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

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

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

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

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

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

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

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

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

DiNapoli recommended DOH:

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

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

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

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

Downtown Revitalization Initiative and the NY Forward Program Webinar Reminder

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

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

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

How To Apply" Webinar 🗓️

Date of the Webinar: Wednesday, September 10th

Register for Webinar

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

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

The Appellate Division affirmed the Supreme Courts rulings with costs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

###

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

Selected items posted on blogs during the week ending September 5, 2025

Elevating Constituent Services with Connected Experiences Agencies' communications tools are often disjointed, contributing to fragmented services rather than providing a seamless, unified platform that improves the constituent experience. Governments can modernize their communications infrastructure to unify these tools and create connected experiences, which lead to more convenient and personalized services for residents. DOWNLOAD

Understanding How K-12 Schools Use GenAI Learn how K-12 districts are already using GenAI, how schools evaluate GenAI solutions and how to measure the success of GenAI implementation. Download the report

The Workforce Tools Delivering ROI in State and Local Government Explore how public sector leaders are adopting AI, automation, and safety technologies to solve today’s workforce challenges. This new research highlights what’s working, what workers want, and where public agencies are seeing real ROI across operations, training, and service delivery. DOWNLOAD

AI in Government Finance: Seizing the Opportunity Modern finance software programs incorporate Generative AI and agentic AI to boost efficiency, improve service and manage complexity. This paper explains key differences between these technologies and why they become uniquely powerful when combined. DOWNLOAD

Community Colleges Aim to Shorten the Path to Skilled Jobs Federal funding and streamlined community college curriculum could make it easier to get on track for steady, well-paid employment. READ MORE

Preparing Utilities & Local Governments for a Paperless World The paperless future is here. Is your utility or local government ready? From rising postage costs to time-consuming manual processes, the shift to digital billing and payments is no longer optional — it’s essential. This resource explores how utilities can embrace a paperless future to cut costs, improve operational efficiencies, and meet modern demands. DOWNLOAD

A Smarter Approach to Seamless, Secure Access to Public Services Learn how public agencies are making digital services easier to access, more secure, and more inclusive through smarter identity management. This guide explores the real-world impact of modern Customer Identity and Access Management (CIAM) solutions, including reduced abandonment rates, stronger compliance, and better service access for all users—regardless of device, location, or digital literacy. DOWNLOAD

Streamline Public Sector Finance with Next-Gen ERP

Find out how Georgetown, Texas -- an expanding suburb of Austin -- replaced a patchwork of aging financial and human resources software with a modern cloud-based ERP suite. The city's chief financial officer recounts the city's implementation journey, describes benefits from the new platform and offers best practices for other jurisdictions. DOWNLOAD

Eliminate Workflow Bottlenecks with Smart Integration  Integration platform-as-a-service (iPaaS) lets agencies integrate systems and automate workflows using drag-and-drop tools. This guide explains how iPaaS accelerates digital transformation to improve government efficiency and service delivery. DOWNLOAD

 

Notice of Emergency Rule Making issued by the New York State Commission on Ethics and Lobbying in Government

New York State Commission on Ethics and Lobbying in Government indicated that:

1.  "This emergency rule is necessary for the general welfare to fully effectuate the provisions of Executive Law § 94(8)(a) and (b), which direct the Commission on Ethics and Lobbying in Government to 'develop and administer' an ambitious statewide ethics training program. The statutes also permit the Commission to grant an application for an extension or waiver modifying the ethics training mandate 'for good cause shown.' 

2. "The statute provides no procedure or standard of review for such applications. The Commission has heard from many State agencies that, due to their particular circumstances, they have challenges with ensuring that their employees attend the required the ethics training, often due to issues related to access to technology or scheduling. The Commission believes that a significant number of employees, or agencies on behalf of some or all of their employees, will wish to seek an extension or waiver modifying the statewide ethics training requirements for them. The statewide ethics training program is a continuing, yearly obligation, and it is essential that some form of ethics training be delivered to all those who are required to receive it. Delay in effectuating this Rule will result in some employees, or agencies, falling behind in their ethics training schedule. 

3. "This emergency rule is intended to be effective until the Notice of Proposed Rulemaking, which accompanies this Emergency Adoption, is permanently adopted. The simultaneous Notice of Proposed Rulemaking will afford the regulated community the timely opportunity to seek extensions or waivers modifying the ethics training requirement before falling behind in their ethics training obligation. 

4. "This notice is intended to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. ELG-22-25-00019-EP, Issue of June 4, 2025. The emergency rule will expire October 16, 2025. 

5. "Statewide Elected Officials, members of the legislature and employees of the legislature, and state officers and employees as defined in Public Officers Law § § 73, 73-a, and 74, and political party chairs as defined in Public Officers Law § 73, are required to complete the live in-person or live-online Comprehensive Ethics Training Course within ninety days of commencing state employment and every two years thereafter, and are required to complete the online Refresher Ethics Training Course in each intervening year. 

6. "The Proposed Rule does not impose new programs, services, duties or responsibilities upon any county, city, town, village, school district, fire district or other special district." 

Text of rule and any required statements and analyses may be obtained from: Michael Sande, Commission on Ethics and Lobbying in Government, 540 Broadway, Albany, NY 11207, (518) 408-3976, email: michael.sande@ethics.ny.gov 

The failure to join a necessary party in a CPLR Article 78 action is fatal to proceeding and may be raised at any point during the litigation

In a proceeding brought pursuant to CPLR Article 78, the Petitioners asked Supreme Court to grant the Petitioners' motion to void a resolution adopted by a Village Board providing for the appointment of certain personnel to the Village's Fire Department.

The Village filed an answer with objections in point of law (see CPLR 7804[f]), including that the petitioners failed to name necessary parties, among other objections.

The Appellate Division noted that:

1. "Necessary parties are defined as '[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action'"; and 

2. The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal".

The Appellate Division then reversed the Supreme Court's ruling insofar as appealed from "on the law, without costs or disbursements" and remanded the matter to the Supreme Court "for further proceedings" consistent the Appellate Division's decision, which decision is set out below:

Matter of Riverside Hose Co., Inc. v Village of Tarrytown Vil. Bd.

2025 NY Slip Op 04793

Decided on August 27, 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 August 27, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
JANICE A. TAYLOR
LOURDES M. VENTURA, JJ.

2021-01588 (Index No. 56647/20)

In the Matter of Riverside Hose Company, Inc., et al., petitioners-respondents,

v

Village of Tarrytown Village Board, et al., respondents-appellants, et al., respondents.

Silverberg Zalantis LLC, Tarrytown, NY (Katherine Zalantis and Christie Tomm Addona of counsel), for respondents-appellants.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to annul so much of a resolution of the Village of Tarrytown Village Board dated May 8, 2020, as appointed Richard Tucci as second assistant chief engineer for the Village of Tarrytown Fire Department, the Village of Tarrytown Village Board, Drew Fixell, Thomas Butler, Karen Brown, Robert Hoyt, Rebecca McGovern, Douglas Zollo, and Paul J. Rinaldi appeal from a judgment of the Supreme Court, Westchester County (Anne E. Minihan, J.), dated December 15, 2020. The judgment, insofar as appealed from, granted that branch of the petition which was to annul so much of the resolution of the Village of Tarrytown Village Board dated May 8, 2020, as appointed Richard Tucci as second assistant chief engineer for the Village of Tarrytown Fire Department.

ORDERED that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.

The Board of Fire Wardens of the Village of Tarrytown Fire Department (hereinafter the Board of Fire Wardens), a fire department council as defined in Village Law § 10-1014, is charged with various responsibilities relating to the management of the Village of Tarrytown Fire Department (hereinafter the Fire Department) (see Village Law §§ 10-1000, 10-1010, and 10-1014). The Fire Department is comprised of six fire companies, including the petitioners, Riverside Hose Company, Inc. and Phenix Hose Company, Inc. Pursuant to Village Law § 10-1010 and the Fire Department's constitution, each of the six companies was required to hold its own annual meeting on April 7, 2020, inter alia, to elect delegates to the Fire Department's general convention, known as the "Chief's Convention." The delegates were required to hold the Chief's Convention two days later to nominate a person for each of the offices of chief engineer, first assistant chief engineer, and second assistant chief engineer, as per Village Law § 10-1012(1) and the Fire Department's bylaws. However, on April 6, 2020, the respondent Village of Tarrytown Village Board (hereinafter the Village Board) passed a resolution authorizing the Fire Department and the Board of Fire Wardens, in effect, to postpone the required meetings for 30 days in light of the COVID-19 pandemic. After each of the six companies of the Fire Department issued correspondence indicating that they had elected their respective delegates, the Chief's Convention was held on May 7, 2020. As relevant here, a majority of the 18 delegates at the Chief's Convention—three from each company—voted in favor of the candidates nominated for chief engineer and first assistant chief engineer, but not for [*2]second assistant chief engineer. The sole candidate for that office, Richard Tucci, received nine votes in support of and nine votes against his nomination. The petitioners' delegates were six of the nine delegates who voted against Tucci's nomination. Nonetheless, in a resolution dated May 8, 2020, the Village Board, among other things, appointed Tucci as second assistant chief engineer of the Fire Department. In reaching this determination, the Village Board concluded that the delegates at the Chief's Convention sent by at least one of the petitioners, if not both, were not qualified to serve, thereby nullifying at least three of the votes against Tucci, and that a majority of the accepted votes were therefore in favor of his nomination.

In June 2020, the petitioners commenced this proceeding pursuant to CPLR article 78 against, among others, the Village Board, the respondent Drew Fixell, the Village's Mayor, the respondent Thomas Butler, the Village's Deputy Mayor, and the respondents Karen Brown, Robert Hoyt, Rebecca McGovern, Douglas Zollo, and Paul J. Rinaldi, Trustees of the Village Board (hereinafter collectively the respondents). In the petition, the petitioners sought, inter alia, to annul so much of the resolution of the Village Board dated May 8, 2020, as appointed Tucci as second assistant chief engineer of the Fire Department. The respondents filed an answer with objections in point of law (see CPLR 7804[f]), including that the petitioners failed to name necessary parties, among other objections. In a judgment dated December 15, 2020, the Supreme Court, among other things, granted that branch of the petition which was to annul so much of the Village Board's resolution dated May 8, 2020, as appointed Tucci as second assistant chief engineer for the Fire Department. This appeal ensued.

"The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal" (Matter of Hofstra Univ. v Nassau County Planning Commn., 231 AD3d 1025, 1028 [internal quotation marks omitted]). "Necessary parties are defined as '[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action'" (City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475, quoting CPLR 1001[a]; see Matter of Cuomo v East Williston Union Free School Dist., 227 AD3d 897, 900). "The rule serves judicial economy by preventing a multiplicity of suits. It also insures fairness to third parties who ought not to be prejudiced or embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard" (City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d at 475 [internal quotation marks omitted]). "Dismissal of an action or proceeding for nonjoinder of a necessary party is only a last resort" (Matter of Hofstra Univ. v Nassau County Planning Commn., 231 AD3d at 1028 [alteration and internal quotation marks omitted]). Therefore, "[w]hen a necessary party has not been made a party and is 'subject to the jurisdiction' of the court, the proper remedy is not dismissal of the complaint or the petition, but rather for the court to direct that the necessary party be summoned" (Matter of Supinsky v Town of Huntington, 234 AD3d 855, 857, quoting CPLR 1001[b]; see Matter of Mulford Bay, LLC v Rocco, 186 AD3d 1520, 1520-1521).

Here, the Supreme Court improperly rejected the respondents' contention that the petitioners failed to join necessary parties. The petitioners sought to annul so much of the Village Board's resolution dated May 8, 2020, as appointed Tucci to his position, and the court granted that request. Since Tucci was a person "who might be"—and in fact was—"inequitably affected by a judgment" in this proceeding (CPLR 1001[a]), he was a necessary party (see Matter of Lodge v D'Aliso, 2 AD3d 525, 526; Sarva v Tura Assoc., 204 AD2d 422, 423; Matter of Mount Pleasant Cottage School Union Free School Dist. v Sobol, 163 AD2d 715, 716, affd 78 NY2d 935). Similarly, as the petitioners sought relief that could result in a change to the leadership of the Fire Department, the Board of Fire Wardens was also a necessary party (see Matter of Hofstra Univ. v Nassau County Planning Commn., 231 AD3d at 1028; Sacasa v David Trust 197 AD3d 750, 752-753; Ji Juan Lin v Bo Jin Zhu, 191 AD3d 652, 653).

However, contrary to the respondents' contention, dismissal of this proceeding is not the appropriate remedy for nonjoinder of Tucci and the Board of Fire Wardens (see Matter of Hofstra Univ. v Nassau County Planning Commn., 231 AD3d at 1028; Ji Juan Lin v Bo Jin Zhu, 191 AD3d at 653). Instead, "[u]nder these circumstances, the appropriate procedure is for the Supreme Court to determine whether [those parties] can be summoned and, if joinder cannot be effectuated, [*3]to determine whether the proceeding[ ] may nevertheless proceed in [their] absence, upon consideration of the factors set forth in CPLR 1001(b)" (Matter of Cuomo v East Williston Union Free School Dist., 227 AD3d at 900; see U.S. Bank Trust N.A. v Germoso, 216 AD3d 1046, 1048).

In light of our determination, it was premature for the Supreme Court to decide that branch of the petition which was to annul so much of the Village Board's resolution dated May 8, 2020, as appointed Tucci as second assistant chief engineer for the Fire Department on the merits. Accordingly, we reverse the judgment insofar as appealed from and remit the matter to the Supreme Court, Westchester County, for a determination as to whether Tucci and the Board of Fire Wardens can be summoned and, if joinder cannot be effectuated, to determine whether the proceeding may nevertheless proceed in those parties' absence, upon consideration of the factors set forth in CPLR 1001(b), and we express no views on the respondents' remaining contentions (see Sacasa v David Trust, 197 AD3d at 753).

BARROS, J.P., BRATHWAITE NELSON, TAYLOR and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

In an ongoing arbitral proceeding a procedural issue is entrusted to the arbitrator or arbitral body – not the court – for resolution within that proceeding

.

When Petitioners-Appellees [Petitioners] were hired as employees of Twitter, Inc.,  now known as X Corp. and owned by Respondent-Appellant X Holdings Corp. [hereinafter Respondent and together referred to as “Twitter” in the instant action], Petitioners signed “Dispute Resolution Agreements” [DRAs] committing themselves to resolving any employment-related disputes with Twitter in binding individual arbitration. After Petitioners were fired by Twitter, they brought various employment-related claims to the Judicial Arbitration and Mediation Services [JAMS], the arbitral body identified in their DRAs, pursuant to the then-current JAMS Rules.

Twitter had argued that the DRAs provided for a pro-rata split, while JAMS, pointing to its own rules and policies, incorporated by reference into the DRAs,  contended that Twitter was committed to paying all but the case initiation fees as a precondition to JAMS’s administering the arbitration. 

Relying on a clause in the arbitration agreement that provided that “any disputes [over arbitration fees would] be resolved by the Arbitrator” – and not JAMS – Twitter refused to pay. As the result of JAMS refusing to appoint any arbitrators without the fees, "the proceedings ground to a halt". At the request of the parties, JAMS stayed the proceedings pending resolution of the fee issue. 

Rather than fronting the fees themselves or asking JAMS to terminate the arbitral proceedings and pursuing other remedies, Petitioners sued to compel arbitration under 9 U.S.C. §4, arguing that, by refusing to pay the fees allocated to it by JAMS, Twitter was “refusing to arbitrate” in accordance with the terms of the DRAs.

For the reasons explained in the United States Court of Appeals, Second Circuit's  opinion [see the link to the Circuit Court's opinion provided below], the Circuit Court opined that whether a party has failed to pay the arbitration fees necessary in an ongoing arbitral proceeding "is a procedural issue entrusted to the arbitrator or arbitral body – not the court – for resolution within that proceeding". 

Thus, the Circuit Court held that once the parties are before their chosen arbitral body, failure or refusal to pay fees alone is not a “failure, neglect, or refusal . . . to arbitrate” and a "federal district court is empowered to address the matter under 9 U.S.C. §4". 

Accordingly, the Circuit Court of Appeals reversed the judgment of the district court "to the contrary" and remanded the matter to the district court.  

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

An analysis of a petitioner's appeal of a disciplinary action that resulted in the court sustaining the termination of the petitioner by the employer

In this disciplinary action taken pursuant to Civil Service Law §75 the hearing officer found the Petitioner was guilty of 23 charges, consisting of 35 separate specifications of misconduct or incompetence* and recommended the Petitioner be terminated from service. The employer accepted the hearing officer's findings and recommendation of the hearing office with respect to the penalty to be imposed. 

Petitioner appealed. However, the Appellate Division granted only so much of the petition submitted by the Petitioner as found the Petitioner "guilty of Specification 32".

The Appellate Division, noting that "In employee disciplinary cases, judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence", explained that:

1. "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact;

2. "While substantial evidence is [m]ore than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt; 

3. "When there is conflicting evidence or different inferences may be drawn, 'the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]" and 

4. Courts 'may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists."

In the instant matter the Appellate Division held that "so much of the [Employer's] determination as adopted the hearing officer's finding that the [Petitioner] was guilty of specifications 1 through 4, 8, 9, 11, 13, 15, 16, 22 through 31, 33, and 34 was supported by substantial evidence."

While a court may set aside an administrative penalty, the Appellate Division noted that it may do so "only if it is so disproportionate to the offense as to be shocking to one's sense of fairness'", and explained that that "An administrative penalty is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subject to it that it is disproportionate to the misconduct, incompetence, failure, or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the dereliction of the individual".

In the event there is no "grave moral turpitude and grave injury to the agency involved or to the public weal," the Appellate Division said relevant factors include the "employee's length of employment, the probability that a dismissal will leave the employee without any alternative livelihood, the employee's loss of retirement benefits, and the effect upon the employee's innocent family" but the fact that "reasonable minds might disagree over what the proper penalty should have been does not provide a basis for . . . refashioning the penalty."

Observing remittal for a new determination of the penalty imposed is usually required where this Court dismisses one of the specifications of which the petitioner was found guilty, the Appellate Division determined that "remittal is not necessary under the particular circumstances of this case" as the Petitioner acknowledges on appeal, the hearing officer's finding that the petitioner was guilty of this specification was "likely a typographical error" and  the hearing officer's report and recommendation itself demonstrated that the employer did not rely upon specification 32 in determining the penalty". 

The Appellate Division then found that the penalty of termination of employment was not so disproportionate to the remaining 22 offenses as to be shocking to one's sense of fairness, "in light of the number and serious nature of the incidents and the [Petitioner's] prior disciplinary record".

Accordingly, the Appellate Division granted Petitioner's petition to the extent that so much of the determination as found the Petitioner guilty of specification 32 "is annulled and dismiss that specification".

* These specifications alleged the Petitioner was guilty of "rude, inappropriate, and unprofessional behavior toward both clients and members of the public, and violations of agency rules related to [Petitioner's] work in six separate cases of misconduct or incompetence"

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

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24-1741_so.pdf   DHARMVIR GEHLAUT,

Comm of Ed Decision No. 18,632

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

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

The Appellate Division affirmed the Supreme Courts rulings with costs.

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

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

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

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

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

https://nycourts.gov/reporter/3dseries/2025/2025_04722.htm

2024-03028
(Index No. 521903/23)

[*1]Michael Currid, appellant, v City of New York, et al., respondents, et al., defendants.

Jimmy Wagner, Brooklyn, NY, for appellant.

Muriel Goode-Trufant, Corporation Counsel, New York, NY (Richard Dearing, Rebecca L. Visgaitis, and Jennifer Lerner of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination on the basis of religion in violation of the New York State Human Rights Law and the New York City Human Rights Law, the plaintiff appeals from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated January 9, 2024. The order granted the motion of the defendants City of New York, Fire Department of the City of New York, and New York City Department of Health and Mental Hygiene pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them and denied the plaintiff's cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff was employed by the Fire Department of the City of New York as a firefighter from 1998 to 2022. In October 2021, the New York City Commissioner of Health and Mental Hygiene issued a mandate requiring all City employees to provide proof of COVID-19 vaccination by October 29, 2021 (hereinafter the vaccine mandate). Employees were able to apply for reasonable accommodations that would exempt them from the vaccine mandate. The plaintiff applied for such an accommodation based on his religion, which was denied on January 6, 2022. The plaintiff appealed that determination, which was subsequently denied on March 17, 2022. On April 19, 2022, the plaintiff retired, allegedly due to his refusal to submit to the COVID-19 vaccine because it conflicted with his religion.

Thereafter, the plaintiff commenced this action against, among others, the defendantsCity of New York, Fire Department of the City of New York, and New York City Department of Health and Mental Hygiene (hereinafter collectively the defendants), inter alia, to recover damages for employment discrimination on the basis of religion in violation of the New York State Human Rights Law (NYSHRL) (Executive Law § 296) and the New York City Human Rights Law (NYCHRL) (Administrative Code of the City of New York § 8-107). The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The plaintiff cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint. By order dated January 9, 2024, the Supreme Court granted the motion and denied the cross-motion. The plaintiff appeals.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the [*2]benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88; see Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., 222 AD3d 706, 707).

Both the NYCHRL and the NYSHRL prohibit employment discrimination on the basis of religion (see Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1002; Reichman v City of New York, 179 AD3d 1115, 1116). "A plaintiff alleging discrimination in employment in violation of the NYSHRL must establish that (1) she or he is a member of a protected class, (2) she or he was qualified to hold the position, (3) she or he suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination" (Ayers v Bloomberg, L.P., 203 AD3d 872, 874; see Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., 222 AD3d at 707; Reichman v City of New York, 179 AD3d at 1116-1117). "NYCHRL affords broader protections than the NYSHRL" (Alvarez v New York City Tr. Auth., 230 AD3d 541, 542; see Brouillard v Sunrun, Inc., 219 AD3d 560, 562). "Under the NYCHRL, the plaintiff must establish that she or he was subject to an unfavorable employment change or treated less well than other employees on the basis of a protected characteristic" (Ayers v Bloomberg, L.P., 203 AD3d at 874; see Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., 222 AD3d at 707). Additionally, the NYCHRL makes it "an unlawful discriminatory practice for an employer . . . to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation," including religious accommodations (Administrative Code of the City of New York § 8-107[28][a]; see Matter of Smith v New York City Fire Dept., 239 AD3d 870; Matter of Marsteller v City of New York, 217 AD3d 543, 545).

Here, the plaintiff's conclusory assertions that the defendants discriminated against him based on religion were unsupported by sufficient factual allegations to state a cause of action under either the NYCHRL or the NYSHRL (see Shahid v City of New York, 231 AD3d 888; Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., 222 AD3d at 707-708; cf. Cagle v Weill Cornell Med., 680 F Supp 3d 428, 434-437 [SD NY]). Since the plaintiff failed to state a cause of action for discrimination, no cause of action lies for aiding and abetting discrimination (see Kelly G. v Board of Educ. of City of Yonkers, 99 AD3d 756, 758-759). In any event, the defendants cannot "be held liable for aiding and abetting [their] own [alleged] violation" of the NYCHRL and the NYSHRL (Perez v Y & M Transp. Corp., 219 AD3d 1449, 1451).

The plaintiff's third cause of action, seeking certain declaratory relief regarding the defendants' "policy and practice" with respect to "religious accommodations to [the defendants'] vaccine policies," is academic because the vaccine mandate was rescinded in February 2023 and no exception to the mootness doctrine is applicable here (see Matter of Ferrera v New York City Dept. of Educ., 230 AD3d 772, 774; Matter of New York City Mun. Labor Comm. v Adams, 222 AD3d 437, 438).

With respect to the fourth cause of action, alleging a "violation of the Free Exercise Clause of the New York Constitution," the plaintiff has no private right of action to recover damages for violations of the New York State Constitution, since the alleged wrongs could be redressed by alternative remedies, including those pursued under the NYCHRL and the NYSHRL in this action (see Martinez v City of Schenectady, 97 NY2d 78, 83; Berrio v City of New York, 212 AD3d 569, 569; Peterec v State of New York, 124 AD3d 858, 859).

With respect to the fifth cause of action, alleging intentional infliction of emotional distress, public policy bars such a claim against governmental entities (see Shahid v City of New York, 208 AD3d at 1381; Ball v Miller, 164 AD3d 728, 730; Crvelin v Board of Educ. of City Sch. Dist. of City of Niagara Falls, 144 AD3d 1649, 1650).

With respect to the seventh cause of action, alleging "constructive termination," "[a]n employee is constructively discharged when her or his employer, rather than discharging the plaintiff directly, deliberately created working conditions so intolerable that a reasonable person in the plaintiff's position would have felt compelled to resign" (Golston-Green v City of New York, 184 AD3d 24, 44; see Blackman v Metropolitan Tr. Auth., 206 AD3d 602, 604). Here, the plaintiff's conclusory allegations were insufficient to show an intolerable work environment that would lead [*3]a reasonable person in the plaintiff's position to feel compelled to resign (see Dhar v City of New York, 204 AD3d 976, 977; cf. Golston-Green v City of New York, 184 AD3d at 44-45).

Accordingly, the Supreme Court properly granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

Further, the Supreme Court providently exercised its discretion in denying the plaintiff's cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint on the ground that the proposed amendments were patently devoid of merit (see Singh v T-Mobile, 232 AD3d 662, 667; Precious Care Mgt., LLC v Monsey Care, LLC, 221 AD3d 922, 924; Derago v Ko, 189 AD3d 1352, 1353).

The plaintiff's remaining contentions either are without merit or need not be reached in light of our determination.

CONNOLLY, J.P., MILLER, VOUTSINAS and HOM, JJ., concur.

https://nycourts.gov/reporter/3dseries/2025/2025_04702.htm

Decided on July 25, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., MONTOUR, OGDEN, GREENWOOD, AND NOWAK, JJ.

459 CA 24-02026 

[*1]JOHN PATRICK WINTER, PLAINTIFF-APPELLANT, v TOWN OF NEW HARTFORD CENTRAL SCHOOL DISTRICT, BOARD OF EDUCATION OF TOWN OF NEW HARTFORD CENTRAL SCHOOL DISTRICT, COSIMO TANGORRA, JR., ED.D., SCOTT GAFFNEY, DIRECTOR OF TRANSPORTATION, MARY MANDEL, ASSISTANT SUPERINTENDENT, DEFENDANTS-RESPONDENTS, ET AL., DEFENDANTS. (APPEAL NO. 2.)

NORMAN P. DEEP, CLINTON, FOR PLAINTIFF-APPELLANT.

FERRARA FIORENZA PC, EAST SYRACUSE (CHARLES C. SPAGNOLI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

Appeal from a judgment of the Supreme Court, Oneida County (James P. McClusky, J.), entered October 22, 2024 in an action seeking damages for employment discrimination and violation of the Human Rights Law. The judgment dismissed the amended complaint.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, and the amended complaint is reinstated.

Memorandum: Plaintiff, a bus driver previously employed by defendant Town of New Hartford Central School District (District), commenced this action seeking, among other things, to recover damages based on allegations that defendant violated the Human Rights Law (Executive Law § 290 et seq.) by engaging in age discrimination against him, and violated article 1, § 8 of the New York State Constitution by retaliating against him for, among other things, complaining about failures to follow certain safety precautions. Prior to the commencement of this action, the District had terminated plaintiff's employment, and thereafter plaintiff's union filed a grievance on his behalf. The matter ultimately proceeded to arbitration to determine whether the District had just cause to discipline plaintiff under the terms of the collective bargaining agreement between the District and plaintiff's union and, if so, whether termination or some other discipline was appropriate. The arbitrator concluded, following a hearing, that the District had just cause to terminate plaintiff.

While the arbitration was pending, plaintiff commenced this action. Prior to discovery, defendants-respondents (defendants) moved for, among other things, summary judgment dismissing the amended complaint. In support of the motion, defendants argued that plaintiff's claims were collaterally estopped as a result of the arbitration award. Supreme Court effectively agreed with defendants and granted the motion insofar as it sought summary judgment. Plaintiff appeals from the judgment dismissing the amended complaint, and we reverse.

We conclude that the court erred in granting the motion to the extent that it sought summary judgment based upon the application of collateral estoppel. It is well settled that there are " 'but two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling' " (Zoeller v Lake Shore Sav. Bank, 140 AD3d [*2]1601, 1602 [4th Dept 2016]). "The party seeking to invoke collateral estoppel has the burden of showing the identity of the issue, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate" (Bonner v Lynott, 203 AD3d 1526, 1531 [3d Dept 2022]; see Bielby v Middaugh, 120 AD3d 896, 898-899 [4th Dept 2014]).

Here, defendants failed to establish identity of issue necessary for application of that doctrine inasmuch as "the arbitration proceeding concerned whether the allegedly unlawful actions by [the District] violated the collective bargaining agreement between [the] union and the District" and did not address plaintiff's claims of discrimination or retaliation (Matter of Kruse v New York State Div. of Human Rights, 85 AD3d 1609, 1609 [4th Dept 2011]; see Mouscardy v Consolidated Edison Co. of N.Y., Inc., 185 AD3d 579, 581 [2d Dept 2020]). We therefore reverse the judgment, deny the motion, and reinstate the amended complaint. Plaintiff's remaining contentions are academic in light of the foregoing.

https://nycourts.gov/reporter/3dseries/2025/2025_04344.htm

Decided on July 25, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CURRAN, J.P., BANNISTER, DELCONTE, AND HANNAH, JJ.

480 CA 24-00817

[*1]REBECCA J. KLYMN, PLAINTIFF-APPELLANT, v SUPREME COURT, MONROE COUNTY, UNIFIED COURT SYSTEM OF STATE OF NEW YORK, OFFICE OF COURT ADMINISTRATION AND OFFICE OF THE MANAGING INSPECTOR GENERAL FOR BIAS MATTERS, DEFENDANTS-RESPONDENTS.

LAW OFFICE OF LINDY KORN, PLLC, BUFFALO (LINDY KORN OF COUNSEL), AND LAW OFFICE OF ANNA MARIE RICHMOND, BUFFALO, FOR PLAINTIFF-APPELLANT.

DAVID NOCENTI, OFFICE OF COURT ADMINISTRATION, NEW YORK CITY (PEDRO MORALES OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Michael Siragusa, A.J.), entered April 30, 2024. The order granted defendants' motion to dismiss plaintiff's complaint.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

Memorandum: Plaintiff, the former secretary to a former New York State Supreme Court Justice, commenced this action against Supreme Court, Monroe County, Unified Court System of the State of New York, Office of Court Administration, and Office of the Managing Inspector General for Bias Matters (collectively, defendants) alleging, inter alia, that defendants discriminated against her on the basis of sex in violation of the Human Rights Law ([NYSHRL] Executive Law § 290 et seq.), in relation to alleged sexual abuse and harassment of plaintiff by the former Justice. Plaintiff now appeals from an order that, inter alia, granted defendants' pre-answer motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) and (c) on the grounds that, inter alia, plaintiff was not defendants' employee and therefore defendants were not liable under the NYSHRL. We reverse the order, deny the motion, and reinstate the complaint.

Initially, absent from the record is any indication that Supreme Court, Erie County, provided adequate notice to the parties that it was treating defendants' motion as one for summary judgment and we therefore review plaintiff's contentions in the context of a motion to dismiss pursuant to CPLR 3211 (a) (7) (see CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Ward v Guardian Indus. Corp., 17 AD3d 1100, 1101 [4th Dept 2005]; Costanza Constr. Corp. v City of Rochester, 135 AD2d 1111, 1111-1112 [4th Dept 1987]). Here, we agree with plaintiff that the complaint states a cause of action against defendants for a violation under the NYSHRL. "On a motion to dismiss pursuant to CPLR 3211 (a) (7), [this Court] must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff . . . the benefit of every possible favorable inference" (Van Ostrand v Latham, 222 AD3d 1382, 1383 [4th Dept 2023] [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87 [1994]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). "The court may also consider affidavits and other evidentiary material to establish conclusively that plaintiff has no cause of action" (Tauro v Gait, 158 AD3d 1261, 1262 [4th Dept 2018] [internal quotation marks omitted]). Additionally, as with the allegations of the complaint, this Court must accept as true plaintiff's submissions in opposition to the motion (see id.).

Supreme Court granted defendants' motion because it determined, inter alia, that "[t]he evidentiary proof conclusively establishes that . . . plaintiff was not the employee of any of the named defendants." Here, however, "accept[ing] the facts as alleged in the complaint as true [and] accord[ing] plaintiff[ ] the benefit of every possible favorable inference" (Stevens v Perrigo, 122 AD3d 1430, 1430 [4th Dept 2014] [internal quotation marks omitted]), we conclude that plaintiff sufficiently alleged that defendants were plaintiff's employers (see Griffin v Sirva, Inc., 29 NY3d 174, 186 [2017]; see State Div. of Human Rights v GTE Corp., 109 AD2d 1082, 1083 [4th Dept 1985]). "[T]he really essential element of the relationship is the right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter" (Griffin, 29 NY3d at 186 [internal quotation marks omitted]; see also PB-20 Doe v St. Nicodemus Lutheran Church, 228 AD3d 1233, 1234 [4th Dept 2024]). We conclude that plaintiff sufficiently alleged an employment relationship by alleging factors including that defendants paid plaintiff's salary (see GTE Corp., 109 AD2d at 1083) and had the power to control plaintiff's conduct (see generally PB-20 Doe, 228 AD3d at 1234-1235).

https://nycourts.gov/reporter/3dseries/2025/2025_04351.htm 

ALJ Jonathan Fogel recommended dismissing a positive drug test charge against a TLC licensee after the licensee successfully raised the affirmative defense of innocent ingestion. TLC alleged that the licensee was unfit to retain a TLC driver’s license after he tested positive for the presence of cocaine. The licensee attributed the positive test to coca tea he drank the evening before his drug test to cure a stomachache. The ALJ credited the licensee’s testimony regarding his consumption of the tea, and further credited his corroborating evidence, including photographs of the coca tea packaging and medical journal excerpts explaining how coca tea is consumed in many South American countries and contains significant amount of cocaine and cocaine-related alkaloids. The ALJ found that the licensee met his burden of proof and TLC failed to counter the licensee’s evidence that he reasonably believed the product was lawful and that it caused him to test positive for the presence of cocaine. As a result, the ALJ found that the licensee was fit to possess a TLC driver’s license and recommended dismissing the charge. Taxi & Limousine Comm’n v. Farfan, OATH Index No. 2287/25 (July 21, 2025).

Contracts

The Contract Dispute Resolution Board, chaired by ALJ Faye Lewis, denied a contractor’s request for additional compensation under a contract with the Department of Design and Construction (“DDC”) for the reconstruction of a storm sewer. The contractor sought additional compensation for overrun contract materials that DDC argued were already included in a lump sum bid item but that the contractor asserted should be billed as separate line items. The Board found that the contractor waived its claim by failing to reserve the claim in time extension requests submitted after the contractor filed its Notice of Dispute with DDC. The contractor argued that the claim did not arise, and therefore could not be waived, until the Comptroller assigned the dispute a claim number upon receipt of the contractor’s Notice of Claim, which was submitted after the filing of the extension requests. The Board disagreed, holding that the contract required the contractor to reserve all potential claims of which it has notice and that the submission of the Notice of Dispute demonstrated such notice. Accordingly, the Board did not reach the merits of the dispute and denied the petition. D’Onofrio General Contractors Corp. v. Dep’t of Design & Construction, OATH Index No. 174/25, mem. Dec. (July 17, 2025).

Excessive fines

City of New York v Jones

2025 NY Slip Op 04842

Decided on September 04, 2025

Appellate Division, First Department

Gesmer, J.

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

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

Decided and Entered: September 04, 2025 SUPREME COURT, APPELLATE DIVISION First Judicial Department
Cynthia S. Kern
Peter H. Moulton Barbara R. Kapnick Ellen Gesmer Bahaati E. Pitt-Burke

Index No. 450209/21|Appeal No. 3706|Case No. 2023-02410|

[*1]The City of New York, Plaintiff-Appellant,

v

Thomas Stevenson Jones et al., Defendants-Respondents, Jane Doe(s) 1-5, et al., Defendants.

Plaintiff appeals from an order of the Supreme Court, New York County (Nicholas W. Moyne, J.), entered April 12, 2023, which denied its motion for summary judgment and set the matter down for a hearing.

Muriel Goode-Trufant, Corporation Counsel, New York (Tahirih M. Sadrieh and Jamison Davies of counsel), for appellant.

Gesmer, J.

In late 2020, a New York City Department of Health inspector issued summonses to defendant Thomas Stevenson Jones for food vending without a license from his truck, selling food from an unapproved or unknown source, and not having food service operations separated from living or sleeping quarters in the vehicle. At a subsequent hearing before the Office of Administrative Trials and Hearings (OATH), Jones admitted to these violations and OATH imposed fines on him totaling $2,600.

The City then commenced this proceeding in Supreme Court pursuant to Administrative Code of City of NY §§ 17-321(c) and 17-322 to seize and order forfeiture of Jones' truck. Administrative Code § 17—321(a) permits both public health officials and the police to enforce food vending codes. Section 17-321(c)(iii) permits police or public health officials to seize a food vending vehicle being used by an unlicensed vendor and any food being offered for sale. If forfeiture proceedings are not commenced, the vendor may be charged with the "reasonable costs for removal and storage payable prior to the release of such food, vehicle or pushcart." Section 17—322(a) provides for forfeiture of "all property seized" from unlicensed food vendors "[i]n addition to any penalties imposed" pursuant to Section 17-325. Section 17-325(a) provides that vending food without a license is a misdemeanor punishable by a fine of up to $1,000, imprisonment for up to three months, or both. Section 17-325(c) provides for additional fines for unlicensed food vendors.

The motion court denied the City's motion for summary judgment on the grounds that there are questions of fact as to: (1) whether the forfeiture provision at issue is punitive in nature; and (2) whether the value of the property seized is so disproportional to the fines imposed and any harm to society that it violates the excessive fines clauses of the New York and United States Constitutions.^[FN1] We now affirm.

This case is controlled by the decision of the Supreme Court in Timbs v Indiana (586 US 146 [2019]) which held that the Federal excessive fines clause applies to the states, and the Court of Appeals' decision in County of Nassau v Canavan (1 NY3d 134 [2003]), which held that both the Federal and State excessive fines clauses apply to civil in rem forfeitures. Both Timbs and Canavan held that civil in rem forfeitures are subject to the protection of the excessive fines clause when they are at least partly punitive (Timbs, 586 USat 151 [excessive fines clause "limits the government's power to extract payments, whether in cash or in kind, as punishment for some offense" (internal quotation marks omitted)]; see also Canavan, 1 NY3d at 139). When forfeiture "serves, at least in part, deterrent and retributive purposes," it is punitive (Canavan, 1 NY3d at 139-140).

"[F]orfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment" (Austin v United States, 509 US 602, 618 [1993]). That determination can be based on the presence of many factors, some of which are present here. In particular, courts have found forfeiture to be at least partially punitive where it is tied directly to commission of a criminal offense; where possession of the forfeited property itself is not a crime, so that removing it from the owner's possession serves no remedial public health or safety purpose; where there are dramatic variations in the value of forfeitable property; where the value of the forfeited property does not correlate with any harm caused to society or the cost of enforcement; and where forfeiture has been characterized as a deterrent (see Austin, 509 US at 620-621; see also Prince v City of New York, 108 AD3d 114, 120 [1st Dept 2013] [civil penalty that bore no relationship to the loss sustained by the City, and was referred to as a "deterrent" in legislative history was punitive]). In addition, this Court has held that where, as here, the activity subject to civil sanction is completely barred, the sanction is punitive (see Prince, 108 AD3d at 121). The City correctly points out that the inclusion of an innocent owner exception, which the statutes at issue here lack, can be an indicator of punitive forfeiture (see Austin, 509 US at 619). However, its absence is not fatal to a determination that the forfeiture here is at least partially punitive (see id. at 610).

The forfeiture provisions at issue here are tied to the commission of a misdemeanor and enforceable by police (Administrative Code § 17-325[a]). Indeed, the plain language of Section 17-322(a) indicates that forfeiture is a punishment for unlicensed food vendors "in addition to" the other penalties listed in section 17-325 (see Austin, 509 US at 620-621).

However, possession of the forfeited property here is not itself a crime. Accordingly, removing it from the owner's possession serves no apparent remedial purpose with regard to public health or safety (id. at 621 ["there is nothing even remotely criminal in possessing an automobile" (internal quotation marks omitted)]).

Jones' claim that the forfeited vehicle is worth $40,000 demonstrates that the statute at issue here provides for forfeiture of property that may have "dramatic variations in the value," calling into question whether its forfeiture serves a purely remedial purpose or is at least partly punitive (id. at 621). Moreover, since the statute already provides that the City may charge the unlicensed food vendor whose property has been seized "reasonable costs for removal and storage payable prior to the release of such food, vehicle or pushcart" (Administrative Code § 17-321[c][iii]), forfeiture of the vehicle appears to have little, if any, correlation to the cost of enforcement (see Austin, 509 US at 621; Canavan, 108 AD3d at 120).

Finally, there is some indication in the statutory history of the forfeiture provision of the food vending laws that it was, at least in part, intended to serve the traditionally punitive goal of deterrence (see Austin, 509 US at 620-621; Prince, 108 AD3d at 120-121). The relevant sections of the food vending laws were enacted in 1977 (Formerly § D22-16.0, Local Law 77/1977 § 2) to address complaints from City officials, private business owners, and the public that street vendors operated without a license, which caused them not to be subject to taxation by the City, and clogged the sidewalks. The legislation provided for regulation of food vendors by the Department of Public Health for the first time "with emphasis on inspections and safety of the food, cart, stand or vehicle, and its placement" (Proceedings of Council of City of N.Y., July 7 to December 29, 1977, Vol. II at 1453-1454). It strengthened enforcement by increasing fines for violations and by directing, for the first time, forfeiture of vehicles, carts, and goods upon a determination of unlicensed vending (Administrative Code § 17—322(a) [Formerly § D22-17.0, Local Law 77/1977 § 2]). On September 22, 1976, Mayor Beame's administration and the City Council issued a joint press release supporting the legislation "aimed at driving an estimated 10,000 illegitimate peddlers from the city's streets" through "severe penalties, including . . . fines, forfeiture of goods and even prison terms for unlicensed peddlers" (NYLS Local Law No. 77 [1977] of City of New York at 26). At the public hearing on the bill, Sidney Baumgarten, who was then the special assistant to Mayor Beame and head of the Mid-town Taskforce, stated that seizure of merchandise, increased fines and jail terms for unlicensed vendors were important "deterrent[s]" (id., vol 3 at 21 ["Police Challenged on Peddler's Law," New York Times, October 7, 1976, page 51]). Community Board 10 held its own hearing and then issued a resolution recommending that the forfeiture provision be replaced with a provision providing for the return of property to the vendor upon presentation of a license because the legislation already provides for fines and imprisonment and "there is no need for double punishment" (id. at 140). The Statement on Behalf of the Frankfurter Vending Industry on the proposed bill stated that the forfeiture provisions "are harsh, unduly punitive, and unnecessary for any legitimate purpose," such as "preserving public health," and it is "clear . . . that any seizure or forfeiture is unrelated to evidentiary or other prosecutorial needs and is merely an excuse for imposing a more severe penalty upon the vendor" (id. at 93, 98-99, 109). Thus, the legislative history of the food vending forfeiture statute indicates that it was intended to completely prohibit unlicensed food vendors through the imposition of forfeiture as a deterrent, making clear that the forfeiture provision was at least partly punitive (see Austin, 509 US at 620; Prince, 108 AD3d at 121).

Here, as the motion court found, Jones raised questions of fact as to whether the forfeiture of his truck "is, at least in part, punitive and meant as a deterrence, rather than simply remedial." The City states that the forfeiture provision at issue is "designed to protect public health, safety, and welfare by ensuring compliance." However, a penalty that ensures compliance through forfeiture, in the absence of any threat to public health, safety or welfare, suggests that it serves the goal of deterrence, which "has traditionally been viewed as a goal of punishment" (United States v Bajakajian, 524 US 321, 329 [1998]). Here, the motion court found that the Health Department never sought to test any of the items being sold to determine if their contents posed a danger to the public, there was no evidence the Health Department ever received any complaints about Jones selling spoiled or tainted food, there was no evidence that the Health Department had decided that public safety required forfeiture of the vehicle, and there was no evidence that there were any "victims" of the sale of items from the vehicle or that the proceeds of the forfeiture would be distributed to them. Accordingly, the City failed to establish, as a matter of law, that forfeiture under Administrative Code §§ 17-321(a), (c)(iii), and 17-322(a) was purely remedial. In any event, Jones raised issues of fact as to whether the forfeiture was, at least in part, punitive, and thus subject to the excessive fines clauses of the New York and US Constitutions.

A "punitive forfeiture violates the Excessive Fines clause if it is grossly disproportional to the gravity of a defendant's offense" (Bajakajian, 524 US at 334; see also Canavan, 1 NY3d at 140). In determining gross disproportionality, the Court of Appeals has held that courts should consider "such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which defendant could have been subject for the crimes charged, and the economic circumstances of the defendant" (Canavan, 1 NY3d at 140; see also Property Clerk, NY City Police Dept v Nurse, 185 AD3d 459, 460-461 [2020]).

Here, Jones asserts that the vehicle is worth approximately $40,000. In contrast, the fines total just $2,600. Jones further asserted in his affidavit that the City's possession of his vehicle had caused him "extreme financial hardship" and prevented him from operating his business lawfully in places outside of New York City that do not require a food vending license. There is no evidence that the sale of the items at issue did cause or could have caused any harm. Therefore, Jones also raised issues of fact as to whether imposing a forfeiture on his property, which had a value far in excess of both the fines imposed and any damage to society, violated the excessive fines clauses of the New York State and US Constitutions.

The City relies on this Court's one-paragraph order in City of New York v Nadler (304 AD2d 491 [1st Dept 2003]). However, that case, decided seven months before Canavan and 16 years before Timbs, does not address at all whether forfeiture of a food vendor's vehicle for violation of local vending codes violates the excessive fines clause of the New York or US Constitutions. Thus, Nadler does not prevent us from considering these constitutional issues under now prevailing excessive fines clause jurisprudence.

In Nadler, the motion court denied the City's motion for summary judgment seeking forfeiture of a licensed food vendor's cart based on a violation of the Administrative Code's provision requiring that the person selling food from the cart be a licensed food vendor. The motion court granted the vendor's motion for summary judgment in his favor, denying forfeiture and directing return of his cart. This Court reversed, granted the City's motion for summary judgment, and held that "mandatory and unqualified" language in the Administrative Code provisions leaves courts with "no discretionary authority" to direct return of the cart (Nadler, 304 AD2d at 491). In making this finding, this Court quoted Property Clerk of New York City Police Dept v Ferris (77 NY2d 428, 431 [1991]) as to the mandatory nature of the statutory language. In Ferris, the vendor did not claim that the forfeiture violated the excessive fines clause.

The only other case this Court cited in Nadler is Henry v Alquist (127 AD2d 60, 64 [2d Dept 1987]). In Alquist, the court held that the statutory language at issue was mandatory, as this court did in Nadler. The Alquist trial court found that civil forfeiture under the New York State Public Health Law of Ms. Alquist's car used in the sale of a controlled substance that resulted in her criminal conviction was "excessive." On appeal, without discussing any cases interpreting the state or federal excessive fines clauses, the Second Department reversed based on the mandatory language in the civil forfeiture statute at issue.^[FN2] The Second Department further stated, "[t]o the extent that the trial court's determination may be interpreted as a holding that the forfeiture sanction in this case would violate the State and Federal constitutional proscriptions against cruel and unusual punishment . . . we find it to be in error," noting that the civil forfeiture was "separate from any criminal penalties that may be imposed upon any of the individuals involved in the drug transactions" (Alquist, 127 AD2d at 65). The Second Department further stated, "[t]his . . . is not to say that under no circumstances may a court deem the forfeiture statute unconstitutional as applied in a particular case" (id.).

Like Nadler, Alquist was decided before the Court of Appeals' decision in Canavan, which held that a civil in rem forfeiture is subject to the New York and federal excessive fines clauses where it is at least partly punitive (see Canavan, 1 NY3d at 140). Canavan relied heavily on the U.S. Supreme Court's opinion in Austin, which held that "civil proceedings may advance punitive as well as remedial goals" (Austin, 509 US at 610), and that the civil classification of a forfeiture is irrelevant in determining whether it violates the federal excessive fines clause (id. ["the question is not . . . whether forfeiture . . . is civil or criminal, but rather whether it is punishment"]). Moreover, Alquist was decided before the U.S. Supreme Court opinions that today establish that the federal excessive fines clause is applicable to the states (Timbs, 586 US 146) and that forfeitures, whether brought against an individual criminally (see Bajakajian, 524 US 321) or in a civil in rem proceeding (see Timbs, 586 US 146; Austin, 509 US 602) as in Alquist, fall within the protection of the New York State and federal excessive fines clause when they are at least partially punitive (see Timbs, 586 US at 154; Bajakajian, 524 US at 321; Austin, 509 US at 619; Canavan, 1 NY3d at 139).

Accordingly, this Court's opinion in Nadler does not prevent us from addressing the constitutional issue of whether the civil forfeiture at issue here is subject to and violates the excessive fines clauses of the US and New York Constitutions in light of subsequent U.S. Supreme Court and Court of Appeals jurisprudence.

Jones' opposition to the City's motion raised material issues of fact requiring further proceedings, including the ordered hearing, in order to determine whether the civil forfeiture here is subject to the excessive fines clause of the US and New York Constitutions because it is not entirely remedial in nature, and serves, at least in part, deterrent and/or retributive purposes (see Canavan, 1 NY3d at 139-140), and whether, if the excessive fines analysis does apply, the forfeiture would be grossly disproportionate to the offense (see Property Clerk, N.Y. City Police Dept. v Nurse, 185 AD3d 459, 460-461 [1st Dept 2020]).

Accordingly, the order of Supreme Court, New York County (Nicholas W. Moyne, J.), entered April 12, 2023, which denied plaintiff City of New York's motion for summary judgment and set the matter down for a hearing, should be affirmed, without costs.

Order, Supreme Court, New York County (Nicholas W. Moyne, J.), entered April 12, 2023, affirmed, without costs.

Opinion by Gesmer, J. All concur.

Kern, J.P., Moulton, Kapnick, Gesmer, Pitt-Burke, JJ.

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

ENTERED: September 4, 2025

Footnotes

Footnote 1: The US Constitution provides: "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" (US Const 8th Amend [emphasis added]). The New York Constitution contains identical language (NY Const, art I, § 5).

Footnote 2: The only case dealing with any constitutional issue cited by the Second Department in Alquist was Calero-Toledo v Pearson Yacht Leasing Co. (416 US 663 [1974]). That case involved forfeiture of a yacht used unlawfully without the owner's knowledge in connection with criminal activity. However, Calero-Toledo did not address whether the forfeiture violated the excessive fines clause. Rather, it explored whether the forfeiture violated the innocent owner's due process rights under the fifth and fourteenth amendments to the US Constitution.