ; [i]nfractions charged; [r]ace of charged party; [g]ender of charged party; [d]isposition of the case; and [d]iscipline imposed on charged party.".

The Appellate Division said Supreme Court "properly concluded that compliance with this aspect of the demand set out in Petitioners' FOIL request would constitute the creation of a new record" as FDNY's witness gave unrebutted testimony that the database containing BITS case records does not contain race and gender information and to match BITS information with employees' races and genders contained in an independent database would entail much more than a simple manipulation of the computer to transfer existing records.

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

https://nycourts.gov/reporter/3dseries/2025/2025_01867.htm

Eustache v Board of Educ. of the City Sch. Dist. of the City of New York

2025 NY Slip Op 01866

Decided on March 27, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 27, 2025
Before: Kern, J.P., Friedman, Kapnick, Mendez, Higgitt, JJ.

Index No. 153619/19|Appeal No. 3992|Case No. 2024-00229|

[*1]Jeffrey Eustache, Plaintiff-Respondent,

v

Board of Education of the City School District of the City of New York Also Known as The New York City Department of Education, Defendant-Respondent, Sharon Lafia, Defendant-Appellant.

The Law Offices of Cory H. Morris, Central Islip (Cory H. Morris of counsel), for appellant.

Goddard Law PLLC, New York (Clela A. Errington of counsel), for Jeffrey Eustache, respondent.

Order, Supreme Court, New York County (Judy H. Kim, J.), entered November 15, 2023, which, to the extent appealed from as limited by the briefs, denied defendant Sharon LaFia's motion under CPLR 3211 and 3212 to dismiss plaintiff's retaliation cause of action, unanimously affirmed, without costs.

LaFia's motion for summary judgment was properly denied as premature because it was made "before issue had been joined by service of an answer" (Adago v Sy, 216 AD3d 402, 402-403 [1st Dept 2023]; see CPLR 3212[a]). Nor is this "a case where both sides deliberately [laid] bare their proof and [made] clear that they were charting a summary judgment course pursuant to CPLR 3211(c)" thus permitting the court to treat LaFia's pre-answer motion to dismiss as one for summary judgment (Adago, 216 AD3d at 402). Indeed, plaintiff opposed the motion by asserting that at this early stage in discovery he did not have the documents necessary to oppose the motion.

To the extent LaFia sought dismissal under CPLR 3211(a), Supreme Court properly denied the motion as barred by the single motion rule, which "permits a party to move only once upon one or more of the grounds enumerated under CPLR 3211(a)" (TRB Acquisitions LLC v Yedid, 225 AD3d 508, 508 [1st Dept 2024]; see CPLR 3211[e]). LaFia's arguments about the sufficiency of the allegations were already raised in her prior motion to dismiss and were rejected by the court (Eustache v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2023 NY Slip Op 30606 [U], *7 [Sup Ct, NY County, March 1, 2023]).

Nor is LaFia entitled to a successive motion to dismiss under the November 10, 2020 amendments to the anti-SLAPP law (Civil Rights Law § 76-a; CPLR 3211[g]) because this action was commenced in 2019 and "the anti-SLAPP law does not have retroactive application" (Reeves v Associated Newspapers, Ltd., 232 AD3d 10, 19 [1st Dept 2024]). Although the statute's separate provision creating a counterclaim for damages and attorneys' fees under § 70-a applies prospectively to cases commenced or continued after the effective date, the amended definition of an "action involving public petition and participation" does not apply retroactively to motions to dismiss filed in actions commenced prior to the amendments' effective date (see Reeves, 232 AD3d at 19; VIP Pet Grooming Studio, Inc. v Sproule, 224 AD3d 78, 89-90 [2d Dept 2024]; Burton v Porcelain, 223 AD3d 775, 777 [2d Dept 2024]).

We have considered LaFia's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 27, 2025

https://nycourts.gov/reporter/3dseries/2025/2025_01866.htm

Fidelity, a mutual fund, asks "What’s ahead for Social Security?" and suggests considering taking certain actions to help secure an individual's Social Security retirement benefits  even if such future benefits "are trimmed".  At the risk of "over-simplification", considering that other than cost of processing the collection and ultimate distribution of contributions made to fund Social Security benefits, no federal monies are used to provide Social Security retirement allowances. Contributions to fund the benefits are provided by the employee's and the employee's employer's contributions or by a self-employed individual's contributions and the investment of such contributions are, by law, limited to the purchase of bonds issued by the government of the United State.   Is there a commercial organization that funds annuities established for retirement purposes that is so limited in its investment portfolios and then is required to supplement the federal budget to avoid or limit the federal government's need to "borrow" monies in the open market to fund its governmental operations, in whole or in part?

Matter of Charan Elec. Enters., Inc. v Office of the Comptroller

2025 NY Slip Op 01769

Decided on March 25, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 25, 2025
Before: Webber, J.P., Friedman, Mendez, Shulman, Higgitt, JJ.

Index No. 2174/21|Appeal No. 3966|Case No. 2024-00118|

[*1]In the Matter of Charan Electrical Enterprises, Inc., et al., Petitioners,

v

Office of the Comptroller, Respondent.

Tarter Krinsky & Drogin LLP, New York (Laurent S. Drogin of counsel), for petitioners.

Muriel Goode-Trufant, Corporation Counsel, New York (Jennifer Lerner of counsel), for respondent.

Determination of respondent Office of the Comptroller of the City of New York, dated September 26, 2023, which, after a hearing, found that petitioners violated the prevailing wage laws, willfully failed to pay prevailing wages and supplement benefits to two employees and deliberately falsified payroll records, and deemed them ineligible to bid on or be awarded any public work contract in New York state or any municipal contract within the state for a five-year period pursuant to Labor Law § 220-b, and directed payment of an assessment and penalty pursuant to Labor Law § 220(8), unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, Appellate Division, Third Department, entered December 21, 2023), dismissed, without costs.

Respondent's determination is supported by substantial evidence in the record (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). Respondent had ample reason for crediting the testimony of the two complainants concerning the work they performed which qualified for prevailing wages, and petitioners failed to establish any basis to disturb respondent's credibility determinations (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). There was also substantial evidence in the record to support the finding that petitioners willfully failed to pay prevailing wages (see Matter of Central City Roofing Co., Inc. v Musolino, 136 AD3d 1186, 1187 [3d Dept 2016]).

In light of petitioners' failure to maintain adequate records, respondent had a rational basis for calculating the underpayment based on the best available evidence, and petitioners failed to establish any basis to negate the reasonableness of the calculations (see Matter of Gelco Bldrs. v Holtzman, 168 AD2d 232, 233 [1st Dept 1990], lv denied 77 NY2d 810 [1991]).

The five-year bar on petitioners' participation in any public work contract bidding is mandated by the applicable statute (see Labor Law § 220-b[3][b][1]; see also Matter of Astoria Gen. Constr. Corp. v Stringer, 169 AD3d 408, 409 [1st Dept 2019]). In any event, the penalties and sanction imposed do not shock the conscience and are not disproportionate to the offenses. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 25, 2025

Matter of Williams v New York City Tr. Auth.

2025 NY Slip Op 01782

Decided on March 25, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 25, 2025
Before: Webber, J.P., Friedman, Mendez, Shulman, Higgitt, JJ.

Index No. 154457/23|Appeal No. 3971|Case No. 2024-02596|

[*1]In the Matter of Matthew Williams, Respondent,

v

New York City Transit Authority et al., Appellants.

Anna J. Ervolina, MTA Law Department, Brooklyn (Theresa Frame of counsel), for appellants.

Belushin Law Firm, P.C., Brooklyn (Vel Belushin of counsel), for respondent.

Order, Supreme Court, New York County (Denise M. Dominguez, J.), entered April 16, 2024, which granted petitioner's motion for leave to serve a late notice of claim, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in granting petitioner leave to file a late notice of claim. The record shows that respondents had actual knowledge of the essential underlying facts given their employee's involvement in the accident, the police accident report, and the accident information exchange form (see Matter of Mejia v New York City Tr. Auth., 224 AD3d 546 [1st Dept 2024], lv denied 42 NY3d 1029 [2024]; Rao v Triborough Bridge & Tunnel Auth., 223 AD2d 374 [1st Dept 1996]).

Petitioner sustained his burden of showing that respondents would not be substantially prejudiced in maintaining a defense on the merits if he were granted leave to file a late notice of claim (see Clarke v New York City Tr. Auth., 222 AD3d 552, 553 [1st Dept 2023]). Any alleged prejudice is undermined by respondents' contemporaneous investigation, including taking photos of the location as it existed at the time of the accident (see Matter of Sosa v City of New York, 124 AD3d 515, 515-516 [1st Dept 2015]). Respondents' conclusory assertion of prejudice resulting from the 11-month delay in serving the notice of claim is insufficient because they do not assert that the bus operator or the supervisor who investigated the accident are unavailable (see Bass v New York City Tr. Auth., 140 AD3d 449 [1st Dept 2016]).

We have considered respondents' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 25, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 25, 2025
Before: Webber, J.P., Friedman, Mendez, Shulman, Higgitt, JJ.

Index No. 154457/23|Appeal No. 3971|Case No. 2024-02596|

[*1]In the Matter of Matthew Williams, Respondent,

v

New York City Transit Authority et al., Appellants.

Anna J. Ervolina, MTA Law Department, Brooklyn (Theresa Frame of counsel), for appellants.

Belushin Law Firm, P.C., Brooklyn (Vel Belushin of counsel), for respondent.

Order, Supreme Court, New York County (Denise M. Dominguez, J.), entered April 16, 2024, which granted petitioner's motion for leave to serve a late notice of claim, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in granting petitioner leave to file a late notice of claim. The record shows that respondents had actual knowledge of the essential underlying facts given their employee's involvement in the accident, the police accident report, and the accident information exchange form (see Matter of Mejia v New York City Tr. Auth., 224 AD3d 546 [1st Dept 2024], lv denied 42 NY3d 1029 [2024]; Rao v Triborough Bridge & Tunnel Auth., 223 AD2d 374 [1st Dept 1996]).

Petitioner sustained his burden of showing that respondents would not be substantially prejudiced in maintaining a defense on the merits if he were granted leave to file a late notice of claim (see Clarke v New York City Tr. Auth., 222 AD3d 552, 553 [1st Dept 2023]). Any alleged prejudice is undermined by respondents' contemporaneous investigation, including taking photos of the location as it existed at the time of the accident (see Matter of Sosa v City of New York, 124 AD3d 515, 515-516 [1st Dept 2015]). Respondents' conclusory assertion of prejudice resulting from the 11-month delay in serving the notice of claim is insufficient because they do not assert that the bus operator or the supervisor who investigated the accident are unavailable (see Bass v New York City Tr. Auth., 140 AD3d 449 [1st Dept 2016]).

We have considered respondents' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 25, 2025

Matter of McQuade v New York State Comptroller

2025 NY Slip Op 01856

Decided on March 27, 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:March 27, 2025

CV-24-1437

[*1]In the Matter of Brian McQuade, Petitioner,

v

New York State Comptroller et al., Respondents.

Calendar Date:February 18, 2025
Before:Clark, J.P., Ceresia, Fisher, McShan and Mackey, JJ.

Fusco, Brandenstein & Rada, PC, Woodbury (John Hewson of counsel), for petitioner.

Letitia James, Attorney General, Buffalo (Sarah L. Rosenbluth of counsel), for respondents.

Clark, J.P.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Executive Deputy Comptroller denying petitioner's application for accidental disability retirement benefits.

Petitioner, a patrol police officer, applied for accidental disability retirement benefits claiming that he was permanently incapacitated from performing his job duties as a result of injuries sustained in an incident that occurred in March 2020. Petitioner's application was denied upon a finding that the incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363. Following a hearing, a Hearing Officer upheld the denial of the application, finding that the underlying incident and injuries sustained by petitioner arose from risks inherent in the performance of his duties as a police officer and, therefore, did not constitute an accident for purposes of accidental disability retirement. The Executive Deputy Comptroller adopted the Hearing Officer's decision, and this CPLR article 78 proceeding ensued.

We confirm. "As the applicant, petitioner bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law, and [the Comptroller's] determination on that point will be upheld if supported by substantial evidence in the record as a whole" (Matter of Sammon v DiNapoli, 216 AD3d 1335, 1336 [3d Dept 2023] [internal quotation marks and citations omitted]). "An event which is a risk inherent in the work performed is not an accident for purposes of [accidental disability retirement] benefits" and, in turn, "an event that is not a risk inherent in one's job must be a sudden, unexpected occurrence in order to amount to an accident" (Matter of Bodenmiller v DiNapoli, ___ NY3d ___, ___, 2024 NY Slip Op 06234, *2 [2024] [internal quotation marks and citations omitted]). As explained by the Court of Appeals, "a precipitating event that could or should have reasonably been anticipated by a person in [petitioner's] circumstances is not an accident for purposes of [accidental disability retirement] benefits" (id. at ___, 2024 NY Slip Op 06234, *2 [internal quotation marks omitted]). Thus, "an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury" (Matter of Kelly v DiNapoli, 30 NY3d 674, 681 [2018] [internal quotation marks and citation omitted]; see Matter of Compagnone v DiNapoli, 42 NY3d 1075, 1076 [2024]). Consequently, "where the injury-causing event constitutes a risk inherent in a police officer's duties, it is not unexpected and, thus, not an accident" (Matter of Sammon v DiNapoli, 216 AD3d at 1336; see Matter of Bodenmiller v DiNapoli, ___ NY3d at ___, 2024 NY Slip Op 06234, *2; Matter of Van Wyen v New York State [*2]Comptroller, 215 AD3d 1217, 1218 [3d Dept 2023]).

Petitioner testified that, on the day of the incident, he was on routine patrol when he received a 911-generated radio assignment to respond to a residence for a "mental aided," an assignment that was a typical duty for a patrol officer. While he was en route, he was advised that the assignment was upgraded in expediency to a violent situation. Petitioner arrived first, approached the residence and made contact with the subject's parents at the front door; they advised him as to the subject's mental health diagnosis, that he was not taking his prescribed medication and that he was "high on drugs." Petitioner then saw the subject, who was yelling. Petitioner persuaded the subject to come out on to the porch and then attempted, along with another officer who had arrived, to convince the initially-compliant and calm subject to get help at the hospital. Without warning, the subject became violent, lunged at petitioner's weapon and grabbed him, causing petitioner to fall backward. A protracted violent altercation ensued between the subject, petitioner and the other officer, during which petitioner sustained multiple injuries to his head, neck, back, left hand and elbow. Petitioner later developed posttraumatic stress disorder. The subject was eventually subdued with the assistance of several additional responding officers. Petitioner did not thereafter return to work as a police officer and retired with performance of duty disability in August 2022.

Petitioner testified that answering 911 calls and gaining control of violent subjects were routine parts of his job duties as a police officer. He acknowledged that he had extensive training in responding to and de-escalating calls involving mentally ill and/or violent subjects and in using forceful arrest techniques, if necessary, which methods he employed during this incident; he acknowledged that he had responded to "hundreds or thousands" of such calls in his career. In view of the foregoing, substantial evidence supports the determination that petitioner's injuries were sustained as a result of risks inherent while performing his routine employment duties as a patrol officer — i.e., responding to emergency calls involving mentally ill and/or potentially violent subjects, as well as pursuing and gaining control of said subjects — and thus, were not the result of an accident as that term is contemplated for purposes of accidental disability retirement benefits (see Matter of Tully v Gardener, 222 AD3d 1163, 1164-1165 [3d Dept 2023], lv denied 41 NY3d 910 [2024]; Matter of Sammon v DiNapoli, 216 AD3d at 1336-1337; Matter of Van Wyen v New York State Comptroller, 215 AD3d at 1217-1218; Matter of Flannelly v Gardner, 210 AD3d 1265, 1266 [3d Dept 2022]; Matter of Fulton v New York State Comptroller, 122 AD3d 983, 983-984 [3d Dept 2014], lv denied 24 NY3d 915 [2015]). To the extent that the incident involved a precipitating event, it "could or should have reasonably [*3]been anticipated by a person in [petitioner's] circumstances" and, thus, was not an accident for purposes of accidental disability retirement benefits (Matter of Bodenmiller v DiNapoli, ___ NY3d at ___, 2024 NY Slip Op 06234, *2). Petitioner's contentions that he was being assaulted and acting defensively, while true, are unavailing, as he was performing his duties as a police officer from the inception of the incident and when he sustained his injuries.

Ceresia, Fisher, McShan and Mackey, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

https://nycourts.gov/reporter/3dseries/2025/2025_01856.htm

24-1220 Vasquez v. Yonkers Pub. Sch. Dist. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of March, two thousand and twenty-five. PRESENT: Reena Raggi, Steven J. Menashi, Myrna Pérez, Circuit Judges. ____________________________________________ GISSELLE VASQUEZ, Plaintiff-Appellant, v. No. 24-1220 YONKERS PUBLIC SCHOOL DISTRICT, DR. EDWIN M. QUEZADA, IN HIS PERSONAL AND PROFESSIONAL CAPACITIES, Defendants-Appellees.* ____________________________________________ * The Clerk of Court is directed to amend the caption as set forth above. 2 For Plaintiff-Appellant: CHRISTOPHER J. BERLINGIERI, Berlingieri Law, PLLC, New York, New York. For Defendants-Appellees: DANIEL S. ALTER, Abrams Fensterman, LLP, White Plains, New York. Appeal from a judgment of the United States District Court for the Southern District of New York (Reznik, Mag. J.). Upon due consideration, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court entered April 1, 2024, is AFFIRMED. Plaintiff-Appellant Gisselle Vasquez works as a clerk in the Yonkers Public School District. After a coworker tried to kiss her, she filed a Title IX complaint for sexual harassment, see 20 U.S.C. § 1681(a), and eventually sought and received a transfer to a new school. Vasquez asserts that this complaint was shared in the district. She also asserts that she told the school district’s superintendent, Edwin M. Quezada, that two other school officials had sexually harassed her as well, but no separate investigation was ever conducted. Vasquez filed this § 1983 lawsuit against the school district and its superintendent for retaliation against her for filing the initial Title IX complaint. The district court granted summary judgment to the defendants on the ground that Vasquez failed to adduce evidence that she suffered an adverse employment action or that the school district acted pursuant to an official policy. On appeal, Vasquez argues that she identified a genuine dispute of material fact about whether the failure to investigate her additional misconduct allegations constitutes an adverse employment action. She also argues that the school district should be held liable because the superintendent’s failure to investigate her allegations beyond the initial complaint constituted official district policy. We 3 assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. I Vasquez argues that the failure to investigate her allegations of sexual misconduct against two school officials and the sharing of details in her initial Title IX complaint constitute an adverse employment action. On the facts of this case, we are not persuaded. A state employee may bring a claim under § 1983 when her employer retaliates against her for “participation in discrimination investigations and proceedings.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 81 (2d Cir. 2015). The analysis for such a § 1983 claim “mirror[s]” the analysis for a retaliation claim under Title VII. Id. at 91. To succeed on her claim, Vasquez must show that (1) she participated in a protected activity; (2) Quezada knew of that activity; (3) she suffered an adverse employment action; and (4) there is a “causal connection” between her protected activity and the adverse employment action. Lenzi v. Systemax, Inc., 944 F.3d 97, 112 (2d Cir. 2019). An adverse action is one that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). In this fact intensive inquiry, “[c]ontext matters” because “an act that would be immaterial in some situations is material in others.” Id. at 69 (internal quotation marks omitted). Vasquez has not shown that she suffered an adverse employment action in response to her Title IX complaint. The day after Vasquez filed the complaint, the superintendent transferred the coworker who tried to kiss her to another school, and a Title IX coordinator began an investigation. That investigation eventually led to a determination that her complaint was founded. And when Vasquez later asked to transfer to a different school, the superintendent granted her request immediately. 4 Viewed in the light most favorable to Vasquez, the record could admit a finding of some neglect. The Title IX coordinator failed to follow up with Vasquez after she expressed a desire to speak with him about unspecified problems with two other coworkers, and he failed to investigate fully her concern that the details of her Title IX complaint were being disseminated among staff at her prior school. The coordinator also failed to inform Vasquez when he finished his report. But the Title IX coordinator is not a defendant in this case, and Vasquez offers no evidence that the superintendent knew about or had any role in these actions. The superintendent was not present at Vasquez’s meeting with the Title IX coordinator, nor was he copied on the emails in which she expressed a desire to share additional information. According to Vasquez, the superintendent did know of the additional sexual misconduct, but Vasquez never asked the superintendent to open an investigation, nor does she offer evidence that he played any role in the Title IX coordinator’s failure to follow up with her. Following her allegations of additional misconduct, the superintendent did exactly what Vasquez asked of him: he transferred her to another school. The superintendent and the school district investigated Vasquez’s Title IX complaint, removed the offending coworker, and found her complaint to be substantiated. And when Vasquez asked to transfer to a new school, the superintendent granted that request immediately. On these facts, Vasquez has not shown that the superintendent’s actions in response to her Title IX complaint would “deter a reasonable employee from complaining about discrimination” such that it qualified as an adverse employment action. White, 548 U.S. at 69. II Vasquez also argues that the school district is liable for the superintendent’s actions because his behavior constituted an official school district policy. See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658 (1978). That is incorrect. Because Vasquez “has failed to establish individual liability” on the superintendent’s part, the school district cannot be held liable in his stead. See Lax v. CUNY, No. 20-3906, 5 2022 WL 103315, at *3 (2d Cir. Jan. 11, 2022). Moreover, the superintendent’s alleged conduct in Vasquez’s individual case cannot “‘fairly be said to represent official policy’ for the entire municipality.” Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 98 (2d Cir. 2020) (quoting Monell, 436 U.S. at 694). “It is not enough” that the superintendent “had discretion to make a decision that was unreviewable” when he lacked “state-law authority to adopt rules for the conduct of the municipal government.” Id. (internal quotation marks and alteration omitted). It is undisputed that the school district had an official policy to investigate all complaints of sexual harassment, and Vasquez has not shown that the superintendent had the authority to override that policy. “[W]hen an official’s discretionary decisions are constrained by policies not of that official’s making, those policies, rather than the subordinate’s alleged departures from them, are the act of the municipality.” Id. at 99 (alteration omitted) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). * * * We have considered Vasquez’s remaining arguments, which we conclude are without merit. For the foregoing reasons, we affirm the judgment of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

https://ww3.ca2.uscourts.gov/decisions/isysquery/fd4639a1-1f24-420a-bde7-28f942992b7e/3/doc/24-1220_so.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/fd4639a1-1f24-420a-bde7-28f942992b7e/3/hilite/