A per diem substitute teacher was ineligible for unemployment insurance as she was given a reasonable assurance of continued employment during the next school year

A Claimant for unemployment insurance worked as a per diem substitute teacher for the employer, [School District]. During the 2022-2023 school year, Claimant had completed 169 assignments as an elementary school substitute, working either full or half days, out of the 184 days in that school year. 

On June 1, 2023, School District emailed Claimant a "Letter of Assurance" informing Claimant that it wished to retain her as a substitute teacher in the same capacity in the 2023-2024 school year, under substantially the same economic terms and conditions as the prior year, and that her expected earnings would be no less than 90% of the prior year's earnings. Claimant acknowledged receipt of the School District's letter and advised School District that she wished to remain on the substitute teacher list for 2023-2024 school year. Nevertheless, between the academic terms, Claimant applied for unemployment insurance benefits. 

The Department of Labor [Department] determined that Claimant was ineligible for benefits, finding that the School District had offered Claimant a reasonable assurance of continued employment in the upcoming school year consistent with the provisions set out in Labor Law §590(10). Claimant appealed the Department's decision.

Following a hearing, an Administrative Law Judge [ALJ] reversed the Department's determination, finding that the School District had not provided Claimant with a reasonable assurance of continued employment. Ultimately the Unemployment Insurance Appeal Board affirmed the ALJ's decision, adopting the ALJ's findings of fact and conclusions of law, and made additional factual findings. The School District appealed the Board's determination.

Labor Law §590(10) provides that "a professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment". The Appellate Division, noting that "A reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period", held "Whether an employee has received such assurances "is a factual issue for the Board" to resolve and its determination will be sustained "provided that it is supported by substantial evidence".

In this instance the Appellate Division concluded that "Upon review of the record ... the Board's decision was not supported by substantial evidence", observing that in reaching its conclusion, the Board essentially imposed a requirement that a reasonable assurance be a guarantee of earnings during the following school year, "an interpretation that finds no support in the statute or case law". 

The Court held that the letter of assurance sent to Claimant indicated, without qualification, that she would be given the opportunity to perform services for the employer in the same capacity for the 2023-2024 school year, "under substantially the same economic terms and conditions as in the previous school year". Further, the Claimant was advised that "her name would remain on an automated electronic registry used for granting access to assignments", and that she would receive assignments in the same manner as the prior year "due to the continued need for substitutes during the 2023-2024 school year." 

Although the letter did not advise Claimant that there would be a pay increase for per diem substitute teachers, the School District's letter promise that work would be available under the "same economic terms and conditions." 

Given this record, including the letter of assurance and the testimony of the parties, the Appellate Division opined that there was "no reason to believe that the [School District's assurances [of continued employment] ... were illusory", and concluded that the Board's finding that the School District failed to provide Claimant with a reasonable assurance of continued employment "is not supported by substantial evidence and its decision must be reversed".

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

Disciplinary hearing officer recommended that all disciplinary charges served on the employee be dismissed

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ] Joycelyn McGeachy-Kuls recommended the dismissal of all disciplinary charges filed against a correction officer [CO] by her employer, the New York City Department of Corrections [Department]. The Department had alleged that the CO failed to report for duty on 15 occasions. 

Department, seeking a 30-day suspension, charged the CO did not have authorization for these 15 absences. CO did not dispute her absences but testified that she requested personal emergency leave on each of the 15 occasions cited in accordance with the Department's procedure due to a lack of childcare for her seven-year-old daughter. 

For five of the CO’s absences, the ALJ dismissed the misconduct charges because the Department’s own evidence established that the Department granted the CO's leave requests for those days of absence. 

Addressing the remaining ten absences, Judge McGeachy-Kuls found that CO proved she followed Department procedures for requesting personal emergency leave by contacting her superior and presenting extensive evidence in support of her request for each such absence and submitted written documentation in support of her request upon her return to duty. 

As the Department did not challenge nor dispute the CO's compliance with its procedures, the Administrative Law held that Department was required to establish why the CO’s leave requests were denied to prove misconduct on the part of the CO. The ALJ found that the Department did not make such a showing and that it failed to inform CO that it denied her requests and provide reasons for the denials. 

Accordingly, Judge McGreach-Kuls found that the Department failed to prove the charges it had filed against the CO and recommended the appointing authority dismiss all charges. 

The Department of Correction's Commissioner adopted the ALJ’s findings and recommendation in full.

Click HERE to access the Hearing Officer's findings and recommendation posted on the Internet.

Government Technology Webinars scheduled to be held during the week ending October 3, 2025

MONDAY, SEPTEMBER 29 | 11:00 AM PT, 2:00 PM ET 

Next-Gen IT for Government and Education: Smarter Devices and Flexible Management Learn how smarter IT strategies can boost workforce satisfaction, streamline operations and support a future-ready public sector. REGISTER

 

TUESDAY, SEPTEMBER 30 | 11:00 AM PT, 2:00 PM ET 

Build Smarter, Not Slower: Low-Code Strategies That Actually Work in Government Hear how state and local agencies are using low/no-code tools to reduce IT backlog, scale services and maintain strong security and governance. REGISTER

 

WEDNESDAY, OCTOBER 1 | 10:00 AM PT, 1:00 PM ET 

Staying Connected When It Matters Most: Smarter, Safer Tech for First Responders Join experts from Ericsson, PMC and Woodland Park, NJ, as they how 5G and secure networks are transforming public safety operations in this community. REGISTER

 

THURSDAY, OCTOBER 2 | 10:00 AM PT, 1:00 PM ET

Government Workforce Resilience in the Age of Efficiency Leaner teams don’t have to mean higher risk. Watch this webinar to see how public agencies are staying efficient under pressure. REGISTER

 

THURSDAY, OCTOBER 2 | 11:00 AM PT, 2:00 PM ET 

Data Tangles & AI Wrangles: Mastering the Chaos of Complex Systems This Government Technology webinar, sponsored by Hyland Software, will explore the real-world challenges IT leaders encounter when linking diverse data sources, legacy applications and modern AI tools. REGISTER

Complimentary Government Technology Webinar- Navigating the shift

On September 30, 2025 Government and Technology will conduct a 30 minute Webinar for State and local government and education (SLED) leaders who register covering employment changes resulting from shifting federal priorities and evolving funding landscapes to rising demands for innovation and resilience. This 30 minute Webinar will start 1:30 PM PT / 4:30 PM ET. 

Government and Technology noted that these changes create both new opportunities and shared challenges for public agencies and their private-sector partners.

Teri Takai, Chief Programs Officer of Government Technology, and Joe Morris, Chief Innovation Officer, will conduct a live, interactive "Ask Us Anything" 30-minute webinar, where they will turn the floor over to participants! Instead of a set agenda, they will take questions from participants — submitted in advance or asked live — on the issues shaping the public-sector landscape, from federal policy shifts to emerging trends across education, infrastructure, emergency services, and more. 

Whether you’re a public-sector leader refining your agency’s strategy or a private-sector vendor aligning your solutions with government priorities, this interactive session ensures you walk away with the actionable answers you need.

Click here to REGISTER 

Can’t attend the live briefing? Those registering now can make arrangement to have a recording of the program sent to them.

Questions? Contact Government Technology at resources@govtech.com

Selected items posted on blogs during the week ending September 26, 2025

AI That Works for Government: Smarter Tools, Better Experiences  Hear how public agencies are using AI built for government to streamline services, reduce friction and meet rising resident expectations. WATCH NOW 

Inside Recent Public Sector Breaches: What the Data Tells Us  Government agencies are facing a rising tide of targeted cyberattacks. This report breaks down the most common tactics hackers used in 2024 to infiltrate and persist inside public systems. Learn what made these attacks successful—and what public sector leaders need to know to keep systems, data, and citizens safe. DOWNLOAD

Public vs. Private Sector CIAM: What Sets Them Apart  Explore tailored CIAM (Customer Identity and Access Management) solutions, built for the public sector. WATCH NOW 

Ask the Experts: Navigating AI Adoption in Government  Whether your agency is just starting to look at AI or already experimenting with pilots, this discussion will offer valuable insights into how government leaders are thinking strategically about the future of AI in public service. WATCH NOW 

Future-Ready IT Service: Insights from City of Ft. Myers  Hear how forward-thinking IT leaders are modernizing service delivery to drive efficiency, empower staff and better serve their  communities. WATCH NOW 

Paperless Billing: Cut Fraud, Costs, and Delinquent Payments  Learn how digital billing can help your agency cut costs, reduce fraud, and improve service delivery. WATCH NOW 

Mayors lead with tech-enabled transit solutions. City leaders share firsthand how on-demand transit is bridging gaps and boosting economies. Read the full article featuring insights from city leaders.

3 Ways to Get Ahead of Data Management Challenges in 2026  Security and IT teams in government are facing more data, more mandates, and tighter budgets. In this 30-minute webinar, learn practical ways to manage data smarter — so you can reduce waste, improve visibility, and stay ready for what’s next. WATCH NOW

Launch an on-demand service in 6 weeks  Explore how municipalities launched efficient on-demand networks in record time. How to launch a microtransit service in a matter of weeks. 

New York State's Comptroller issues fiscal stress monitoring report for certain local governments

Click on text highlighted in color below to access the report posted on the Internet

On September 26, 2025, New York State Comptroller Thomas P. DiNapoli issue a financial stress report indicated that 23 local governments in New York State were designated as being "in financial stress" for local fiscal years [FYE] ending in 2024 based on the State Comptroller's Fiscal Stress Monitoring System [FSMS] reports.

“The number of local governments designated in fiscal stress, while still low, rose over the prior year, as federal pandemic relief funding was winding down,” DiNapoli said. “Local governments now facing volatility in revenue sources and uncertainty from significant shifts in federal spending should remain vigilant and pragmatic when spending and planning for the future.”

DiNapoli launched FSMS in 2013 to evaluate fiscal stress for local governments, using indicators based on year-end fund balance, operating deficits, cash-on-hand, short-term borrowing and fixed costs. The system’s fiscal stress scores provide an early warning to local officials about fiscal issues and give the public insight into their communities’ financial condition.

DiNapoli releases fiscal stress scores for municipalities, excluding New York City, twice a year. The scores announced today are for local governments operating on a calendar year basis for FYE 2024, covering all counties and towns, 44 cities and 13 villages. This round of scoring designated 14 local governments in fiscal stress, including four cities, nine towns and one village. In April, DiNapoli announced that nine villages with non-calendar fiscal years were designated in stress. School district scores are released in January.

For FYE 2024, the City of Little Falls (Herkimer County), as well as the villages of Cambridge (Washington), Island Park (Nassau), and Saugerties (Ulster), were designated in the highest-ranking category of “significant stress.”

The cities of Albany (Albany) and Poughkeepsie (Dutchess) were designated in “moderate fiscal stress,” along with the towns of Massena (St. Lawrence) and Yates (Orleans) and the villages of Coxsackie (Greene), South Blooming Grove (Orange), and Washingtonville (Orange).

The City of Elmira (Chemung), as well as the towns of Bennington (Wyoming), Canton (St. Lawrence), Centerville (Allegany), Kent (Putnam), Louisville (St. Lawrence), Schroeppel (Oswego), and West Turin (Lewis), were designated as “susceptible to fiscal stress.” The villages of Chateaugay (Franklin), Huntington Bay (Suffolk), Kaser (Rockland), and Liberty (Sullivan) were also designated as “susceptible to fiscal stress.”

Along with the scores released on September 26, 2025y, DiNapoli released a report summarizing FYE 2024 fiscal stress scoring results for both calendar year and non-calendar year municipalities, including designations by class, FSMS indicator analysis, and issues of concern, among other things.

The report found that:

• Ten of the municipalities designated in fiscal stress in FYE 2024 also received a designation in 2023. This includes the cities of Albany, Little Falls, and Poughkeepsie.
• While the percentage of cities designated in fiscal stress increased from 6.8% in FYE 2023 to 8.5% in 2024, it was still well below the double-digit rates seen from 2020 to 2022.
• The number of towns designated as susceptible to fiscal stress more than tripled, from two to seven; however, the number of towns designated in moderate stress decreased by one, while none were in the significant category.
• No counties received a fiscal stress designation for the fourth consecutive year.

The report also found that the number of municipalities that failed to file required annual financial reports with DiNapoli’s office in time to receive a fiscal stress score declined in FYE 2024, dropping from 264 in 2023 to 240. However, that number is nearly double what it was 10 years ago. In 2025, DiNapoli’s office has made additional targeted outreach and training efforts to help local governments comply with the law and bring their financial reporting up to date.     

A municipality that fails to file its financial reports in time to receive a fiscal stress score may indicate a lack of proper financial management, prevent local officials from taking necessary steps to avoid a fiscal crisis, and diminish transparency and accountability, undermining public confidence.

Three of the municipalities designated in fiscal stress in FYE 2024 had not received a FSMS score in multiple years because they failed to file annual financial data in time: the Village of Island Park, which had not received a score from FYE 2020 to 2023, was designated in significant stress in 2024, and the Town of Massena and the Village of Washingtonville were each designated in moderate stress in FYE 2024 after not filing in time to receive a score from 2018 to 2023.

Lists

Municipalities Designated in Stress for Fiscal Year Ending 2024

Municipalities Who Did Not File in Time or Filed Inconclusively

Excel Spreadsheet

Detailed List of All Municipalities in State and Fiscal Stress Scores

Report

Fiscal Stress Monitoring System – Municipalities: Fiscal Year 2024 Results

Online Interactive Visualization

https://www.osc.ny.gov/local-government/fiscal-monitoring/fiscal-stress-monitoring-system-statistics

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Local government and school audits posted on the Internet on September 25, 2025

On September 25, 2025, New York State Comptroller Thomas P. DiNapoli announced that the following local government and school audits were posted on the Internet.

Click on the text highlighted in COLOR to access the audit report.

Town of Lee – Financial Management (Oneida County)

The board did not effectively manage the general and highway fund balances, allowing excessive unrestricted fund balances to accumulate. At the end of 2024, the general and highway funds had a total of $8.3 million in unrestricted fund balance. When compared to the general and highway fund appropriations in the town’s 2025 budget, the amount of unrestricted fund balance could fully fund over three and a half years of operations at current spending levels.

Chenango County – Court and Trust Funds

The treasurer generally established adequate procedures, maintained appropriate records and properly reported court and trust funds. However, the treasurer’s court and trust ledger did not contain all required information.

Holtsville Fire District – Financial Management (Suffolk County)

The board did not adopt budgets with reasonable estimates or properly establish and manage capital reserve funds. From 2019 through 2023, the board transferred an additional $1 million into reserve funds. This was 45% more than the $2.2 million in transfers planned, with no indication of the board’s plan to use the funds. The district’s tax levy increased by $771,762 from 2019 to 2024, meaning that real property taxes may have been higher than necessary. The board developed and adopted budgets that resulted in a total operating surplus of $4.8 million between fiscal years 2019 and 2023. Additionally, the board did not properly establish two capital reserve funds.

Spencerport Central School District – Employee Benefits (Monroe County)

District officials did not always appropriately authorize and accurately calculate separation and unused leave payments, resulting in erroneous payments. Of the separation payments totaling $357,327 reviewed, auditors determined that payments totaling $48,058 were not authorized or accurate. As a result, district officials overpaid three employees a total of $14,213 and underpaid one employee $77 for separation payments. Of the unused leave payments totaling $51,851 reviewed, auditors determined that payments totaling $3,045 were not authorized or accurate. Therefore, district officials overpaid two employees a total of $1,715 for unused leave.

Manhasset Union Free School District – Non-Payroll Disbursements (Nassau County)

While the board and district officials generally ensured that the non-payroll disbursements were adequately supported and for valid district purposes, they did not always ensure that the disbursements were properly audited and approved before officials made the disbursements. Auditors reviewed 15 wire transfers totaling $2.4 million and determined officials properly reviewed and approved them. Auditors also reviewed 50 non-payroll disbursements, including 137 invoices, totaling $379,209, and determined that 10 invoices totaling $26,441 were not properly audited or approved before they were paid.

Village of Cato – Audit Follow-Up (Cayuga County)

A previous audit of the Village of Cato – Water Financial Operations (2023M-145) determined that the board and officials did not effectively manage the financial operations of the water fund, establish adequate reserves or develop long-term financial and capital plans until the Cayuga County Health Department forced the board to submit a plan. The audit included 11 recommendations to help village officials better manage operations and of the 11 audit recommendations, officials partially implemented three recommendations and did not implement eight recommendations.

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Son pleaded guilty to identity theft after stealing $79,943 in pension payments sent to his deceased father

On September 23, 2025, New York State Comptroller Thomas P. Di Napoli and Nassau County District Attorney Anne T. Donnelly announced the son of a state pensioner from Long Island was sentenced to five years’ probation and ordered to pay full restitution after being convicted of identity theft in connection with his theft of $79,943 in pension payments sent to his deceased father. The defendant, Richard Gaines Jr., 55, of Daytona Beach, Florida pleaded guilty to identity theft in the first degree in May, 2025.

“Richard Gaines’ conviction should serve as a clear warning to anyone who considers stealing from the New York state retirement system that they will be caught and prosecuted no matter where they live,” DiNapoli said. “My thanks to District Attorney Donnelly for her partnership in helping to protect our pension system from fraud.”

"Richard Gaines shamelessly stole tens of thousands of dollars from the New York State pension system by taking money that was never his," Donnelly said. "Our retirement system is built to protect hardworking employees who earned their pensions over years of service, not thieves who have the audacity to pilfer from a deceased parent. This sentence serves as a reminder that anyone who tries to abuse it will face consequences."

The defendant’s father worked for the Nassau County Bridge Authority for 29 years before retiring in 1996. He received state pension payments monthly via direct deposit into his checking account. He died on Nov. 9, 2019, and all pension  payments were to end, but DiNapoli’s investigators found Gaines Jr. never informed the system of his father’s death until three years later and instead used his father’s debit card to steal $79,0845.59 in benefits deposited into the account from 2019 to 2022. Gaines Jr. was not an account holder on his father’s checking account.

Gaines Jr. used about $2,484 of the money he stole to make personal purchases at Nassau County businesses. He also made ATM withdrawals in New Jersey, Georgia and Florida.

Gaines Jr. was sentenced before Judge Colin O’Donnell in Nassau County Court.

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

Former Fire Department Treasurer convicted of Jobbery

The Merriam-Webster dictionary defines jobbery as "the improper use of public office or conduct of public business for private gain".

On September 24, 2025, New York State Comptroller Thomas P. DiNapoli, Oneida County District Attorney Todd Carville, and New York State Police Superintendent Steven G. James announced that the former treasurer of the Durhamville Fire Department, Kimberly Simchik, pleaded guilty to stealing over $92,000 from the fire department over a seven-year period. As part of the plea, she will pay restitution of just over $92,000 and faces 1 to 3 years in jail at sentencing.

“Kimberly Simchik diverted fire department resources to bankroll her personal life, betraying the trust of the community she served,” DiNapoli said. “My thanks to Oneida County District Attorney Carville and the New York State Police for their partnership in holding her accountable.”

Carville said, “The Oneida County District Attorney’s Office would like to thank the New York State Police and the New York State Comptroller’s Office for their assistance in bringing the defendant to justice. This reprehensible act has no place in our society.  Stealing from our volunteer service, the great men and women who dedicate their time and talent to the Durhamville Fire Department, is wholly unacceptable and inexcusable.  I would like to thank my Assistant, Assistant District Attorney Kurt Schultz, for holding Ms. Simchik accountable for her actions.”

James said, “For years this suspect stole funds from the Durhamville Fire Department, using the money for her own enjoyment and personal gain. This guilty plea exemplifies that public servants who take advantage of their position will be held accountable for their actions. The State Police will continue to work with the Comptroller’s Office and Oneida County District Attorney’s Office to end these types of crimes and hold accountable those who mistakenly think they can get away with them.”

Simchik stole over $90,000 in fire department funds by using the department’s debit card to make payments at local casinos and by diverting checks made out to the department into her personal account.  She also spent department funds on plane tickets, spas, and nail salons.

The theft was discovered when a fire department member attempted to make a deposit and was informed by the bank that the department account had been closed due to a negative balance. The fire department subsequently reached out to the New York State Police, who partnered with DiNapoli’s office to conduct an investigation and forensic analysis. Simchik has since resigned from the fire department.

Simchik, 62, of Durhamville, pled guilty to grand larceny in the second degree and corrupting the government in the second degree before Judge Michael R. Nolan in Oneida County Court. She is scheduled for sentencing on Nov. 21, 2025.

###

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

Concerning remanding the results of an administrative hearing held by an administrative tribunal to the tribunal

Citing Matter of Peckham v Calogero, 54 AD3d 27, affd 12 NY3d 424, the Appellate Division noted that remanding the results of an administrative hearing to the agency which made the determination is typically made by a court in the event "the agency has made the type of substantial error that constitutes an irregularity in vital matters".

In the instant appeal the Appellate Division opined that such a remand to the New York City Office of Administrative Trials and Hearings [OATH] "would not have been appropriate".

The Appellate Division explained that "Contrary to [Petitioner's] assertion, the reviewer who issued the disqualification letter for [Petitioner's] first complaint did not need to testify at the hearing" as the record shows that Petitioner received the disqualification letter because his video and photographic evidence did not support his allegation that the subject vehicle was idling.

In contrast, the Appellate Division said the reviewer who testified concerning the hearing which resulted in disqualification letters tied to the Petitioner's second, third, and fourth complaints involving Petitioner's alleged violation of Administrative Code §24-112 (a) stemmed from repeatedly submitting the same evidence in support of the appeals of those three complaints. 

Holding that Supreme Court properly transferred the case to the Appellate Division pursuant to under CPLR 7804(g) because Petitioner raised an issue of substantial evidence by challenging factual findings made by the Hearing Officer, the court found that OATH's determination was supported by substantial evidence as the record shows that Petitioner received a disqualification letter because his video and photographic evidence did not support his allegation that the subject vehicle was idling. 

As these three additional complaints set out "nearly identical allegations, photographs, and videos, changing only the address of where the violation occurred and one letter in the vehicle's license plate," the Appellate Division opined that "[it] is reasonable to infer that [Petitioner] was attempting to mislead respondent New York City Department of Environmental Protection and circumvent his previous disqualifications". 

The Appellate Division then opined that "This deception established a violation under Administrative Code §24-112(a), which prohibits persons from "knowingly mak[ing] a false or misleading statement" to the department". 

Further, the Court's decision states "Petitioner's claim of agency bias is 'unavailing in the absence of any proof that the outcome of the proceeding flowed from the alleged bias'".

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

Retired employee held not entitled to certain lump sum payments set forth in a successor collective bargaining agreement

The County of Rockland [and others "Defendant"] and the Rockland Association of Management Union, AFT Local 4404 [RAM] executed a collective bargaining agreement that covered the period from January 1, 2014, to July 31, 2016 [2014 CBA].

On September 30, 2020, the Defendant and RAM executed a collective bargaining agreement that covered the period from August 1, 2016, to December 31, 2021[2020 CBA] which, as did the 2014 CBA, provided that "[whenever]" the parties agreed that "wage increases shall be paid retroactively," retired employees would be eligible for wage adjustments for any applicable continuous period of active service. 

The 2020 CBA provided that employees who "(1) had worked in 2017 and 2018 and (2) remained active on the County's payroll on the date the County executive approved the successor CBA would receive 'lump sum' payments of $800 and $1500, respectively".

The Plaintiff in the instant action had worked for the County from March 26, 1986, until her retirement on August 7, 2018, brought this act seeking to :

1. Recover damages for breach of contract; and

2. Under color of 42 USC §1983, alleged the "deprivation of a vested property interest without due process", claiming entitlement to the two lump sum payments set forth in the 2020 CBA. 

The Defendant moved, among other things pursuant to CPLR 3211, to dismiss Plaintiff's first and second causes of action insofar as asserted against the County, the County Executive, and the County Legislature. Supreme Court granted the motion; Plaintiff appealed the Supreme Court's judgment.

In its decision, the Appellate Division noted that:

1. "A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law; 

2. "To constitute documentary evidence, the evidence must be unambiguous, authentic, and undeniable, such as . . . deeds, contracts, and any other papers, the contents of which are essentially undeniable. Conversely, letters, emails, and . . . affidavits . . . do not meet the requirements for documentary evidence";  

3. On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory"; and 

4. Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed".

Opining that County conclusively established that the Plaintiff was not entitled to the two lump sum payments set forth in the successor CBA, the Appellate Division said  that "By the terms of Article VIII(3)(a)(1) and (2) of the successor CBA, the [Plaintiff] was ineligible for the lump sum payments because she had retired before the successor CBA had been approved by the County executive".

Further, Appellate Division commented that the Plaintiff's entitlement to retroactive wage increases only vested upon the agreement of the County and RAM to enact such increases and "the 2020 CBA expressly provided that the lump sum payments 'shall not increase the salary rate of the employees receiving [them] or the salary schedule'".

The Appellate Division then observed that Supreme Court, citing Domitz v City of Long Beach, 187 AD3d 853, quoting Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 32, "properly declined" to consider [Plaintiff's] allegation that it was the past practice of the County to pay retired employees similarly situated to the plaintiff pursuant to prior collective bargaining agreements since "'past practice, like any other form of parole evidence, . . . cannot be used to create a contractual right independent of some express source in the underlying agreement", concluding that Supreme Court properly granted dismissal of the first cause of action, alleging breach of contract, insofar as asserted against the County, the Executive, and the Legislature.

The Supreme Court, said the Appellate Division, "also properly granted dismissal of the second cause of action, alleging a violation of 42 USC §1983, insofar as asserted against the County, the Executive, and the Legislature pursuant to CPLR 3211(a)(7)". In the words of the Appellate Division, "The benefit allegedly denied to the [Plaintiff] 'does not constitute the kind of deprivation that may give rise to a due process claim'".

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

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

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

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

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

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

The Appellate Division:

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

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

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

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

 

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

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

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

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

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

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

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

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