Providing disabled benefits to paid firefighters employed by fire departments

In this decision the Court of Appeals addresses what it describes as a "complicated statutory scheme" to provide paid firefighters employed by fire departments outside the City of New York who become disabled in the course of performing their duties disability benefits. Such firefighters may receive benefits from one or mor different sources: their local governmental employer, the State of New York, and, or, the New York State's Workers' Compensation System. In the instant matter the Court of Appeal's decision indicated that the disabled firefighter [Plaintiff] received benefits from all three sources.

Here the question to be resolved concerned whether an employer of firefighters of a jurisdiction outside the City of New York can compel the Workers' Compensation Board to pay the disabled firefighter's workers' compensation benefits to the employer as a means of permitting it to recoup an overpayment the employer claims to have made to a disabled firefighter.

Affirming the Appellate Division's decision, the Court of Appeals said "Neither Workers' Compensation Law §25(4)(a) nor Workers' Compensation Law §30(2) allow reimbursement from workers' compensation awards for payments made pursuant to  General Municipal Law §207-a(2)". The Court explained the provision that prevents [the Plaintiff in the instant case] and other firefighters like him from receiving duplicative benefits is General Municipal Law §207-a(4-a). The employing fire department, therefore, is not entitled to "reimbursement directly from [the fighter's] workers' compensation award for its prior payments to him under General Municipal Law §207-a(2)". 

The Court of Appeals' decision is set out below and may be download from the Internet by clicking HERE.

Matter of Schulze v City of Newburgh Fire Dept.

2025 NY Slip Op 02101

Decided on April 10, 2025

Court of Appeals

Wilson, Ch. 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 on April 10, 2025

No. 32

[*1]Adam Schulze, Respondent,

v

City of Newburgh Fire Department, Appellant. Workers' Compensation Board, Respondent.

Lars P. Mead, for appellant.

Dustin Brockner, for respondent Workers' Compensation Board.

Richard T. Cahill, Jr., for respondent Adam Schulze.

WILSON, Chief Judge

Pursuant to a complicated statutory scheme, paid firefighters outside New York City who become disabled at work may receive benefits from different sources: their local governmental employer, New York State, and the Workers' Compensation System. Adam Schulze is a retired paid firefighter who, when employed by the City of Newburgh, was disabled in the performance of duty. He received benefits from all three sources. This case concerns whether the City can compel the Workers' Compensation Board to pay Mr. Schulze's workers' compensation benefits to the City, as a way to allow it to recoup an overpayment it claims to have made to Mr. Schulze. Based on the clear language of the relevant statutes, the City cannot do so.

I.

Generally speaking, a disabled firefighter may fall into one of three categories: (1) the firefighter may remain on the municipality's or fire district's payroll (General Municipal Law § 207-a [1]), (2) the firefighter may retire, either by choice or through the action of the municipality or fire district, and receive accidental disability retirement (ADR) (Retirement and Social Security Law § 363), or (3) the firefighter may retire, either by choice or through the action of the municipality or fire district, and receive performance of duty (POD) retirement (Retirement and Social Security Law § 363-c). Which category a firefighter falls into depends on the severity and permanence of the firefighter's injury, as well as the manner in which the injury occurred. In each category, a firefighter may be eligible for benefits under General Municipal Law § 207-a and/or workers' compensation.

In some circumstances, the total of the separate benefits may be greater than the firefighter's salary had the firefighter not been injured. To prevent such double payments, the legislature has created specific mechanisms to allow either the state or local government to reduce benefits payments. Whether and which mechanism applies depends on the combination of benefits a firefighter is receiving. This case requires us to determine whether two of those mechanisms—Workers' Compensation Law §§ 25 (4) (a) and 30 (2)—are available here.

In 2001, Mr. Schulze began working as a firefighter for the City of Newburgh Fire Department. On April 30, 2012, Mr. Schulze suffered work-related injuries to his neck and back while putting out a fire. He had surgery on his cervical spine. But even after his surgery, Mr. Schulze was unable to lift anything over 15 pounds and experienced constant pain. His doctor told him he could never be a firefighter again. Mr. Schulze was classified as permanently partially disabled on February 23, 2015, when he was 39 years old.

After his injury, Mr. Schulze stopped working. The City continued to pay him his full salary, as was required by General Municipal Law § 207-a (1). From May 2012 to December 2015, Mr. Schulze also received workers' compensation awards. Because Mr. Schulze remained on the City's payroll drawing a full salary, the City received reimbursement from those awards for its General Municipal Law § 207-a (1) salary payments (Workers' Compensation Law § 30 [2]). In that way, the City's total payments to Mr. Schulze were effectively reduced, and Mr. Schulze did not receive more than his salary as a firefighter.

In April 2016, Mr. Schulze's application for POD retirement under Retirement and Social Security Law § 363-c was approved, entitling him to a 50% pension for life. Once Mr. Schulze was approved for POD retirement, he left the City's payroll; his last day on the payroll was April 30, 2016. From that point forward, the State paid his pension and, as required by General Municipal Law § 207-a (2), the City paid Mr. Schulze the difference between his POD pension and his salary. Mr. Schulze thus continued to receive an amount equal to his salary. Under General Municipal Law § 207-a (2), the City's payments continue until the disabled firefighter reaches mandatory retirement, at which point they cease, and the firefighter receives only the state-paid disability pension benefit.

In February 2015, when Mr. Schulze was classified as permanently partially disabled, a Workers' Compensation Law Judge (WCLJ) held that Mr. Schulze was eligible for up to 375 weeks of workers' compensation payments. The payments themselves were awarded in retroactive installments, several months at a time. For an installment to be awarded, either Mr. Schulze or the City had to request the award. Until December 2015, Mr. Schulze regularly requested payments. The last payment (before the payments at issue here) was awarded in December 2015, for the period from August 27, 2015, to December 24, 2015. From December 2015 to July 2019, neither Mr. Schulze nor the City requested another installment of workers' compensation.

In July 2019, Mr. Schulze requested a hearing to determine his entitlement to workers' compensation for two periods of time: (1) December 2015 to April 2016, which represents the period between Mr. Schulze's last workers' compensation payment and the date he left the City's payroll; and (2) April 2016 on. The City requested reimbursement from both awards for its prior payments under General Municipal Law § 207-a (1) (before Mr. Schulze's retirement) and General Municipal Law § 207-a (2) (after his retirement). In other words, the City conceded Mr. Schulze was entitled to workers' compensation payments, but sought to reduce the amount it paid to him by the amount he had already been paid under the General Municipal Law.

In December 2019, the WCLJ awarded Mr. Schulze payments for both periods of time in an amount of $504.41 per week. The WCLJ granted the City reimbursement from the payments for the period of December 2015 to April 2016 but denied the City reimbursement from the payments for April 2016 on.

The City appealed the denial of reimbursement for that later period, and the Workers' Compensation Board upheld the WCLJ's decision, relying on the Appellate Division's decision in Matter of Harzinski v Village of Endicott, 126 AD2d 56 (3d Dept 1987). The Appellate Division affirmed the Board's decision (213 AD3d 1046, 1048 [3d Dept 2023]). The Appellate Division rejected the City's argument that Harzinski applied only to payments made to firefighters receiving ADR (rather than POD) benefits, and applied Harzinski's conclusion that General Municipal Law § 207-a (2) payments are not "wages" under sections 25 (4) (a) and 30 (2) of the Workers' Compensation Law (id. at 1047-1048, citing Harzinski, 126 AD2d at 58). We granted the City leave to appeal.

II.

A.

Paid firefighters employed outside New York City who are disabled by an injury sustained on the job may be eligible for benefits under the following statutes:

• The Retirement and Social Security Law, which provides for either ADR or POD retirement benefits paid by the state police and firefighters' retirement system, not the firefighter's employer;

• The General Municipal Law, which provides for benefits paid by the firefighter's employer (a covered municipality or fire district); and/or

• The Workers' Compensation Law, which provides for awards paid by the employer (in the case of paid firefighters, the municipality or fire district) or the employer's insurer.

Such a firefighter may be in one of the following three situations. First, the firefighter may still be on the employer's payroll. Until and unless the firefighter retires, General Municipal Law § 207-a (1) requires the employer to pay the firefighter "the full amount of his or her regular salary or wages" until the firefighter's disability ends. The employer's General Municipal Law § 207-a (1) payments to the firefighter are "credited against" any workers' compensation benefits the firefighter is awarded (Workers' Compensation Law § 30 [2]). Put differently, while a firefighter is receiving General Municipal Law § 207-a (1) benefits, the Workers' Compensation Board will order that the employer receive "reimbursement" for its section 207-a (1) payments from a workers' compensation award for the same period. Second, a firefighter may retire and receive ADR benefits under Retirement and Social Security Law § 363 ^[FN1]. In that case, General Municipal Law § 207-a (2) requires the employer to pay the difference between the firefighter's ADR benefits and "the amount of his or her regular salary or wages" until the firefighter reaches mandatory retirement. If the firefighter receives workers' compensation, the firefighter's ADR benefits are reduced by the amount of the workers' compensation award (Retirement and Social Security Law §§ 363 [e] [3], 364 [a]). Third, a firefighter may receive POD retirement benefits under Retirement and Social Security Law § 363-c ^[FN2]. Like firefighters receiving ADR benefits, firefighters receiving POD retirement benefits are entitled to supplemental payments from the employer under General Municipal Law § 207-a (2). Unlike ADR benefits, however, POD retirement benefits are not reduced by a workers' compensation award (Retirement and Social Security Law § 363-c [i]). Instead, when a firefighter receives POD retirement benefits, the employer is entitled to reduce its General Municipal Law § 207-a (2) payments by the amount of the workers' compensation award (General Municipal Law § 207-a [4-a]). The statutory scheme thus creates a difference: in the case of firefighters receiving ADR benefits, workers' compensation awards reduce the State's obligation; for firefighters receiving POD benefits, workers' compensation awards reduce the employer's obligation.^[FN3]

Mr. Schulze is in the third situation. He has received POD retirement benefits, supplemental payments under General Municipal Law § 207-a (2), and workers' compensation payments. Instead of following the statutory scheme outlined above, which requires the City to reduce its General Municipal Law § 207-a (2) payments "by the amount of the benefits that are finally determined payable under the workers' compensation law" (General Municipal Law § 207-a [4-a]), the City seeks an order from the Workers' Compensation Board directing that the City receive the [*2]workers' compensation payments due to Mr. Schulze as reimbursement for the payments the City made to Mr. Schulze under General Municipal Law § 207-a (2). The City is not entitled to that relief, as the WCLJ, Workers' Compensation Board, and Appellate Division held.

B.

The City argues that two provisions of the Workers' Compensation Law entitle it to reimbursement from Mr. Schulze's workers' compensation award: sections 30 (2) and 25 (4) (a). The City's arguments are unavailing: it is clear from the text of those provisions that neither entitles an employer to reimbursement for General Municipal Law § 207-a (2) payments.^[FN4]

Workers' Compensation Law § 30 (2) does not encompass payments under General Municipal Law § 207-a (2). Section 30 (2) provides, as relevant here:

"No benefits, savings or insurance of the injured employee, independent of the provisions of this chapter, shall be considered in determining the compensation or benefits to be paid under this chapter, except that . . . (2) in case of an award of compensation to a paid firefighter of a . . . fire department of a city of less than one million population, . . . any salary or wages paid to . . . such paid firefighter under and pursuant to [General Municipal Law 207-a] shall be credited against any award of compensation to such paid firefighter under this chapter."

Payments under General Municipal Law § 207-a (2) are not "salary or wages." The Workers' Compensation Law defines "wages" as "the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident" (Workers' Compensation Law § 2 [9]). General Municipal Law § 207-a (2) payments do not meet that definition. They are pension supplements that bridge the gap between retirement benefits and the wages a firefighter would have been entitled to, had the firefighter not retired (see Matter of Borelli v City of Yonkers, 39 NY3d 138, 142 [2022]).

The legislative history of Workers' Compensation Law § 30 (2) supports the conclusion that the provision applies to payments under General Municipal Law § 207-a (1), but not payments under General Municipal Law § 207-a (2). Section 30 (2) was created in 1951, 13 years after the enactment of General Municipal Law § 207-a (see L 1951, ch 812, § 2). In 1951, subdivision two of section 207-a did not exist—section 207-a simply required covered municipalities and fire districts to pay the full salary and wages of disabled firefighters, with no provision for retirement (see id. § 1; see also L 1977, ch 965, § 1). Workers' Compensation Law § 30 (2) was intended to "protect municipalities and fire districts against unwarranted payments of full salary," under subdivision 207-a (1), "plus workmen's compensation benefits" (Mem from Association of Fire Districts to Governor Dewey, Bill Jacket, L 1951, ch 812 at 7; see also Mem from State Comptroller J. Raymond McGovern to Governor Dewey, id., at 12-13). Municipalities making payments under General Municipal Law § 207-a (2) are not making payments of "salary or wages," and may not receive reimbursement through Workers' Compensation Law § 30 (2).

The City's arguments under Workers' Compensation Law § 25 (4) (a) are equally unavailing. Section 25 (4) (a) provides:

"If the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, he shall be entitled to be reimbursed out of an unpaid instalment or instalments of compensation due, provided his claim for reimbursement is filed before award of compensation is made, or if insured, by the insurance carrier at the direction of the board . . . ."

Contrary to the City's argument, General Municipal Law § 207-a (2) payments are not "payments to an employee in like manner as wages" under Workers' Compensation Law § 25 (4) (a). Subdivision 207-a (2) payments are calculated differently from wages and are properly understood as pension supplements. Furthermore, General Municipal Law § 207-a (2) payments are not made to employees, as Workers' Compensation Law § 25 (4) (a) requires. Whereas firefighters receiving General Municipal Law § 207-a (1) payments remain on the employer's payroll, firefighters receiving General Municipal Law § 207-a (2) payments are retired.

In fact, General Municipal Law § 207-a (2) was specifically created to shift responsibility for supporting disabled firefighters from local governments to the State by moving firefighters off municipal payrolls and onto retirement benefits (see Borelli, 39 NY3d at 143). Before 1977, when General Municipal Law § 207-a (2) was created, disabled firefighters had no reason to retire. If a firefighter remained disabled and stayed on the payroll, the employer had to keep paying the firefighter's full salary (General Municipal Law 207-a [1]). Firefighters retiring on ADR—the only relevant retirement system benefit available at the time—received a pension of 75% of their final average salary (Sponsor's Mem in Support, Bill Jacket, L 1984, ch 661 at 9). The point of General Municipal Law § 207-a (2) was to "permit the retirement of a fireman eligible for disability retirement benefits" (Governor's Approval Mem at 1, Bill Jacket, L 1977, ch 965). It is thus core to subdivision 207-a (2) that the firefighters who receive its benefits are no longer employees receiving a salary.

The legislative history of Workers' Compensation Law § 25 (4) (a) supports the conclusion that it does not apply to General Municipal Law § 207-a (2) payments. The precursor to section 25 (4) (a)—which included the phrase "payments to an employee in like manner as wages"—was added to the Workers' Compensation Law in 1930 (see L 1930, ch 316, § 3). The provision was intended to ensure that employers who paid disabled firefighters wages while a workers' compensation award was pending would not be penalized. Supporters of the bill explained:

"The amendment . . . [provides] that the employer who has made advance payments to an employee as wages during any period of disability shall receive the same credit as though it were a compensation payment and be entitled to reimbursement from his insurance carrier. . . . This procedure will not penalize or prevent certain employers pursuing a policy of paying employees' wages in addition to compensation and in such cases will not permit the insurance carrier to be in a more favorable position because of such employers' personnel policy"

(Supporting Mem, Bill Jacket, L 1930, ch 316 at 4). Payments under General Municipal Law § 207-a (2) are thus not like the wage payments contemplated under Workers' Compensation Law § 25 (4) (a).

C.

Underlying the City's position is the argument that the remedy available under the statutory scheme is insufficient. The legislature did not ignore the potential for duplicative benefits for firefighters on POD retirement. The provision that ensures that firefighters like Mr. Schulze do not receive double payments is General Municipal Law § 207-a (4-a). That subdivision provides:

"Any benefit payable pursuant to [General Municipal Law § 207-a (2)] to a person who is granted retirement for disability incurred in performance of duty pursuant to [Retirement and Social Security Law § 363-c] shall be reduced by the amount of the benefits that are finally determined payable under the workers' compensation law by reason of accidental disability."

In the City's view, General Municipal Law § 207-a (4-a) is an inadequate remedy where, as here, General Municipal Law § 207-a (2) payments are made before a final workers' compensation award. For the period from April 2016 to October 2019, the City made supplemental payments to Mr. Schulze pursuant to General Municipal Law § 207-a (2). Subsequently, in October 2019, Mr. Schulze was retroactively awarded workers' compensation payments for that period. The delay resulted in Mr. Schulze receiving approximately $106,000 more than he should have received.

The City argues that it would be unfair to limit employers to the remedy set out in General Municipal Law § 207-a (4-a) when a firefighter receives a retroactive workers' compensation award for a period during which the employer has already made General Municipal Law § 207-a (2) payments. When that happens, the employer cannot go back in time to reduce its subdivision 207-a (2) payments in the first instance. Whether General Municipal Law [*3]§ 207-a (4-a) provides an employer with another way to recoup its prior payments, such as by reducing future General Municipal Law § 207-a (2) payments to compensate for past double payments or bringing a plenary action against the firefighter to recover the overpayment, is not before us.^[FN5]

In this case, the City could have avoided the overpayment by asking the WCLJ to award workers' compensation benefits beginning in April 2016, when Mr. Schulze retired (see, e.g., Matter of Georges v Zotos Intl. Inc., 198 AD3d 1047, 1047 [3d Dept 2021] [referencing an employer's request for further action], Matter of McQueer v Adirondack Tank Servs., Inc., 142 AD3d 743, 758 [3d Dept 2016] [same], Matter of Tricarico v Town of Islip, 136 AD3d 1127, 1129 [3d Dept 2016] [same]). If the City had done so, it would have been entitled to reduce its General Municipal Law § 207-a (2) payments by the amount of workers' compensation finally determined. Instead, the City allowed years to pass without an award of workers' compensation, thereby running the risk that Mr. Schulze would later receive a retroactive award covering that period of time ^[FN6]. Having failed to avail itself of the proper remedy, the City now seeks to avail itself of a statutorily unavailable remedy.

III.

Neither Workers' Compensation Law § 25 (4) (a) nor Workers' Compensation Law § 30 (2) allows reimbursement from workers' compensation awards for payments made under General Municipal Law § 207-a (2). The provision that prevents Mr. Schulze and other firefighters like him from receiving duplicative benefits is General Municipal Law § 207-a (4-a). The City of Newburgh Fire Department is therefore not entitled to reimbursement directly from Mr. Schulze's workers' compensation award for its prior payments to him under General Municipal Law § 207-a (2). The order of the Appellate Division should be affirmed, with costs.

Order affirmed, with costs. Opinion by Chief Judge Wilson. Judges Rivera, Garcia, Singas, Cannataro, Troutman and Halligan concur.

Decided April 10, 2025

Footnotes

Footnote 1: ADR benefits include a pension of 75% of the firefighter's final average salary (Retirement and Social Security Law §363 [e] [3]).

Footnote 2: POD retirement benefits include a pension of 50% of the firefighter's final average salary (Retirement and Social Security Law §363-c [f]).

Footnote 3: The statutory system represents cost-shifting between state and local governments. That cost-shifting can most clearly be seen in the legislative history of General Municipal Law §207-a. Before 1938, each municipality in New York had its own system for compensating disabled firefighters. Although some municipalities gave disabled firefighters " 'comprehensive and generous' pensions," others did not (Matter of Borelli v City of Yonkers, 39 NY3d 138, 142-143 [2022]). To "tak[e] care of . . . firefighters," the legislature enacted what is now General Municipal Law §207-a (1), which requires covered municipalities and fire districts to pay disabled firefighters "the full amount of his or her regular salary or wages" until the firefighter's disability ends (General Municipal Law §207-a [1]). "By the 1970s, many New York municipalities complained that the statutory requirements were excessively costly and undesirable" (Borelli, 39 NY3d at 143). In 1977, the legislature responded to municipalities' concerns by enacting General Municipal Law §207-a (2), which "shifted much of the burden onto state pension systems and away from municipal payrolls" (id.).

Footnote 4: Our decision is consistent with the Appellate Division's longstanding precedent. In Harzinski, the Appellate Division held that employers were not entitled to reimbursement from workers' compensation awards for General Municipal Law §207-a (2) payments to firefighters receiving ADR (126 AD2d at 57). The Appellate Division reasoned that General Municipal Law §207-a (2) payments "do not constitute wages within the meaning of Workers' Compensation Law § 25 (4) (a) or § 30 (2)" (id. at 58).

Footnote 5: In this case, we are asked to review a decision of the Workers' Compensation Board, which does not have the power to administer benefits under the General Municipal Law (Workers' Compensation Law §142).

Footnote 6: At oral argument, the City suggested that a short "gap" between a disabled firefighter's retirement and a workers' compensation award may, in some cases, be inevitable. But General Municipal Law §207-a (4-a) is the remedy the legislature has created. It is for the legislature to determine whether it is adequate.

______________________

Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For additional information and access to a free excerpt of the material presented in this e-book, click on the URL set out below:

   http://booklocker.com/books/3916.html 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

________________________

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

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

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

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

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

• Denote whether the case has a pending appeal. 

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

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

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

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

Need More Information 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Agencies Use of AI 

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

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

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

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

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

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

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

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

Recommendations 

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

Agencies Responses 

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

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

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

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

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