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Reviewing a determination of an administrative agency made without an evidentiary hearing
The City of New York Reasonable Accommodation Appeals Panel [Panel] sustained a determination of the New York City Fire Department denying a New York City Firefighter's [Petitioner] request for a reasonable accommodation from a vaccine mandate based on his religion. Supreme Court had granted the petition, in effect, annulled the Panel's determination and directed the New York City Fire Department and the City of New York to reinstate the Petitioner to his position as a firefighter with a reasonable accommodation from the vaccine mandate and back pay. Supreme Court also found that Petitioner was entitled to an award of attorneys' fees. The Fire Department and the City appealed the Supreme Court's ruling.
The Appellate Division reversed the Supreme Court's ruling on the law, with costs, and dismissed the proceeding, explaining that "In a CPLR article 78 proceeding to review a determination of an administrative agency made without an evidentiary hearing, the standard of review is whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion".
The Appellate Division said that Petitioner failed to demonstrate that the Panel's determination to deny him a religious exemption from the vaccine mandate was arbitrary and capricious and "It is not dispositive that the . . . Panel's determination did not set forth any reasoning; a member of the Panel clarified the basis for the determination in an affirmation submitted in [this] proceeding".
The text of the Appellate Division's decision is set out below.
| Matter of Hughes v New York City Fire Dept. |
| 2025 NY Slip Op 07007 |
| Decided on December 17, 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. |
VALERIE BRATHWAITE NELSON, J.P.
PAUL WOOTEN
BARRY E. WARHIT
LOURDES M. VENTURA, JJ.
2024-01225
(Index No. 532524/22)
v
New York City Fire Department, et al., appellants.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Richard Dearing, Jesse A. Townsend, Geoffrey E. Curfman, and Ingrid R. Gustafson of counsel), for appellants.
Christina Martinez, Staten Island, NY, for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the City of New York Reasonable Accommodation Appeals Panel dated July 11, 2022, which upheld a determination of the New York City Fire Department dated December 8, 2021, denying the petitioner's request for a reasonable accommodation from a vaccine mandate based on his religion, the New York City Fire Department and the City of New York appeal from a judgment of the Supreme Court, Kings County (Joy F. Campanelli, J), dated October 18, 2023. The judgment granted the petition, in effect, annulled the determination dated July 11, 2022, directed the New York City Fire Department and the City of New York to reinstate the petitioner to his position as a firefighter with a reasonable accommodation from the vaccine mandate and back pay, and directed that the petitioner was entitled to an award of attorneys' fees.
ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.
The petitioner was a firefighter with the New York City Fire Department (hereinafter the FDNY). By order dated October 20, 2021, the New York City Commissioner of Health and Mental Hygiene issued a mandate requiring all City employees, among others, to submit proof that they had received at least one dose of a COVID-19 vaccine by October 29, 2021 (hereinafter the vaccine mandate). On November 1, 2021, the petitioner was placed on leave, without pay, since he failed to submit proof of vaccination or request a reasonable accommodation by the specified deadline. On November 5, 2021, the petitioner submitted a request to the FDNY's Equal Employment Opportunity Office for a reasonable accommodation from the vaccine mandate based on his religion, which was denied on December 8, 2021. The petitioner then appealed to the City of New York Reasonable Accommodation Appeals Panel (hereinafter the Panel). In a determination dated July 11, 2022, the Panel upheld the FDNY's denial of the petitioner's request for a reasonable accommodation. The FDNY then terminated the petitioner's employment on July 27, 2022.
In November 2022, the petitioner commenced this proceeding pursuant to CPLR article 78 against the FDNY and the City (hereinafter together the appellants) to annul the Panel's determination, to be reinstated to his position, for back pay, and for an award of attorneys' fees. In [*2]a judgment dated October 18, 2023, the Supreme Court granted the petition, in effect, annulled the Panel's determination, directed the appellants to reinstate the petitioner to his position as a firefighter with a reasonable accommodation from the vaccine mandate and back pay, and directed that the petitioner was entitled to an award of attorneys' fees. This appeal ensued.
"In a CPLR article 78 proceeding to review a determination of an administrative agency made without an evidentiary hearing, the standard of review is whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (Matter of Achille v Laveman, 224 AD3d 744, 746 [internal quotation marks omitted]; see CPLR 7803[3]; Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, 34 NY3d 184, 191).
Here, the petitioner failed to demonstrate that the Panel's determination to deny him a religious exemption from the vaccine mandate was arbitrary and capricious (see Matter of Smith v New York City Fire Dept., 239 AD3d 870; Matter of Marstellar v City of New York, 217 AD3d 543, 545). "It is not dispositive that the . . . Panel's determination did not set forth any reasoning; a member of the Panel clarified the basis for the determination in an affirmation submitted in [this] proceeding" (Matter of Lee v City of New York, 221 AD3d 505, 506; see Matter of Marstellar v City of New York, 217 AD3d at 544).
Further, pursuant to the New York City Human Rights Law (NYCHRL), it is "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" for, among other possibilities, "religious needs" (Administrative Code of the City of NY § 8-107[28][a][1]). Here, the petitioner failed to demonstrate that the appellants' process for resolving requests for a reasonable accommodation from the vaccine mandate did not meet the requirements of the NYCHRL regarding cooperative dialogue (see Matter of Smith v New York City Fire Dept., 239 AD3d at 872; Matter of Marstellar v City of New York, 217 AD3d at 545). The appellants provided information on the process for reviewing accommodation requests related to the vaccine mandate and informed employees on how to appeal request denials. The record demonstrates that the petitioner availed himself of this process. Moreover, the record shows that there were multiple communications between the petitioner, the FDNY, and the Panel regarding the petitioner's request. The petitioner "failed to establish that, under the unique circumstances present at the time of the vaccine mandate, the NYCHRL required a more robust or individual dialogue" (Matter of Smith v New York City Fire Dept., 239 AD3d at 872).
Since the Panel's determination was not arbitrary and capricious or affected by an error of law, there is no basis to award back pay or court costs as incidental damages (see CPLR 7806; Matter of Rysiejko v City of New York, 232 AD3d 432, 433).
Furthermore, the Supreme Court erred in directing that the petitioner was entitled to an award of attorneys' fees, which was not authorized by agreement between the parties, by statute, or by court rule (see Matter of Smith v New York City Fire Dept., 239 AD3d at 873; Matter of Ferrera v New York City Dept. of Educ., 230 AD3d 772, 774).
The petitioner's remaining contentions are either without merit or improperly raised for the first time on appeal.
Accordingly, the Supreme Court erred, inter alia, in granting the petition and, in effect, annulling the Panel's determination, and the judgment must be reversed.
BRATHWAITE NELSON, J.P., WOOTEN, WARHIT and VENTURA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
The appellant is required to assemble a proper record on appeal
| Smith v Department of Educ. of the City of N.Y. |
| 2025 NY Slip Op 07033 |
| Decided on December 17, 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. |
VALERIE BRATHWAITE NELSON, J.P.
WILLIAM G. FORD
JANICE A. TAYLOR
JAMES P. MCCORMACK, JJ.
2024-09068
(Index No. 530162/23)
v
Department of Education of the City of New York, respondent.
Stewart Lee Karlin Law Group, P.C., New York, NY, for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Claude S. Platton and Hannah J. Sarokin of counsel), for respondent.
DECISION & ORDER
In an action, inter alia, to recover damages for employment discrimination in violation of title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.), the plaintiff appeals from an order of the Supreme Court, Kings County (Patria Frias-Colón, J.), dated May 31, 2024. The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the appeal is dismissed, without costs or disbursements.
"It is the obligation of the appellant to assemble a proper record on appeal" (Ismail v Dowling, 240 AD3d 674, 675). "An appellant's record must contain all of the relevant papers that were before the Supreme Court" (id.; see CPLR 5526). "Where omission of relevant documents from the record renders meaningful review of the court's order virtually impossible, dismissal of the appeal is the appropriate disposition" (Sterling Trust Ltd. v Stern, 237 AD3d 1236, 1236 [brackets and internal quotation marks omitted]).
Here, the record on appeal is inadequate. The appellant failed to include, inter alia, her papers in opposition to the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint. Under the circumstances, the appeal must be dismissed (see Ismail v Dowling, 240 AD3d at 675; Sterling Trust Ltd. v Stern, 237 AD3d at 1236).
BRATHWAITE NELSON, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Click HERE to access the Appellate Division decision posted on the Internet.
| Matter of Newsday LLC v New York State Educ. Dept. |
| 2025 NY Slip Op 06775 |
| Decided on December 4, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-1945
v
New York State Education Department, Appellant-Respondent
Before:Garry, P.J., Clark, Aarons, Lynch and Powers, JJ.
Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for appellant-respondent.
Ballard Spahr LLP, New York City (Anna Kaul of counsel), for respondent-appellant.
Garry, P.J.
Cross-appeals from a judgment of the Supreme Court (Roger McDonough, J.), entered October 11, 2024 in Albany County, which (1) granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent partially denying petitioner's Freedom of Information Law request, and (2) denying petitioner's request for counsel fees.
Petitioner submitted a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) request to respondent seeking all license registration renewal applications submitted to respondent's Office of the Professions by certain named physicians during specified years. In pertinent part, that biennial application requires licensees to answer five yes-or-no "moral character" questions generally concerning any professional misconduct determinations, pending professional misconduct charges, limitations on hospital admitting privileges, criminal convictions and pending criminal charges.[FN1] Respondent provided petitioner with the requested documents but redacted all answers to the moral character questions, among other responses, reasoning that such information would constitute an unwarranted invasion of personal privacy and thus was exempt from disclosure pursuant to Public Officers Law § 87 (2) (b). Respondent's rationale was upheld upon administrative appeal, and petitioner's request for reconsideration was denied. Petitioner commenced this CPLR article 78 proceeding seeking to annul respondent's determination, except with respect to the redactions concerning pending misconduct charges. In opposition, respondent maintained its reliance on Public Officers Law § 87 (2) (b) but also urged that Education Law § 6510 (8) specifically exempted the withheld information from disclosure (see Public Officers Law § 87 [2] [a]). Supreme Court granted the petition, rejecting both of respondent's bases for resisting disclosure but declining to award petitioner counsel fees and other litigation costs. The parties cross-appeal.
"Under FOIL, all records are presumptively available for public inspection and copying, unless the agency satisfies its burden of demonstrating that the material requested falls squarely within the ambit of one of the statutory exemptions, which must be narrowly interpreted" (Matter of New York Civ. Liberties Union v City of Rochester, 43 NY3d 543, 548 [2025] [internal quotation marks, brackets and citations omitted]; see Public Officers Law § 84). Here, respondent principally relies upon the exemption that allows denial of access to records that are "specifically exempted from disclosure" by statute (Public Officers Law § 87 [2] [a]), invoking Education Law § 6510 (8).[FN2] In relevant part, Education Law § 6510 (8) mandates that "[t]he files of [respondent] relating to the investigation of possible instances of professional misconduct, or the unlawful practice of any profession licensed by the board of regents, or the unlawful use of a professional title or the moral fitness [*2]of an applicant for a professional license or permit, shall be confidential."
Before issuing any license to an applicant for admission to the practice of a profession in this state, respondent must determine that an applicant meets the requirements prescribed by the particular profession (see Education Law § 6501 [1]). For physicians, those requirements include "good moral character as determined by [respondent]" (Education Law § 6524 [7]). It is evident from the self-titled moral character questions on the subject application that respondent views professional misconduct as bearing upon a physician's moral character, and such misconduct includes having been convicted of certain crimes and having been found guilty of certain professional misconduct or subjected to certain disciplinary action in other jurisdictions (see Education Law § 6509 [5] [a], [b], [d]). This interpretation aligns with respondent's obligation to "request and review any information relating to an applicant which reasonably appears to relate to professional misconduct in his or her professional practice in this and any other jurisdiction" prior to issuing any license (Education Law § 6502 [3-a]). For physicians, respondent must take the additional step of advising the Department of Health's Office of Professional Medical Conduct "of any information about an applicant which reasonably appears to be professional misconduct" (Education Law § 6502 [3-a]; see Education Law § 6530 [9] [a], [b], [d]).
We agree with respondent that the foregoing evaluative inquiry that it is legislatively tasked with undertaking constitutes an investigation of moral fitness within the meaning of Education Law § 6510 (8). As illustrated by respondent's submissions, respondent requires licensees, including physicians, to provide information relevant to their moral fitness every two years — via the subject application — to fulfill its licensing duties. This process necessarily entails inquiry into potential misconduct and other circumstances bearing on moral character.[FN3] Although it is generally the Department of Health that handles complaints and reports of medical misconduct (see Public Health Law § 230 [10] [a]; L 1975, ch 109), the existence of that complementary scheme does not mean that respondent's regulatory role as to the medical profession otherwise ceases, or that its inquiry into misconduct for the purpose of determining the moral fitness of physicians loses the protection of Education Law § 6510 (8) (compare Education Law § 6510 [6]). It must also be emphasized that the moral character licensing questions broadly ask for information concerning criminal convictions, findings of professional misconduct and disciplinary action, but not all convictions, misconduct or discipline will ultimately constitute professional misconduct (see Education Law § 6509 [5] [a], [b], [d]). We agree with respondent that shielding the answers to these questions therefore encourages candor from licensees and protects [*3]them from unwarranted public exposure based upon preliminary information (see generally Matter of Johnson Newspaper Corp. v Melino, 77 NY2d 1, 10-11 [1990]).[FN4] In view of the plain language of Education Law § 6510 (8), we find that respondent satisfied its burden to demonstrate that the withheld material is specifically exempted from disclosure by statute and thus may be withheld pursuant to Public Officers Law § 87 (2) (a).
Given our conclusion, petitioner cannot be said to have substantially prevailed in this proceeding (see Public Officers Law § 89 [4] [c] [ii]), and there is therefore no basis for overturning Supreme Court's election not to award petitioner fees and costs.
Clark, Aarons, Lynch and Powers, JJ., concur.
ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as partially granted the petition; petition dismissed in its entirety; and, as so modified, affirmed.
Footnote 1: More fully, the subject questions inquire whether, since the applicant's last registration application, "any licensing or disciplinary authority revoked, annulled, cancelled, accepted surrender of, suspended, placed on probation, or refused to issue or renew a professional license or certificate held by [the applicant] now or previously, or fined, censured, reprimanded or otherwise disciplined [them]"; there "are criminal charges pending against [the applicant] in any court"; the applicant has "been found guilty after trial, or pleaded guilty, no contest, or nolo contendere to a crime (felony or misdemeanor) in any court"; there "are charges pending against [the applicant] in any jurisdiction for any sort of professional misconduct"; and "any hospital or licensed facility restricted or terminated [the applicant's] professional training, employment, or privileges" or they have "voluntarily or involuntarily resigned or withdrawn from such association to avoid the imposition of such action due to professional misconduct, unprofessional conduct, incompetency, or negligence."
Footnote 2: Where, as here, the confidentiality rights of third parties are implicated by a FOIL disclosure determination, Supreme Court was permitted to consider an exemption asserted for the first time in response to the petition (see Matter of Hutchinson v Annucci, 189 AD3d 1850, 1855 [3d Dept 2020]; Matter of Rose v Albany County Dist. Attorney's Off., 111 AD3d 1123, 1124-1125 [3d Dept 2013]).
Footnote 3: We note that the Committee on Open Government agreed (see Comm on Open Govt FOIL-AO-19880 [2023]).
Footnote 4: Petitioner's argument that this interpretation creates a conflict with Public Health Law § 2995-a is unpersuasive, as FOIL itself provides that a denial of access to records thereunder does not limit or abridge the right to access to such records pursuant to another law (see Public Officers Law § 89 [6]).
24-1517-cv Antrobus v. City of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of December, two thousand twenty-five. PRESENT: JOSÉ A. CABRANES, MICHAEL H. PARK, BETH ROBINSON, Circuit Judges. _____________________________________ André K. Antrobus, Plaintiff-Appellant, v. 24-1517-cv City of New York, Defendant-Appellee, v. The City of New York Department of Sanitation, Defendant. * * The Clerk of Court is respectfully directed to amend the caption accordingly. 2 FOR PLAINTIFF-APPELLANT: André K. Antrobus, pro se, Brooklyn, NY. FOR DEFENDANT-APPELLEE: Lauren L. O’Brien, Assistant Corporation Counsel (Jamison Davies, on the brief), for Muriel Goode-Trufant, Corporation Counsel of the City of New York, New York, NY. Appeal from a judgment of the United States District Court for the Eastern District of New York (Rachel P. Kovner, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. André K. Antrobus, pro se, appeals from the district court’s grant of summary judgment to the City of New York on his Title VII sex discrimination claim. Antrobus, a clerical associate at the City’s Department of Sanitation, alleges that the City engaged in sex discrimination when it promoted women rather than him to a computer associate position. The district court dismissed Antrobus’s Title VII claim and declined to exercise supplemental jurisdiction over his sex discrimination claims under the New York State Human Rights Law and the New York City Human Rights Law. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. “We review de novo a district court’s decision to grant summary judgment, construing the evidence in the light most favorable to the party against whom summary 3 judgment was granted and drawing all reasonable inferences in that party’s favor.” Bey v. City of New York, 999 F.3d 157, 164 (2d Cir. 2021). “Summary judgment is appropriate only if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). Under “the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),” a plaintiff making a Title VII claim of sex-based discrimination must first “establish a prima facie case of sex discrimination.” Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 74–75 (2d Cir. 2016) (cleaned up). “If the plaintiff successfully establishes a prima facie case,” the burden of production shifts “to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action.” Id. (quotation marks omitted). “If the employer carries that burden, the plaintiff’s admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not based in whole or in part on discrimination.” Id. (quotation marks omitted). Assuming without deciding that Antrobus has established a prima facie case, we conclude that the City has met its burden of production and that Antrobus has failed to adduce admissible evidence suggesting the personnel decisions at issue were motivated by sex discrimination. 4 First, the City has proffered a “legitimate, nondiscriminatory reason” for its promotion decisions here. The City states that it promoted the women because they ranked above Antrobus on the City’s list of candidates eligible for promotion. That reason is consistent with both the notice of the education and experience exam governing eligibility for promotions and the City’s response to Antrobus’s administrative complaint of discrimination. The exam notice informs candidates that if they pass the exam and are marked eligible, they “will be given a list number” and “considered for promotion when [their] name is reached on the eligible list.” Case No. 1:19-cv-6277, ECF No. 59-1, at 10 (E.D.N.Y. Dec. 7, 2023). The City’s response to the administrative complaint confirms that it followed this policy here. See App’x at 43 (“Ms. Chan and Ms. Hicks were both appropriately considered and selected for promotion ahead of Mr. Antrobus” because “Ms. Chan and Ms. Hicks both had list numbers higher than Mr. Antrobus.”). Antrobus and the female candidates all earned a perfect score on the exam, so the City computed their placement on the eligibility list for administrative purposes based on their social security numbers, consistent with City regulations. There is no evidence that the City did anything other than promote candidates in order of their appearance on the list. Nor is there evidence that the City departed from this policy in other cases where, as here, the top-ranked candidates earned the same exam score and were assigned 5 rankings derived from their social security numbers. Second, Antrobus has presented no admissible evidence suggesting that the City’s promotion decisions were motivated by sex discrimination. He speculates, for instance, that the female candidates were promoted because the Department of Sanitation’s human resources directors are female and that the City doctored its exhibits to hide evidence of sex discrimination. But such conclusory allegations, unsupported by admissible evidence, do not create a triable issue of fact as to sex discrimination. We have considered Antrobus’s remaining arguments and find them to be without merit. We thus AFFIRM the judgment of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
https://ww3.ca2.uscourts.gov/decisions/isysquery/b78286d1-4206-44f8-9c44-1122bc3ed5eb/7/doc/24-1517_so.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/b78286d1-4206-44f8-9c44-1122bc3ed5eb/7/hilite/
Judicial review of the Public Employment Relations Board's finding that a party had committed an improper employer practice
A Board of Education [Petitioner]
| Matter of Board of Educ. of the Newburgh Enlarged City Sch. Dist. v Public Empl. Relations Bd. of the State of N.Y. |
| 2025 NY Slip Op 06579 |
| Decided on November 26, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-1839
v
Public Employment Relations Board of the State of New York et al., Respondents.
Before:Aarons, J.P., Reynolds Fitzgerald, Ceresia, Fisher and McShan, JJ.
Shaw, Perelson, May & Lambert, LLP, Poughkeepsie (Mark C. Rushfield of counsel), for petitioner.
Laura H. Delaney, Public Employment Relations Board, Albany (Ellen M. Mitchell of counsel), for Public Employment Relations Board of the State of New York, respondent.
Robert T. Reilly, New York State United Teachers, Latham (Jose L. Manjarrez of counsel), for The Newburgh Teachers' Association, respondent.
Ceresia, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Public Employment Relations Board finding that petitioner had committed an improper employer practice.
Respondent Newburgh Teachers' Association (hereinafter NTA) is a public employee organization that represents, among others, school social workers and school psychologists (hereinafter collectively referred to as the school providers) employed by petitioner. The school providers offer mental health counseling to students, in addition to other duties. In 2013, petitioner obtained a grant to establish a pilot program for the operation of "satellite" mental health clinics at three of its schools, in partnership with the Orange County Department of Mental Health (hereinafter OCDMH). The purpose of the pilot program was to provide mental health services to non-mandated students [FN1] and their families on school grounds, where such services might be more easily accessed than in other county locations. The clinics were staffed by clinical social workers employed by OCDMH (hereinafter the County social workers).
In 2014, petitioner and NTA signed memoranda of agreement allowing the County social workers to be employed within the schools, with the caveat that the County social workers would not replace the school providers, nor would NTA be waiving its exclusive right to bargain concerning the work of the school providers.
In 2016, NTA advised petitioner that it would no longer consent to the continued employment of the County social workers within the schools upon expiration of the grant. Nonetheless, after the grant expired in 2017, petitioner and OCDMH continued to operate the satellite clinics on school property, albeit under a different funding arrangement.
Thereafter, NTA filed an improper practice charge with respondent Public Employment Relations Board (hereinafter PERB), alleging that petitioner had unilaterally transferred bargaining unit work to the County social workers in violation of Civil Service Law article 14 (hereinafter the Taylor Law) (see Civil Service Law § 209-a [1] [d]).
Petitioner answered, and a hearing was held before an Administrative Law Judge (hereinafter ALJ). On the final day of the hearing, petitioner attempted to raise a public policy argument, essentially claiming that it was not required to bargain with NTA due to the strong public policy interest in supporting students' mental health. The ALJ observed that this defense was not contained in petitioner's answer and, accordingly, allowed petitioner to move to amend its answer to raise the defense.
Petitioner filed such a motion, but it was denied for lack of good cause. Ultimately, the ALJ found that petitioner had engaged in an improper employer practice by transferring bargaining unit work to non-unit employees without first negotiating with NTA. Upon administrative appeal, PERB adopted the ALJ's findings and [*2]upheld the decision, issuing a remedial order requiring that the work of counseling non-mandated students be returned to NTA's bargaining unit.
Petitioner then commenced this CPLR article 78 proceeding seeking to annul PERB's determination because, among other reasons, it was not based upon substantial evidence (see CPLR 7803 [4]). NTA answered, and PERB moved pre-answer to dismiss the petition. Supreme Court transferred the proceeding to this Court. Upon review, this Court denied PERB's motion to dismiss the petition on the basis that PERB was improperly seeking a merits-based determination of the petition in the context of a pre-answer motion and remitted the matter to Supreme Court to allow PERB to file an answer (213 AD3d 1186 [3d Dept 2023]). PERB subsequently filed an answer, which included a counterclaim for enforcement of its remedial order, and the proceeding was transferred back to this Court.
We confirm. In determining whether there was a transfer of unit work that violated the Taylor Law, the issue, as relevant here, is "whether the work in question had been performed by unit employees exclusively and whether the reassigned tasks are substantially similar to those previously performed by unit employees" (Matter of Sliker v New York State Pub. Empl. Relations Bd., 42 AD3d 653, 653-654 [3d Dept 2007] [internal quotation marks, brackets and citations omitted]; see Civil Service Law § 209-a [1] [d]; Matter of Lawrence Union Free Sch. Dist. v New York State Pub. Empl. Relations Bd.,200 AD3d 886, 888 [2d Dept 2021]; Matter of Romaine v Cuevas, 305 AD2d 968, 969 [3d Dept 2003]). Our review of a decision by PERB following a hearing on an improper practice charge is limited to whether PERB's conclusion is supported by substantial evidence, "which, in turn, depends upon whether there exists a rational basis in the record as a whole to support the findings upon which such determination is based" (Matter of Romaine v Cuevas, 305 AD2d at 969; see Matter of Town of Islip v New York State Pub. Empl. Relations Bd., 23 NY3d 482, 492 [2014]; Matter of State of New York v New York State Pub. Empl. Relations Bd., 183 AD3d 1172, 1177 [3d Dept 2020]; Matter of Sliker v New York State Pub. Empl. Relations Bd., 42 AD3d at 653).[FN2]
Turning first to the question of exclusivity, petitioner contends that the work of counseling non-mandated students was not exclusively performed by the school providers prior to implementation of the pilot program because the school providers would, at times, refer students to outside agencies. We disagree. The hearing testimony reflected that these referrals were for services that fell beyond the scope of the school providers' job duties, inasmuch as certain students required additional supports such as counseling outside of school hours or psychiatric interventions. As PERB noted, the referrals did not take away work that otherwise would have been performed by the school providers and, indeed, all of the in-school counseling work [*3]was undisputedly performed by them. Thus, there is substantial evidence supporting PERB's conclusion that the school providers exclusively performed the bargaining unit work at issue before it was transferred to the County social workers (see Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231, 1234 [3d Dept 2009]).
As for whether the work performed by the County social workers was substantially similar to that done by the school providers, the evidence showed that both groups provided counseling to non-mandated students by receiving referrals, performing intakes, making mental health diagnoses, setting treatment goals, developing treatment plans, implementing those plans in individual and group settings for the students and their families using a variety of treatment modalities and referring students and families to outside agencies as needed. Therefore, substantial evidence supports PERB's finding regarding substantial similarity (see Matter of Lawrence Union Free School Dist. v New York State Pub. Empl. Relations Bd.,200 AD3d at 889), notwithstanding the fact that there was some evidence in the record indicating that the County social workers offered certain limited additional services not delivered by the school providers, some of which occurred outside of school hours.
With respect to petitioner's public policy argument, petitioner did not assert such an argument in its answer. When given the opportunity to move to amend the answer, petitioner was unsuccessful for failure to demonstrate good cause, a finding that petitioner has not disputed. Accordingly, since this public policy claim was never properly presented to the ALJ for consideration, it is unpreserved for appellate review (see Matter of Lane Constr. Corp. v Cahill, 270 AD2d 609, 611 [3d Dept 2000], lv denied 95 NY2d 765 [2000]).
Finally, in light of all of the above, PERB's counterclaim for enforcement of its remedial order is granted (see Civil Service Law § 213 [d]; Matter of County of Rockland v New York State Pub. Empl. Relations Bd., 225 AD3d 944, 948 [3d Dept 2024]). To the extent not explicitly addressed herein, petitioner's remaining contentions have been considered and found to be without merit.
Aarons, J.P., Reynolds Fitzgerald, Fisher and McShan, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, petition dismissed, and respondent Public Employment Relations Board is entitled to a judgment of enforcement of its remedial order.
Footnote 1: "Mandated" students are those who must be provided mental health services as part of an individualized education plan (IEP) or an individualized accommodation plan (also known as a 504 plan). These services have always been delivered by the school providers. "Non-mandated" students are those who do not receive mental health services through an IEP or 504 plan.
Footnote 2: In its motion to dismiss the petition and in its answer, PERB argued that its hearings are discretionary in nature rather than required by law and, in such instances, the correct standard of review is not whether the determination is supported by substantial evidence but, rather, whether it is arbitrary and capricious (see e.g. Matter of Lippman v Pub. Empl. Relations Bd., 263 AD2d 891, 894 [3d Dept 1999]). PERB does not pursue this argument in its brief before this Court, and we therefore deem it abandoned (see Matter of Portmore v New York State Comptroller, 152 AD3d 945, 946 n [3d Dept 2017]).
https://nycourts.gov/reporter/3dseries/2025/2025_06579.htm
| Matter of Garanes v New York City Dept. of Educ. |
| 2025 NY Slip Op 06785 |
| Decided on December 04, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Webber, J.P., González, Mendez, Rodriguez, Pitt-Burke, JJ.
Index No. 100425/23|Appeal No. 5171|Case No. 2024-04737|
v
New York City Department of Education et al., Respondents-Respondents,
Glass & Hogrogian LLP, New York (Bryan D. Glass of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York (Diana Lawless of counsel), for respondents.
Judgment (denominated an order), Supreme Court, New York County (Erika Edwards, J.), entered January 3, 2024, which, to the extent appealed from as limited by the briefs, denied the amended petition brought pursuant to CPLR article 75 to vacate an arbitration award, dated April 30, 2023, rendered after a hearing pursuant to Education Law § 3020-a, terminating petitioner's employment as a tenured teacher with respondent New York City Department of Education (DOE), and granted respondents' cross-motion to dismiss the amended petition, unanimously affirmed, without costs.
Petitioner was a tenured teacher employed by the DOE for approximately 18 years with no prior disciplinary record. The DOE commenced an investigation into petitioner's conduct after she was captured in a widely disseminated video directing a racially charged insult at a woman by calling her an "Asian bitch." This incident occurred on July 12, 2020, off school grounds. The investigation led to the discovery of additional discriminatory conduct by petitioner that was directed at students in her classroom. In one instance, petitioner asked a student if he was sure that he was Jewish and remarked that, "everyone who is Jewish knows about this." On another occasion, petitioner asked Muslim students to demonstrate their prayer and cleansing ritual in front of the class. In March 2020, petitioner told a student that he did not need to wear a mask to protect himself against COVID-19 because he was not Chinese.
The DOE charged petitioner with two sets of specifications based on her overall conduct. After a hearing, the Hearing Officer sustained the specifications related to the language heard in the video and the discriminatory classroom conduct that was disclosed by the investigation. Based on these findings, the Hearing Officer determined that petitioner should be terminated.
The penalty of termination was supported by the record, was not disproportionate to the offense, and does not shock one's sense of fairness (see Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 569 [1st Dept 2008]). Under the facts of this case, Supreme Court properly denied the amended petition to vacate the arbitration award.
Here, the Hearing Officer properly considered (1) the gravity of the charges; (2) the fact that petitioner had recently participated in implicit bias training and received a copy of Chancellors Regulation A-830 which articulated DOE's anti-discrimination policy, and thus informed petitioner of her duty to conduct herself professionally both inside and outside of the classroom; (3) that petitioner should have known that her behavior would violate the DOE anti-discrimination policy which might result in disciplinary action; and (4) that petitioner failed to demonstrate remorse or take responsibility for her conduct (see Matter of Vagianos v City of New York, 151 AD3d 518, 519 [1st Dept 2017]; Matter of Douglas v New York City Bd./Dept. of Educ., 87 AD3d 856, 857 [1st Dept 2011]).
The Hearing Officer credited two reports prepared by DOE investigators who both interviewed petitioner's students and parents of students and testifiedat the hearing. The reports, which form part of the full evidentiary record, contained a plethora of allegations of discriminatory conduct by petitioner directed at Jewish, Muslim, Asian, Hispanic and African American students. Together, the testimony and the documentation supported the finding that petitioner is unfit to properly and effectively perform her obligations as a teacher to the Department (Matter of Colon v City of N.Y. Dept. of Educ., 94 AD3d 568 [1st Dept 2012]). Petitioner violated Chancellors Regulation A-830 by discriminating against students based on race, ethnicity, and national origin; and engaging in conduct unbecoming her teaching position that is prejudicial to the good order, efficiency, or discipline of the service.
In support of her application for reinstatement, petitioner relies upon Matter of Mauro v Walcott (115 AD3d 547 [1st Dept 2014]). There, we found that termination shocked the conscience of the Court when the petitioner's behavior demonstrated a one-time lapse in judgment. Here, petitioner's termination was based on the seriousness of the conduct depicted in the video and classroom behavior that established her pattern of discriminatory behavior. Although the video alone could have provided just cause for termination, the DOE established that termination was the appropriate penalty by presenting additional incidents of discriminatory conduct in the classroom that violated Chancellors Regulation A-830.
Notwithstanding petitioner's effective record during her approximately 18-year career with the DOE (see Matter of Villada v City of New that York, 126 AD3d 598, 599 [1st Dept 2015]), the penalty does not shock the conscience. Having received prior notice of the consequences of discriminatory behavior (Lackow, 51 AD3d at 659), petitioner nonetheless engaged in a pattern of inappropriate conduct unbecoming a teacher.
Petitioner's disagreement about the appropriateness of the penalty is not a basis to overturn an award that does not shock the conscience (see Matter of Bolt v New York City Dept. of Educ., 30 NY3d 1065, 1068 [2018]). Moreover, petitioner's arguments challenging the basis for the Hearing Officer's factual findings, or whether he properly exercised his authority, were not articulated in the amended petition and are thus unpreserved (see Matter of Villada, 126 AD3d at 599).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 4, 2025
| Badme v AECOM |
| 2025 NY Slip Op 06640 |
| Decided on December 02, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Renwick, P.J., Scarpulla, Kapnick, Mendez, JJ.
Index No. 152683/24|Appeal No. 5275|Case No. 2025-01695|
v
AECOM, Defendant-Respondent.
Walden Macht Haran & Williams LLP, New York (Milton L. Williams of counsel), for appellant.
DLA Piper, New York (Brian S. Kaplan of counsel), for respondent.
Order, Supreme Court, New York County (Mary V. Rosado, J.), entered on or about March 12, 2025, which granted defendant's motion to compel arbitration and stay the action, unanimously affirmed, without costs.
The arbitration provision in the employment agreement between plaintiff and defendant is a broad provision requiring "all disputes arising out of or relating to the agreement" to be referred to arbitration under AAA rules. Those rules in turn "authorize an arbitration tribunal to rule on its own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement" (Life Receivables Trust v Goshawk Syndicate 102 at Lloyd's, 66 AD3d 495, 496 [1st Dept 2009], affd 14 NY3d 850 [2010], cert denied 562 US 962 [2010]). Accordingly, the issue as to whether the expiration of the employment term affects the enforceability of the arbitration provision is one of arbitrability, which is for the arbitrators to determine (see id. at 496; see also Schindler v Cellco Partnership, 200 AD3d 505, 506 [1st Dept 2021]; Remco Maintenance, LLC v CC Mgt. & Consulting, Inc., 85 AD3d 477, 480 [1st Dept 2011]).
While the motion court properly recognized the effect of the broad arbitration provision and granted the motion to compel on that basis, the court should not have addressed the merits (see L&R Exploration Venture v Grynberg, 22 AD3d 221, 222 [1st Dept 2005], lv denied 6 NY3d 749 [2005]; Fairfield Towers Condominium. Assn. v Fishman, 1 AD3d 252 [1st Dept 2003]; see also ACEquip Ltd. v American Engineering Corp., 315 F3d 151, 155-156 [2d Cir 2003]).
The complaint asserts at least some claims that are plainly within the scope of the employment agreement and would be subject to arbitration if the arbitrators determine that the arbitration obligation was not entirely extinguished by the expiration of the employment term. Accordingly, the court properly stayed this action in its entirety pending the determination by the arbitrators on the arbitrability issues (see County Glass & Metal Installers, Inc. v Pavarini McGovern, LLC, 65 AD3d 940, 940-941 [1st Dept 2009]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
| Black v City of New York |
| 2025 NY Slip Op 06641 |
| Decided on December 02, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Kern, J.P., Friedman, Kapnick, Gesmer, Rodriguez, JJ.
Index No. 26000/19|Appeal No. 4910|Case No. 2024-03203|
v
The City of New York, et al., Defendants-Respondents.
Sacco & Fillas, LLP, Astoria (Justin M. Bettis of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York (Karin Wolfe of counsel), for respondents.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered March 14, 2024, which denied plaintiff's cross-motion to amend the complaint to add individually named defendants under CPLR 3025 and 203 and granted defendants' motion to dismiss the complaint and for summary judgment dismissing the complaint, unanimously affirmed, without costs.
As a preliminary matter, leave to amend, by which plaintiff sought to add the individual police officers as named defendants, was properly denied. Among other things, the claims against them are now time-barred, and plaintiff cannot rely on the relation-back doctrine. Although the new claims arise from the same transaction or occurrence as the original claims, the proposed defendants and the City are not "united in interest" because "[t]he City cannot be held vicariously liable for its employees' violations of 42 USC § 1983" (Thomas v City of New York, 154 AD3d 417, 418 [1st Dept 2017]; see Matter of Nemeth v K-Tooling, 40 NY3d 405, 407-408 [2023]). Moreover, the proposed defendants have entirely different defenses (see Higgins v City of New York, 144 AD3d 511, 513-514 [1st Dept 2016]). We note that as early as December 7, 2018, well before the expiration of any statute of limitations, plaintiff was aware of the identity of at least one of the officers, who was identified by name and shield number in his notice of claim. Although the officer named other witnesses to the events in question within the statutory period, plaintiff made no effort to amend his complaint to add them at that time. While the City's discovery responses may have been less than prompt or forthcoming, it was incumbent on plaintiff to seek further discovery promptly (see Irvine v City of New York, 232 AD3d 467, 468 [1st Dept 2024]; Misa v Hossain, 42 AD3d 484, 486 [2d Dept 2007]). Plaintiff cannot claim that he failed to name the proposed defendants because of any mistake, nor did he demonstrate that the proposed defendants knew or should have known that, but for a genuine mistake on his part, they would have been named as defendants, especially given the passage of time (see Crawford v City of New York, 129 AD3d 554, 555 [1st Dept 2015]).
Plaintiff's causes of action for malicious prosecution and abuse of process were properly dismissed. To state a claim for malicious prosecution, a plaintiff must assert non-conclusory allegations that the defendant commenced or continued a criminal proceeding against the plaintiff, termination of the proceeding in plaintiff's favor, actual malice, and lack of probable cause to initiate the prosecution (see Mendez v City of New York, 137 AD3d 468, 471 [1st Dept 2016]). Actual malice requires allegations that the City "commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served" (Burgos-Lugo v City of New York, 146 AD3d 660, 662 [1st Dept 2017] [internal quotation marks omitted]). In this respect, plaintiff's complaint is devoid of anything other than conclusory statements, which are insufficient to support a claim for malicious prosecution (see Cruz v City of New York, 148 AD3d 617, 618 [1st Dept 2017]). As for his abuse of process claim, plaintiff fails to allege that the process, here, the criminal prosecution, was used against him "in a perverted manner," to obtain a collateral objective, or that the process was used improperly after it was issued (see Curiano v Suozzi, 63 NY2d 113, 116 [1984]).
Supreme Court did not err in dismissing plaintiff's claim for false arrest and false imprisonment as time-barred. Plaintiff failed to raise any waiver issue in opposition before Supreme Court, and on appeal plaintiff provides no authority for the proposition that his unpreserved argument may be raised (see e.g. Leveron v Prana Growth Fund I, L.P., 181 AD3d 449, 450 [1st Dept 2020]; Lozano v New York City Hous. Auth., 153 AD3d 1173, 1174 [1st Dept 2017]).
Plaintiff's causes of action sounding in intentional infliction of emotional distress and negligent infliction of emotional distress were both properly dismissed. No claim for intentional infliction of emotional distress lies against the City as a matter of public policy (see Melendez v City of New York, 171 AD3d 566, 567 [1st Dept 2019], lv denied 33 NY3d 914 [2019]), and, in light of our conclusion that the court did not abuse its discretion in denying amendment of the complaint to include individual officers, that claim is moot. Plaintiff's negligent infliction of emotional distress claim is "supported solely by allegations of intentional conduct" and warrants dismissal as a result (Mees v Stibbe N.Y. B.V., 195 AD3d 569, 570 [1st Dept 2021]; see Santana v Leith, 117 AD3d 711, 712 [2d Dept 2014] ["A cause of action to recover damages for negligent infliction of emotional distress, . . . must fail where . . . no allegations of negligence appear in the pleadings"] [internal quotation marks omitted]).
The court properly dismissed plaintiff's causes of action for general negligence and Monell v Department of Social Servs. of City of NY (436 US 658 [1978]) as unopposed. Plaintiff, apparently believing that he would be allowed to amend his complaint, provided no arguments on the merits of the causes of action, and these arguments are unpreserved (see Diarrassouba v Consolidated Edison Co. of N.Y. Inc., 123 AD3d 525, 525 [1st Dept 2014]). Even on the merits, plaintiff's Monell claim fails as there is nothing in the complaint alleging that an official policy or custom deprived him of a constitutional right, or that there was a policy or custom that caused his purported injury (see De Lourde Torres v Jones, 26 NY3d 742, 768-769 [2016]; see also Graham v City of New York, 279 AD2d 435 [1st Dept 2001]). Further, general negligence is not a cause of action under the circumstances, because specific torts such as false arrest and false imprisonment must be pleaded (see Ferguson v Dollar Rent A Car, Inc., 102 AD3d 600, 601 [1st Dept 2013], lv denied 21 NY3d 854 [2013]).
As plaintiff concedes, his complaint as against the NYPD was properly dismissed. Under § 396 of the New York City Charter, the NYPD, as a department of the City, cannot be sued independently, as it is "a non-suable agency of the City" (Troy v City of New York, 160 AD3d 410, 411 [1st Dept 2018]).
We have considered plaintiff's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 2, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06641.htm
Appellate Division remands a disciplinary decision and the penalty imposed to the appointing authority with instructions to consider on imely charges and specifications
In the words of the Appellate Division in its decision of the instant matter addressing a disciplinary action taken against an employee [Petitioner] of the New York State Unified Court System [USC] in which Petitioner challenged the revised disciplinary determination adopting the findings and recommendation of a hearing officer that the Petitioner was guilty of certain charges of misconduct, and terminated the Petitioner's employment as a court officer."
The decision notes that where the issue is whether an agency complied with its own internal procedures, the appropriate standard of review is whether the determination was "made in violation of lawful procedure" it is a "fundamental administrative law principle that an agency's rules and regulations promulgated pursuant to statutory authority are binding upon it as well as the individuals affected by the rule or regulation".
Petitioner had been served with a notice and specification of charges, alleging that he had engaged in specified acts of misconduct when he used biased and discriminatory language in three Facebook comments, one comment later have been found to have "untimely" at the it was charged and served.
However, the hearing officer's report recommending the Petitioner's termination and the revised determination adopting the Hearing Officer's findings and recommendation did not distinguish between the appropriate sanction for the time-barred specified act of misconduct and the appropriate sanction for the remaining two specified acts of misconduct. The majority of the Appellate Division voted remitted the matter to UCS for a new determination before a hearing officer based solely on the remaining two specified acts of misconduct, noting that "DILLON, J.P., LOVE and GOLIA, JJ., concur" while "DOWLING, J., dissents, and votes to confirm the revised determination, deny the petition, and dismiss the proceeding on the merits, with a memorandum."
Click HERE to access the Appellate Division's decision posted on the Internet.
Before: Webber, J.P., González, Mendez, Rodriguez, Pitt-Burke, JJ.
Index No. 100881/20|Appeal No. 5183|Case No. 2022-04959|
v
Jordan S. Mazur etc., Respondent-Respondent.
Manuel Madrid, appellant pro se.
Muriel Goode-Trufant, Corporation Counsel, New York (Shane Magnetti of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered on or about November 22, 2021, which denied petitioner's challenge to respondent's reply to his Freedom of Information Law (FOIL) request, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Initially, we exercise our discretion under CPLR 5520(a) and (c) to deem the notices of appeal dated July 14, 2021 and December 30, 2021, taken together, as timely filed and properly served.
The New York City Police Department's response to petitioner's FOIL request was not "affected by an error of law" (Matter of Jewish Press, Inc. v New York City Police Dept., 190 AD3d 490, 490 [1st Dept 2021], lv denied 37 NY3d 906 [2021] [internal quotation marks omitted]; see CPLR 7803[3]). In their response to petitioner's FOIL appeal, respondent properly advised petitioner that the additional records he sought, which related to his arrest and which he requested roughly 16 years after his arrest, could not be located after a diligent search. When an agency is unable to locate documents sought in a FOIL request, Public Officers Law § 89(3) requires the agency to certify that it does not have possession of a requested record or that such record cannot be located after a diligent search. The statute does not specify the form such certification must take, and "[n]either a detailed description of the search nor a personal statement from the person who actually conducted the search is required" for the certification to be valid (Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875 [2001]). Petitioner failed to articulate a factual basis for his contention that the unproduced records he sought exist (see Matter of Gould v New York City Police Dept., 89 NY2d 267, 279 [1996]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 18, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06284.htm
| Matter of Pandolfi v Plainedge Union Free Sch. Dist. |
| 2025 NY Slip Op 06372 |
| Decided on November 20, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-1068
v
Plainedge Union Free School District et al., Respondents. Workers' Compensation Board, Respondent. Grey & Grey, LLP, Appellant.
Before:Clark, J.P., Pritzker, Lynch, Powers and Mackey, JJ.
Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), for appellant.
Lynn Pandolfi, Lake Ronkonkoma, respondent pro se.
Letitia James, Attorney General, New York City (Nina M. Sas of counsel), for Workers' Compensation Board, respondent.
Powers, J.
Appeal from a decision of the Workers' Compensation Board, filed May 24, 2024, which denied counsel's application for an award of counsel fees.
In October 2017, claimant sustained injuries in the course of her employment and applied for workers' compensation benefits. In April 2018, claimant retained counsel to represent her in the claim, and the claim was established in May 2018.[FN1] Soon after, claimant began expressing dissatisfaction with counsel's representation and disagreement with counsel's legal strategy in several letters to the Workers' Compensation Board spanning from May 2018 to May 2022. In May 2022, counsel notified claimant that their relationship had become irreparable and that it was requesting to be relieved of the representation by the Board. On May 16, 2022, a Workers' Compensation Law Judge (hereinafter WCLJ) held counsel's request to be relieved in abeyance, pending claimant's attempts to obtain new counsel. Claimant appealed that decision to the Board, arguing that counsel should not be relieved, and counsel opposed. In a decision filed October 3, 2022, the Board relieved counsel of its obligation to represent claimant, concluding that counsel "ha[d] represented the claimant in a manner which demonstrated that the claimant was not prejudiced by [counsel's] actions and that there truly ha[d] been a breakdown in communications." On October 7, 2022, counsel filed a fee application listing services rendered.
The claim proceeded without claimant obtaining new representation and the WCLJ ultimately determined that claimant's awards after January 8, 2019 be continued at a temporary partial disability rate. The WCLJ also denied counsel's application for counsel fees, indicating that, as a policy, the Board "generally frowns on fees to attorneys when the claimant is unrepresented thereafter." Counsel appealed and the Board modified the WCLJ's decision, finding that counsel was not statutorily entitled to counsel fees pursuant to Workers' Compensation Law § 24 (3). Counsel appeals.
"Given that the issue before this Court is one of statutory interpretation, deference need not be accorded to the Board's interpretation, and we are free to ascertain the proper interpretation from the statutory language and legislative intent" (Matter of Minichiello v New York City Dept. of Homeless Servs., 188 AD3d 1401, 1402 [3d Dept 2020] [internal quotation marks and citations omitted]). "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (Matter of Mancini v Office of Children & Family Servs., 32 NY3d 521, 525 [2018] [internal quotation marks and citation omitted]; accord Matter of Minichiello v New York City Dept. of Homeless Servs., 188 AD3d at 1402).
Contrary to the Board's interpretation, we find no intent by the Legislature in enacting Workers' Compensation Law § 24 (3) to preclude an award of counsel [*2]fees to a prior attorney who has been relieved of representation without subsequent counsel being retained. Workers' Compensation Law § 24 (as amended by L 2021, ch 824, § 1) governs the amount and manner in which attorneys are compensated for their representation of claimants and provides, as relevant here, that "[i]f a prior attorney has been substituted in a manner prescribed by the [B]oard, and has submitted a fee request, the [B]oard shall determine the amount of fees allocated to any prior attorney out of the total fees awarded" (Workers' Compensation Law § 24 [3]). Based upon our reading of Workers' Compensation Law § 24 (3), the intent of the Legislature in this subsection was to address the impact on a claimant when an attorney representing him or her is substituted for another and both attorneys are requesting fees for their respective representation. The statute protects claimants in that, "[i]f there has been an approved substitution of attorney during the representation of the claimant[,] a request from the substituted attorney for a fee, if granted, will not increase the fee but will be paid out of the total fees awarded" (Martin Minkowitz, 2025 Supp Prac Commentaries, McKinney's Cons Laws of NY, Workers' Compensation Law § 24). The statute does not address situations where, as here, a prior attorney has been relieved of representation and there has been no substitution. In such situations, Workers' Compensation Law § 24 (3) is not necessary, as claimant would not be exposed to increased fees as any fees awarded to the prior attorney would presumably constitute the total fees awarded. Rather, the Board should determine any fee awards for a prior attorney who is not substituted for "in an amount commensurate with the services rendered and the amount of compensation awarded, having due regard for the financial state of the claimant" (Workers' Compensation Law § 24 [2]). As we find no language in Workers' Compensation Law § 24 that would evidence an intent by the Legislature to foreclose an unsubstituted for prior attorney from being granted counsel fees, the Board's decision is reversed, and the matter is remitted to the Board to consider counsel's fee application.
Clark, J.P., Pritzker, Lynch and Mackey, JJ., concur.
ORDERED that the decision is reversed, without costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.
Footnote 1: Awards to claimant were held in abeyance in January 2019.
https://nycourts.gov/reporter/3dseries/2025/2025_06372.htm
| Matter of Christian v Department of Educ. of the City of New York |
| 2025 NY Slip Op 06272 |
| Decided on November 18, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Kern, J.P., Scarpulla, Friedman, O'Neill Levy, Chan, JJ.
Index No. 159994/20|Appeal No. 5195|Case No. 2024-03953|
v
The Department of Education of the City of New York et al., Respondents-Respondents.
Stewart Lee Karlin Law Group, P.C., New York (Stewart Lee Karlin of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York (Amanda Abata of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about May 2, 2024, which, to the extent appealed from as limited by the briefs, denied in part petitioner's CPLR article 78 petition to annul respondent's determination, dated September 30, 2020, discontinuing petitioner's employment; for a declaration that petitioner acquired tenure by estoppel; and retroactive reinstatement to the position of a tenured teacher; and granted in part respondent's cross-motion to dismiss the petition, unanimously reversed, on the law, without costs, the petition granted, the cross-motion denied, and it is declared that petitioner acquired tenure by estoppel.
Petitioner's probationary period as a teacher with the Department of Education was extended by agreement until October 1, 2019, at which point she would either be granted completion of probation, denied completion of probation and/or discontinued, or granted an extension of probation. Prior to completion of that probationary period, petitioner took an approved leave of absence from September 3, 2019 to June 30, 2020. On September 30, 2020, respondents denied petitioner a completion of probation and terminated her employment as of the close of business that day.
Petitioner's leave of absence should be excluded from her probationary period. An employee's probationary term may be extended by the number of days that the probationary employee does not perform the duties of the position (see Tomlinson v Ward, 110 AD2d 537, 538 [1st Dept 1985], affd, 66 NY2d 771 [1985]). Education Law § 3012(3) provides that "no period in any school year for which there is no required service . . . shall in any event constitute a break or suspension of probationary period" (see also Education Law § 2573[15]). Consistent with this provision, petitioner's probation period paused when her leave of absence began on September 3, 2019, and resumed when her leave of absence ended on June 30, 2020. Because petitioner's probationary period was scheduled to end on October 1, 2019, this leaves 21 missed workdays as the remainder of her probationary period, to be applied after her leave of absence expired. Thus, petitioner's termination on September 30, 2020 occurred well after her probationary term was completed.
Petitioner further obtained tenure by estoppel (Matter of McManus v Board of Educ. of Hempstead Union Free School Dist. , 87 NY2d 183, 187 [1995]). As such, petitioner could not be terminated without a hearing pursuant to Education Law § 3020-a.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 18, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06272.htm
| Matter of Jaloza v New York City Dept. of Educ. |
| 2025 NY Slip Op 06320 |
| Decided on November 19, 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. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
HELEN VOUTSINAS
PHILLIP HOM, JJ.
2023-11126
(Index No. 706616/23)
v
New York City Department of Education, et al., respondents.
Gibson Law Firm, PLLC, Ithaca, NY (Sujata S. Gibson of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Richard Dearing, Melanie T. West, and Chase Henry Mechanick of counsel), for respondents.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78 and action, inter alia, to recover damages for employment discrimination on the basis of religion and disability in violation of the New York State Human Rights Law, the New York City Human Rights Law, and the New York State Constitution, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Tracy Catapano-Fox, J.), entered July 24, 2023. The order and judgment granted the cross-motion of the respondents/defendants pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition/complaint and dismissed the proceeding/action.
ORDERED that the order and judgment is affirmed, with costs.
In March 2023, the petitioner/plaintiff (hereinafter the petitioner) commenced this hybrid proceeding against the New York City Department of Education (hereinafter the DOE) and the City of New York (hereinafter together the City respondents) pursuant to CPLR article 78 to review a determination of the DOE to terminate her employment as a tenured teacher and action, inter alia, to recover damages for employment discrimination on the basis of religion and disability in violation of the New York State Human Rights Law, the New York City Human Rights Law, and the New York State Constitution.
In June 2023, the City respondents cross-moved pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition/complaint on the grounds, among others, that the cause of action challenging the DOE's determination was time-barred and the remaining causes of action were barred by the petitioner's failure to timely serve a notice of claim. The petitioner opposed. In an order and judgment entered July 24, 2023, the Supreme Court granted the cross-motion of the City respondents and dismissed the proceeding/action. The petitioner appeals.
"A proceeding pursuant to CPLR article 78 must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner" (Matter of Andrews v Incorporated Vil. of Freeport, 221 AD3d 809, 810; see St. John's Riverside Hosp. v City of Yonkers, 151 AD3d 786, 788). "In order for an agency determination to be deemed final and [*2]binding, first, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party" (Matter of Andrews v Incorporated Vil. of Freeport, 221 AD3d at 810-811 [alteration and internal quotation marks omitted]; see Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 230 AD3d 786, 789). "A determination generally becomes binding when the aggrieved party is notified" (Rock v New York City Employees' Retirement Sys., 231 AD3d 979, 982 [internal quotation marks omitted]; see Matter of Baker v Stanford, 183 AD3d 889, 890).
Here, the City respondents established that the petition was time-barred as it was filed more than four months after the petitioner was notified of the determination to terminate her employment. The City respondents submitted copies of documents sent to them by the petitioner and her email correspondence with the City respondents, which showed the date the petitioner was informed of the DOE's determination (see Matter of Munro v New York City Human Resources Admin., Off. of Child Support Enforcement, 221 AD3d 904, 906; Matter of Andrews v Incorporated Vil. of Freeport, 221 AD3d at 811). In opposition, the petitioner failed to raise a question of fact as to the statute of limitations. The petitioner's contention on appeal that she was not "unambiguously terminated" until December 8, 2022, was conclusory and without record support (see Matter of Davis v Peterson, 254 AD2d 287, 287).
Accordingly, the petition was properly dismissed as untimely (see Matter of Walshe v New York State Unified Ct. Sys. Off. of Ct. Admin., 230 AD3d 507, 508; Matter of Imandt v New York State Unified Ct. Sys., 168 AD3d 1051, 1053).
The causes of action alleging violations of the New York State Human Rights Law and the New York City Human Rights Law insofar as asserted against the DOE were also properly dismissed, albeit on grounds different than those relied upon by the Supreme Court (see Franco v Farr, ____ AD3d ____, ____, 2025 NY Slip Op 04880, *2; Bank of N.Y. Mellon v Greene, 210 AD3d 1042, 1043). A condition precedent to maintaining an action against the DOE requires that a notice of claim be served upon a school district within three months from accrual of the claim (see Education Law § 3813(1); see also Munro v Ossining Union Free School Dist., 55 AD3d 697, 698). Here, the City respondents established that the petitioner failed to timely serve a notice of claim within three months of the determination to terminate her employment (see Education Law § 3813[1]; Moore v Middletown Enlarged City School Dist., 57 AD3d 746, 748). In opposition, the petitioner failed to raise a question of fact nor did she demonstrate that an exception to the notice of claim requirement—commencing a proceeding to vindicate a public interest in the enforcement of a public right—was somehow applicable here (see Matter of McGovern v Mount Pleasant Cent. Sch. Dist., 114 AD3d 795, 796, affd 25 NY3d 1051).
The Supreme Court also properly dismissed the causes of action alleging violations of the New York State Human Rights Law and the New York City Human Rights Law insofar as asserted against the City.
On a motion to dismiss for failure to state a cause of action a court must accept "the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88). Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one (see Margarita v Mountain Time Health, LLC, 240 AD3d 584, 585).
Here, the petitioner's conclusory assertions that the City respondents discriminated against her based on her religion and disability were unsupported by factual allegations sufficient to sustain a cause of action under either the New York State Human Rights Law or the New York City Human Rights Law (see Shahid v City of New York, 231 AD3d 888, 888). Moreover, the petitioner failed to show that the City respondents did not engage in a cooperative dialogue with [*3]regard to her accommodation requests (see Walrond v New York City Health & Hosps. Corp., 240 AD3d 933, 935).
The Supreme Court also properly dismissed the cause of action alleging violations of the New York State Constitution. Since the petitioner could and did pursue causes of action for discrimination based on religion and disability pursuant to the New York City Human Rights Law and the New York State Human Rights Law, no cause of action alleging violations of the New York State Constitution was available (see Peterec v State of New York, 124 AD3d 858, 859).
In light of our determination, the parties' remaining contentions need not be reached.
DUFFY, J.P., MILLER, VOUTSINAS and HOM, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_06320.htm
| Matter of Khader v City of Yonkers |
| 2025 NY Slip Op 06321 |
| Decided on November 19, 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. |
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
JANICE A. TAYLOR
LOURDES M. VENTURA, JJ.
2023-08109
(Index No. 64734/22)
v
City of Yonkers, et al., appellants.
Harris Beach Murtha Cullina PLLC, Pittsford, NY (Kyle D. Gooch and Darius P. Chafizadeh of counsel), for appellants.
Newman Ferrara LLP, New York, NY (Randolph M. McLaughlin and Debra S. Cohen of counsel), for respondent.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Corporation Counsel of the City of Yonkers dated May 12, 2022, and action, inter alia, for declaratory relief, the City of Yonkers and Matthew Gallagher, in his official capacity as Corporation Counsel of the City of Yonkers, appeal from a judgment of the Supreme Court, Westchester County (Melissa A. Loehr, J.), dated July 5, 2023. The judgment, in effect, granted the petition, annulled the determination, declared that the City of Yonkers is obligated to pay the petitioner/plaintiff's attorneys' fees incurred in connection with the subject investigation, and directed the Corporation Counsel of the City of Yonkers to forward a proposed contract for the payment of attorneys' fees to the City Council of the City of Yonkers and related relief.
ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, the proceeding is dismissed, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate amended judgment, inter alia, declaring that the City of Yonkers is not obligated to pay the petitioner/plaintiff's attorneys' fees incurred in connection with the subject investigation.
In May 2021, a majority of the members of the City Council of the City of Yonkers (hereinafter the City Council) formally requested that the Inspector General of the City of Yonkers (hereinafter the Inspector General) open an inquiry into allegations of ethical misconduct and the creation of a hostile work environment by the petitioner/plaintiff (hereinafter the petitioner), who was then the president of the City Council. Thereafter, the Inspector General began an investigation into the matters and, in June 2021, issued a subpoena duces tecum, inter alia, requesting that the petitioner produce certain documents. On June 9, 2021, the petitioner sought legal representation from the respondent/defendant Matthew Gallagher, Corporation Counsel of the City of Yonkers, with respect to the investigation by the Inspector General. Gallagher advised the petitioner that, due to a conflict of interest, he could not provide the requested legal representation but that Gallagher had determined "for now" that the petitioner was entitled to be represented by private counsel of his choosing pursuant to Public Officers Law § 18(3)(b).
The petitioner retained private counsel and requested that the Inspector General [*2]withdraw the subpoena. The petitioner's counsel advised Gallagher that if the subpoena was not withdrawn, the petitioner would commence a special proceeding to quash the subpoena. On June 15, 2021, Gallagher advised the petitioner's counsel that a special proceeding would fall outside of the scope of representation previously authorized by Gallagher and would be at the petitioner's own expense. The petitioner's counsel objected. On July 1, 2021, Gallagher advised the petitioner's counsel that Public Officers Law § 18(3)(a) excluded defense of a civil action or proceeding brought against a public employee at the behest of the public entity employer and that the Inspector General was acting on behalf of the City. Gallagher further advised that, in any event, prosecuting a special proceeding against the City would fall outside of the defense and indemnification offered by Public Officers Law § 18.
The petitioner commenced a special proceeding, among other things, to quash the subpoena, and the Supreme Court quashed the subpoena, without prejudice. The Inspector General issued a second subpoena that was substantively the same as the first subpoena, and the petitioner commenced a special proceeding, inter alia, to quash the second subpoena. In an order dated March 11, 2022, the court denied the petition to quash the second subpoena and granted the Inspector General's cross-motion to compel the petitioner to comply with the subpoena.
Subsequently, the petitioner's counsel sought reimbursement for attorneys' fees. On May 12, 2022, Gallagher informed the petitioner's counsel that, in consideration of the language in Public Officers Law § 18(3)(a) excluding a proceeding brought at the behest of the public entity employing the public employee, any legal costs incurred as a result of the investigation would be at the petitioner's own expense. The petitioner then brought this hybrid proceeding pursuant to CPLR article 78 to review the determination dated May 12, 2022, and action, among other things, for declaratory relief and to recover damages for breach of contract against Gallagher, in his official capacity as Corporation Counsel of the City, and the City. The petitioner sought a judgment declaring, inter alia, that the City was obligated to pay the petitioner's attorneys' fees incurred in connection with the Inspector General's investigation. In an order dated March 24, 2023, the Supreme Court, among other things, pursuant to CPLR 103(c), converted the breach of contract cause of action to a cause of action pursuant to CPLR article 78. In a judgment dated July 5, 2023, the court, in effect, granted the petition, annulled the determination, declared that the City is obligated to pay the petitioner's attorneys' fees in connection with the Inspector General's investigation, and directed Gallagher to forward a proposed contract for the payment of the petitioner's attorneys' fees to the City Council and related relief. The City and Gallagher (hereinafter together the appellants) appeal.
Contrary to the appellants' contention, the CPLR article 78 proceeding was not time-barred, as the petition was filed within the four-month statute of limitations period following the May 12, 2022 determination that the City would not pay for any of the petitioner's attorneys' fees incurred in relation to the investigation (see CPLR 217[1]; Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 230 AD3d 786, 789; Matter of Andrews v Incorporated Vil. of Freeport, 221 AD3d 809, 811).
However, the Supreme Court erred in granting the petition. Generally, judicial review of an agency determination is limited to whether the determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803[3]; see Matter of Lemma v Nassau County Police Officer Indem. Bd., 31 NY3d 523, 528). A determination "is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Matter of Peckham v Calogero, 12 NY3d 424, 431; see Matter of Murphy v New York State Div. of Hous. & Community Renewal, 21 NY3d 649, 652).
When applicable (see Public Officers Law § 18[2]), Public Officers Law § 18 provides for the defense and indemnification of officers and employees of public entities. As relevant here, the statute requires the public entity to provide for the defense of an employee in any civil action or proceeding arising out of any alleged act which allegedly occurred while the employee was acting within the scope of his or her public employment or duties (see id. § 18[3][a]). When a conflict of interest prevents representation by the chief legal officer of the public entity or other [*3]counsel designated by the public entity, the employee shall be entitled to be represented by private counsel of the employee's choice, and reasonable attorneys' fees and litigation expenses shall be paid by the public entity (see id.§ 18[3][b]). However, "[the] duty to provide for a defense shall not arise where [the] civil action or proceeding is brought by or at the behest of the public entity employing such employee" (see id. § 18[3][a]).
Here, the Inspector General commenced the investigation into the petitioner at the behest at the petitioner's employer, and therefore, the City had no duty to provide the petitioner with a legal defense in relation to the Inspector General's investigation (see id. § 18[3][a]; Matter of Barkan v Roslyn Union Free School Dist., 67 AD3d 61, 65). Therefore, the determination that the petitioner was not entitled to reimbursement for such attorneys' fees had a rational basis and was not arbitrary and capricious (see Matter of Barkan v Roslyn Union Free School Dist., 67 AD3d at 63).
Contrary to the petitioner's contention, he was not entitled to reimbursement of his attorneys' fees based upon a theory of breach of contract. "It is well settled that an attorney may not be compensated with public funds for services rendered a municipal officer unless the attorney has been retained in accordance with statutory authority" (Moffatt v Christ, 74 AD2d 635, 635; see Corning v Village of Laurel Hollow, 48 NY2d 348, 351). The Yonkers City Charter provides that "[a]ny city officer or employee entitled to counsel pursuant to Public Officers Law § 18, shall inform the corporation counsel of the counsel who will represent the officer or employee. The corporation counsel shall forward to the City Council a proposed contract for such counsel and the Mayor shall submit a budget transfer to fund the proposed contract. If approved by the City Council, the corporation counsel shall enter into the contract with the officer's or employee's counsel" (Yonkers City Charter, Art. XIII, § C13-2[D]). It is undisputed that corporation counsel never forwarded a proposed contract to the City Council and that the City Council never approved a contract. Thus, contrary to the petitioner's contention, a valid contract for the payment of his attorneys' fees was not formed (see Matter of Atane Engrs., Architects & Land Surveyors, D.P.C. v Nassau County, 227 AD3d 708, 710-711; Moffatt v Christ, 74 AD2d at 635).
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Westchester County, for the entry of an appropriate amended judgment, inter alia, declaring that the City is not obligated to pay the petitioner's attorneys' fees incurred in connection with the Inspector General's investigation (see Lanza v Wagner, 11 NY2d 317, 334).
BARROS, J.P., BRATHWAITE NELSON, TAYLOR and VENTURA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_06321.htm
| Matter of Pandolfi v Plainedge Union Free Sch. Dist. |
| 2025 NY Slip Op 06372 |
| Decided on November 20, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-1068
v
Plainedge Union Free School District et al., Respondents. Workers' Compensation Board, Respondent. Grey & Grey, LLP, Appellant.
Before:Clark, J.P., Pritzker, Lynch, Powers and Mackey, JJ.
Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), for appellant.
Lynn Pandolfi, Lake Ronkonkoma, respondent pro se.
Letitia James, Attorney General, New York City (Nina M. Sas of counsel), for Workers' Compensation Board, respondent.
Powers, J.
Appeal from a decision of the Workers' Compensation Board, filed May 24, 2024, which denied counsel's application for an award of counsel fees.
In October 2017, claimant sustained injuries in the course of her employment and applied for workers' compensation benefits. In April 2018, claimant retained counsel to represent her in the claim, and the claim was established in May 2018.[FN1] Soon after, claimant began expressing dissatisfaction with counsel's representation and disagreement with counsel's legal strategy in several letters to the Workers' Compensation Board spanning from May 2018 to May 2022. In May 2022, counsel notified claimant that their relationship had become irreparable and that it was requesting to be relieved of the representation by the Board. On May 16, 2022, a Workers' Compensation Law Judge (hereinafter WCLJ) held counsel's request to be relieved in abeyance, pending claimant's attempts to obtain new counsel. Claimant appealed that decision to the Board, arguing that counsel should not be relieved, and counsel opposed. In a decision filed October 3, 2022, the Board relieved counsel of its obligation to represent claimant, concluding that counsel "ha[d] represented the claimant in a manner which demonstrated that the claimant was not prejudiced by [counsel's] actions and that there truly ha[d] been a breakdown in communications." On October 7, 2022, counsel filed a fee application listing services rendered.
The claim proceeded without claimant obtaining new representation and the WCLJ ultimately determined that claimant's awards after January 8, 2019 be continued at a temporary partial disability rate. The WCLJ also denied counsel's application for counsel fees, indicating that, as a policy, the Board "generally frowns on fees to attorneys when the claimant is unrepresented thereafter." Counsel appealed and the Board modified the WCLJ's decision, finding that counsel was not statutorily entitled to counsel fees pursuant to Workers' Compensation Law § 24 (3). Counsel appeals.
"Given that the issue before this Court is one of statutory interpretation, deference need not be accorded to the Board's interpretation, and we are free to ascertain the proper interpretation from the statutory language and legislative intent" (Matter of Minichiello v New York City Dept. of Homeless Servs., 188 AD3d 1401, 1402 [3d Dept 2020] [internal quotation marks and citations omitted]). "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (Matter of Mancini v Office of Children & Family Servs., 32 NY3d 521, 525 [2018] [internal quotation marks and citation omitted]; accord Matter of Minichiello v New York City Dept. of Homeless Servs., 188 AD3d at 1402).
Contrary to the Board's interpretation, we find no intent by the Legislature in enacting Workers' Compensation Law § 24 (3) to preclude an award of counsel [*2]fees to a prior attorney who has been relieved of representation without subsequent counsel being retained. Workers' Compensation Law § 24 (as amended by L 2021, ch 824, § 1) governs the amount and manner in which attorneys are compensated for their representation of claimants and provides, as relevant here, that "[i]f a prior attorney has been substituted in a manner prescribed by the [B]oard, and has submitted a fee request, the [B]oard shall determine the amount of fees allocated to any prior attorney out of the total fees awarded" (Workers' Compensation Law § 24 [3]). Based upon our reading of Workers' Compensation Law § 24 (3), the intent of the Legislature in this subsection was to address the impact on a claimant when an attorney representing him or her is substituted for another and both attorneys are requesting fees for their respective representation. The statute protects claimants in that, "[i]f there has been an approved substitution of attorney during the representation of the claimant[,] a request from the substituted attorney for a fee, if granted, will not increase the fee but will be paid out of the total fees awarded" (Martin Minkowitz, 2025 Supp Prac Commentaries, McKinney's Cons Laws of NY, Workers' Compensation Law § 24). The statute does not address situations where, as here, a prior attorney has been relieved of representation and there has been no substitution. In such situations, Workers' Compensation Law § 24 (3) is not necessary, as claimant would not be exposed to increased fees as any fees awarded to the prior attorney would presumably constitute the total fees awarded. Rather, the Board should determine any fee awards for a prior attorney who is not substituted for "in an amount commensurate with the services rendered and the amount of compensation awarded, having due regard for the financial state of the claimant" (Workers' Compensation Law § 24 [2]). As we find no language in Workers' Compensation Law § 24 that would evidence an intent by the Legislature to foreclose an unsubstituted for prior attorney from being granted counsel fees, the Board's decision is reversed, and the matter is remitted to the Board to consider counsel's fee application.
Clark, J.P., Pritzker, Lynch and Mackey, JJ., concur.
ORDERED that the decision is reversed, without costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.
https://nycourts.gov/reporter/3dseries/2025/2025_06372.htm
| Matter of Gonzalez v New York State & Local Retirement Sys. |
| 2025 NY Slip Op 06371 |
| Decided on November 20, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-0524
v
New York State & Local Retirement System et al., Respondents.
Before:Pritzker, J.P., Reynolds Fitzgerald, Ceresia, McShan and Powers, JJ.
Colucci & Gallaher, PC, Buffalo (Paul G. Joyce of counsel), for petitioner.
Letitia James, Attorney General, Albany (Kevin C. Hu of counsel), for respondents.
McShan, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner's application for additional service credit in the calculation of her retirement benefits.
On July 12, 1999, the Mayor of the City of Buffalo appointed petitioner to the full-time position of Director of Recreation in the City's Parks and Recreation League, and petitioner became a member of respondent New York State & Local Retirement System on that same day. Petitioner held that employment position until June 2006. In 2020 and again in 2022, applications on petitioner's behalf were filed with the Retirement System seeking additional service credit in the calculation of petitioner's retirement benefits in relation to her employment as Director of Recreation for the period July 12, 1999 through June 30, 2001. During that time period, due to the City's financial hardship and at the direction of the Mayor, petitioner's salary was paid by both the City and the Police Athletic League (hereinafter PAL) of Buffalo, with PAL paying the bulk of her salary and the City paying petitioner $1 per year in addition to providing health insurance and other benefits. Further, no contributions to the Retirement System were deducted from petitioner's paycheck nor made by the City during the period at issue. After being notified by the Retirement System that, unlike the City, PAL was not a participating employer with the Retirement System and, therefore, the allowable service credit for the period in question based upon, among other things, her $1 annual salary from the City amounted to .02 years of credit, petitioner requested a hearing.
After commencement of a hearing, the Retirement System sent petitioner a letter informing her that, upon recalculation, her correct service credit for the period in question was zero years. At the conclusion of the hearing, the Hearing Officer granted the application, finding that petitioner was entitled to retirement service credit from July 12, 1999 through June 20, 2001 in connection with her full-time position as Director of Recreation. On administrative appeal, however, respondent Comptroller denied the application, finding that, based upon the $1 salary paid by the City, petitioner was not being paid as a full-time employee by a participating employer in the Retirement System and, therefore, she was ineligible for service credit pursuant to Retirement and Social Security Law § 609 (a) (1) (iii) for the period at issue. This CPLR article 78 proceeding ensued.
"The Comptroller has exclusive authority to determine all applications for retirement benefits and the determination must be upheld if the interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence" (Matter of Vladyka v DiNapoli, 238 AD3d 1362, 1363-1364 [3d Dept 2025] [internal quotation marks [*2]and citations omitted]; see Matter of Siepierski v New York State & Local Retirement Sys., 46 AD3d 1316, 1317 [3d Dept 2007]; see also Retirement and Social Security Law § 74 [b]). Pursuant to Retirement and Social Security Law § 609 (c), "a member shall only be eligible to obtain credit for active service with a participating employer." "Active service" is defined as "service while being paid on the payroll of a participating employer" during the relevant period in question (Retirement and Social Security Law § 601 [a]; see Matter of Snyder v New York State & Local Retirement Sys., 211 AD3d 1269, 1270 [3d Dept 2022]).
Here, the parties do not disagree that petitioner was on the City's payroll, albeit at a de minimis salary, and that the City is a participating employer in the Retirement System. In denying the application for additional service credit, however, the Comptroller found that, because the $1 annual salary from the City fell below minimum wage pursuant to Retirement and Social Security Law § 609 (a) (1) (iii), there was insufficient evidence for petitioner to qualify for creditable service during the relevant period. We agree with petitioner that the Comptroller improperly relied on Retirement and Social Security Law § 609 (a) (1) (iii), rather than on the plain language of Retirement and Social Security Law § 609 (c). Retirement and Social Security Law § 609 (a) (1) specifically applies to "[a] member who works less than full time, which . . . shall mean less than [30] hours a week," and sets forth the calculation for determining service credit for such part-time member (see also Retirement & Social Security Law §§ 446 [a] [1] [c]; 513 [a] [1] [iii]).
There is no dispute, however, that petitioner worked in the appointed position as Director of Recreation full time. To that end, petitioner testified that she worked no less than 40 hours a week, typically 11 to 12 days during the biweekly pay period, performing her job duties, which involved supervising all recreational staff and activities in the City, including, among other things, programs, buildings, parks, playgrounds, swimming and recreation centers, ice rinks and special events — which duties she testified did not change once the City began paying her salary in July 2001. Petitioner's testimony regarding her full-time employment status and job duties was corroborated by the Mayor and her predecessor — whose salary had been paid by the City during his tenure. Notably, the Retirement System's witness, a manager in the service credit purchase unit, acknowledged that there is no evidence that petitioner was working less than 80 hours every pay period, which he agreed would be considered full time.
The Comptroller's determination that petitioner was not entitled to service credit was based upon calculations using petitioner's annual salary reported by the City and the minimum hourly wage in effect at the time. Although such factors are to be taken into consideration in the calculation [*3]of service credit in connection with members who work "less than [30] hours a week" (Retirement and Social Security Law § 609 [a] (1)), such "calculation[s are] only to be used . . . when the participating employer has not certified the number of hours worked by the member" (Matter of Itzenplitz v McCall, 282 AD2d 889, 890 [3d Dept 2001], citing 2 NYCRR 318.2 [a] [2]) — which is not the case here. In addition to the foregoing testimony regarding petitioner's full-time employment status, the City's employment records during the relevant period were submitted verifying that petitioner worked a minimum of 80 hours each pay period, the maximum number of hours that could be reported in a pay period. Given the City's certification that petitioner worked for 80 hours every pay period, the Comptroller's reliance on the calculations set forth in Retirement and Social Security Law § 609 (a) (1) (iii), which specifically applies to members who work "less than [30] hours a week," is contrary to the plain language of the statute. As such, the Comptroller's determination that petitioner was not entitled to service credit based upon Retirement and Social Security Law § 609 (a) (1) (iii) is unreasonable and irrational and not supported by substantial evidence (cf. Matter of Itzenplitz v McCall, 282 AD2d at 890). We therefore remit the matter for the Comptroller's reconsideration as to whether the request for petitioner to receive additional service credit for the period in question is warranted.
Pritzker, J.P., Reynolds Fitzgerald, Ceresia and Powers, JJ., concur.
ADJUDGED that the determination is annulled, without costs, and matter remitted to respondent Comptroller for further proceedings not inconsistent with this Court's decision.
https://nycourts.gov/reporter/3dseries/2025/2025_06371.htm
| Matter of Mercurio (DiNapoli) |
| 2025 NY Slip Op 06369 |
| Decided on November 20, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-23-2025
Thomas P. DiNapoli, as State Comptroller, Respondent.
Before:Pritzker, J.P., Reynolds Fitzgerald, Ceresia, McShan and Powers, JJ.
Schwab & Gasparini, PLLC, White Plains (Warren J. Roth of counsel), for petitioner.
Letitia James, Attorney General, Buffalo (Sarah L. Rosenbluth of counsel), for respondent.
Reynolds Fitzgerald, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for World Trade Center accidental disability retirement benefits.
Petitioner, a former police officer, was part of a team that responded to the site of the World Trade Center following the events of September 11, 2001. As a result of his efforts there, petitioner developed several medical conditions, including eosinophilic esophagitis, gastroesophageal reflux disease and asthma. In August 2014, petitioner filed an application for World Trade Center accidental disability retirement benefits based upon the development of these conditions, and, shortly thereafter in May 2015, he retired from his position as a police lieutenant. After his application was denied upon the ground that he was not permanently incapacitated from performing his duties as a lieutenant, petitioner requested a hearing and redetermination of his application. At the conclusion of the hearing, the Hearing Officer upheld the denial of petitioner's application, and respondent adopted that decision. This CPLR article 78 proceeding ensued.
"Although an applicant seeking World Trade Center accidental disability retirement benefits enjoys a statutory presumption with respect to the issue of causation, the applicant must be permanently disabled in order to receive such benefits" (Matter of Kennedy v DiNapoli, 175 AD3d 1638, 1639 [3d Dept 2019] [internal quotation marks and citations omitted]). Here, there is no dispute regarding causation as respondent conceded that during "the performance and discharge of [his] duty," petitioner developed "qualifying World Trade Center condition[s]" as "the natural and proximate result of an accident" (Retirement and Social Security Law § 363 [g] [1] [a]; compare Matter of Fragola v DiNapoli, 200 AD3d 1536, 1539 [3d Dept 2021]). Accordingly, the sole issue before us is whether petitioner met his burden of proving that his medical conditions rendered him "permanently incapacitated from the performance of his . . . job duties" (Matter of Del Peschio v DiNapoli, 139 AD3d 1298, 1299 [3d Dept 2016] [internal quotation marks and citations omitted]; see Matter of Diesel v DiNapoli, 185 AD3d 1135, 1136 [3d Dept 2020]; Matter of London v DiNapoli, 153 AD3d 1106, 1107 [3d Dept 2017]).
Initially, the statute governing eligibility for accidental disability retirement benefits contemplates petitioner's condition "at the time [his] application . . . is filed" (Retirement and Social Security Law § 363 [a]; see Matter of Walsh v New York State & Local Empls. Retirement Sys., 176 AD3d 1430, 1432 [3d Dept 2019]). Petitioner filed his application in August 2014 but continued to work until May 2015. During this time, petitioner was working full time and full duty and also voluntarily accepted 300 to 400 hours of overtime. Even so, petitioner's physician testified that she began [*2]seeing petitioner as a patient in May 2015 — after he had already retired — and she believed at that time that the full performance of his job duties as a police officer would be difficult given his symptoms. Notwithstanding this opinion, she admittedly did not know exactly what petitioner's daily duties as a police lieutenant entailed, and she was only basing her opinion on her prior experience with police officers in general. Notably, the Orangetown Police Department, from which petitioner retired, describes the role of a lieutenant as "supervisory" and indicates that typical work activities for such include, among other things, preparing and reviewing orders, assigning personnel, hearing complaints and assisting in organization and direction of raids. An independent gastroenterologist and pulmonologist, after reviewing the relevant medical records, the job description of a lieutenant and physically examining petitioner, each provided medical reports in which they opined that petitioner was not permanently incapacitated from performance of his job duties as a police lieutenant.
In the event that there are conflicting medical opinions, as there are here, respondent "is vested with the exclusive authority to weigh such evidence and credit the opinion of one medical expert over another" as long as the credited opinion is rational, fact-based and supported by a physical examination of petitioner and a review of relevant medical records (Matter of Solarino v DiNapoli, 171 AD3d 1434, 1435 [3d Dept 2019] [internal quotation marks and citations omitted]; see Matter of Kennedy v DiNapoli, 175 AD3d at 1639). Contrary to petitioner's position, such an opinion need not be based on the physician's review of the entire legal record, including transcripts and exhibits. Petitioner's physician repeatedly deferred her opinion regarding the specific treatment and severity of each of petitioner's conditions to the opinions of petitioner's treating pulmonologists and gastroenterologists, who did not testify nor provide reports. Additionally, petitioner's physician admitted that she failed to review the medical reports of the independent pulmonologist and gastroenterologist despite her access to them as part of petitioner's medical records. Accordingly, we cannot say that her medical opinion is reliable as it was not "based upon, among other things, a review of all the relevant medical records" (Matter of Angelino v New York State Comptroller, 176 AD3d 1376, 1381 [3d Dept 2019]; see Matter of Walsh v New York State & Local Empls. Retirement Sys., 176 AD3d at 1432). Given the absence of a credible opinion from petitioner's physician, the testimony that petitioner was able to work full time, and even overtime, leading up to his retirement and the opinions of the independent medical experts, who each had a full understanding of what petitioner's job required of him, respondent's determination that petitioner is not permanently incapacitated from the performance of his [*3]job as a police lieutenant is supported by substantial evidence and we will not disturb it (see Matter of Diesel v DiNapoli, 185 AD3d at 1137; Matter of Del Peschio v DiNapoli, 139 AD3d at 1300).
Pritzker, J.P., Ceresia, McShan and Powers, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
https://nycourts.gov/reporter/3dseries/2025/2025_06369.htm
Decision No. 18,651
Appeal of CHRISTOPHER MANERI from action of the Board of Education of the Auburn Enlarged City School District regarding a personnel matter.
Decision No. 18,651
(November 4, 2025)
Ferrara Fiorenza PC, attorneys for respondent, Lindsay A.G. Plantholt, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Auburn Enlarged City School District (“respondent”) to terminate his employment. He also alleges that respondent retaliated against him after he filed a Dignity for All Students Act (“Dignity Act”) complaint on behalf of his child. The appeal must be dismissed.
Petitioner and his two children reside within respondent’s district. Petitioner was employed by respondent as a substitute teacher’s aide (2017-2022) and a groundskeeper (2022 to 2025).
In fall 2021, petitioner’s children complained of their treatment by a sports coach, the spouse of a board member (hereinafter, “board member”). Petitioner filed a complaint against the coach under the Dignity for All Students Act (“Dignity Act”) in fall 2022.
By letter dated April 23, 2023, respondent’s Dignity Act Coordinator informed petitioner that it has substantiated some of the allegations against the coach. The coordinator indicated that the district would address these findings internally but was precluded from “shar[ing] [the] … specific action to be taken.”
Throughout 2023 and 2024, petitioner alleges that the board member appeared at the district to observe him working. Petitioner suggests that the board member arranged these encounters to intimidate or harass him. Respondent denies these allegations, asserting that the simultaneous presence of petitioner and the board member was coincidental.
In February 2025, respondent voted to terminate petitioner’s employment with respondent. Seven members voted in favor, with the board member and a colleague abstaining. This appeal ensued.
Petitioner alleges that the board member retaliated against him by orchestrating his termination. For relief, petitioner requests that I “review the circumstances surrounding the DASA complaint and identified retaliation.” He seeks a finding that he was wrongfully terminated, an award of backpay, amendment of his employment file, and an order directing the board member to resign.
Respondent contends that the appeal must be dismissed against the board member as he was neither named in the caption of the appeal nor served with a copy thereof.[1] On the merits, respondent argues that petitioner has not articulated a clear legal right to his requested relief.
Initially, I decline to address petitioner’s claim of wrongful termination. “[E]mployee discipline is within respondent’s exclusive jurisdiction and is generally subject to procedures established in statute or in applicable collective bargaining agreements and/or employment contracts” (Appeal of X.R.O., 60 Ed Dept Rep, Decision No. 17,904; see Education Law §§ 1709 (16) and (33), 3020, 3020-a; Civil Service Law § 75). As such, I decline to “sit as a super-personnel department” and second-guess respondent’s employment decisions (Ghent v. Moore, 324 Fed Appx 55, 57 [2d Cir 2009]; see also Dale v. Chicago Trib. Co., 797 F2d 458, 464 [7th Cir 1986]; cf. Appeal of Rickson, 62 Ed Dept Rep, Decision No. 18,211 [reviewing discontinuance of a teacher’s probationary appointment, which is authorized by Education Law § 3012]). However, petitioner’s claim of retaliation for filing a Dignity Act complaint is within my jurisdiction and addressed below.
The Dignity Act prohibits school districts and their employees from “tak[ing] ... retaliatory action against any such person” who “makes ... a report” alleging bullying or harassment (Education Law § 16). A claim of retaliation requires a petitioner to show that he or she: (1) engaged in protected activity; (2) was subjected to adverse action; and (3) causation (see generally Vega v Hempstead Union Free Sch. Dist., 801 F3d 72, 90 [2d Cir 2015]; Application of the Board of Educ. of the City Sch. Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147).
In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
Petitioner has not met his burden of proving causation between his Dignity Act complaint and his termination. The precipitating event underlying petitioner’s termination was his use of a district vehicle to salt his driveway.[2] There is no evidence that respondent’s assistant superintendent for personnel, who investigated this incident, was aware of petitioner’s Dignity Act complaint.[3] Based on the results of the assistant superintendent’s investigation, the superintendent recommended that the board terminate petitioner’s employment. As the assistant superintendent indicates, there is no evidence that the board member “discuss[ed] his personal history with [p]etitioner with any other board member, or otherwise attempt[ed] to influence their votes regarding Petitioner’s termination.” Thus, petitioner has failed to meet his burden of proving causation between his Dignity Act complaint and his termination.
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
[1] To the extent the petition could be construed as an application to remove the board member, it does not comply with the applicable procedural requirements (8 NYCRR 277.1 [b]; Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).
[2] Petitioner claims that he accidentally engaged the salter mechanism.
[3] In this respect, the assistant superintendent began her employment in 2025, two years after the Dignity Act determination at issue herein.
https://www.counsel.nysed.gov/Decisions/volume65/d18651
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Recusal
Selected items posted on blogs during the week ending November 14, 2025
| Clarke v Town of Newburgh |
| 2025 NY Slip Op 06359 |
| Decided on November 20, 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. |
No. 84
v
Town of Newburgh, et al., Appellants; Letitia James, & c., Intervenor-Respondent.
Misha Tseytlin, for appellants.
Nicholas Stephanopoulos, for respondents.
Judith Vale, for intervenor-respondent.
Campaign Legal Center, New York Civil Liberties Union et al., Town of Mount Pleasant et al., NAACP Legal Defense & Educational Fund, Inc., Asian American Legal Defense and Education Fund et al., State of California et al., amici curiae.
This case presents the question whether the Town and Town Board of Newburgh—subordinate governmental entities created by, divisible by and even extinguishable by the State Legislature—can maintain this facial constitutional challenge to the vote dilution provision of the New York Voting Rights Act ("NYVRA") (codified at Election Law § 17-200 et seq.). They cannot.
Six Newburgh voters sued the Town and Town Board of Newburgh (collectively, "Newburgh") under Section 17-206 of the NYVRA, which provides that no political subdivision shall use a method of election that dilutes the votes of members of a protected class (Election Law § 17-206 [2] [a]). Plaintiffs allege that Newburgh's at-large system for electing Board members dilutes the voting power of Black and Hispanic residents. The Town of Newburgh is a political subdivision in Orange County with a population of about 32,000. The complaint alleges that as of 2022, approximately 15% of the Town's population was Black and 25% of the Town's population was Hispanic. The Town Board—which the complaint alleges has never had a Black or Hispanic member—is the Town's legislative and policy-making authority, and the five members of the Town Board are chosen through [*2]at-large elections, meaning that every registered voter residing within the Town is eligible to vote for each Town Board member position.
To make out a claim under Section 17-206 of the NYVRA, plaintiffs may show that the voting patterns are racially polarized—i.e., "there is a divergence in the candidate, political preferences, or electoral choice of members in a protected class from the candidates, or electoral choice of the rest of the electorate" (id. §§ 17-204 [6]; 17-206 [2] [b] [i] [A]). Plaintiffs may also show (alternatively or additionally) that under the totality of the circumstances, "the ability of members of the protected class to elect candidates of their choice or influence the outcome of elections is impaired" due to vote dilution (id. § 17-206 [2] [b] [i] [B]). If a plaintiff shows a violation of the vote dilution provision, the trial court must "implement appropriate remedies" to ensure voting groups have equitable access to fully participate in the political process (id. § 17-206 [5] [a]). The NYVRA mandates no specific remedy for vote dilution: among the lighter slate of remedies offered by the NYVRA for reference, a court could order additional voting hours, polling locations or voter education to cure a vote-dilution violation (id. § 17-206 [5]). Courts fashioning a remedy for a violation are not limited to the measures enumerated in the Act.
Plaintiffs allege that (1) voting patterns in Newburgh are racially polarized and (2) the at-large election system effectively disenfranchises Black and Hispanic voters, who cannot elect candidates of their choice or influence the outcome of elections. Plaintiffs seek a declaration that Newburgh's use of an at-large election system violates Section 17-206 and an injunction ordering Newburgh to implement either a districting plan or an alternative method of election for the 2025 Town Board election.
Newburgh moved for summary judgment on the bases that (1) Section 17-206 is facially unconstitutional because it violates the Equal Protection Clause of both the U.S. and New York Constitutions and (2) its Town Board elections comply with the NYVRA. Supreme Court granted Newburgh's motion for summary judgment and dismissed the complaint (see 2024 NY Slip Op 34184[U] [Sup Ct, Orange County 2024]), holding that although municipalities ordinarily may not challenge the constitutionality of State laws, Newburgh could because it alleged that it could not comply with the NYVRA without violating the Equal Protection Clause (id. at *12-13). Supreme Court also held that the NYVRA's vote dilution prohibition is facially unconstitutional (id. at *16), and struck the NYVRA "in its entirety," even though Newburgh sought to invalidate only a portion of the Act.
The Appellate Division reversed and denied Newburgh's motion for summary judgment (see 237 AD3d 14, 17, 29-30 [2d Dept 2025]). The Court held that Newburgh could not bring this constitutional challenge to the NYVRA because it failed to demonstrate that its compliance with the NYVRA would force it to violate equal protection (id. at 17, 29-30). Therefore, Newburgh could not overcome the general rule that legislative entities lack the right to sue to challenge State laws (id.). Additionally, the Appellate Division held that Supreme Court erred in striking down the NYVRA in toto (id. at 39-40); Newburgh does not challenge that latter holding on appeal. The Appellate Division granted Newburgh's motion for leave to appeal to this Court, certified the question whether its order was properly made and stayed proceedings in Supreme Court pending our ruling (see 2025 NY Slip Op 69546[U] [2d Dept 2025]).
Before we can reach the merits of Newburgh's constitutional claims, we must determine whether Newburgh, as a legislatively created political subdivision, can assert a facial constitutional challenge to the NYVRA's vote-dilution provision.
The longstanding rule in New York is that political subdivisions—as creatures of the State that "exist[] by virtue of the exercise of the power of the State through its legislative department"—cannot sue to invalidate State legislation (City of New York v State of New York, 86 NY2d 286, 289-290 [1995]; see also Williams v Mayor of Baltimore, 289 US 36, 40 [1933, Cardozo, J.] ["A municipal corporation . . . has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator"]). "From very early times," New York courts have "consistently applied the Federal rule in holding that political power conferred by the Legislature confers no vested right as against the government itself" (Black Riv. Regulating Dist. v Adirondack League Club, 307 NY 475, 488 [1954]). A political subdivision's "right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate" (Matter of World Trade Ctr. Lower Manhattan [*3]Disaster Site Litig., 30 NY3d 377, 384 [2017], quoting Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 156 [1994]).
That rule is a "necessary outgrowth" of separation of powers principles (City of New York, 86 NY2d at 295-296; see also World Trade Ctr., 30 NY3d at 385 ["th(e) capacity bar closes the courthouse doors to internal political disputes between the State and its subdivisions"]; Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 239 [1984] ["it is a fundamental principle . . . that each department of government should be free from interference, in the lawful discharge of duties expressly conferred, by either of the other branches"]). It "expresses the extreme reluctance of courts to intrude in the political relationships between the Legislature, the State and its governmental subdivisions" (City of New York, 86 NY2d at 295-296). Just as the legislature has the power to create entities to perform its functions, it has the power to change, and even destroy, those entities. Separation of powers principles accordingly demand that courts do not interfere in legislative disputes raised by legislative subordinates. Those principles are the bedrock of our federal and State Constitutions alike.
The rule is firm but not absolute. In City of New York, we noted four limited exceptions mentioned in our prior caselaw: (1) when there is express statutory authorization to bring the suit; (2) when a municipality's proprietary interest in a specific fund of moneys is adversely affected by State legislation; (3) when the statute impinges upon the constitutional "Home Rule" powers of a municipality; and (4) where compliance with the statute would force the municipal challengers to violate a constitutional proscription (86 NY2d at 291-292, citing Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283, 287 [1977]; Board of Educ. of Cent. School Dist. No. 1 v Allen (20 NY2d 109 [1967], affd 392 US 236 [1968] [other citations omitted]). We have "stress[ed] that the exceptions . . . are narrow" (World Trade Ctr., 30 NY3d at 387).
Newburgh does not contend that the first three exceptions have any application; it relies solely on the rare fourth exception—colloquially termed the "dilemma" exception—to contend that any compliance with the NYVRA would force it to violate the Equal Protection Clauses of the U.S. and New York Constitutions. Newburgh's failure to identify any case where a New York court has held that a political subdivision fit into the fourth exception evidences the narrowness of the exception. We have found no case in which a court has held it applicable. Newburgh relies on City of New York and the two cases cited therein, Matter of Jeter and Allen. In both City of New York and Jeter, neither governmental entity argued that it fit within any such exception (see City of New York, 86 NY2d at 295-296; Matter of Jeter, 41 NY2d at 287). In Allen we did not discuss or decide any issue of capacity; our holdings were limited to plaintiffs' standing and the constitutionality of the statute at issue (20 NY2d at 114-115 & n 1). The other of our cases cited by the parties do not hold that a municipality has the power to sue the State (see World Trade Ctr., 30 NY3d at 939 [holding that public benefit corporations are no different from any other governmental subdivision in their capacity to challenge State legislation]).
Newburgh's challenge to the NYVRA does not fall within the dilemma exception. Whatever might be said as to a municipality's ability to bring an as-applied challenge, showing that it will be forced to take a course of action that is unconstitutional, Newburgh is pursuing a facial invalidity claim. As we said in World Trade Center, a legislative entity's challenge to a State law must be "examined with a view towards the relief sought" (30 NY3d at 386 n3, quoting Excess Line Assn of N.Y. (ELANY) v Waldorf & Assoc., 30 NY3d 119, 123 [2017]). Newburgh seeks invalidation of the entire vote-dilution provision under Election Law § 17-206. For a facial constitutional challenge, principles of "judicial restraint" (World Trade Ctr., 30 NY3d at 385) counsel strongly against permitting subordinate units of state government from using the judiciary to second-guess the wisdom of enacted legislation. A municipality's authority to raise a challenge to a State law is at its lowest ebb when that challenge is a facial constitutional challenge, seeking to invalidate a statute in all possible applications, not merely because it allegedly placed the particular municipality in an allegedly untenable position. As we made clear in World Trade Center, "[o]ur capacity rule reflects a self-evident proposition about legislative intent: the 'manifest improbability' that the legislature would breathe constitutional rights into a public entity and then equip it with authority to police state legislation on the basis of those rights" (30 NY3d at 385, quoting City of New York, 86 NY2d at 293).
Newburgh's arguments about why we should hold that it meets a dilemma exception fail to persuade us. Newburgh has not shown that compliance with the NYVRA would force it into taking an unconstitutional action. [*4]The litigation has yet to even proceed to trial, making presently unknown: (1) whether Newburgh would face any liability; and (2) in the event it did, what a court would require it to do. The NYVRA's vote-dilution provision leaves courts wide latitude in designing remedies, so that to prevail on its facial challenge, Newburgh would have to show that "every conceivable application" of the NYVRA—i.e., every possibly remedy a trial court could order—would force it to take an unconstitutional act (McGowan v Burstein, 71 NY2d 729, 733 [1988] [to claim that a statute is "per se violative of the State Constitution," the challenging party must show the statute is unconstitutional "in every conceivable application"]). But that is not what Newburgh claims. Instead, it advances three novel arguments, none of which fits within any exception that might allow a local governmental entity to sue the State.
First, Newburgh argues that the rule preventing local legislative entities from suing the State does not apply when the local government is a defendant. It relies only on CPLR 3211 (a) (3), which allows a defendant to interpose a defense that the plaintiff asserting the cause of action against it lacks the capacity to sue, from which Newburgh argues that because it is not the plaintiff, no question of its capacity can be raised. Contrary to Newburgh's argument, the CPLR does not limit the circumstances under which the State may invoke this capacity bar, which is rooted in separation of powers principles and therefore analytically distinct from the "legal capacity to sue" (see CPLR 3211 [a] [3]). The rule barring local governments from suing the State is not grounded in a local government's general capacity to sue or be sued in its own name—which Newburgh has—but is a function of separation of powers doctrine that disables a local government from challenging the acts of the State (supra, pp. 5-6).
Second, Newburgh contends that because, in its view, the NYVRA violates the U.S. Constitution, the Supremacy Clause overcomes New York's bar prohibiting its subordinate local governments from suing it. Newburgh offers no authority for that novel proposition, which would authorize every local governmental entity to sue to challenge as unconstitutional any State legislation arguably affecting that subordinate entity.
Third, Newburgh argues that "any alteration of its race-neutral, at-large election system in order to comply with the NYVRA's vote-dilution provisions would be unconstitutional." But that contention, as explained by counsel at oral argument (see oral argument tr at 8-12), rests on the proposition that a mere finding of liability itself would place Newburgh in the position of violating the Constitution or obeying the order of the court—when there is no order of the court compelling it to do anything. And in any event, several of the potential remedies mentioned by the NYVRA to redress a finding of vote dilution—such as longer polling hours or enhanced voter education—cannot reasonably be described as alterations of an at-large election system.
Because we hold that Newburgh cannot assert this facial constitutional challenge, we do not reach the merits of its claims. Accordingly, the order of the Appellate Division should be affirmed, without costs, and the certified question answered in the affirmative.
Order affirmed, without costs, and certified question answered in the affirmative. Opinion by Chief Judge Wilson. Judges Rivera, Singas, Cannataro, Troutman, Kern and Kennedy concur. Judges Garcia and Halligan took no part.
Decided November 20, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06359.htm
| Lutfieva v Services for the Aged, Inc. |
| 2025 NY Slip Op 06390 |
| Decided on November 20, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Manzanet-Daniels, J.P., Kapnick, Shulman, Rodriguez, Hagler, JJ.
Index No. 161213/23|Appeal No. 5210|Case No. 2025-01508|
v
Services for the Aged, Inc. Doing Business as JASACARE, etc., et al., Defendants-Appellants.
Hogan Lovells US LLP, New York (Kenneth Kirschner of counsel), for appellants.
Virginia & Ambinder, LLP, New York (LaDonna Lusher of counsel), for respondents.
Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered on or about February 24, 2025, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss this Labor Law action, unanimously affirmed, with costs.
Plaintiffs, a group of home health aides employed by defendants, allege, among other things, that defendants failed to pay the minimum wage, overtime pay, and spread-of-hours pay in violation of Labor Law §§ 663 and 650 et. seq. and 12 NYCRR § 142-2.4. Defendants' documentary evidence, consisting of their certifications electing to pay the statutory minimum rate in lieu of minimum wage orders pursuant to Labor Law § 652, was submitted in support of their position that they are a non-profitmaking institution under Labor Law § 652(3) and thus exempt from the wage orders under Labor Law § 652(3)(b).
Even if the certifications were sufficient to show that defendants are a non-profitmaking institution exempt from the wage orders under Labor Law § 652(3)(b), Supreme Court correctly determined that this exemption is also contingent on defendants first showing that they "pa[id] and continue[d] to pay" plaintiffs the statutory minimum wage (see Smellie v Mount Sinai Hosp. , 2004 WL 2725124, *2, 2004 US Dist LEXIS 24006, *6 [SD NY, Nov. 29, 2004, No. 03 Civ. 0805 (LTS)(DFE)]); see also Dziura v Human Dev. Assn., Inc. , 2024 NY Slip Op 31234[U] at *3 [Sup Ct, NY County 2024]). Plaintiffs allege that defendants paid them for only 13 hours of work when they worked 24-hour shifts, which effectively reduced their hourly rate to an amount well below New York's statutory minimum wage for the period 2019 to 2021. Defendants failed to submit evidence disputing these allegations.
We have considered defendants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 20, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06390.htm
| Matter of Jaloza v New York City Dept. of Educ. |
| 2025 NY Slip Op 06320 |
| Decided on November 19, 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. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
HELEN VOUTSINAS
PHILLIP HOM, JJ.
2023-11126
(Index No. 706616/23)
v
New York City Department of Education, et al., respondents.
Gibson Law Firm, PLLC, Ithaca, NY (Sujata S. Gibson of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Richard Dearing, Melanie T. West, and Chase Henry Mechanick of counsel), for respondents.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78 and action, inter alia, to recover damages for employment discrimination on the basis of religion and disability in violation of the New York State Human Rights Law, the New York City Human Rights Law, and the New York State Constitution, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Tracy Catapano-Fox, J.), entered July 24, 2023. The order and judgment granted the cross-motion of the respondents/defendants pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition/complaint and dismissed the proceeding/action.
ORDERED that the order and judgment is affirmed, with costs.
In March 2023, the petitioner/plaintiff (hereinafter the petitioner) commenced this hybrid proceeding against the New York City Department of Education (hereinafter the DOE) and the City of New York (hereinafter together the City respondents) pursuant to CPLR article 78 to review a determination of the DOE to terminate her employment as a tenured teacher and action, inter alia, to recover damages for employment discrimination on the basis of religion and disability in violation of the New York State Human Rights Law, the New York City Human Rights Law, and the New York State Constitution.
In June 2023, the City respondents cross-moved pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition/complaint on the grounds, among others, that the cause of action challenging the DOE's determination was time-barred and the remaining causes of action were barred by the petitioner's failure to timely serve a notice of claim. The petitioner opposed. In an order and judgment entered July 24, 2023, the Supreme Court granted the cross-motion of the City respondents and dismissed the proceeding/action. The petitioner appeals.
"A proceeding pursuant to CPLR article 78 must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner" (Matter of Andrews v Incorporated Vil. of Freeport, 221 AD3d 809, 810; see St. John's Riverside Hosp. v City of Yonkers, 151 AD3d 786, 788). "In order for an agency determination to be deemed final and [*2]binding, first, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party" (Matter of Andrews v Incorporated Vil. of Freeport, 221 AD3d at 810-811 [alteration and internal quotation marks omitted]; see Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 230 AD3d 786, 789). "A determination generally becomes binding when the aggrieved party is notified" (Rock v New York City Employees' Retirement Sys., 231 AD3d 979, 982 [internal quotation marks omitted]; see Matter of Baker v Stanford, 183 AD3d 889, 890).
Here, the City respondents established that the petition was time-barred as it was filed more than four months after the petitioner was notified of the determination to terminate her employment. The City respondents submitted copies of documents sent to them by the petitioner and her email correspondence with the City respondents, which showed the date the petitioner was informed of the DOE's determination (see Matter of Munro v New York City Human Resources Admin., Off. of Child Support Enforcement, 221 AD3d 904, 906; Matter of Andrews v Incorporated Vil. of Freeport, 221 AD3d at 811). In opposition, the petitioner failed to raise a question of fact as to the statute of limitations. The petitioner's contention on appeal that she was not "unambiguously terminated" until December 8, 2022, was conclusory and without record support (see Matter of Davis v Peterson, 254 AD2d 287, 287).
Accordingly, the petition was properly dismissed as untimely (see Matter of Walshe v New York State Unified Ct. Sys. Off. of Ct. Admin., 230 AD3d 507, 508; Matter of Imandt v New York State Unified Ct. Sys., 168 AD3d 1051, 1053).
The causes of action alleging violations of the New York State Human Rights Law and the New York City Human Rights Law insofar as asserted against the DOE were also properly dismissed, albeit on grounds different than those relied upon by the Supreme Court (see Franco v Farr, ____ AD3d ____, ____, 2025 NY Slip Op 04880, *2; Bank of N.Y. Mellon v Greene, 210 AD3d 1042, 1043). A condition precedent to maintaining an action against the DOE requires that a notice of claim be served upon a school district within three months from accrual of the claim (see Education Law § 3813(1); see also Munro v Ossining Union Free School Dist., 55 AD3d 697, 698). Here, the City respondents established that the petitioner failed to timely serve a notice of claim within three months of the determination to terminate her employment (see Education Law § 3813[1]; Moore v Middletown Enlarged City School Dist., 57 AD3d 746, 748). In opposition, the petitioner failed to raise a question of fact nor did she demonstrate that an exception to the notice of claim requirement—commencing a proceeding to vindicate a public interest in the enforcement of a public right—was somehow applicable here (see Matter of McGovern v Mount Pleasant Cent. Sch. Dist., 114 AD3d 795, 796, affd 25 NY3d 1051).
The Supreme Court also properly dismissed the causes of action alleging violations of the New York State Human Rights Law and the New York City Human Rights Law insofar as asserted against the City.
On a motion to dismiss for failure to state a cause of action a court must accept "the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88). Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one (see Margarita v Mountain Time Health, LLC, 240 AD3d 584, 585).
Here, the petitioner's conclusory assertions that the City respondents discriminated against her based on her religion and disability were unsupported by factual allegations sufficient to sustain a cause of action under either the New York State Human Rights Law or the New York City Human Rights Law (see Shahid v City of New York, 231 AD3d 888, 888). Moreover, the petitioner failed to show that the City respondents did not engage in a cooperative dialogue with [*3]regard to her accommodation requests (see Walrond v New York City Health & Hosps. Corp., 240 AD3d 933, 935).
The Supreme Court also properly dismissed the cause of action alleging violations of the New York State Constitution. Since the petitioner could and did pursue causes of action for discrimination based on religion and disability pursuant to the New York City Human Rights Law and the New York State Human Rights Law, no cause of action alleging violations of the New York State Constitution was available (see Peterec v State of New York, 124 AD3d 858, 859).
In light of our determination, the parties' remaining contentions need not be reached.
DUFFY, J.P., MILLER, VOUTSINAS and HOM, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_06320.htm
| Matter of Khader v City of Yonkers |
| 2025 NY Slip Op 06321 |
| Decided on November 19, 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. |
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
JANICE A. TAYLOR
LOURDES M. VENTURA, JJ.
2023-08109
(Index No. 64734/22)
v
City of Yonkers, et al., appellants.
Harris Beach Murtha Cullina PLLC, Pittsford, NY (Kyle D. Gooch and Darius P. Chafizadeh of counsel), for appellants.
Newman Ferrara LLP, New York, NY (Randolph M. McLaughlin and Debra S. Cohen of counsel), for respondent.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Corporation Counsel of the City of Yonkers dated May 12, 2022, and action, inter alia, for declaratory relief, the City of Yonkers and Matthew Gallagher, in his official capacity as Corporation Counsel of the City of Yonkers, appeal from a judgment of the Supreme Court, Westchester County (Melissa A. Loehr, J.), dated July 5, 2023. The judgment, in effect, granted the petition, annulled the determination, declared that the City of Yonkers is obligated to pay the petitioner/plaintiff's attorneys' fees incurred in connection with the subject investigation, and directed the Corporation Counsel of the City of Yonkers to forward a proposed contract for the payment of attorneys' fees to the City Council of the City of Yonkers and related relief.
ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, the proceeding is dismissed, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate amended judgment, inter alia, declaring that the City of Yonkers is not obligated to pay the petitioner/plaintiff's attorneys' fees incurred in connection with the subject investigation.
In May 2021, a majority of the members of the City Council of the City of Yonkers (hereinafter the City Council) formally requested that the Inspector General of the City of Yonkers (hereinafter the Inspector General) open an inquiry into allegations of ethical misconduct and the creation of a hostile work environment by the petitioner/plaintiff (hereinafter the petitioner), who was then the president of the City Council. Thereafter, the Inspector General began an investigation into the matters and, in June 2021, issued a subpoena duces tecum, inter alia, requesting that the petitioner produce certain documents. On June 9, 2021, the petitioner sought legal representation from the respondent/defendant Matthew Gallagher, Corporation Counsel of the City of Yonkers, with respect to the investigation by the Inspector General. Gallagher advised the petitioner that, due to a conflict of interest, he could not provide the requested legal representation but that Gallagher had determined "for now" that the petitioner was entitled to be represented by private counsel of his choosing pursuant to Public Officers Law § 18(3)(b).
The petitioner retained private counsel and requested that the Inspector General [*2]withdraw the subpoena. The petitioner's counsel advised Gallagher that if the subpoena was not withdrawn, the petitioner would commence a special proceeding to quash the subpoena. On June 15, 2021, Gallagher advised the petitioner's counsel that a special proceeding would fall outside of the scope of representation previously authorized by Gallagher and would be at the petitioner's own expense. The petitioner's counsel objected. On July 1, 2021, Gallagher advised the petitioner's counsel that Public Officers Law § 18(3)(a) excluded defense of a civil action or proceeding brought against a public employee at the behest of the public entity employer and that the Inspector General was acting on behalf of the City. Gallagher further advised that, in any event, prosecuting a special proceeding against the City would fall outside of the defense and indemnification offered by Public Officers Law § 18.
The petitioner commenced a special proceeding, among other things, to quash the subpoena, and the Supreme Court quashed the subpoena, without prejudice. The Inspector General issued a second subpoena that was substantively the same as the first subpoena, and the petitioner commenced a special proceeding, inter alia, to quash the second subpoena. In an order dated March 11, 2022, the court denied the petition to quash the second subpoena and granted the Inspector General's cross-motion to compel the petitioner to comply with the subpoena.
Subsequently, the petitioner's counsel sought reimbursement for attorneys' fees. On May 12, 2022, Gallagher informed the petitioner's counsel that, in consideration of the language in Public Officers Law § 18(3)(a) excluding a proceeding brought at the behest of the public entity employing the public employee, any legal costs incurred as a result of the investigation would be at the petitioner's own expense. The petitioner then brought this hybrid proceeding pursuant to CPLR article 78 to review the determination dated May 12, 2022, and action, among other things, for declaratory relief and to recover damages for breach of contract against Gallagher, in his official capacity as Corporation Counsel of the City, and the City. The petitioner sought a judgment declaring, inter alia, that the City was obligated to pay the petitioner's attorneys' fees incurred in connection with the Inspector General's investigation. In an order dated March 24, 2023, the Supreme Court, among other things, pursuant to CPLR 103(c), converted the breach of contract cause of action to a cause of action pursuant to CPLR article 78. In a judgment dated July 5, 2023, the court, in effect, granted the petition, annulled the determination, declared that the City is obligated to pay the petitioner's attorneys' fees in connection with the Inspector General's investigation, and directed Gallagher to forward a proposed contract for the payment of the petitioner's attorneys' fees to the City Council and related relief. The City and Gallagher (hereinafter together the appellants) appeal.
Contrary to the appellants' contention, the CPLR article 78 proceeding was not time-barred, as the petition was filed within the four-month statute of limitations period following the May 12, 2022 determination that the City would not pay for any of the petitioner's attorneys' fees incurred in relation to the investigation (see CPLR 217[1]; Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 230 AD3d 786, 789; Matter of Andrews v Incorporated Vil. of Freeport, 221 AD3d 809, 811).
However, the Supreme Court erred in granting the petition. Generally, judicial review of an agency determination is limited to whether the determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803[3]; see Matter of Lemma v Nassau County Police Officer Indem. Bd., 31 NY3d 523, 528). A determination "is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Matter of Peckham v Calogero, 12 NY3d 424, 431; see Matter of Murphy v New York State Div. of Hous. & Community Renewal, 21 NY3d 649, 652).
When applicable (see Public Officers Law § 18[2]), Public Officers Law § 18 provides for the defense and indemnification of officers and employees of public entities. As relevant here, the statute requires the public entity to provide for the defense of an employee in any civil action or proceeding arising out of any alleged act which allegedly occurred while the employee was acting within the scope of his or her public employment or duties (see id. § 18[3][a]). When a conflict of interest prevents representation by the chief legal officer of the public entity or other [*3]counsel designated by the public entity, the employee shall be entitled to be represented by private counsel of the employee's choice, and reasonable attorneys' fees and litigation expenses shall be paid by the public entity (see id.§ 18[3][b]). However, "[the] duty to provide for a defense shall not arise where [the] civil action or proceeding is brought by or at the behest of the public entity employing such employee" (see id. § 18[3][a]).
Here, the Inspector General commenced the investigation into the petitioner at the behest at the petitioner's employer, and therefore, the City had no duty to provide the petitioner with a legal defense in relation to the Inspector General's investigation (see id. § 18[3][a]; Matter of Barkan v Roslyn Union Free School Dist., 67 AD3d 61, 65). Therefore, the determination that the petitioner was not entitled to reimbursement for such attorneys' fees had a rational basis and was not arbitrary and capricious (see Matter of Barkan v Roslyn Union Free School Dist., 67 AD3d at 63).
Contrary to the petitioner's contention, he was not entitled to reimbursement of his attorneys' fees based upon a theory of breach of contract. "It is well settled that an attorney may not be compensated with public funds for services rendered a municipal officer unless the attorney has been retained in accordance with statutory authority" (Moffatt v Christ, 74 AD2d 635, 635; see Corning v Village of Laurel Hollow, 48 NY2d 348, 351). The Yonkers City Charter provides that "[a]ny city officer or employee entitled to counsel pursuant to Public Officers Law § 18, shall inform the corporation counsel of the counsel who will represent the officer or employee. The corporation counsel shall forward to the City Council a proposed contract for such counsel and the Mayor shall submit a budget transfer to fund the proposed contract. If approved by the City Council, the corporation counsel shall enter into the contract with the officer's or employee's counsel" (Yonkers City Charter, Art. XIII, § C13-2[D]). It is undisputed that corporation counsel never forwarded a proposed contract to the City Council and that the City Council never approved a contract. Thus, contrary to the petitioner's contention, a valid contract for the payment of his attorneys' fees was not formed (see Matter of Atane Engrs., Architects & Land Surveyors, D.P.C. v Nassau County, 227 AD3d 708, 710-711; Moffatt v Christ, 74 AD2d at 635).
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Westchester County, for the entry of an appropriate amended judgment, inter alia, declaring that the City is not obligated to pay the petitioner's attorneys' fees incurred in connection with the Inspector General's investigation (see Lanza v Wagner, 11 NY2d 317, 334).
BARROS, J.P., BRATHWAITE NELSON, TAYLOR and VENTURA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_06321.htm
| Matter of Madrid v Mazur |
| 2025 NY Slip Op 06284 |
| Decided on November 18, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Webber, J.P., González, Mendez, Rodriguez, Pitt-Burke, JJ.
Index No. 100881/20|Appeal No. 5183|Case No. 2022-04959|
v
Jordan S. Mazur etc., Respondent-Respondent.
Manuel Madrid, appellant pro se.
Muriel Goode-Trufant, Corporation Counsel, New York (Shane Magnetti of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered on or about November 22, 2021, which denied petitioner's challenge to respondent's reply to his Freedom of Information Law (FOIL) request, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Initially, we exercise our discretion under CPLR 5520(a) and (c) to deem the notices of appeal dated July 14, 2021 and December 30, 2021, taken together, as timely filed and properly served.
The New York City Police Department's response to petitioner's FOIL request was not "affected by an error of law" (Matter of Jewish Press, Inc. v New York City Police Dept., 190 AD3d 490, 490 [1st Dept 2021], lv denied 37 NY3d 906 [2021] [internal quotation marks omitted]; see CPLR 7803[3]). In their response to petitioner's FOIL appeal, respondent properly advised petitioner that the additional records he sought, which related to his arrest and which he requested roughly 16 years after his arrest, could not be located after a diligent search. When an agency is unable to locate documents sought in a FOIL request, Public Officers Law § 89(3) requires the agency to certify that it does not have possession of a requested record or that such record cannot be located after a diligent search. The statute does not specify the form such certification must take, and "[n]either a detailed description of the search nor a personal statement from the person who actually conducted the search is required" for the certification to be valid (Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875 [2001]). Petitioner failed to articulate a factual basis for his contention that the unproduced records he sought exist (see Matter of Gould v New York City Police Dept., 89 NY2d 267, 279 [1996]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 18, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06284.htm
| Matter of Law Off. of Cyrus Joubin v Manhattan Dist. Attorney's Off. |
| 2025 NY Slip Op 06283 |
| Decided on November 18, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Webber, J.P., González, Mendez, Rodriguez, Pitt-Burke, JJ.
Index No. 158168/23|Appeal No. 5175-5176|Case No. 2024-02963, 2024-06707|
v
Manhattan District Attorney's Office, Respondent-Appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Christian Rose of counsel), for appellant.
Cyrus Joubin, New York, for respondent.
Supplemental order and judgment (one paper), Supreme Court, New York County (John J. Kelley, J.), entered March 26, 2024, which granted in part petitioner's application to annul respondent's July 28, 2023 denial of petitioner's Freedom of Information Law (FOIL) request for agency records to the extent of directing disclosure of a data sheet with redaction of certain personal identifying information, unanimously reversed, on the law, without costs, the petition denied in its entirety, and the proceeding brought pursuant to CPLR article 78 dismissed. Order, same court and Justice, entered October 10, 2024, which, to the extent appealed from as limited by the briefs, granted that branch of petitioner's motion for leave to reargue so much of the March 26, 2024 supplemental order and judgment as denied petitioner's request for an award of attorneys' fees and, upon reargument, granted so much of the petition as sought attorneys' fees and modified the March 26, 2024 supplemental order and judgment to award reasonable attorneys' fees and costs to petitioner, unanimously reversed, on the law, without costs, and the request for attorney's fees denied.
Supreme Court appropriately ordered an in camera inspection of all records responsive to petitioner's FOIL request, including the datasheet that was ultimately produced with redaction of personal information regarding certain people involved in the relevant criminal matter (Public Officers Law § 84 et seq.). However, those records should not have included the D.A. datasheet. This Court has previously held that the D.A. datasheet constitutes attorney work product, as it contains the analysis and conclusions of the intake attorney (see Matter of Law Off. of Cyrus Joubin, Esq. v Manhattan Dist. Attorney's Off., 234 AD3d 441, 441 [1st Dept 2025]; see Venture v Preferred Mut. Ins. Co., 180 AD3d 426, 426 [1st Dept 2020]). As a result, CPLR 3101(c) protects the datasheet from disclosure under FOIL, and it is not subject to disclosure even with redactions (see Public Officers Law § 87[2][a]; Matter of Stengel v Vance, 198 AD3d 434, 434 [1st Dept 2021]).
In light of this determination, the award of attorneys' fees is unwarranted, as petitioner has not "substantially prevailed" in its appeal of respondent's denial (Public Officers Law § 89[4][c][ii]). Furthermore, even had petitioner substantially prevailed, Supreme Court made no "find[ing] that the agency had no reasonable basis for denying access," and thus, there was no basis for an award of attorneys' fees to petitioner (id.; see also Matter of Jewish Press, Inc. v Kingsborough Community Coll., 201 AD3d 547, 548-549 [1st Dept 2022], lv denied 18 NY3d 806 [2012]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 18, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06283.htm
| Matter of Christian v Department of Educ. of the City of New York |
| 2025 NY Slip Op 06272 |
| Decided on November 18, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Kern, J.P., Scarpulla, Friedman, O'Neill Levy, Chan, JJ.
Index No. 159994/20|Appeal No. 5195|Case No. 2024-03953|
v
The Department of Education of the City of New York et al., Respondents-Respondents.
Stewart Lee Karlin Law Group, P.C., New York (Stewart Lee Karlin of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York (Amanda Abata of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about May 2, 2024, which, to the extent appealed from as limited by the briefs, denied in part petitioner's CPLR article 78 petition to annul respondent's determination, dated September 30, 2020, discontinuing petitioner's employment; for a declaration that petitioner acquired tenure by estoppel; and retroactive reinstatement to the position of a tenured teacher; and granted in part respondent's cross-motion to dismiss the petition, unanimously reversed, on the law, without costs, the petition granted, the cross-motion denied, and it is declared that petitioner acquired tenure by estoppel.
Petitioner's probationary period as a teacher with the Department of Education was extended by agreement until October 1, 2019, at which point she would either be granted completion of probation, denied completion of probation and/or discontinued, or granted an extension of probation. Prior to completion of that probationary period, petitioner took an approved leave of absence from September 3, 2019 to June 30, 2020. On September 30, 2020, respondents denied petitioner a completion of probation and terminated her employment as of the close of business that day.
Petitioner's leave of absence should be excluded from her probationary period. An employee's probationary term may be extended by the number of days that the probationary employee does not perform the duties of the position (see Tomlinson v Ward, 110 AD2d 537, 538 [1st Dept 1985], affd, 66 NY2d 771 [1985]). Education Law § 3012(3) provides that "no period in any school year for which there is no required service . . . shall in any event constitute a break or suspension of probationary period" (see also Education Law § 2573[15]). Consistent with this provision, petitioner's probation period paused when her leave of absence began on September 3, 2019, and resumed when her leave of absence ended on June 30, 2020. Because petitioner's probationary period was scheduled to end on October 1, 2019, this leaves 21 missed workdays as the remainder of her probationary period, to be applied after her leave of absence expired. Thus, petitioner's termination on September 30, 2020 occurred well after her probationary term was completed.
Petitioner further obtained tenure by estoppel (Matter of McManus v Board of Educ. of Hempstead Union Free School Dist. , 87 NY2d 183, 187 [1995]). As such, petitioner could not be terminated without a hearing pursuant to Education Law § 3020-a.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 18, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06272.htm
Decision No. 18,651
Appeal of CHRISTOPHER MANERI from action of the Board of Education of the Auburn Enlarged City School District regarding a personnel matter.
Decision No. 18,651
(November 4, 2025)
Ferrara Fiorenza PC, attorneys for respondent, Lindsay A.G. Plantholt, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Auburn Enlarged City School District (“respondent”) to terminate his employment. He also alleges that respondent retaliated against him after he filed a Dignity for All Students Act (“Dignity Act”) complaint on behalf of his child. The appeal must be dismissed.
Petitioner and his two children reside within respondent’s district. Petitioner was employed by respondent as a substitute teacher’s aide (2017-2022) and a groundskeeper (2022 to 2025).
In fall 2021, petitioner’s children complained of their treatment by a sports coach, the spouse of a board member (hereinafter, “board member”). Petitioner filed a complaint against the coach under the Dignity for All Students Act (“Dignity Act”) in fall 2022.
By letter dated April 23, 2023, respondent’s Dignity Act Coordinator informed petitioner that it has substantiated some of the allegations against the coach. The coordinator indicated that the district would address these findings internally but was precluded from “shar[ing] [the] … specific action to be taken.”
Throughout 2023 and 2024, petitioner alleges that the board member appeared at the district to observe him working. Petitioner suggests that the board member arranged these encounters to intimidate or harass him. Respondent denies these allegations, asserting that the simultaneous presence of petitioner and the board member was coincidental.
In February 2025, respondent voted to terminate petitioner’s employment with respondent. Seven members voted in favor, with the board member and a colleague abstaining. This appeal ensued.
Petitioner alleges that the board member retaliated against him by orchestrating his termination. For relief, petitioner requests that I “review the circumstances surrounding the DASA complaint and identified retaliation.” He seeks a finding that he was wrongfully terminated, an award of backpay, amendment of his employment file, and an order directing the board member to resign.
Respondent contends that the appeal must be dismissed against the board member as he was neither named in the caption of the appeal nor served with a copy thereof.[1] On the merits, respondent argues that petitioner has not articulated a clear legal right to his requested relief.
Initially, I decline to address petitioner’s claim of wrongful termination. “[E]mployee discipline is within respondent’s exclusive jurisdiction and is generally subject to procedures established in statute or in applicable collective bargaining agreements and/or employment contracts” (Appeal of X.R.O., 60 Ed Dept Rep, Decision No. 17,904; see Education Law §§ 1709 (16) and (33), 3020, 3020-a; Civil Service Law § 75). As such, I decline to “sit as a super-personnel department” and second-guess respondent’s employment decisions (Ghent v. Moore, 324 Fed Appx 55, 57 [2d Cir 2009]; see also Dale v. Chicago Trib. Co., 797 F2d 458, 464 [7th Cir 1986]; cf. Appeal of Rickson, 62 Ed Dept Rep, Decision No. 18,211 [reviewing discontinuance of a teacher’s probationary appointment, which is authorized by Education Law § 3012]). However, petitioner’s claim of retaliation for filing a Dignity Act complaint is within my jurisdiction and addressed below.
The Dignity Act prohibits school districts and their employees from “tak[ing] ... retaliatory action against any such person” who “makes ... a report” alleging bullying or harassment (Education Law § 16). A claim of retaliation requires a petitioner to show that he or she: (1) engaged in protected activity; (2) was subjected to adverse action; and (3) causation (see generally Vega v Hempstead Union Free Sch. Dist., 801 F3d 72, 90 [2d Cir 2015]; Application of the Board of Educ. of the City Sch. Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147).
In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
Petitioner has not met his burden of proving causation between his Dignity Act complaint and his termination. The precipitating event underlying petitioner’s termination was his use of a district vehicle to salt his driveway.[2] There is no evidence that respondent’s assistant superintendent for personnel, who investigated this incident, was aware of petitioner’s Dignity Act complaint.[3] Based on the results of the assistant superintendent’s investigation, the superintendent recommended that the board terminate petitioner’s employment. As the assistant superintendent indicates, there is no evidence that the board member “discuss[ed] his personal history with [p]etitioner with any other board member, or otherwise attempt[ed] to influence their votes regarding Petitioner’s termination.” Thus, petitioner has failed to meet his burden of proving causation between his Dignity Act complaint and his termination.
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
[1] To the extent the petition could be construed as an application to remove the board member, it does not comply with the applicable procedural requirements (8 NYCRR 277.1 [b]; Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).
[2] Petitioner claims that he accidentally engaged the salter mechanism.
[3] In this respect, the assistant superintendent began her employment in 2025, two years after the Dignity Act determination at issue herein.
https://www.counsel.nysed.gov/Decisions/volume65/d18651
In seeking to dismiss an action brought under color of CPLR 3211(a)(5) the moving party must show that the controlling statute of limitations has expired.
In CPLR Article 78 seeking judicial review of a 2021 determination of the Town Board [Town] which had adopted the report and recommendation of a hearing officer finding the Petitioner guilty of 12 specifications of misconduct and incompetence, and terminated the Petitioner's employment as a police officer, Petitioner appealed a Supreme Court order and judgment granting the Town's motion to dismiss the Petitioner's Article 78 action as untimely and dismissed the proceeding. Petitioner appeal the Supreme Court's ruling.
The Appellate Division affirmed the Supreme Court's order and judgment, with costs, explaining:
1. "On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired;
2. "The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period; and
3. "Unless a shorter time is provided in the law authorizing the proceeding, a four-month statute of limitations is generally applicable to proceedings pursuant to CPLR Article 78".
In this instance, the Count's Police Act, as amended, stated that the review of a disciplinary "conviction of any member of such police force" shall be presented to the court "within sixty days after the conviction". The Appellate Division's decision, noted that the Town "had established, prima facie", that the instant proceeding was time-barred by showing that the petition was not filed within 60 days from the Town's final determination and Petitioner failed to raise a question of fact as to whether the proceeding was timely commenced," opined that "[I]t is well settled that an argument 'may not be raised for the first time before the courts in an article 78 proceeding".
Finding that Petitioner did not raise his contention that his disciplinary proceeding was not governed by the County Police Act until the Petitioner commenced this Article 78 proceeding, Supreme Court should not have considered that issue. However, the Appellate Division concluded that Supreme Court had properly granted the Town's motion pursuant to CPLR 3211(a)(5) and 7804(f) to dismiss the petition as time-barred and dismissed the proceeding.
Click HERE to access the Appellate Division's decision posted on the Internet.
| Village of Briarcliff Manor v Village of Ossining |
| 2025 NY Slip Op 06214 |
| Decided on November 12, 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. |
CHERYL E. CHAMBERS, J.P.
LINDA CHRISTOPHER
CARL J. LANDICINO
JAMES P. MCCORMACK, JJ.
2023-10208
(Index No. 68054/18)
v
Village of Ossining, et al., respondents, et al., defendant.
Keane & Beane, P.C., Melville, NY (Richard K. Zuckerman and Edward J. Phillips of counsel), for appellant.
Hodges Walsh & Burke, LLP, White Plains, NY (Paul E. Svensson and Michael Burke of counsel), for respondents.
DECISION & ORDER
In an action to recover payments made by the plaintiff to its injured employee pursuant to General Municipal Law § 207-c(6), the plaintiff appeals from an order of the Supreme Court, Westchester County (William J. Giacomo, J.), dated June 30, 2023. The order granted the motion of the defendants Village of Ossining and Juan Encarnacion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Village of Ossining and Juan Encarnacion for summary judgment dismissing the complaint insofar as asserted against them is denied.
In October 2016, Nicole Corsi, a Village of Briarcliff Manor police officer, allegedly was injured in the line of duty as a result of an accident that occurred when a vehicle operated by the defendant Nathaniel J. Hester crashed into the rear of her patrol vehicle while Hester was being pursued by the defendant Juan Encarnacion, a police officer employed by the defendant Village of Ossining, on Route 9 in the Village of Briarcliff Manor. The plaintiff commenced the instant action against, among others, the Village of Ossining and Encarnacion pursuant to General Municipal Law § 207-c(6) for the reimbursement of all salary, benefits, and expenses paid by the plaintiff to Corsi as a result of injuries she sustained in the line of duty due to the allegedly reckless or negligent conduct of the Village of Ossining and Encarnacion that took place during Encarnacion's pursuit of Hester and Hester's eventual crash into Corsi's vehicle. The Village of Ossining and Encarnacion moved for summary judgment dismissing the complaint insofar as asserted against them. By order dated June 30, 2023, the Supreme Court granted the motion. The plaintiff appeals.
"The manner in which a police officer operates his or her vehicle in responding to an emergency may form the basis of civil liability to an injured third party if the officer acted in reckless disregard for the safety of others" (S.L. v City of Yonkers, 208 AD3d 1321, 1322 [internal quotation marks omitted]). "The reckless disregard standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow" (id. at 1322-1323 [internal quotation [*2]marks omitted]; see Saarinen v Kerr, 84 NY2d 494, 501).
Here, the Village of Ossining and Encarnacion failed to eliminate all triable issues of fact as to whether Encarnacion acted with reckless disregard for the safety of others and whether such conduct was a proximate cause of Corsi's injuries (see Kolvenbach v Cunningham, 224 AD3d 826, 828; Miller v Suffolk County Police Dept., 105 AD3d 918, 919-920). In support of their motion, the Village of Ossining and Encarnacion submitted, among other things, transcripts of the deposition testimony of Encarnacion, Hester, and Corsi, who collectively testified that on the day at issue, Encarnacion pursued Hester at high speeds through residential and commercial roads and that Hester struck another vehicle and narrowly avoided striking pedestrians during the chase. Thus, contrary to the determination of the Supreme Court, there are triable issues of fact as to whether Encarnacion acted in reckless disregard for the safety of others in continuing the pursuit of Hester and whether Encarnacion's continuation of the pursuit was a proximate cause of the accident (see Kolvenbach v Cunningham, 224 AD3d at 828; Foster v Suffolk County Police Dept., 137 AD3d 855, 856).
Accordingly, the Supreme Court should have denied the motion of the Village of Ossining and Encarnacion for summary judgment dismissing the complaint insofar as asserted against them without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
CHAMBERS, J.P., CHRISTOPHER, LANDICINO and MCCORMACK, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_06214.htm
| Matter of Krein v Green Haven Corr. Facility |
| 2025 NY Slip Op 06238 |
| Decided on November 13, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-1994
v
Green Haven Correctional Facility et al., Respondents. Workers' Compensation Board, Respondent.
Before:Pritzker, J.P., Reynolds Fitzgerald, Ceresia, McShan and Powers, JJ.
Erwin McCane & Daly LLP, Albany (Kevin F. McCane of counsel), for appellant.
David F. Wertheim, State Insurance Fund, Albany (Kara A. Schifano of counsel), for Green Haven Correctional Facility and another, respondents.
Reynolds Fitzgerald, J.
Appeal from a decision of the Workers' Compensation Board, filed May 29, 2025, which ruled, among other things, that claimant was entitled to a 12.5% schedule loss of use of his right leg (knee) as a result of a March 2020 accident.
In 1999, claimant sustained a work-related injury to his right knee and, in October 2000, was awarded a 12.5% schedule loss of use (hereinafter SLU) of the right leg (knee). In 2003, claimant sustained another work-related injury to his right knee; however, no findings of permanency were rendered (and thus no SLU award made) as the medical records reflect that, by July 2003, his right knee "seem[ed] to be totally improved." In March 2020, claimant sustained an additional right knee injury, and the underlying workers' compensation claim in this matter was established. Following evaluations for permanency by claimant's treating physician and an independent medical examiner, as well as depositions of those physicians, a Workers' Compensation Law Judge (hereinafter WCLJ) found, among other things, that claimant had sustained a 25% SLU of the right leg with 2.5% related to the preexisting range of motion deficits from his 1999 injury, resulting in a 22.5% SLU of the right leg causally-related to the March 2020 accident. Upon administrative review, the employer and its workers' compensation carrier, the State Insurance Fund (hereinafter collectively referred to as the SIF), did not dispute the finding of a 25% SLU of the right leg but argued that it was entitled to an offset or reduction of that 25% SLU by the 12.5% SLU that claimant was awarded in 2000 for his prior work-related injury to his right knee, and the Workers' Compensation Board agreed. The Board reasoned that, under Matter of Genduso v New York City Dept. of Educ. (164 AD3d 1509 [3d Dept 2018]), "an SLU must always be reduced by the amount of any prior SLU to the same statutory member" and modified the decision of the WCLJ by awarding claimant a 12.5% SLU of the right leg (knee). Claimant appeals.
We reverse. "SLU awards are made to compensate for the loss of earning power or capacity that is presumed to result, as a matter of law, from permanent impairments to statutorily-enumerated body members" (Matter of Taher v Yiota Taxi, Inc., 162 AD3d 1288, 1289 [3d Dept 2018], lv dismissed 32 NY3d 1197 [2019]; see Workers' Compensation Law § 15 [3] [a]-[v]; Matter of Mancini v Office of Children & Family Servs., 32 NY3d 521, 526 n [2018]; Matter of Webster v Office of Children & Family Servs., 233 AD3d 1228, 1229 [3d Dept 2024]; Matter of Genduso v New York City Dept. of Educ., 164 AD3d at 1510). "Although a claimant may receive more than one SLU award for a loss of use of more than one member or parts of members, such SLU awards are nonetheless limited to only those statutorily-enumerated members listed in Workers' Compensation Law § 15 (3)" (Matter of Kromer v UPS Supply Chain Solutions, 206 AD3d 1413, 1414 [3d Dept 2022] [internal quotation marks and citations omitted[*2], emphasis added]). "Pursuant to Matter of Genduso and its progeny, the Board may offset an SLU award by previous SLU awards for the same body member, regardless of whether the prior injuries involved the same or separate parts of that member" (id. at 1415 [citations omitted]; see Matter of Webster v Office of Children & Family Servs., 233 AD3d at 1230; Matter of Germano v Dynamic Appliances, Inc., 231 AD3d 1394, 1396 [3d Dept 2024]).
The Court of Appeals has clarified, however, that successive and "separate SLU awards for different injuries to the same statutory member are contemplated by [Workers' Compensation Law §] 15 and, when a claimant proves that the second injury, 'considered by itself and not in conjunction with the previous disability,' has caused an increased loss of use, the claimant is entitled to an SLU award commensurate with that increased loss of use" (Matter of Johnson v City of New York, 38 NY3d 431, 436-437 [2022], quoting Workers' Compensation Law § 15 [7]; accord Matter of Webster v Office of Children & Family Servs., 233 AD3d at 1230; Matter of Kromer v UPS Supply Chain Solutions, 206 AD3d at 1415).[FN1] Thus, a claimant's entitlement to an additional SLU award for a successive injury to the same statutory member "turns upon the sufficiency of the medical proof adduced" (Matter of Webster v Office of Children & Family Servs., 233 AD3d at 1231; see Matter of Johnson v City of New York, 38 NY3d at 445). "Such demonstration may include medical evidence that a prior injury and the current injury to the same member are 'separate pathologies that each individually caused a particular amount of loss of use of [the subject member]' and that the current injury resulted in a greater degree of loss of use of the body member in question 'beyond that . . . [of] the prior injury' " (Matter of Germano v Dynamic Appliances, Inc., 231 AD3d at 1396, quoting Matter of Johnson v City of New York, 38 NY3d at 444, 445). In this regard, "whether a claimant is entitled to an SLU award and, if so, the resulting percentage are factual questions for the Board to resolve and, thus, the Board's determination will be upheld provided that it is supported by substantial evidence" (Matter of Kromer v UPS Supply Chain Solutions, 206 AD3d at 1416 [internal quotation marks, brackets and citations omitted]; see Matter of Ward v NYC Tr. Auth., 214 AD3d 1277, 1279 [3d Dept 2023]).
Here, the standard articulated and then applied by the Board, which relied solely upon Matter of Genduso v New York City Dept. of Educ. (164 AD3d at 1510), was that an SLU "must always be reduced by the amount of any prior SLU to the same statutory member" (emphasis supplied). The Board is not required to reduce or offset the SLU by the prior SLU where a "claimant demonstrates that a subsequent injury increased the loss of use of a body member beyond that resulting from the prior injury" (Matter of Johnson v City of New York, 38 NY3d at 444). Given that the Board's decision did not consider[*3], or otherwise ascertain the credibility of, the conflicting medical evidence that was before it — which included documentary and testimonial evidence from claimant's treating physician — regarding the extent to which claimant's injuries were "separate pathologies that each individually caused a particular amount of loss of use" of his right leg (id. at 445), the Board's finding of a 12.5% SLU of the right leg must be reversed and the matter remitted for further consideration by the Board in accordance with the holding in Matter of Johnson (see id. at 445-446; cf. Matter of Germano v Dynamic Appliances, Inc., 231 AD3d at 1396; Matter of Kromer v UPS Supply Chain Solutions, 206 AD3d at 1417). In light of our decision, it is unnecessary to address claimant's remaining contentions.
Pritzker, J.P., Ceresia, McShan and Powers, JJ., concur.
ORDERED that the decision is reversed, without costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.
Footnote 1: "In other words, Workers' Compensation Law § 15 (7) 'provides that a claimant may receive more than one SLU award in connection with successive injuries to the same statutory body member' — as long as the award for the successive injury is 'limited to the loss of earning power caused by [the second or successive] injury' " (Matter of Webster v Office of Children & Family Servs., 233 AD3d at 1230-1231, quoting Matter of Johnson v City of New York, 38 NY3d at 442, 443; see Matter of Kromer v UPS Supply Chain Solutions, 206 AD3d at 1415).
https://nycourts.gov/reporter/3dseries/2025/2025_06238.htm
| Matter of Audia v DiNapoli |
| 2025 NY Slip Op 06235 |
| Decided on November 13, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-1356
v
Thomas P. DiNapoli, as State Comptroller, Respondent.
Before:Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Ceresia, JJ.
Schwab & Gasparini, PLLC, White Plains (Warren J. Roth of counsel), for petitioner.
Letitia James, Attorney General, Albany (Sean P. Mix of counsel), for respondent.
Garry, P.J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's applications for accidental and performance of duty disability retirement benefits.
After taking a service retirement in January 2016, petitioner, a police officer, filed applications for accidental and performance of duty disability retirement benefits based upon an injury allegedly sustained in May 2013. At the time of the underlying incident, petitioner was operating his patrol vehicle during the early morning hours when a deer ran out in front of him, causing petitioner to slam on his brakes and swerve to avoid a collision, whereupon he felt a "popping" in his back. Petitioner's respective applications were denied upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363 and that petitioner was not permanently incapacitated from the performance of his duties. Following a hearing and redetermination, a Hearing Officer upheld the denials. Respondent adopted the Hearing Officer's findings and conclusions, prompting this CPLR article 78 proceeding.
"In connection with any application for accidental or performance of duty disability retirement benefits, the applicant bears the burden of proving that he or she is permanently incapacitated from the performance of his or her job duties" (Matter of Hannon v DiNapoli, 226 AD3d 1122, 1123 [3d Dept 2024] [internal quotation marks and citations omitted]; see Retirement and Social Security Law §§ 363 [a] [1]; 363-c [b] [1]; Matter of Verille v Gardner, 177 AD3d 1068, 1069 [3d Dept 2019]). "Where, as here, there is conflicting medical evidence, respondent is vested with the exclusive authority to weigh such evidence and credit the opinion of one medical expert over another, and our review of respondent's determination is limited to ascertaining whether it is supported by substantial evidence" (Matter of Mozdziak v DiNapoli, 231 AD3d 1215, 1216 [3d Dept 2024] [internal quotation marks, brackets and citations omitted]; see Matter of Stefanik v Gardner, 236 AD3d 75, 78 [3d Dept 2025]; Matter of Romano v DiNapoli, 228 AD3d 1195, 1196 [3d Dept 2024]).
Petitioner testified that, following the May 2013 incident, he was out of work for two weeks, during which time he sought treatment from an orthopedic surgeon. According to petitioner, he was treated conservatively with physical therapy and anti-inflammatory medications and thereafter resumed his full duties as a patrol officer, which he continued until September 2015.[FN1] Petitioner moved out of state in mid-2016 and did not seek further treatment. The orthopedic surgeon who treated petitioner between 2013 and 2016 testified that petitioner "probably" would be unable to perform the exertional duties of a police officer due to the May 2013 incident and, therefore, was permanently disabled. A conflicting opinion was [*2]offered by the physician who evaluated petitioner on behalf of the New York State and Local Police and Fire Retirement System. The consulting orthopedist opined that, although petitioner suffered from preexisting multilevel degenerative disc disease, such condition was unrelated to the May 2013 incident and "in remission," such that, "from an orthopedic point of view, . . . there were no restrictions on [petitioner's] activities of daily living or work activity as a police officer." Accordingly, the consulting physician concluded that petitioner was not permanently incapacitated from the performance of his duties.
"[A]s the opinion of the Retirement System's expert was a rational fact-based opinion formed upon a physical examination of petitioner and a review of pertinent medical records, respondent was free to credit such opinion over that of petitioner's treating physician" (Matter of Mozdziak v DiNapoli, 231 AD3d at 1217 [internal quotation marks and citations omitted]). Thus, even assuming, without deciding, that the subject incident was an accident within the meaning of the Retirement and Social Security Law (see generally Matter of Bodenmiller v DiNapoli, 43 NY3d 43, 46-47 [2024]), substantial evidence supports respondent's finding that petitioner was not permanently incapacitated from the performance of his duties as a police officer and therefore not entitled to either accidental or performance of duty disability retirement benefits.
Clark, Aarons, Reynolds Fitzgerald and Ceresia, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Footnote 1: Petitioner apparently again injured his back in 2015, while jumping over a wall.
https://nycourts.gov/reporter/3dseries/2025/2025_06235.htm
| Matter of Pandolfi v Plainedge Union Free Sch. Dist. |
| 2025 NY Slip Op 06372 |
| Decided on November 20, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-1068
v
Plainedge Union Free School District et al., Respondents. Workers' Compensation Board, Respondent. Grey & Grey, LLP, Appellant.
Before:Clark, J.P., Pritzker, Lynch, Powers and Mackey, JJ.
Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), for appellant.
Lynn Pandolfi, Lake Ronkonkoma, respondent pro se.
Letitia James, Attorney General, New York City (Nina M. Sas of counsel), for Workers' Compensation Board, respondent.
Powers, J.
Appeal from a decision of the Workers' Compensation Board, filed May 24, 2024, which denied counsel's application for an award of counsel fees.
In October 2017, claimant sustained injuries in the course of her employment and applied for workers' compensation benefits. In April 2018, claimant retained counsel to represent her in the claim, and the claim was established in May 2018.[FN1] Soon after, claimant began expressing dissatisfaction with counsel's representation and disagreement with counsel's legal strategy in several letters to the Workers' Compensation Board spanning from May 2018 to May 2022. In May 2022, counsel notified claimant that their relationship had become irreparable and that it was requesting to be relieved of the representation by the Board. On May 16, 2022, a Workers' Compensation Law Judge (hereinafter WCLJ) held counsel's request to be relieved in abeyance, pending claimant's attempts to obtain new counsel. Claimant appealed that decision to the Board, arguing that counsel should not be relieved, and counsel opposed. In a decision filed October 3, 2022, the Board relieved counsel of its obligation to represent claimant, concluding that counsel "ha[d] represented the claimant in a manner which demonstrated that the claimant was not prejudiced by [counsel's] actions and that there truly ha[d] been a breakdown in communications." On October 7, 2022, counsel filed a fee application listing services rendered.
The claim proceeded without claimant obtaining new representation and the WCLJ ultimately determined that claimant's awards after January 8, 2019 be continued at a temporary partial disability rate. The WCLJ also denied counsel's application for counsel fees, indicating that, as a policy, the Board "generally frowns on fees to attorneys when the claimant is unrepresented thereafter." Counsel appealed and the Board modified the WCLJ's decision, finding that counsel was not statutorily entitled to counsel fees pursuant to Workers' Compensation Law § 24 (3). Counsel appeals.
"Given that the issue before this Court is one of statutory interpretation, deference need not be accorded to the Board's interpretation, and we are free to ascertain the proper interpretation from the statutory language and legislative intent" (Matter of Minichiello v New York City Dept. of Homeless Servs., 188 AD3d 1401, 1402 [3d Dept 2020] [internal quotation marks and citations omitted]). "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (Matter of Mancini v Office of Children & Family Servs., 32 NY3d 521, 525 [2018] [internal quotation marks and citation omitted]; accord Matter of Minichiello v New York City Dept. of Homeless Servs., 188 AD3d at 1402).
Contrary to the Board's interpretation, we find no intent by the Legislature in enacting Workers' Compensation Law § 24 (3) to preclude an award of counsel [*2]fees to a prior attorney who has been relieved of representation without subsequent counsel being retained. Workers' Compensation Law § 24 (as amended by L 2021, ch 824, § 1) governs the amount and manner in which attorneys are compensated for their representation of claimants and provides, as relevant here, that "[i]f a prior attorney has been substituted in a manner prescribed by the [B]oard, and has submitted a fee request, the [B]oard shall determine the amount of fees allocated to any prior attorney out of the total fees awarded" (Workers' Compensation Law § 24 [3]). Based upon our reading of Workers' Compensation Law § 24 (3), the intent of the Legislature in this subsection was to address the impact on a claimant when an attorney representing him or her is substituted for another and both attorneys are requesting fees for their respective representation. The statute protects claimants in that, "[i]f there has been an approved substitution of attorney during the representation of the claimant[,] a request from the substituted attorney for a fee, if granted, will not increase the fee but will be paid out of the total fees awarded" (Martin Minkowitz, 2025 Supp Prac Commentaries, McKinney's Cons Laws of NY, Workers' Compensation Law § 24). The statute does not address situations where, as here, a prior attorney has been relieved of representation and there has been no substitution. In such situations, Workers' Compensation Law § 24 (3) is not necessary, as claimant would not be exposed to increased fees as any fees awarded to the prior attorney would presumably constitute the total fees awarded. Rather, the Board should determine any fee awards for a prior attorney who is not substituted for "in an amount commensurate with the services rendered and the amount of compensation awarded, having due regard for the financial state of the claimant" (Workers' Compensation Law § 24 [2]). As we find no language in Workers' Compensation Law § 24 that would evidence an intent by the Legislature to foreclose an unsubstituted for prior attorney from being granted counsel fees, the Board's decision is reversed, and the matter is remitted to the Board to consider counsel's fee application.
Clark, J.P., Pritzker, Lynch and Mackey, JJ., concur.
ORDERED that the decision is reversed, without costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.
Footnote 1: Awards to claimant were held in abeyance in January 2019.
23-7567 Lilly v. Hall UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of November, two thousand twenty-five. PRESENT: AMALYA L. KEARSE, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ______________________________________ EDWARD LILLY, Plaintiff-Appellee, v. No. 23-7567 BRANDON M. HALL, Defendant-Appellant, CRISTOPHER P. SALADA, LEWISTON POLICE DEPARTMENT, TOWN OF LEWISTON, 2 Defendants. _______________________________________ For Defendant-Appellant: Jenna W. Klucsik, Sugarman Law Firm, LLP, Syracuse, NY. For Plaintiff-Appellee: Edward Lilly, pro se, Lewiston, NY. Appeal from an order of the United States District Court for the Western District of New York (Lawrence J. Vilardo, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal is DISMISSED for lack of jurisdiction. Brandon Hall, an officer with the Lewiston, New York Police Department, appeals from an order of the district court denying his motion for summary judgment based on qualified immunity as to plaintiff Edward Lilly’s claim for First Amendment retaliation brought pursuant to 42 U.S.C. § 1983. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. On March 24, 2013, Hall issued Lilly a ticket for failing to have a front license plate on his car in violation of New York Vehicle & Traffic Law § 402(1). The parties dispute the reason for the stop and what ensued afterwards. According 3 to Lilly, there was no basis for Hall to stop his car, which did have a front license plate; Lilly instead maintains that Hall stopped and ticketed him in retaliation for his critical remarks concerning the state police that were published in local newspaper articles in January 2013. Indeed, Lilly asserts that he overheard Hall and his fellow officers at the scene saying that they needed to “teach [Lilly] a lesson” for criticizing the police in the articles. App’x at 100. For his part, Hall avers that Lilly’s car was in fact missing a front license plate and that, prior to the stop, he did not know anything about Lilly or his involvement in the newspaper articles. The district attorney ultimately declined to prosecute Lilly, leading to the dismissal of the ticket. On March 23, 2016, Lilly initiated this suit, alleging, as relevant here, that Hall infringed on his civil rights in violation of section 1983 and seeking compensatory and punitive damages. The district court later dismissed all but Lilly’s First Amendment retaliation claim against Hall. After the conclusion of fact discovery, Hall moved for summary judgment, arguing both that the undisputed facts warranted judgment in his favor and that, in any event, he was entitled to qualified immunity because his actions did not violate clearly established law. The district court denied that motion, and Hall timely appealed. 4 “Although neither party expressly argues that we lack appellate jurisdiction to hear this appeal, we have an independent obligation to consider the presence or absence of subject matter jurisdiction nostra sponte.” Franco v. Gunsalus, 972 F.3d 170, 174 (2d Cir. 2020) (alterations accepted and internal quotation marks omitted). An appellate court lacks jurisdiction to review a district court’s denial of qualified immunity where “there remains a genuine factual dispute.” Id. (citing Reyes v. Fischer, 934 F.3d 97, 106–07 (2d Cir. 2019)). Here, the parties’ submissions reflect continuing factual disputes over whether the ticket Hall issued was supported by probable cause and whether it was issued for a retaliatory purpose. Compare Hall Br. at 8–9 (“Officer Hall testified that he effectuated the traffic stop because when he passed a blue Toyota driving in the opposite direction, that vehicle did not have a front license plate” (emphasis added)), and id. at 9 (“The plaintiff testified that the blue Toyota he was driving did have a front license plate” (emphasis added)), with Lilly Br. at 6 (“Defendant concedes there is a dispute over whether plaintiff had a front license plate”); see also Mangino v. Inc. Vill. of Patchogue, 808 F.3d 951, 956 (2d Cir. 2015) (explaining that the existence of probable cause effectively negates “retaliatory motive” in a First Amendment retaliatory prosecution claim).1 1 Judge Sullivan believes that we have jurisdiction to hear this appeal because Hall’s arguments 5 Because “[f]actual questions that are crucial to the disposition of the defendant[’s] qualified immunity defense remain” – namely, whether the relevant ticket was issued in the absence of probable cause – we must dismiss Hall’s appeal for lack of jurisdiction. Reyes, 934 F.3d at 106; Brown v. Halpin, 885 F.3d 111, 117 (2d Cir. 2018) (“If a factual determination is a necessary predicate to the resolution of whether immunity is a bar, review is postponed and we dismiss the appeal.” (alteration accepted) (quoting State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 82 (2d Cir. 2007))). are premised on an assumption of Lilly’s “version of the facts.” Hall Br. at 1, 12, 14. He nevertheless would affirm the district court’s denial of summary judgment because “every reasonable official would have understood that” charging a baseless traffic offense in the absence of an actual violation to punish an individual for his protected speech was prohibited. Reichle v. Howards, 566 U.S. 658, 664 (2012) (alterations accepted and internal quotation marks omitted); see also Hartman v. Moore, 547 U.S. 250, 256 (2006) (“[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.”); Dobosz v. Walsh, 892 F.2d 1135, 1141 (2d Cir. 1989) (“[T]he proscription of retaliation for a plaintiff’s exercise of First Amendment rights has long been established.”). Judges Kearse and Chin are of the view that Hall has not accepted Lilly’s version of the facts for purposes of this appeal. 6 * * * We have considered Hall’s remaining arguments and find them to be without merit. Accordingly, we DISMISS Hall’s appeal for lack of jurisdiction. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
https://ww3.ca2.uscourts.gov/decisions/isysquery/efcde7bc-b923-460a-a9de-4a77f1074d11/1/doc/23-7567_so.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/efcde7bc-b923-460a-a9de-4a77f1074d11/1/hilite/
24-2589-cv Allen et al. v. City of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of November, two thousand twenty-five. PRESENT: DENNY CHIN, EUNICE C. LEE, BETH ROBINSON, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x CLARENCE BOWEN ALLEN, on behalf of themselves and on behalf of all other similarly situated individuals, BRENDA BERMAN, on behalf of themselves and on behalf of all other similarly situated individuals, ANNETTE BIRDSONG, on behalf of themselves and on behalf of all other similarly situated individuals, WILLIAM HENRY, on behalf of themselves and on behalf of all other similarly situated individuals, JOSE JACOB, on behalf of themselves and on behalf of all other similarly situated individuals, JACQUELINE KING, on behalf of themselves and on behalf of all other similarly situated individuals, SUSAN LAMONICA, on behalf of themselves and on behalf of all other similarly situated individuals, JEAN PHIPPS, on behalf of themselves and on behalf of all other similarly situated individuals, ROSLYN PRESS, on behalf of themselves and on behalf of all other similarly situated individuals, HERBERT RICHARDSON, on behalf of themselves and on behalf of all other similarly situated individuals, VIRGINIA TUFARO, on behalf of themselves and on behalf of all other similarly situated individuals, 2 Plaintiffs-Appellants, -v- 24-2589-cv CITY OF NEW YORK, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendants-Appellees, JACOBI MEDICAL CENTER, Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x FOR PLAINTIFFS-APPELLANTS: ERICA T. HEALEY-KAGAN, Filippatos PLLC, New York, New York. FOR DEFENDANTS-APPELLEES: RICHARD DEARING (Claude S. Patton, Geoffrey E. Curfman, on the brief), for Muriel Goode-Trufant, Corporation Counsel of the City of New York, New York, New York. Appeal from the United States District Court for the Southern District of New York (Furman, J.). UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiffs-Appellants, eleven former employees of a public hospital operated by Defendants-Appellees New York City and the New York City Health and Hospitals Corporation (together, "H&H"), appeal from the district court's judgment entered August 29, 2024 granting summary judgment to H&H on their claims of race and age-based employment discrimination. Plaintiffs worked at Jacobi Medical Center 3 ("Jacobi"), an acute care facility managed by H&H. As part of an H&H-wide costcutting program, Jacobi underwent two rounds of "Managerial Efficiency Improvement Initiatives" ("MEIIs") in February and June 2017 that resulted in the elimination of a combined 45 positions -- 25 of which were held by non-White employees, and 43 of which were held by employees over the age of 40. Plaintiffs brought race- and agebased disparate impact and treatment claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; 42 U.S.C. § 1983; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107. The district court granted summary judgment for H&H on the federal claims. It then exercised supplemental jurisdiction over and dismissed on the merits the disparate impact claims under the NYSHRL and NYCHRL, and the disparate treatment claim under the NYSHRL. It declined to exercise supplemental jurisdiction over and instead dismissed the sole remaining discrimination claim, disparate treatment under the NYCHRL, without prejudice to refiling in state court.1 On appeal, Plaintiffs do not challenge the district court's summary judgment rulings as to their federal claims. See Appellants' Br. 2-3. Indeed, they have 1 The district court also dismissed the breach of contract claim without prejudice, reasoning that there was no federal analog. 4 failed to address the federal claims in their briefing on appeal, and thus those claims have been abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995). Plaintiffs instead challenge both the district court's decision to exercise supplemental jurisdiction over three of the four remaining state and city law claims, and its rulings on the merits of those claims. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We first address whether the district court abused its discretion in exercising supplemental jurisdiction over Plaintiffs' disparate impact claims under the NYSHRL and NYCHRL, and their disparate treatment claim under the NYSHRL. Concluding that it did not, we proceed to discuss whether the district court erred in its summary judgment rulings on the state and city disparate impact claims, followed by its ruling on the state disparate treatment claim. I. Supplemental Jurisdiction A district court may decline to exercise supplemental jurisdiction over pendent state law claims if it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). When deciding whether to exercise jurisdiction over pendent state law claims, courts weigh the factors of "judicial economy, convenience, fairness, and comity." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988), abrogated on other grounds by Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 39-41 (2025). 5 "[W]hen all federal claims are eliminated in the early stages of litigation, the balance of factors generally favors declining to exercise pendent jurisdiction over remaining state law claims . . . ." Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 103 (2d Cir. 1998) (citing Cohill, 484 U.S. at 350). We have upheld a district court's exercise of supplemental jurisdiction, however, when the federal claims were dismissed after proceedings were well underway, and where the pendent claims involved only settled legal principles, rather than novel state-law questions. See, e.g., Raucci v. Town of Rotterdam, 902 F.2d 1050, 1054-55 (2d Cir. 1990). We review a district court's exercise of supplemental jurisdiction for abuse of discretion. Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006). We conclude that the district court did not abuse its discretion in exercising supplemental jurisdiction over the NYSHRL and NYCHRL disparate impact claims and the NYSHRL disparate treatment claim. Because, as discussed below, the NYSHRL and NYCHRL standards at issue either mirror or overlap with the standards of their federal counterparts, the district court's adjudication of these state and city law claims involved only well-settled principles of anti-discrimination law and did not raise any substantial comity concerns. See Cohill, 484 U.S. at 350; see also Nowak v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1191-92 (2d Cir. 1996). Moreover, the district court's decision to exercise supplemental jurisdiction served the interests of judicial economy, because proceedings were well underway and discovery had already been completed in 6 what was then already a five-year-old litigation. See id.; Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014). Accordingly, we hold that the district court did not abuse its discretion in exercising jurisdiction over this set of NYSHRL and NYCHRL claims after dismissing the federal claims at the summary judgment stage. II. Disparate Impact 1. NYSHRL Plaintiffs have abandoned their federal law claims on appeal, and we thus do not decide the propriety of the district court's rulings on those claims. Because the standards governing the federal and analogous state claims are parallel, however, we will consider the district court's reasoning as to the federal claims for purposes of reviewing its rulings on the state claims. Disparate impact claims under Title VII and the ADEA are analyzed under a three-part burden-shifting analysis. Plaintiffs must first make out a prima facie case of discrimination by identifying a specific employment practice or policy, demonstrating that a disparity exists, and establishing a causal relationship between the two. Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 151 (2d Cir. 2012) (Title VII); Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir. 1980) (ADEA). Plaintiffs bear the burden of "isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Watson v. Forth Worth Bank & Tr., 487 U.S. 977, 994 (1998). If step one is met, the burden shifts to the employer to 7 undermine the causal analysis or mount a business necessity defense. Id. at 997-98. If the employer establishes that its actions served a business necessity, the burden shifts back to Plaintiffs to show that other non-discriminatory methods exist to meet the employer's legitimate business interest. Id. at 998. The district court found that Plaintiffs had not raised triable issues of fact as to their federal disparate impact claims because they had not isolated or identified a specific employment practice responsible for the race- and age-based disparities. See Chin, 685 F.3d at 154 (noting that, to sustain a disparate impact claim, Plaintiffs must "identify a specific discriminatory employment practice"). The two MEIIs involved different sets of Jacobi department heads independently identifying positions for elimination, and the second MEII, unlike the first MEII, incorporated reduction targets and standardized tables of reorganization provided by H&H. Whether we consider the MEIIs together or in isolation, Plaintiffs have not specified which part of the MEII decision-making process or criteria resulted in the disparate effects. See Smith v. City of Jackson, 544 U.S. 228, 241 (2005) ("[I]t is not enough to . . . point to a generalized policy that leads to [disparate] impact."). Plaintiffs' argument that Jacobi had a practice of excluding Group 12 employees from the layoffs also does not raise a factual dispute for trial, because, as the district court recognized, Plaintiffs have not pointed to any expert analysis or evidence that this distinction led to a disparate effect based on race or age. See Gulino v. N.Y. State Educ. Dep't, 460 F.3d 361, 382 (2d Cir. 2006). 8 Plaintiffs' disparate impact claim under the NYSHRL is subject to the same federal standards, and so fails for the same reasons. Although the NYSHRL was amended in 2019,2 Plaintiffs' claims accrued in 2017 and are thus governed by the preamendment standards. Alshami v. City Univ. of New York, 162 N.Y.S.3d 720, 720 n.1 (1st Dep't 2022). Under the pre-amendment regime, this Court has repeatedly held that discrimination claims under the NYSHRL are analyzed under the same framework as corresponding Title VII and ADEA claims. See Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (Title VII); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (ADEA). We are not persuaded by Plaintiffs' argument that the legal standards governing the NYSHRL and ADEA are different because the former protects employees over the age of 18, while the latter only protects those over 40. The fact that two statutes protect somewhat different categories of persons does not affect whether claims brought under them are assessed under the same legal standard. See Abdu-Brisson, 239 F.3d at 466 ("Although there are differences between the [NYSHRL] . . . and the 2 In August 2019, the New York State Legislature passed an amendment to the NYSHRL stating, in part, that the law's provisions "shall be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws including those laws with provisions worded comparably to the provisions of [the NYSHRL] have been so construed." N.Y. Exec. Law § 300 (McKinney 2019). The 2019 amendment has been interpreted to align prospective constructions of the NYSHRL's standards with the more lenient standards of the NYCHRL. See Wright v. White Plains Hosp. Med. Ctr., 232 N.Y.S.3d 594, 595-96 (2d Dep't 2025). 9 [ADEA], age discrimination suits brought under the [NYSHRL] . . . are subject to the same analysis as claims brought under the ADEA." (citation modified)). And the mismatch in the categories of individuals protected by the respective laws does not have any bearing on the pivotal issues in this case. Accordingly, Plaintiffs' federal and NYSHRL disparate impact claims rise and, in this case, fall together. On the merits, we conclude that Plaintiffs have not raised any triable issues of fact as to their prima facie case. Accordingly, the district court did not err in granting summary judgment for H&H on the NYSHRL disparate impact claim. 2. NYCHRL The NYCHRL prohibits policies or practices that, individually or in combination, "result[] in a disparate impact to the detriment of any group protected" by the NYCHRL. N.Y.C. Admin. Code § 8-107(17)(a)(1). NYCHRL claims must be analyzed "separately and independently" from federal and state claims under a more liberal standard. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). Under the NYCHRL, Plaintiffs must show that a "policy or practice" or "group of policies or practices" of an employer "results in a disparate impact to the detriment of any group protected." N.Y.C. Admin. Code, § 8-107(17)(a)(1). If the plaintiff shows "that a group of policies or practices results in a disparate impact," the plaintiff need not "demonstrate which specific policies or practices within the group results in such disparate impact." Id. § 8-107(17)(a)(2). An employer may "plead and 10 prove as an affirmative defense that each such policy or practice bears a significant relationship to a significant business objective" or "does not contribute to the disparate impact." Id. Plaintiffs may rebut a business objective defense if they produce "substantial evidence that an alternative policy or practice with less disparate impact is available" and when the employer fails to show that the alternative "would not serve [it] as well." Id. We need not decide whether the disparate impact under NYCHRL mirrors the federal analysis outlined above, nor whether Plaintiffs have identified a "policy or practice" or "group of policies or practices" that result in a disparate impact for purposes of the NYCHRL, because we conclude that H&H has shown that the MEIIs served a "significant business objective," and Plaintiffs have failed to produce substantial evidence that an alternative policy or practice with less disparate impact is available. Id. H&H undertook the MEIIs in response to a significant budget shortfall and anticipated an estimated $1.8 billion operating loss for fiscal year 2020. In the fiscal year of the layoffs, H&H sought to save $55 million through a workforce reduction of approximately 1,000 full-time employees, and to do so by focusing its layoffs on managerial positions that could be consolidated. H&H can thus show that it had a significant business objective for the MEIIs. 11 We reject Plaintiffs' argument that H&H is precluded from asserting this business necessity defense because the layoffs violated the state Civil Service Law. Plaintiffs did not introduce any evidence that the jobs impacted by the layoffs were civil service positions, and defendants put forward evidence indicating they were not. In addition, the New York Court of Appeals has held that the requirements of the Civil Service Law do "not apply to 'Group 11' or managerial employees" of New York City Health and Hospital Corporation. Burns v. Quinones, 68 N.Y.2d 719, 721 (1986). So we need not evaluate the merits of Plaintiffs' argument that non-compliance with applicable civil service laws precludes H&H’s "significant business objective" defense, because the premise of that argument -- that the layoffs violated civil service laws -- is unsupported. To rebut H&H's defense, Plaintiffs must "produce[] substantial evidence that an alternative policy or practice with less disparate impact is available." N.Y.C. Admin. Code § 8-107(a)(2). Plaintiffs have not done so. Accordingly, we hold that the district court did not err in granting summary judgment for H&H on Plaintiffs' NYCHRL disparate impact claim. III. Disparate Treatment Plaintiffs' disparate treatment claims brought under the NYSHRL are subject to the same standard as analogous claims brought under Title VII or the ADEA. See Patane, 508 F.3d at 113; Abdu-Brisson, 239 F.3d at 466. Both federal and NYSHRL 12 disparate treatment claims are governed at the summary judgment stage by the threepart "burden-shifting analysis first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)." Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (citation modified). Under that test, "a plaintiff first bears the minimal burden of setting out a prima facie discrimination case, and is then aided by a presumption of discrimination unless the defendant proffers a legitimate, nondiscriminatory reason for the adverse employment action, in which event, the presumption evaporates and the plaintiff must prove that the employer's proffered reason was a pretext for discrimination." McPherson v. N.Y.C. Dep't of Educ., 457 F.3d 211, 215 (2d Cir. 2006) (citation modified). The ages and races of those terminated could suggest disparate treatment. However, Plaintiffs did not introduce evidence of the age or racial composition of any similarly situated comparator groups for purposes of statistical analysis, nor did they introduce any admissible statements raising an inference of discrimination. Plaintiffs also fail to meaningfully engage with any part of the district court's analysis on appeal, and instead only insist in conclusory fashion that we review the district court's decision de novo. See Appellants' Br. at 13-15. Plaintiffs do not point to any concrete evidence of discrimination other than the bare ages and racial composition of those whose positions were eliminated. Moreover, Plaintiffs put forward no evidence to show that H&H’s showing of their business need to cut positions for budgetary reasons is pretextual. See Woroski v. Nashua Corp., 31 F.3d 105, 109-10 ("[S]ome evidence [of bias] is not sufficient to 13 withstand a properly supported motion for summary judgment. . . ."), abrogated on other grounds by Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000). Accordingly, we conclude that the district court did not err in granting summary judgment for H&H on the NYSHRL disparate treatment claim. * * * We have considered Plaintiffs' remaining arguments and conclude they are without merit. For the foregoing reasons, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O'Hagan Wolfe, Clerk
24-1747-pr Josey v. Bell, et al., UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of November, two thousand twenty-five. PRESENT: AMALYA L. KEARSE, DENNIS JACOBS, MARIA ARAÚJO KAHN, Circuit Judges. __________________________________________ DEREK JOSEY, Plaintiff-Appellant, v. No. 24-1747-pr CORRECTIONAL OFFICER BELL, CLINTON CORRECTIONAL FACILITY, CORRECTIONAL OFFICER TUCKER, CLINTON CORRECTIONAL FACILITY, SGT. JOHN DOE, CLINTON CORRECTIONAL FACILITY, Defendants-Appellees, 2 SUPERINTENDENT BELL, SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, Defendant. * ___________________________________________ FOR PLAINTIFF-APPELLANT: AARON M. GOLDSMITH, Law Office of Aaron M. Goldsmith, PC, New York, NY. FOR DEFENDANTS-APPELLEES: PATRICK A. WOODS (Barbara D. Underwood and Andrea Oser, on the brief) Assistant Solicitor General of Counsel, Solicitor General, and Deputy Solicitor General for Letitia James, Attorney General, State of New York. Appeal from a judgment of the United States District Court for the Northern District of New York (Brenda K. Sannes, Ch. J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on June 13, 2024 is AFFIRMED. Plaintiff-Appellant Derek Josey (“Josey”) was transferred to the Clinton Correctional Facility in December of 2017 and was in the custody of the New York State Department of Corrections and Community Supervision (“DCCS”) during all relevant time periods. Josey alleges that, for a period between May 16 and June 5, 2018, Defendants-Appellees DCCS Officers Dustin Bell and Jeremy Tucker as well as a Sergeant * The Clerk of Court is respectfully directed to amend the case caption as indicated above. 3 John Doe improperly denied him access to religious services and activities during Ramadan. Josey alleges that he filed two grievances regarding this denial, but that he received no response until he wrote to the DCCS central grievance office and was informed there were no records of such complaints. In their answer to Josey’s federal court complaint under 42 U.S.C. § 1983, Defendants-Appellees asserted Josey’s failure to exhaust his administrative remedies as an affirmative defense. Following an evidentiary hearing on the exhaustion issue, the district court granted Defendants-Appellees’ motion for summary judgment. The district court did not credit Josey’s testimony that he exhausted his administrative remedies by filing the grievances. Josey now argues that the district court erred in granting summary judgment and should have excused his failure to exhaust administrative remedies because the grievance process was unavailable to him. We assume the parties’ familiarity with the remaining facts, the procedural history, and the issues on appeal, to which we refer only as necessary to explain our decision. We review a district court’s grant of summary judgment de novo. Banks v. Gen. Motors, LLC, 81 F.4th 242, 258 (2d Cir. 2023). We review the district court’s findings of fact for clear error where, as here, the evidentiary hearing on the exhaustion issue “was the functional equivalent of a bench trial.” Clark v. Hanley, 89 F.4th 78, 93, 104 (2d Cir. 2023); see also Ceraso v. Motiva Enters., 326 F.3d 303, 316 (2d Cir. 2003) (“In reviewing findings for clear error, we are not allowed to second-guess either the trial court’s 4 credibility assessments or its choice between permissible competing inferences.”). Summary judgment is proper only if no “reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Prison Litigation Reform Act provides that incarcerated persons must exhaust available administrative procedures prior to suing under federal law. 42 U.S.C. § 1997e(a). Unexhausted claims may not be brought in court. Jones v. Bock, 549 U.S. 199, 211 (2007). The sole “textual exception” to mandatory exhaustion is for the actual unavailability of administrative remedies. Ross v. Blake, 578 U.S. 632, 642 (2016). An administrative remedy is unavailable when: 1) “it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; 2) it is ”so opaque that it becomes, practically speaking, incapable of use”; or, as Josey argues, 3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 643-44. Where, as here, defendants establish that a grievance process exists and applies, Josey bears the burden to demonstrate that the process was unavailable to him as a matter of fact. Hubbs v. Suffolk Cnty. Sheriff’s Dept., 788 F.3d 54, 59 (2d Cir. 2015). The district court did not clearly err in not crediting Josey’s testimony that he filed two grievances related to his claim of denial of access to religious services. See Fed. R. Civ. P. 52(a)(6) (“[T]he reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.”). Where the district court’s findings are 5 premised on credibility determinations, “we grant particularly strong deference to those findings.” United States v. Mendez, 315 F.3d 132, 135 (2d Cir. 2002). Although Josey testified that he had filed May 24, 2018 and June 5, 2018 grievances by placing them in the locked mailbox at the Clinton facility, the district court found that testimony not credible. The court credited testimony from Clinton officers or administrators as to how such prisoner mailings are handled, and it noted evidence that other Josey complaints were received by the grievance review committee. The court found that Josey had not filed the claimed May 24 and June 5 grievances, given the evidence that “he did file three grievances later in June that ma[d]e no mention of his Ramadan claims or the fact that he had grievances that were not being acted upon.” App’x at 307. The court added that its view would not be changed by the existence of carbon copies because “carbon copies could really be created at any time.” Id. at 308. Josey also failed to establish that the designated administrative remedies were otherwise unavailable to him. We reject Josey’s claim that he should not be required to exhaust his administrative remedies because Ramadan had ended by the time he learned there was no record of his grievances. Ramadan is an annual holiday, and Josey could have sought affirmative future guarantees of his ability to observe it through the grievance process. See N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(3)(ii) (contemplating institutional policy changes as remedies). Josey’s federal court complaint seeks monetary damages that are independent of Ramadan’s timing. Even where a petitioner seeks only money damages 6 and the grievance process does not provide for them, the Supreme Court has required administrative exhaustion because the grievance tribunal had the authority to take responsive action. Booth v. Churner, 532 U.S. 731, 741 (2001) (the exhaustion requirement applies “regardless of the relief offered through administrative procedures”). The grievance tribunals in New York are authorized to grant remedies beyond money damages. See N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.5(a)(2), (b)(3)(ii). As such, even if Josey sought only monetary relief after Ramadan concluded, he was still required to have exhausted his administrative remedies. * * * We have considered all of Josey’s contentions on this appeal and have found them to be without merit. For the reasons set forth above, the judgment of the district court is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
Attorney sanctioned after including AI generated hallucinations in material submitted to the court
New York State Justice Joel M. Cohen introduced his decision in the instant matter as follows: "This case adds yet another unfortunate chapter to the story of artificial intelligence misuse in the legal profession. Here, Defendants' counsel not only included an AI-hallucinated citation and quotations in the summary judgment brief that led to the filing of this motion for sanctions, but also included multiple new AI-hallucinated citations and quotations in Defendants' brief opposing this motion. In other words, counsel relied upon unvetted AI—in his telling, via inadequately supervised colleagues—to defend his use of unvetted AI."
Justice Cohen opined that the use of AI is not the problem per se, the problem arises "when attorneys abdicate their responsibility to ensure their factual and legal representations to the Court—even if originally sourced from AI—are accurate". In the words of the Court, "When attorneys fail to check their work—whether AI-generated or not—they prejudice their clients and do a disservice to the Court and the profession. In sum, counsel's duty of candor to the Court cannot be delegated to a software program".
Justice Cohen then:
"ORDERED that Plaintiff's motion for sanctions pursuant to 22 NYCRR § 130-1.1 is GRANTED, such that Defendants and their counsel are jointly and severally liable to compensate Plaintiff for her reasonable costs and attorney's fees incurred in connection with this [*4]motion, together with fees and costs attributable to addressing Defendants' unvetted AI citations and quotations in the summary judgment motion;
"ORDERED that Plaintiff shall submit an application with supporting documentation for the fees awarded above within fourteen (14) days of the date of this order; Defendants and their counsel may submit opposition thereto within fourteen (14) days of Plaintiff's application. Plaintiff shall notify the Court via letter filing on NYSCEF and by email when the application is complete and whether it is opposed or unopposed; and
"ORDERED that Plaintiff's counsel promptly submit a copy of this decision and order to the Grievance Committee for the Appellate Division, First Department and the New Jersey Office of Attorney Ethics, copying defense counsel and this Court on its transmittal letters."
Click HERE to access Supreme Court Justice Cohen's ruling posted on the Internet.
11-12
Noting that the use of AI is not the problem per se, the problem arises "when attorneys abdicate their responsibility to ensure their factual and legal representations to the Court—even if originally sourced from AI—are accurate". In the words of the court, "When attorneys fail to check their work—whether AI-generated or not—they prejudice their clients and do a disservice to the Court and the profession. In sum, counsel's duty of candor to the Court cannot be delegated to a software program".
Justice Cohen then:
1. "ORDERED that Plaintiff's motion for sanctions pursuant to 22 NYCRR § 130-1.1 is GRANTED, such that Defendants and their counsel are jointly and severally liable to compensate Plaintiff for her reasonable costs and attorney's fees incurred in connection with this [*4]motion, together with fees and costs attributable to addressing Defendants' unvetted AI citations and quotations in the summary judgment motion;
2. "ORDERED that Plaintiff shall submit an application with supporting documentation for the fees awarded above within fourteen (14) days of the date of this order; Defendants and their counsel may submit opposition thereto within fourteen (14) days of Plaintiff's application. Plaintiff shall notify the Court via letter filing on NYSCEF and by email when the application is complete and whether it is opposed or unopposed; and
3. "ORDERED that Plaintiff's counsel promptly submit a copy of this decision and order to the Grievance Committee for the Appellate Division, First Department and the New Jersey Office of Attorney Ethics, copying defense counsel and this Court on its transmittal letters."
Click HERE to access Supreme Court Justice Cohen's ruling posted on the Internet.
11-13
Controverting a claim that the employee contracted COVID19 while working at the worksite
The New York State Workers' Compensation Board, ruled that a public school custodian [Claimant] sustained an accidental injury in that the Claimant] contracted COVID-19 in the course of the Claimant's employment. The School District and its workers' compensation carrier [jointly referred to as "Carrier"] controverted the claim, contending, among other things, that the alleged injury did not occur in the course of Claimant's employment and that there was no causal relationship between such injury and Claimant's employment.
The Workers' Compensation Board [Board] reversed an Administrative Law Judge's finding the Claimant was qualified for workers' compensation benefit's, reasoning that Claimant's public-facing job exposed him to an elevated risk of contracting COVID-19. The Carrier appealed the Board's determination.
Acknowledging that "the contraction of COVID-19 in the workplace is compensable under the Workers' Compensation Law", the Appellate Division said that the issue of whether a compensable accident has occurred is a question of fact for the Board to resolve and that the Board's findings in this regard, if supported by substantial evidence, will not be disturbed. Further, the Appellate Division opined that case law makes clear that where, as here, the injured Claimant alleges that he or she contracted COVID-19 at work, such claimant "bears the burden of demonstrating either a specific exposure to COVID-19 or that COVID-19 was so prevalent in the work environment as to present an elevated risk of exposure constituting an extraordinary event", noting, for example, "workers with significant contact with the public in communities with high rates of infection or workers in a workplace experiencing high rates of infection".
Noting that the Claimant did not allege and the Board did not conclude, nor did the record does not support a finding that Claimant had a specific exposure to COVID-19, the Appellate Division decided that "the issue distills to whether substantial evidence supports the Board's finding that 'claimant's job as a high school custodian was a public-facing job that significantly elevated his risk of exposure to COVID-19 via contact with students'". Noting that the record was silent as to the rate of infection in either the school where Claimant worked or the surrounding community, the Court, considering the record as a whole, concluded that the Board's decision was not supported by substantial evidence, finding:
1. The record is devoid of proof that there was a high rate of infection present in Claimant's work environment at the relevant point in time;
2. Claimant's brief encounters with a passing group of students in a corridor falls short of the degree of regular, consistent and close interaction with the public at large necessary to sustain a finding of prevalence; and
3. The record reflects that either claimant or members of his household engaged in other in-person pursuits during the relevant time period.
In the words of the Appellate Division, "Under these circumstances, the Board's finding that [Claimant's] employment exposed him to an elevated risk of exposure to COVID-19 cannot stand" and reversed the Board's decision" and remanded the matter to the Board "to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision".
Click HERE to access the Appellate Division's decision posted on the Internet.
Footnote 1: The carrier's subsequent application for reconsideration and/or full Board review was denied but is not at issue on this appeal.
https://nycourts.gov/reporter/3dseries/2025/2025_05998.htm
| Matter of Dunkez Private Home Care, Inc. v McDonald |
| 2025 NY Slip Op 06107 |
| Decided on November 6, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-0907
v
James . McDonald, as Commissioner of Health, et al., Respondents.
Before:Pritzker, J.P., Reynolds Fitzgerald, Lynch, Fisher and Mackey, JJ.
Rivkin Radler LLP, Uniondale (Merril S. Biscone of counsel), for petitioner.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Reynolds Fitzgerald, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Health, among other things, revoking petitioner's license to operate as a home care services agency.
Petitioner is a licensed home care services agency (hereinafter LHCSA) located in Westchester County. LHCSAs are licensed by respondent Department of Health (hereinafter DOH) and are engaged in arranging or providing nursing services, home health aide services and other therapeutic and related services, which may be of a preventative, therapeutic, rehabilitative, health guidance and/or supportive nature to persons at home (see Public Health Law § 3602 [2]). As relevant here, petitioner provided home health aide and personal care aide services, which include, among other things, simple health care tasks, personal hygiene services and housekeeping tasks essential to a patient's health (see Public Health Law § 3602 [4], [5]). The law directs that these services shall be prescribed by a physician or nurse practitioner in accordance with a plan of care, under the supervision of a registered professional nurse from a certified home health agency such as a residential health care facility, hospital or LHCSA (see Public Health Law § 3602 [2], [4]). In December 2017, petitioner entered into a contract with CenterLight Healthcare, Inc., a managed care organization.[FN1] All of petitioner's patients between the years 2019 through 2021 were referred to petitioner by CenterLight.
To ensure compliance by LHCSAs with DOH's regulatory scheme, DOH employs surveyors to perform unannounced site visits to inspect registry, patient and personnel records maintained by the LHCSA. These inspections are referred to as surveys. In October 2019, DOH performed a survey of petitioner, found numerous deficiencies and cited petitioner for same. In January 2021, DOH conducted a second survey to ensure that petitioner had corrected the cited deficiencies and discovered it had not. In March 2021, DOH received and investigated a patient complaint, and found the complaint substantiated. As a result of the foregoing, in April 2021, petitioner's license was temporarily suspended for a period of 30 days. Notwithstanding this suspension, petitioner continued to operate its LHCSA. In January 2022, DOH served petitioner with a notice of hearing and an amended statement of charges consisting of 36 deficiencies and seeking revocation of petitioner's license (see Public Health Law § 3605-a [2]; 10 NYCRR 765-2.3 [c]).[FN2] Petitioner requested and was granted an administrative hearing, after which the Administrative Law Judge issued a determination sustaining all 36 charges, recommending revocation of petitioner's license and the imposition of a monetary penalty. Respondent Commissioner of Health adopted the Administrative Law Judge's findings and recommendations — with one exception, not relevant here — as part of his order[*2]. Petitioner thereafter commenced this CPLR article 78 proceeding against respondents seeking to annul the Commissioner's determination asserting that it lacked substantial evidence, and Supreme Court transferred the proceeding to this Court.
Judicial review of a determination made by an administrative agency, as a result of an evidentiary hearing, is limited to consideration of whether the findings were supported by substantial evidence (see CPLR 7803 [4]; Matter of Wegman v New York State Dept. of Health, 229 AD3d 862, 863 [3d Dept 2024]). "Substantial evidence consists of such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of P.C. v Stony Brook Univ., 43 NY3d 574, 580 [2025] [internal quotation marks and citation omitted]). "[T]he substantial evidence standard is a minimal standard. It is less than a preponderance of the evidence, and demands only that a given inference is reasonable and plausible, not necessarily the most probable" (Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, 1045-1046 [2018] [internal quotation marks and citations omitted]). "Stated otherwise, we review the administrative determination to see if it is supported by proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably — probatively and logically" (Matter of P.C. v Stony Brook Univ., 43 NY3d at 581[internal quotation marks and citation omitted]).
Initially, we reject respondents' argument that petitioner's brief should be rejected for failing to provide "a concise statement of the nature of the case and of the facts which should be known to determine the questions involved" (CPLR 5528 [a] [3]). Here, the record on appeal contains the verified petition, transcripts of the administrative hearings, and exhibits; thus, it is sufficient to permit review of the merits (see Merritt v Wynder, 212 AD3d 607, 608 [2d Dept 2023]; cf. Matter of Dixon v Rich, 200 AD3d 1378, 1379 [3d Dept 2021]).
Turning to the merits, DOH proffered the testimony of a licensed social worker surveyor, two registered nurse surveyors, the regional program manager of DOH's home and community-based services programs and submitted 86 exhibits into evidence.[FN3] The social worker surveyor stated that he conducted the 2019 and January 2021 surveys of petitioner's LHCSA. DOH's first registered nurse surveyor explained that surveys are conducted by two surveyors, one of whom is a nurse who typically reviews patients' records and aides' certifications, and that she participated in the January 2021 survey. The second registered nurse surveyor testified that she surveyed petitioner's LHCSA in March 2021 in response to a patient complaint, which she subsequently sustained. The DOH regional program manager testified that he coordinates and oversees surveillance activities and [*3]that he was the second-level supervisor of the nurse who conducted the 2019 survey and therefore is familiar with her notes and other documentation.[FN4] The program manager also testified that, due to the substantiated deficiencies against petitioner, DOH undertook enforcement action via a 30-day suspension — meaning the LHCSA was to discharge its patients to another organization and was prohibited from providing any patient services during the suspension period. He stated that DOH subsequently learned that, despite the suspension, petitioner continued to provide services to patients. The registered nurse surveyors described the procedure involved in licensing and relicensing LHCSAs, which includes making an unannounced visit to the LHCSA's facility, meeting with the operator or individual in charge of the LHCSA, and selecting a sample of clinical patient records and personnel records to determine if there are any deficiencies by the LHCSA in complying with DOH's statutes and regulations. After compiling the information, the surveyor informs the LHCSA of any deficiencies, issues a citation if necessary, and provides suggestions for corrective action. The social worker surveyor testified that this procedure was implemented in both the 2019 and January 2021 surveys. Cumulatively, the witnesses provided detailed accounts of all 36 charges, including, but not limited to, that there was no evidence that petitioner possessed patient discharge records or evidence that petitioner's nurse notified patients' doctors prior to discharge, no documentation regarding the clinical assessment of patients, no evidence of medical orders or that the aides were being properly supervised and oriented as to plans of care, nor any evidence of progress reports or that the patients were advised of the patient's bill of rights or complaint procedures. Additionally, the social worker surveyor stated that petitioner had a minimal policy regarding its database, which lacked numerous DOH regulatory requirements, including entries containing employees who were no longer employed by petitioner, entries that failed to include appropriate criminal history checks of its aides and entries that were not timely updated (see 10 NYCRR 403.5). He further relayed that, despite multiple attempts, he was unable to physically meet with or have telephone contact with petitioner's registered nurse during the surveys, which indicated to him that petitioner did not have in its employ a registered nurse qualified to work at the time of the surveys. Finally, he relayed that petitioner's operator did not provide all requested records and that many of the records that were produced were out of date.
Petitioner offered the testimony of its president and vice president who operate the LHCSA, a relative of one of petitioner's patients and two aides who were, at the time of the hearing, employed by petitioner. None of the witnesses' testimony contradicted the charge that petitioner failed to comply with the [*4]suspension order. In fact, their testimony confirmed that petitioner continued to send aides to perform patient care services throughout the operative period. Likewise, petitioner's president's and vice president's testimony did not contradict the evidence presented by DOH. Instead, the operators attempted to excuse their noncompliance by arguing that petitioner delegated its duties to CenterLight as part of its contract with said organization. This is unpersuasive. Although an LHCSA may enter into a contract with another organization, the contract does not diminish the LHCSA's responsibility to ensure compliance with all pertinent provisions of federal, state and local statutes, rules and regulations, to ensure the quality of all services provided and to ensure adherence by staff to the plan of care established for its patients (see 10 NYCRR 766.10). Based upon the foregoing and our review of the record, we are satisfied that the surveyors' testimony regarding the charges — which were corroborated by the exhibits, coupled with petitioner's witnesses' admissions — provided the requisite substantial evidence to support the Commissioner's determination (see Matter of Wegman v New York State Dept. of Health, 229 AD3d at 866; Matter of Salu v NYS Justice Ctr. for the Protection of People with Special Needs, 190 AD3d 1059, 1062 [3d Dept 2021], lv denied 37 NY3d 903 [2021], cert denied ___ US ___, 142 S Ct 802 [2022]).
Petitioner next asserts that the penalty imposed, consisting of revocation of its license and imposition of a monetary penalty, was too severe. We disagree. "[A]n administrative penalty must be upheld unless it is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law" (Matter of Lalima v New York State Dept. of State, 214 AD3d 1051, 1054 [3d Dept 2023] [internal quotation marks and citations omitted]; see Matter of Barros v John P. Picone, Inc., 188 AD3d 1397, 1400 [3d Dept 2020]). This standard has been characterized as rigorous (see Matter of Bolt v New York City Dept. of Educ., 30 NY3d 1065, 1070 [2018] [Rivera, J., concurring]). "This calculus involves consideration of whether the impact of the penalty on the [LHCSA] is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general" (id. [Rivera, J., concurring] [internal quotation marks and citation omitted]).Here, the Commissioner found that multiple sustained violations posed a serious and imminent danger to petitioner's patients' health,[FN5] and that petitioner's omissions, its explanation for said omissions, and the continued operation of its LHCSA after being served with a temporary order of suspension, rendered petitioner unable to continue to serve a very vulnerable segment of the state's population. As the record supports these findings, and the penalties imposed do not shock our sense of fairness, we will [*5]not disturb them (see Matter of Sunsea Energy LLC v New York State Pub. Serv. Commission, 229 AD3d 1021, 1026 [3d Dept 2024], lv denied 43 NY3d 901 [2025]; Matter of Ali v New York City Dept. of Corr., 205 AD3d 1247, 1250 [3d Dept 2022]; Matter of O'Connor v Cutting, 166 AD3d 1099, 1103 [3d Dept 2018]).We have examined petitioner's remaining contention and find it to be without merit.
Pritzker, J.P., Lynch, Fisher and Mackey, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Footnote 1: A managed care organization is a type of healthcare delivery system that coordinates and manages healthcare services for its members. The managed care organization contracts with hospitals, physicians and LHCSAs, who provide services to their members. The managed care organization uses a network of contracted providers to make a comprehensive range of medical services available to its members.
Footnote 2: The statement of charges was amended in April 2022 and August 2022. Numerous charges related to petitioner's failure to provide and maintain appropriate patient care, including failure to provide a bill of rights and complaint procedures to the patient, failure to employ supervising medical staff (a registered nurse), failure to conduct initial and other patient assessments, failure to provide plans of care and to obtain medical orders, failure to appropriately discharge patients and to notify the patient's physician upon discharge, and failure to maintain accurate patient records (see 10 NYCRR 766.1 [a] [1], [4], [8]; 766.2 [a] [1]-[2], [8]-[9]; 766.3 [a], [b], [d]; 766.4 [a]; 766.5 [a], [b] [3]-[4]; 766.6 [a] [3], [5], [10]; 766.9 [h], [j], [o]); additional charges related to petitioner's employees, including failure to obtain and maintain personnel records, to ensure that employed aides were properly certified, to conduct proper criminal record checks of petitioner's aide employees and to ensure that aides were properly vaccinated and immunized (see 10 NYCRR 766.11 [d], [g]; 766.12 [a] [3], [c]); other charges related to petitioner's operation of its LHCSA, including failure to establish and maintain policies and procedures as required by DOH (see 10 NYCRR 403.3 [b]; 766.9 [a]-[e], [1]); and failure to comply with a suspension order (see Public Health Law § 3605-a [2]; 10 NYCRR 765-2.3 [d]).
Footnote 3: All 86 exhibits were received into evidence.
Footnote 4: The nurse who conducted the 2019 survey was no longer employed by DOH and was unavailable to testify.
Footnote 5: The Administrative Law Judge found that 19 of the sustained violations, which is slightly more than half of the 36 violations, posed a danger to petitioner's patients.
24-1241-cv Leroy v. Livingston Manor Central School District United States Court of Appeals for the Second Circuit _____________________________________ August Term 2024 Argued: March 19, 2025 Decided: October 30, 2025 No. 24-1241 _____________________________________ CASE LEROY, Plaintiff-Appellant, — v. — LIVINGSTON MANOR CENTRAL SCHOOL DISTRICT, JOHN P. EVANS, in his capacity as Superintendent of Schools of Livingston Manor Central School District, Defendants-Appellees. _____________________________________ Appeal from the United States District Court for the Southern District of New York No. 7:21-cv-6008, Nelson S. Román, Judge _____________________________________ Before: PARKER, ROBINSON, and PÉREZ, Circuit Judges. Case Leroy, a high school senior in a New York public school, took a picture with his friends and posted it on social media while outside of his school campus and after school hours. He thought his post, which showed a picture of his friend kneeling on his neck with the caption “Cops got another,” was a joke, but he quickly realized others viewed it as racist because it evoked memories of the notorious murder of George Floyd. He removed his post after a few minutes, but not before another student took a screenshot, which was reposted on other social media platforms. After public outcry, in-school discussions, an assembly, a student demonstration, and a school investigation, the school superintendent suspended Leroy and barred him from participating in non-academic extracurricular activities for the remainder of the school year. Leroy sued, alleging that the school’s disciplinary actions violated the First Amendment. The district court granted the school’s motion for summary judgment, concluding that the school did not violate Leroy’s First Amendment rights because his off-campus speech caused substantial disruption in school. We disagree. Accordingly, we REVERSE the judgment of the district court and REMAND for further proceedings. Judge Pérez concurs in the judgment in a separate opinion.
| Gersbeck v Wiedmann |
| 2025 NY Slip Op 05669 |
| Decided on October 15, 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. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-09583
(Index No. 1907/13)
v
Robert Wiedmann, Jr., et al., appellants, Haldane Rodgers, et al., defendants, City of New York, respondent.
Kelner and Kelner, New York, NY (Joshua D. Kelner and Brian P. Hurley of counsel), for appellants.
Muriel Goode-Trufant, Corporation Counsel, New York, NY, (Rebecca L. Visgaitis and Geoffrey E. Curfman of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs Robert Wiedmann, Jr., and Catherine Wiedmann appeal from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated July 25, 2024. The order, insofar as appealed from, denied those plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a violation of General Municipal Law § 205-a insofar as asserted against the defendant City of New York, and granted that defendant's cross-motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In March 2012, the plaintiffs Robert Wiedmann, Jr. (hereinafter the injured plaintiff), and his wife Catherine Wiedmann (hereinafter together the plaintiffs) filed a notice of claim with the City of New York alleging that the City was negligent in operating, controlling, and supervising the Fire Department of New York (hereinafter the FDNY) and failed to provide the injured plaintiff, a firefighter with the FDNY, with sufficient and proper safety equipment, which caused him to sustain personal injuries while responding to a fire December 2011. A hearing pursuant to General Municipal Law § 50-h was held, and an investigation by the FDNY was conducted.
In February 2013, the injured plaintiff and Catherine Wiedmann, suing derivatively and as his agent, commenced this action against the City, among others, to recover damages for personal injuries pursuant to General Municipal Law § 205-a. The City answered. Thereafter, the plaintiffs moved for summary judgment on the issue of liability on to the cause of action alleging a violation of General Municipal Law § 205-a insofar as asserted against the City, and the City cross-moved for summary judgment dismissing the complaint insofar as asserted against it. In an order dated July 25, 2024, the Supreme Court, inter alia, denied the plaintiffs' motion and granted the City's cross-motion.
Contrary to the plaintiffs' contention, the court properly determined that their notice of claim was insufficient to enable the City to investigate, collect evidence, and evaluate the merits [*2]of the plaintiffs' allegations regarding negligent training in violation of General Municipal Law § 205-a. "To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim" (Bourque v County of Dutchess, 218 AD3d 430, 431 [internal quotation marks omitted]; see Mosley v City of New York, 217 AD3d 857, 858). "A notice of claim must set forth, among other things, the nature of the claim and the time when, the place where and the manner in which the claim arose" (Garland v City of New York, 237 AD3d 669, 670 [internal quotation marks omitted]; see Behrens v Town of Huntington, 230 AD3d 730, 731). "The requirements of the statute are met when the notice describes the incident with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the merits of the claim" (Garland v City of New York, 237 AD3d at 670 [internal quotation marks omitted]; see Conn v Tutor Perini Corp., 174 AD3d 680, 681).
Allegations concerning negligent training must be set forth in a notice of claim pursuant to General Municipal Law § 50-e(2) (see Colon v New York City Hous. Auth., 23 AD3d 425, 425; Dixon v Village of Spring Val., 6 AD3d 489, 490). "Causes of action for which a notice of claim is required which are not listed in the plaintiff's original notice of claim may not be interposed" (Mazzilli v City of New York, 154 AD2d 355, 357). Allowing the addition of causes of action which were not referred to either directly or indirectly in the notice of claim would substantially alter the nature of a plaintiff's claim (see Demorcy v City of New York, 137 AD2d 650, 651).
Here, the plaintiffs' notice of claim failed to set forth any negligent training allegations that could later form the basis of their cause of action alleging a violation of General Municipal Law § 205-a.
Moreover, notwithstanding the insufficiency of the notice of claim, the plaintiffs also failed to make a prima facie showing that they were entitled to summary judgment on the issue of liability on the cause of action alleging a violation of General Municipal Law § 205-a insofar as asserted against the City. "General Municipal Law § 205-a establishes the right of an injured firefighter to recover against any party whose neglect or omission to comply with governmental requirements results directly or indirectly in the firefighter's injury" (Annunziata v City of New York, 175 AD3d 438, 442 [internal quotation marks omitted]; see Shea v New York City Economic Dev. Corp., 161 AD3d 803, 805). "A plaintiff seeking recovery under General Municipal Law § 205-a must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter" (Annunziata v City of New York, 175 AD3d at 442 [alteration and internal quotation marks omitted]; see Shea v New York City Economic Dev. Corp., 161 AD3d at 805).
Here, the plaintiffs failed to establish, prima facie, that the City violated a valid predicate statute as required by General Municipal Law § 205-a (see Pomilla v Bangiyev, 197 AD3d 1187). The plaintiffs' theory of liability under General Municipal Law § 205-a—that the defendant failed to properly follow an FDNY internal training bulletin regarding the use of thermal imaging cameras—does not fall within the scope of General Municipal Law § 205-a (see Galapo v City of New York, 95 NY2d 568, 574-576; Desmond v City of New York, 88 NY2d 455, 463-464).
Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a violation of General Municipal Law § 205-a insofar as asserted against the City without regard to the sufficiency of the City's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
With respect to the City's cross-motion for summary judgment dismissing the complaint insofar as asserted against it, the City demonstrated, prima facie, that it trained its firefighters in compliance with applicable federal and state laws and regulations (see Labor Law § 27-a[3][a][1]; Occupational Safety and Health Act of 1970 [OSHA], 29 USC § 651 et seq.; see also Williams v City of New York, 2 NY3d 352, 364). In opposition, the plaintiffs failed to raise a triable [*3]issue of fact.
Accordingly, the Supreme Court also properly granted the City's cross-motion for summary judgment dismissing the complaint insofar as asserted against it.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
| Matter of Coritsidis v New York City Dept. of Educ. |
| 2025 NY Slip Op 05521 |
| Decided on October 8, 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. |
LARA J. GENOVESI, J.P.
LINDA CHRISTOPHER
DEBORAH A. DOWLING
LAURENCE L. LOVE, JJ.
2024-01654
(Index No. 701279/24)
v
New York City Department of Education, respondent.
Peter Coritsidis, Forest Hills, NY, appellant pro se.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Melanie T. West and Diana Lawless of counsel), for respondent.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78 and action for declaratory and injunctive relief, the petitioner/plaintiff appeals from a judgment of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered February 15, 2024. The judgment denied the petition and dismissed the proceeding/action.
ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the cause of action for declaratory relief, and adding thereto a provision declaring that the repeal of the religious exemption from the mandatory school vaccination requirements pursuant to Public Health Law § 2164 is constitutional; as so modified, the judgment is affirmed, with costs to the respondent/defendant.
On June 13, 2019, the New York State Legislature repealed the religious exemption from the mandatory school vaccination requirements for children who attend public and private schools in New York State (Public Health Law § 2164, as amended by L 2019, ch 35, §§ 1, 2).
On or about October 11, 2023, the respondent/defendant, New York City Department of Education (hereinafter NYCDOE), advised the petitioner/plaintiff (hereinafter the petitioner) that his daughter, L.C., could not return to school unless proof of mandatory school vaccinations was provided.
On October 25, 2023, the petitioner commenced a hybrid proceeding pursuant to CPLR article 78 and action against NYCDOE, inter alia, for injunctive relief and a judgment declaring that the current vaccine policy requiring children to be vaccinated to attend school was unconstitutional (hereinafter the 2023 proceeding/action). In an order and judgment (one paper) entered November 3, 2023, the Supreme Court denied the petition, for failure to exhaust administrative remedies, denied the petitioner's application for a preliminary injunction, and dismissed the 2023 proceeding/action.
On January 18, 2024, the petitioner commenced this hybrid proceeding pursuant to CPLR article 78 and action for declaratory and injunctive relief against NYCDOE on behalf of L.C. [*2]after his request for a medical exemption from the mandatory school vaccination requirements was denied. The petitioner alleges, among other things, that NYCDOE's denial of the request for a medical exemption from the mandatory school vaccination requirements was arbitrary and capricious and affected by an error of law and seeks a judgment declaring, in effect, that the repeal of the religious exemption from the mandatory school vaccination requirements pursuant to Public Health Law § 2164 is unconstitutional. In a judgment entered February 15, 2024, the Supreme Court denied the petition, inter alia, pursuant to the doctrine of res judicata based on the court's prior determination in the order and judgment entered November 3, 2023, rendered in the 2023 proceeding/action, and dismissed the instant proceeding/action. The petitioner appeals from the judgment entered February 15, 2024. We conclude that the petitioner is not entitled to relief, albeit on grounds different than those relied upon by the court (see Colucci v Gas Land Petroleum, Inc., 229 AD3d 681, 681).
The doctrine of res judicata "precludes a party from litigating a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter" (Ciafone v City of New York, 227 AD3d 946, 948 [internal quotation marks omitted]; see Lannon v Everest Natl. Ins. Co., 212 AD3d 798, 799). Here, the denial of the petition in the 2023 proceeding/action for failure to exhaust administrative remedies was not a determination on the merits. While the Supreme Court denied the petitioner's application for a preliminary injunction for failure to demonstrate a likelihood of success on the merits, it is well established that "[t]he denial of a motion for a preliminary injunction does not constitute . . . an adjudication on the merits" (Newrez, LLC v City of Middletown, 216 AD3d 655, 656; see Town of Concord v Duwe, 4 NY3d 870, 875). Moreover, to the extent the petitioner challenges NYCDOE's denial of his request for a medical exemption as arbitrary and capricious, that issue was not litigated in the 2023 proceeding/action (see Matter of Singh v New York State Div. of Human Rights, 186 AD3d 1694, 1695). Furthermore, the petitioner's constitutional challenges to the repeal of the religious exemption from the mandatory school vaccination requirements pursuant to Public Health Law § 2164 were not resolved on the merits in the 2023 proceeding/action. Accordingly, the petitioner's challenges herein are not barred by the doctrine of res judicata (see Newrez, LLC v City of Middletown, 216 AD3d at 656).
Nevertheless, in this hybrid proceeding and action, alleging, among other things, that NYCDOE's denial of the request for a medical exemption from the mandatory school vaccination requirements pursuant to Public Health Law § 2164 was arbitrary and capricious and affected by an error of law, the petitioner is not entitled to relief pursuant to CPLR article 78 because he failed to exhaust his administrative remedies or to establish that an exception to the exhaustion doctrine was applicable (see CPLR 7801[1]; 7803 [3]; Matter of World Motors, Inc. v Dugan, 226 AD3d 1037, 1038; Matter of Dozier v New York City, 130 AD2d 128, 135).
Further, the petitioner's constitutional challenges to the repeal of the religious exemption from the mandatory school vaccination requirements pursuant to Public Health Law § 2164 are without merit (see F.F. v State of New York, 194 AD3d 80, 89-90; Phillips v City of New York, 775 F3d 538, 542-544 [2d Cir]; see generally Ingraham v Wright, 430 US 651, 664). However, instead of dismissing the cause of action for declaratory relief, the Supreme Court should have made a declaration in favor of NYCDOE (see Lanza v Wagner, 11 NY2d 317, 334; Rockland Light & Power Co. v City of New York, 289 NY 45, 51). Accordingly, we modify the judgment so as to delete the provision thereof dismissing the cause of action for declaratory relief, and add thereto a provision declaring that the repeal of the religious exemption from the mandatory school vaccination requirements pursuant to Public Health Law § 2164 is constitutional.
The parties' remaining contentions need not be reached in light of our determination.
GENOVESI, J.P., CHRISTOPHER, DOWLING and LOVE, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_05521.htm
| Matter of Gunderson v New York City Employees' Retirement Sys. |
| 2025 NY Slip Op 05084 |
| Decided on September 24, 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. |
ANGELA G. IANNACCI, J.P.
ROBERT J. MILLER
LILLIAN WAN
CARL J. LANDICINO, JJ.
2024-08825
(Index No. 527284/23)
v
New York City Employees' Retirement System, et al., respondents.
Seelig Law Offices, LLC, New York, NY (Philip H. Seelig and Joshua Gohari of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Jeremy W. Shweder and Chase Henry Mechanick of counsel), for respondents.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System dated June 8, 2023, which denied the petitioner's application for accidental disability retirement benefits, the petitioner appeals from a judgment of the Supreme Court, Kings County (Anne J. Swern, J.), dated May 30, 2024. The judgment denied the petition and, in effect, dismissed the proceeding.
ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, the determination is annulled, and the matter is remitted to the Board of Trustees of the New York City Employees' Retirement System for further proceedings consistent herewith.
On April 6, 2020, the petitioner, an employee of the New York City Department of Sanitation, was walking inside the sanitation garage to which he was assigned when he slipped on a loose vinyl floor tile and fell on his left shoulder. The petitioner underwent three surgeries to his left shoulder, which did not significantly improve his condition. The petitioner applied to the respondent New York City Employees' Retirement System (hereinafter NYCERS), inter alia, for accidental disability retirement (hereinafter ADR) benefits under Retirement and Social Security Law § 605-b.
The Medical Board of NYCERS (hereinafter the Medical Board) determined that the petitioner was disabled due to internal derangement of his left shoulder and found that his fall on April 6, 2020, was the competent causal factor of his disability. However, the Medical Board found that the petitioner's fall was not an accident and, thus, recommended that he be denied ADR benefits. The Board of Trustees of NYCERS (hereinafter the Board of Trustees) adopted the recommendation of the Medical Board and denied the petitioner's application for ADR benefits.
The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination of the Board of Trustees. In a judgment dated May 30, 2024, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.
"A Department of Sanitation worker who 'is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident, not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service . . . shall be retired for accidental disability'" (Matter of Lanni v New York City Employees' Retirement Sys., 189 AD3d 841, 842, quoting Retirement and Social Security Law § 605-b[b][1]). An "accident" has been defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012; see Matter of Bodenmiller v DiNapoli, 43 NY3d 43, 46). "[A] precipitating event that could or should have reasonably been anticipated by a person in the claimant's circumstances is not an 'accident' for purposes of ADR benefits" (Matter of Bodenmiller v DiNapoli, 43 NY3d at 46-47).
Here, while the petitioner was aware before the day of his fall that the floor was in disrepair, there is insufficient record support for a conclusion that the petitioner was aware of the particular hazard that caused his fall, i.e., that the vinyl floor tiles might shift under his weight (cf. id. at 47). Under the circumstances, there was no rational, nonspeculative basis for the conclusion of the Medical Board and the Board of Trustees that the petitioner should have reasonably anticipated the precipitating event and, thus, that it was not an accident (see Matter of Lanni v New York City Employees' Retirement Sys., 189 AD3d at 842; Matter of Leary v New York City Employees' Retirement Sys., 59 AD3d 547, 549). Accordingly, since the determination of the Board of Trustees denying the petitioner's application for ADR benefits was arbitrary and capricious, we grant the petition, annul the determination, and remit the matter to the Board of Trustees for further proceedings consistent herewith.
IANNACCI, J.P., MILLER, WAN and LANDICINO, JJ., concur.
Darrell M. Joseph
Clerk of the CourtClerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_05084.htm
| Matter of Cabrera v New York City Hous. Auth. |
| 2025 NY Slip Op 05129 |
| Decided on September 25, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-23-2004
v
New York City Housing Authority, Respondent. Workers' Compensation Board, Respondent.
Before:Garry, P.J., Aarons, Fisher, McShan and Mackey, JJ.
Ginarte Gonzalez Winograd LLP, New York City (Patrick M. Quinn of counsel), for appellant.
Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe of counsel), for New York City Housing Authority, respondent.
Letitia James, Attorney General, New York City (Alison Kent-Friedman of counsel), for Workers' Compensation Board, respondent.
Garry, P.J.
Appeal from a decision of the Workers' Compensation Board, filed September 20, 2023, which, among other things, denied counsel's application for an award of counsel fees.
In 2022, after establishing a claim for workers' compensation benefits for various work-related injuries, claimant was classified with a permanent partial disability and tentative indemnity awards for a specified period were made, with direction that the self-insured employer continues payments at the permanent partial disability rate. Thereafter, claimant's counsel made a request for further action to address whether certain payments of the award were timely paid. Following a hearing at which the self-insured employer conceded that it failed to make certain compensation payments, the Workers' Compensation Law Judge imposed a late payment penalty pursuant to Workers' Compensation Law § 25 (1) (e), payable to claimant, but denied the application by claimant's counsel for fees in connection with securing the late payment penalty. Upon administrative appeal challenging the preclusion of counsel fees, the Workers' Compensation Board affirmed, finding that additional counsel fees were properly denied as the recent amendments to Workers' Compensation Law § 24, which set forth the schedule of counsel fees based upon awards, makes no provision for additional fees payable to a claimant's representative based upon the assessment of a late payment penalty. Claimant appeals.[FN1]
The Board's decision finding that it lacked authority under the recent amendments to Workers' Compensation Law § 24 to award counsel fees for legal services provided in procuring a late payment penalty is consistent with this Court's recent decision in Matter of Gonzalez v Northeast Parent & Child Socy. (232 AD3d 1011, 1011-1012 [3d Dept 2024], lv dismissed in part & granted in part 43 NY3d 937 [2025]) and its progeny (see Matter of Clifton v Research Found. of SUNY, 234 AD3d 1235, 1235-1236 [3d Dept 2025]). Accordingly, for the reasons set forth in Matter of Gonzalez, the Board's finding that claimant's counsel is not entitled to additional fees related to the late payment penalty will not be disturbed.
Aarons, Fisher, McShan and Mackey, JJ., concur.
ORDERED that the decision is affirmed, without costs.
Footnote 1: The sole issue raised on appeal is a challenge to the denial of counsel fees. As such, the notice of appeal — which was filed in claimant's name — should have been filed on behalf of the law firm (see Matter of Tompkins v Bedford Stone & Masonry, 198 AD3d 1031, 1032 n [3d Dept 2021];Matter of Dzielski v New York State Dept. of Corr. & Community Supervision, 195 AD3d 1255, 1256 n [3d Dept 2021]). Nevertheless, in the absence of any demonstrated prejudice, we will disregard this error (see CPLR 2001; Matter of Tompkins v Bedford Stone & Masonry, 198 AD3d at 1032 n).
https://nycourts.gov/reporter/3dseries/2025/2025_05129.htm
24-972-cv Chislett v. N.Y.C. Dep’t of Educ. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2024 Argued: April 4, 2025 Decided: September 25, 2025 No. 24-972-cv ______________________________________ LESLIE CHISLETT, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, RICHARD CARRANZA AS CHANCELLOR OF NEW YORK CITY DEPARTMENT OF EDUCATION, INDIVIDUALLY, Defendants-Appellees. ______________________________________ Before: LEVAL, BIANCO, and NARDINI, Circuit Judges. Plaintiff Leslie Chislett appeals from the grant of summary judgment by the United States District Court for the Southern District of New York (Rochon, J.) in favor of Defendants New York City Department of Education and Richard Carranza. Chislett, who is Caucasian, brought a 42 U.S.C. § 1983 claim of racial discrimination under three theories: (1) she was demoted pursuant to a municipal policy that made race a determinative factor in employment decisions; (2) she suffered a hostile work environment fostered by mandatory implicit bias trainings; and (3) she was constructively discharged. The district court rejected all three theories, largely on the basis that Plaintiff failed to demonstrate the existence of a municipal policy linked to the demotion, hostile work environment, and 2 constructive discharge. We conclude that the district court did not err in granting summary judgment on Plaintiff’s demotion and constructive discharge claims. However, we hold that genuine disputes of material fact precluded the grant of summary judgment on Plaintiff’s hostile work environment claim. We therefore AFFIRM in part, VACATE in part, and REMAND
https://ww3.ca2.uscourts.gov/decisions/isysquery/53fbb958-4e23-4040-9a77-3eb9a2d96d17/1/doc/24-972_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/53fbb958-4e23-4040-9a77-3eb9a2d96d17/1/hilite/
| Matter of Village of Walden v Teamsters Local Union No. 445 |
| 2025 NY Slip Op 05090 |
| Decided on September 24, 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. |
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
VALERIE BRATHWAITE NELSON
DEBORAH A. DOWLING
LOURDES M. VENTURA, JJ.
2023-04708
(Index No. 3620/22)
v
Teamsters Local Union No. 445, respondent.
Feerick Nugent MacCartney PLLC, South Nyack, NY (Brian D. Nugent and Dylan Lockyer of counsel), for appellant.
Barnes, Iaccarino & Shepard LLP, Elmsford, NY (Steven H. Kern of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the petitioner appeals from an order of the Supreme Court, Orange County (Maria S. Vazquez-Doles, J.), dated April 5, 2023. The order denied the petition to permanently stay arbitration and granted the cross-petition to compel arbitration.
ORDERED that the order is reversed, on the law, with costs, the petition to permanently stay arbitration is granted, the cross-petition to compel arbitration is denied, and the arbitration is permanently stayed.
The issue in this appeal is whether the respondent, Teamsters Local Union No. 445 (hereinafter Local 445), had the authority to demand arbitration under the terms of a collective bargaining agreement (hereinafter the CBA) between the petitioner, Village of Walden, and the Village of Walden Police Benevolent Association (hereinafter the Association). For the reasons that follow, we conclude that Local 445 did not have the authority to demand arbitration, as it was not a party to the CBA between the Village and the Association. We therefore conclude that the Supreme Court should have granted the Village's petition to permanently stay arbitration and denied Local 445's cross-petition to compel arbitration.
In 2009, the Association, a labor organization, entered into an "AFFILIATION AGREEMENT" with Local 445, a labor union. Under the affiliation agreement, the Association and Local 445 agreed, among other things, that the Association would pay dues to Local 445 and Local 445 would provide specific listed services "at the request of the Association." Local 445's services included pursuing arbitrations of Association members' "meritorious claims as determined by the Association" (emphases added), for benefits pursuant to General Municipal Law § 207-c.
Thereafter, the Association entered into the CBA with the Village. The first page of the CBA identifies the CBA as an "AGREEMENT Between VILLAGE OF WALDEN and VILLAGE OF WALDEN POLICE BENEVOLENT ASSOCIATION, INC." Article 1, section 1, of the CBA provides that the Village recognizes the Association "as the sole and exclusive [*2]representative for all full-time and part-time police officers . . . employed by the Village," subject to certain exceptions, "for the purpose of negotiating collectively in determination of all matters relating to wages, hours of work, working conditions, benefits, grievances and employment." Article 1, section 2, states that "[t]he Village agrees that the Association shall be guaranteed unchallenged representation status until the expiration of this Agreement."
Article 4 of the CBA, governing compensation, establishes a procedure "to regulate the application for, and the award and/or termination of," General Municipal Law § 207-c benefits for Village police officers injured in the line of duty. Under this procedure, an injured police officer, i.e., the claimant, or the claimant's representative must file a written application for General Municipal Law § 207-c benefits within 10 days after the incident giving rise to the claimant's alleged injury or within 10 days after the claimant becomes aware of the alleged injury, whichever is later. The Village's designated claims manager is then required, within a reasonable time, to issue a written determination as to whether the claimant is entitled to General Municipal Law § 207-c benefits. The procedure also authorizes a hearing at the claimant's request before a neutral hearing officer. In addition, article 13 of the CBA sets forth a three-step grievance procedure for challenging, inter alia, unfavorable determinations of applications for General Municipal Law § 207-c benefits. In Steps 1 and 2, respectively, the claimants themselves elect whether to present a grievance to the Chief of Police, and subsequently whether to appeal an unsatisfactory decision to the Village Manager. In Step 3 of the grievance procedure, however, it is the Association—not the claimant—that elects whether to "appeal an unsatisfactory decision of the Village Manager by submitting a Demand for Arbitration to the New York State Public Employment Relations Board ([hereinafter] PERB)."
This exclusive role of the Association is further reflected in the language of the signature page of the CBA. The signature page of the CBA includes a statement that the "parties have caused this Agreement to be executed by their authorized representatives," and directly underneath this statement, two entities are listed in all capital letters: on the left, "VILLAGE OF WALDEN," and on the right, "VILLAGE OF WALDEN POLICE BENEVOLENT ASSOCIATION, INC." Below the names of those two entities is a date line, reflecting that the CBA was executed on July 12, 2015. Beneath the date line are two columns of signature lines: on the left, under the heading "For the Village," appear the typewritten names "Susan Rumbold, Mayor," and "John Revella, Village Manager," and on the right, under the heading "For the P.B.A./UNION," appear the typewritten names "Robert Montanaro, P.B.A. President," and "Thomas Miller, Local 445." Each of these four typewritten signature lines bears a handwritten signature above it.
In 2021, the Village and the Association executed a "MEMORANDUM OF AGREEMENT" (hereinafter the 2021 agreement) extending the CBA, acknowledged by both parties to have expired on May 31, 2018, to cover the period from June 1, 2018, through May 31, 2025. The 2021 agreement incorporated certain modifications to the CBA, none of which affected the grievance and arbitration provisions thereof. The 2021 agreement bears two signatures, that of the Village Manager and that of the Association's president. Notably, the 2021 agreement does not include a signature of any representative of Local 445.
The events giving rise to this litigation occurred during the period covered by the 2021 agreement. In March 2022, the Village's claims manager issued a determination on an application dated June 14, 2021, for General Municipal Law § 207-c benefits for a certain Village police officer who claimed to have been injured after falling from a chair on which he was sitting (hereinafter the March 2022 determination). The claims manager, among other things, determined that the police officer's alleged injuries arising from the occurrence were fully resolved as of July 26, 2021, awarded the police officer General Municipal Law § 207-c benefits for a six-week period, and recommended that the police officer be directed to return to full duty. In April 2022, Local 445 wrote a letter on the police officer's behalf to the claims manager appealing the March 2022 determination and requesting a hearing. Local 445 then purported to present a Step 1 grievance on behalf of the police officer in May 2022, followed by a Step 2 grievance in June 2022. The Village responded to Local 445's correspondence, asserting, inter alia, that the proper procedures for presenting Step 1 and Step 2 grievances had not been followed. On June 16, 2022, Local 445 filed [*3]a Step 3 demand for arbitration with PERB, in its own name, to arbitrate the grievance between the police officer and the Village.
On July 6, 2022, the Village commenced this proceeding to permanently stay arbitration on the ground, among other things, that Local 445 is not a proper party authorized to demand arbitration under the CBA. Local 445 cross-petitioned to compel arbitration, contending, inter alia, that it had the authority to demand arbitration.
In an order dated April 5, 2023, the Supreme Court denied the petition and granted the cross-petition. The court rejected as "unavailing and without merit" the Village's contentions that Local 445 "was not the proper party" to present a grievance and that "only the Association (PBA) has the authority to appeal at the Step 3 stage." The court noted that in 2021, Local 445 had previously "litigated in its own name" another proceeding involving the same police officer, and in that litigation, the Village had failed to argue that Local 445 was not a proper party to present a grievance. The court reasoned that the Village had "thus conced[ed]" that Local 445 was "a proper party." The court further reasoned that Local 445 was "inextricably bound to the workings of the CBA including the arbitration provisions of the grievance procedure." The Village appeals.
"[O]ne who is a party to [a] contract to arbitrate" may serve upon another party to that contract a demand for arbitration or a notice of intention to arbitrate (Glasser v Price, 35 AD2d 98, 100; see CPLR 7503[c]). The right to demand arbitration is generally reserved to the designated parties to an agreement to arbitrate (see County of Westchester v Mahoney, 56 NY2d 756; Matter of Town of New Castle v L'Eplattenier, 236 AD2d 415, 416). "Generally, the right to compel arbitration does not extend to a nonparty unless the agreement itself so provides" (County of Onondaga v U.S. Sprint Communications Co., 192 AD2d 1108, 1109). "'A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal agreement to arbitrate'" (Matter of Jalas v Halperin, 85 AD3d 1178, 1182 [internal quotation marks omitted], quoting God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374; see Matter of Waldron [Goddess], 61 NY2d 181).
Importantly, in the case at bar, Local 445 does not contend that it filed its demand for arbitration on behalf of the Association or that it was acting as the Association's agent when it filed the demand. Rather, Local 445 has consistently argued, both before the Supreme Court and on appeal, that "Local 445 as such" (emphasis added) is entitled to demand arbitration under Step 3 of the CBA's grievance procedure because Local 445 is a "party" to the CBA between the Village and the Association. Accordingly, this appeal does not implicate the Association's right to be represented by Local 445, whether it be in arbitration proceedings, in contract negotiations, or otherwise. The record contains no evidence that the Association ever requested or authorized Local 445 to submit a demand for arbitration on the Association's behalf concerning the subject police officer. Rather, this appeal turns on Local 445's assertion that it is entitled, in its own words, to stand "in the shoes" of the Association "as a party to the CBA" and to demand arbitration under Step 3 of the grievance procedure in its own name.
However, the record does not support Local 445's contention that it is a party to the CBA. Local 445 relies on the fact that its representative's signature appears on the final page of the CBA. However, the presence of that signature alone is insufficient to confer upon Local 445 the status of a party to the agreement. Not every entity which affixes its signature to a contract will be deemed a party to that contract (see e.g. Selinger Enters., Inc. v Cassuto, 50 AD3d 766, 767; D'Angelo v State of New York, 285 App Div 29, 32), and the signatures on a contract "must be read, like any other portion of the instrument, not in isolation, but in the context of the instrument as a whole" (150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1, 7). It is not uncommon for a contract to include signature lines both for the parties and the parties' respective legal representatives (see e.g. In re Artha Mgt., Inc., 91 F3d 326, 330 [2d Cir]).
Here, it is clear from the natural reading of the CBA as a whole that the Village and the Association are the only two parties to the CBA. The title page identifies the CBA as an "AGREEMENT Between" the Village and the Association, and the body of the CBA defines the rights and responsibilities of the Village and the Association without any reference to Local 445. [*4]The first section of the CBA expressly states that the Association is "the sole and exclusive representative" of Village police officers in grievance proceedings. Although the signature page of the CBA includes a signature line for "Thomas Miller, Local 445" on behalf of the "P.B.A/UNION," a natural reading indicates that Miller signed the CBA, together with "Robert Montanaro, P.B.A. President," as one of the two "authorized representatives" of the Association, just as "Susan Rumbold, Mayor," and "John Revella, Village Manager," signed as the authorized representatives of the Village. In light of the numerous indicators that the Village and the Association are the intended parties to the CBA, coupled with the statement on the signature page that the "parties have caused this Agreement to be executed by their authorized representatives" (emphases added), we cannot agree with our dissenting colleague's conclusion that Local 445 signed the agreement "in its own right."
Moreover, the CBA bearing Miller's signature on behalf of Local 445 expired in 2018, and the 2021 agreement does not bear a signature on Local 445's behalf. Notably, the 2021 agreement does not acknowledge Local 445 as a party to the CBA. Instead, the 2021 agreement characterizes the CBA as an agreement between the Village and the Association.
The conclusion that Local 445 is not a party to the CBA between the Village and the Association is further supported by the affiliation agreement governing the relationship between Local 445 and the Association. We do not agree with our dissenting colleagues' statement that Local 445 represents the Association and its members "in all labor-related and collective bargaining matters" (emphasis added), as the affiliation agreement contains no such language. Despite the position taken by Local 445 before the Supreme Court, where it refused to "acknowledge that its role is in any way limited as a representative of the [Association]," the affiliation agreement between the Association and Local 445 defines the scope of the services to be provided by Local 445 and explicitly states that such services shall be provided only at the Association's request. These services include assistance with the arbitration of "meritorious" claims for General Municipal Law § 207-c benefits, "as determined by the Association." The affiliation agreement underscores the conclusion that the Association, and not Local 445, has the authority to determine whether and when to pursue arbitration of a particular claim for General Municipal Law § 207-c benefits.
The record likewise does not support Local 445's contention that past practices demonstrate that the Village regarded Local 445 as a party to the CBA. On the contrary, the record reflects that Local 445 departed from past practices when it served the arbitration demand at issue in its own name, rather than in the name of the Association. In at least three prior employee grievances, the demand for arbitration identified the Association as the "Name of Organization" demanding arbitration, and separately listed Local 445 as the "[r]epresentative to whom PERB should direct correspondence." By contrast, in the case at bar, the demand for arbitration lists Local 445 itself as the "Name of Organization" demanding arbitration. Neither the form demanding arbitration nor the accompanying cover letter contains any reference to the Association.
Contrary to Local 445's contention, the correspondence sent by Local 445 to the Village also does not demonstrate that the Village recognized Local 445 as the party authorized to submit a Step 3 grievance. The correspondence cited by Local 445 pertain to Step 1 and Step 2 of the grievance procedure and indicates that Local 445 was purporting to act on behalf of the injured police officer during those initial steps. Moreover, notably, one of the letters from Local 445 to the Village described the CBA as an agreement "with [the Association]," not as an agreement with Local 445.
The record also does not support the Supreme Court's conclusion that the Village "conced[ed]" in a prior litigation that Local 445 was a proper party to demand arbitration. The record reflects only that the Village previously objected to arbitration on grounds other than the ground now asserted on this appeal. As the Village correctly contends, the Village is not collaterally estopped from advancing an argument in this litigation based upon its failure to raise it in another litigation (see Ryan v New York Tel. Co., 62 NY2d 494, 500). To the extent that the Village's failure to object to Local 445's standing in a prior litigation could be deemed evidence of the parties' custom and practice in interpreting and enforcing the CBA, that interpretation, which was reached [*5]by the court herein, is belied by the record. As discussed above, prior demands for arbitration reflect that the Association was the party demanding arbitration, with Local 445 solely acting as an agent of the Association.
Finally, as a policy matter, if this Court were to accept Local 445's contention that it is a "party" to the CBA, such a determination could have broader implications beyond merely permitting Local 445 to demand on behalf of an individual police officer that the Village arbitrate a particular claim. If recognized as a purported "party" to the CBA, such recognition could serve as the basis for Local 445 to potentially assert additional rights reserved to the Association under the CBA, including "activities concerning wages, hours of work, working conditions, [and] benefits," or to otherwise usurp the Association's role as "the sole and exclusive representative for all full-time and part-time police officers" of the Village. There is no evidence in the record that the Association has delegated such broad authority upon Local 445 to act on behalf of the Association's members. To treat Local 445, in effect, as the alter ego of the Association would be an untenable result based on the record before this Court.
In summary, Local 445, on its own behalf, cannot compel the Village to arbitrate, as "[t]here is no writing in the record requiring arbitration of disputes between these parties" (Esquire Div. of L. Greif & Bros. [Div. of Genesco] v Finley, 54 AD2d 869, 869). Accordingly, the Supreme Court should have granted the Village's petition to permanently stay arbitration and denied Local 445's cross-petition to compel arbitration.
DILLON, J.P., CHAMBERS and VENTURA, JJ., concur.
DOWLING, J., dissents, and votes to affirm the order, with the following memorandum, in which BRATHWAITE NELSON, J., concurs:
In my view, the petitioner, Village of Walden, should be compelled to arbitrate the subject grievance with the respondent, Teamsters Local Union No. 445 (hereinafter Local 445). Therefore, respectfully, I dissent.
Pursuant to an affiliation agreement executed in 2009, Local 445 represents the Village of Walden Police Benevolent Association, Inc. (hereinafter the Association) and its members in all labor-related and collective-bargaining matters, including entitlements to General Municipal Law § 207-c benefits and the arbitration of grievances. It is undisputed that the Village has historically and repeatedly recognized Local 445's authority in this regard. In 2015, Local 445, along with the Association and the Village, executed a collective bargaining agreement (hereinafter the CBA) between the Village and the Association covering the period from June 1, 2013, through May 31, 2018. The CBA contained a grievance procedure to resolve disputes between the Village and the Association's members, including the arbitration of unresolved grievances. The subject grievance and arbitration provisions permitted continuation of "[a]ll past practices" and provided that the Association may appeal an unresolved grievance by submitting a demand for arbitration. By memorandum of agreement executed on July 26, 2021, the CBA was extended to include the period from June 1, 2018, through May 31, 2025, with certain modifications. The grievance and arbitration provisions of the CBA were not affected by the extension.
In March 2022, the Village terminated General Municipal Law § 207-c benefits for a certain Village police officer who was a member of the Association. In June 2022, during the extension period in which the CBA, as modified by the memorandum of agreement, remained in effect, Local 445 filed a demand for arbitration of a grievance between the police officer and the Village pursuant to the CBA. Local 445's demand for arbitration alleged that the Village had breached the CBA by failing to hold a hearing regarding termination of the police officer's General Municipal Law § 207-c benefits and by failing to continue to provide those benefits pending the hearing.
Thereafter, the Village commenced this proceeding to permanently stay arbitration on the ground, inter alia, that Local 445 is not a proper party authorized to demand arbitration under [*6]the CBA. Local 445 filed a cross-petition to compel arbitration, asserting that it is authorized to demand arbitration under the CBA as the bargaining representative of the Association and its members and that the demand for arbitration was filed in accordance with the parties' past practices. In an order dated April 5, 2023, the Supreme Court denied the petition and granted the cross-petition. The Village appeals.
The right to demand arbitration is generally reserved to the designated parties to an agreement to arbitrate (see County of Westchester v Mahoney, 56 NY2d 756; Matter of Town of New Castle v L'Eplattenier, 236 AD2d 415, 416). "'A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal agreement to arbitrate'" (Matter of Jalas v Halperin, 85 AD3d 1178, 1182 [internal quotation marks omitted], quoting God's Battalion of Prayer Pentecostal Chuch, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374).
Here, I do not agree with my colleagues in the majority that the Village may not be compelled to arbitrate the subject grievance with Local 445. Rather, under the circumstances of this particular case, I find the record more than adequate to support the Supreme Court's determination that Local 445 is not precluded from invoking the arbitration clause of the CBA on behalf of the Association and its members. Not only is Local 445 the undisputed bargaining representative of the Association and its members with regard to the CBA, but Local 445 signed the CBA in its own right under the section titled "For the P.B.A./UNION" (cf. Selinger Enters., Inc. v Cassuto, 50 AD3d 766, 767). Moreover, there is nothing in the record to indicate that Local 445 acted outside the confines of its relationship with the Association in filing the demand for arbitration (see generally Hirschfeld Prods. v Mirvish, 218 AD2d 567, 569, affd 88 NY2d 1054; cf. generally County of Westchester v Mahoney, 56 NY2d 756; Matter of Jalas v Halperin, 85 AD3d at 1181-1182; Matter of Gonzalez v County of Orange Dept. of Social Servs., 250 AD2d 849, 850; County of Onondaga v U.S. Sprint Communications Co., 192 AD2d 1108, 1109; Esquire Div. of L. Greif & Bros. [Div. of Genesco] v Finley, 54 AD2d 869, 869; Glasser v Price, 35 AD2d 98, 100-101; Matter of Sholgen [Lipsett, Inc.], 14 Misc 2d 296, 296-297 [Sup Ct, NY County]).
Based upon the prior negotiations in this matter between Local 445 and the Village, the proffered arguments by the Village to stay arbitration appear disingenuous and not to be asserted in good faith. Accordingly, I find that the Supreme Court properly denied the Village's petition to permanently stay arbitration and granted Local 445's cross-petition to compel arbitration, and vote to affirm the order.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_05090.htm
| Matter of Arluck v Board of Educ., Orange-Ulster Bd. of Coop. Educ. Servs. |
| 2025 NY Slip Op 05076 |
| Decided on September 24, 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. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
HELEN VOUTSINAS
DONNA-MARIE E. GOLIA, JJ.
2023-11876
(Index No. 4652/22)
v
Board of Education, Orange-Ulster Board of Cooperative Educational Services, et al., appellants.
Bond, Schoeneck & King, PLLC, Garden City, NY (Alyson Mathews, Craig L. Olivo, and Howard M. Miller of counsel), for appellants.
Robert T. Reilly, New York, NY (Oriana Vigliotti of counsel), for respondents.
https://nycourts.gov/reporter/3dseries/2025/2025_05076.htm
| Matter of Gunderson v New York City Employees' Retirement Sys. |
| 2025 NY Slip Op 05084 |
| Decided on September 24, 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. |
ANGELA G. IANNACCI, J.P.
ROBERT J. MILLER
LILLIAN WAN
CARL J. LANDICINO, JJ.
2024-08825
(Index No. 527284/23)
v
New York City Employees' Retirement System, et al., respondents.
Seelig Law Offices, LLC, New York, NY (Philip H. Seelig and Joshua Gohari of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Jeremy W. Shweder and Chase Henry Mechanick of counsel), for respondents.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System dated June 8, 2023, which denied the petitioner's application for accidental disability retirement benefits, the petitioner appeals from a judgment of the Supreme Court, Kings County (Anne J. Swern, J.), dated May 30, 2024. The judgment denied the petition and, in effect, dismissed the proceeding.
ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, the determination is annulled, and the matter is remitted to the Board of Trustees of the New York City Employees' Retirement System for further proceedings consistent herewith.
On April 6, 2020, the petitioner, an employee of the New York City Department of Sanitation, was walking inside the sanitation garage to which he was assigned when he slipped on a loose vinyl floor tile and fell on his left shoulder. The petitioner underwent three surgeries to his left shoulder, which did not significantly improve his condition. The petitioner applied to the respondent New York City Employees' Retirement System (hereinafter NYCERS), inter alia, for accidental disability retirement (hereinafter ADR) benefits under Retirement and Social Security Law § 605-b.
The Medical Board of NYCERS (hereinafter the Medical Board) determined that the petitioner was disabled due to internal derangement of his left shoulder and found that his fall on April 6, 2020, was the competent causal factor of his disability. However, the Medical Board found that the petitioner's fall was not an accident and, thus, recommended that he be denied ADR benefits. The Board of Trustees of NYCERS (hereinafter the Board of Trustees) adopted the recommendation of the Medical Board and denied the petitioner's application for ADR benefits.
The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination of the Board of Trustees. In a judgment dated May 30, 2024, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.
"A Department of Sanitation worker who 'is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident, not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service . . . shall be retired for accidental disability'" (Matter of Lanni v New York City Employees' Retirement Sys., 189 AD3d 841, 842, quoting Retirement and Social Security Law § 605-b[b][1]). An "accident" has been defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012; see Matter of Bodenmiller v DiNapoli, 43 NY3d 43, 46). "[A] precipitating event that could or should have reasonably been anticipated by a person in the claimant's circumstances is not an 'accident' for purposes of ADR benefits" (Matter of Bodenmiller v DiNapoli, 43 NY3d at 46-47).
Here, while the petitioner was aware before the day of his fall that the floor was in disrepair, there is insufficient record support for a conclusion that the petitioner was aware of the particular hazard that caused his fall, i.e., that the vinyl floor tiles might shift under his weight (cf. id. at 47). Under the circumstances, there was no rational, nonspeculative basis for the conclusion of the Medical Board and the Board of Trustees that the petitioner should have reasonably anticipated the precipitating event and, thus, that it was not an accident (see Matter of Lanni v New York City Employees' Retirement Sys., 189 AD3d at 842; Matter of Leary v New York City Employees' Retirement Sys., 59 AD3d 547, 549). Accordingly, since the determination of the Board of Trustees denying the petitioner's application for ADR benefits was arbitrary and capricious, we grant the petition, annul the determination, and remit the matter to the Board of Trustees for further proceedings consistent herewith.
IANNACCI, J.P., MILLER, WAN and LANDICINO, JJ., concur.
Darrell M. Joseph
Clerk of the CourtClerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_05084.htm
| Matter of Lopez v DiNapoli |
| 2025 NY Slip Op 05130 |
| Decided on September 25, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-23-2026
v
Thomas P. DiNapoli, as State Comptroller, Respondent.
Before:Garry, P.J., Pritzker, McShan, Powers and Mackey, JJ.
Schwab & Gasparini, PLLC, Albany (James A. Resila of counsel), for petitioner.
Letitia James, Attorney General, Albany (Alexandria Twinem of counsel), for respondent.
McShan, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for accidental disability retirement benefits.
In April 2021, petitioner filed an application for accidental disability retirement benefits contending that he was permanently incapacitated from the performance of his duties as the result of an incident that occurred in January 2015. At the time of the incident, petitioner was a police detective assigned to an executive protection detail. In that capacity, petitioner would provide security services for high-ranking municipal officials. The New York State and Local Police and Fire Retirement System denied the application upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363. Following a hearing and redetermination in November 2022,[FN1] the Hearing Officer upheld the denial and, upon administrative review, respondent affirmed. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge respondent's determination.
We confirm. "As the applicant, petitioner bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, and respondent's determination in this regard will be upheld if supported by substantial evidence" (Matter of Hamblin v DiNapoli, 229 AD3d 922, 923 [3d Dept 2024] [internal quotation marks and citations omitted]; see Matter of Cuppek v DiNapoli, 238 AD3d 1238, 1238 [3d Dept 2025]; Matter of Croly v New York State Comptroller, 236 AD3d 1277, 1277-1278 [3d Dept 2025]). "An accident in this context means a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" (Matter of Stefanik v Gardner, 236 AD3d 75, 80 [3d Dept 2025] [internal quotation marks and citations omitted]; see Matter of Buonora v Gardner, 235 AD3d 1056, 1057 [3d Dept 2025], lv denied 43 NY3d 907 [2025]; Matter of Buddenhagen v DiNapoli, 224 AD3d 1061, 1062 [3d Dept 2024]). "Thus, an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury" (Matter of McQuade v New York State Comptroller, 236 AD3d 1290, 1291 [3d Dept 2025] [internal quotation marks and citations omitted]; see Matter of Croly v New York State Comptroller, 236 AD3d at 1278; Matter of Hamblin v DiNapoli, 229 AD3d at 923).
Petitioner testified that, on the day in question, he was assigned to the executive protection detail and, in that capacity, had transported a county executive to various meetings. At the end of the day, petitioner returned the departmental vehicle he was using to the employer's parking lot and, as he exited the vehicle, he experienced chest pains. Petitioner reported this incident to his supervisor [*2]and drove himself to a local emergency room, where he was evaluated and discharged with a diagnosis of chest pain and palpitations. Petitioner, who had been diagnosed with sarcoidosis in 2015, testified that he subsequently was diagnosed with cardiac sarcoidosis in 2021.
When questioned regarding his activities on the day in question, petitioner testified that he did not recall anything significant occurring, and the record fails to disclose that petitioner engaged in any particularly stressful or strenuous activity prior to exiting his vehicle. To the extent that petitioner suggests that the chest pain he experienced — in and of itself — was sudden and unexpected and, hence, qualified as a precipitating accidental event, we disagree (cf. Matter of Warshawsky v DiNapoli, 73 AD3d 1357, 1360 [3d Dept 2010]). Further, "the risks associated with exiting a police car are inherent in the performance of [petitioner's] routine duties, and petitioner has offered no evidence indicating that his exit was accompanied by anything out of the ordinary" (Matter of Ashley v DiNapoli, 97 AD3d 1057, 1058 [3d Dept 2012] [internal quotation marks and citation omitted]). Under these circumstances, respondent's determination denying petitioner's application for accidental disability retirement benefits will not be disturbed (see id.; see generally Matter of Hamblin v DiNapoli, 229 AD3d at 923-924; Matter of Bornholz v DiNapoli, 225 AD3d 1079, 1081-1082 [3d Dept 2024]). Petitioner's remaining arguments on this point, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Pritzker, Powers and Mackey, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Footnote 1: At the time of the hearing, petitioner was working for the employer as a tactical flight officer.
https://nycourts.gov/reporter/3dseries/2025/2025_05130.htm
| Matter of Cabrera v New York City Hous. Auth. |
| 2025 NY Slip Op 05129 |
| Decided on September 25, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-23-2004
v
New York City Housing Authority, Respondent. Workers' Compensation Board, Respondent.
Before:Garry, P.J., Aarons, Fisher, McShan and Mackey, JJ.
Ginarte Gonzalez Winograd LLP, New York City (Patrick M. Quinn of counsel), for appellant.
Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe of counsel), for New York City Housing Authority, respondent.
Letitia James, Attorney General, New York City (Alison Kent-Friedman of counsel), for Workers' Compensation Board, respondent.
Garry, P.J.
Appeal from a decision of the Workers' Compensation Board, filed September 20, 2023, which, among other things, denied counsel's application for an award of counsel fees.
In 2022, after establishing a claim for workers' compensation benefits for various work-related injuries, claimant was classified with a permanent partial disability and tentative indemnity awards for a specified period were made, with direction that the self-insured employer continues payments at the permanent partial disability rate. Thereafter, claimant's counsel made a request for further action to address whether certain payments of the award were timely paid. Following a hearing at which the self-insured employer conceded that it failed to make certain compensation payments, the Workers' Compensation Law Judge imposed a late payment penalty pursuant to Workers' Compensation Law § 25 (1) (e), payable to claimant, but denied the application by claimant's counsel for fees in connection with securing the late payment penalty. Upon administrative appeal challenging the preclusion of counsel fees, the Workers' Compensation Board affirmed, finding that additional counsel fees were properly denied as the recent amendments to Workers' Compensation Law § 24, which set forth the schedule of counsel fees based upon awards, makes no provision for additional fees payable to a claimant's representative based upon the assessment of a late payment penalty. Claimant appeals.[FN1]
The Board's decision finding that it lacked authority under the recent amendments to Workers' Compensation Law § 24 to award counsel fees for legal services provided in procuring a late payment penalty is consistent with this Court's recent decision in Matter of Gonzalez v Northeast Parent & Child Socy. (232 AD3d 1011, 1011-1012 [3d Dept 2024], lv dismissed in part & granted in part 43 NY3d 937 [2025]) and its progeny (see Matter of Clifton v Research Found. of SUNY, 234 AD3d 1235, 1235-1236 [3d Dept 2025]). Accordingly, for the reasons set forth in Matter of Gonzalez, the Board's finding that claimant's counsel is not entitled to additional fees related to the late payment penalty will not be disturbed.
Aarons, Fisher, McShan and Mackey, JJ., concur.
ORDERED that the decision is affirmed, without costs.
Footnote 1: The sole issue raised on appeal is a challenge to the denial of counsel fees. As such, the notice of appeal — which was filed in claimant's name — should have been filed on behalf of the law firm (see Matter of Tompkins v Bedford Stone & Masonry, 198 AD3d 1031, 1032 n [3d Dept 2021];Matter of Dzielski v New York State Dept. of Corr. & Community Supervision, 195 AD3d 1255, 1256 n [3d Dept 2021]). Nevertheless, in the absence of any demonstrated prejudice, we will disregard this error (see CPLR 2001; Matter of Tompkins v Bedford Stone & Masonry, 198 AD3d at 1032 n).
https://nycourts.gov/reporter/3dseries/2025/2025_05129.htm
24-972-cv Chislett v. N.Y.C. Dep’t of Educ. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2024 Argued: April 4, 2025 Decided: September 25, 2025 No. 24-972-cv ______________________________________ LESLIE CHISLETT, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, RICHARD CARRANZA AS CHANCELLOR OF NEW YORK CITY DEPARTMENT OF EDUCATION, INDIVIDUALLY, Defendants-Appellees. ______________________________________ Before: LEVAL, BIANCO, and NARDINI, Circuit Judges. Plaintiff Leslie Chislett appeals from the grant of summary judgment by the United States District Court for the Southern District of New York (Rochon, J.) in favor of Defendants New York City Department of Education and Richard Carranza. Chislett, who is Caucasian, brought a 42 U.S.C. § 1983 claim of racial discrimination under three theories: (1) she was demoted pursuant to a municipal policy that made race a determinative factor in employment decisions; (2) she suffered a hostile work environment fostered by mandatory implicit bias trainings; and (3) she was constructively discharged. The district court rejected all three theories, largely on the basis that Plaintiff failed to demonstrate the existence of a municipal policy linked to the demotion, hostile work environment, and 2 constructive discharge. We conclude that the district court did not err in granting summary judgment on Plaintiff’s demotion and constructive discharge claims. However, we hold that genuine disputes of material fact precluded the grant of summary judgment on Plaintiff’s hostile work environment claim. We therefore AFFIRM in part, VACATE in part, and REMAND
https://ww3.ca2.uscourts.gov/decisions/isysquery/53fbb958-4e23-4040-9a77-3eb9a2d96d17/1/doc/24-972_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/53fbb958-4e23-4040-9a77-3eb9a2d96d17/1/hilite/
ALJ Joycelyn McGeachy-Kuls recommended dismissal of disciplinary charges against a correction officer who failed to report for duty on 15 occasions. The Department, seeking a 30-day suspension, alleged that the officer did not have authorization for these absences. The officer did not dispute her absences but testified that she requested personal emergency leave on each occasion in accordance with Department procedure due to a lack of childcare for her seven-year-old daughter. For five of the officer’s absences, the ALJ dismissed the misconduct charges because the Department’s own evidence established that the Department granted the officer’s leave requests for those days. For the remaining ten absences, the ALJ found that the officer proved she followed Department procedure for requesting personal emergency leave through her presentation of extensive credible evidence that she called her command to request leave before each absence and submitted written documentation upon her return. Because the officer’s compliance with Department procedure went undisputed, the Department had to establish why the officer’s leave requests were denied to prove misconduct. The ALJ held that the Department did not make this showing and that it failed to inform the officer that it denied her requests and provide reasons for the denials. As a result, the ALJ found that the Department failed to prove the charges and recommended dismissal. The ALJ’s recommended decision was issued and sent to the Department on April 4, 2025. The Department of Correction Commissioner fully adopted the ALJ’s findings on August 11, 2025. Dep’t of Correction v. Lee, OATH Index No. 3152/24 (Apr. 4, 2025), adopted, Comm’r Dec. (Aug. 11, 2025).
| Matter of Village of Walden v Teamsters Local Union No. 445 |
| 2025 NY Slip Op 05090 |
| Decided on September 24, 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. |
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
VALERIE BRATHWAITE NELSON
DEBORAH A. DOWLING
LOURDES M. VENTURA, JJ.
2023-04708
(Index No. 3620/22)
v
Teamsters Local Union No. 445, respondent.
Feerick Nugent MacCartney PLLC, South Nyack, NY (Brian D. Nugent and Dylan Lockyer of counsel), for appellant.
Barnes, Iaccarino & Shepard LLP, Elmsford, NY (Steven H. Kern of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the petitioner appeals from an order of the Supreme Court, Orange County (Maria S. Vazquez-Doles, J.), dated April 5, 2023. The order denied the petition to permanently stay arbitration and granted the cross-petition to compel arbitration.
ORDERED that the order is reversed, on the law, with costs, the petition to permanently stay arbitration is granted, the cross-petition to compel arbitration is denied, and the arbitration is permanently stayed.
The issue in this appeal is whether the respondent, Teamsters Local Union No. 445 (hereinafter Local 445), had the authority to demand arbitration under the terms of a collective bargaining agreement (hereinafter the CBA) between the petitioner, Village of Walden, and the Village of Walden Police Benevolent Association (hereinafter the Association). For the reasons that follow, we conclude that Local 445 did not have the authority to demand arbitration, as it was not a party to the CBA between the Village and the Association. We therefore conclude that the Supreme Court should have granted the Village's petition to permanently stay arbitration and denied Local 445's cross-petition to compel arbitration.
In 2009, the Association, a labor organization, entered into an "AFFILIATION AGREEMENT" with Local 445, a labor union. Under the affiliation agreement, the Association and Local 445 agreed, among other things, that the Association would pay dues to Local 445 and Local 445 would provide specific listed services "at the request of the Association." Local 445's services included pursuing arbitrations of Association members' "meritorious claims as determined by the Association" (emphases added), for benefits pursuant to General Municipal Law § 207-c.
Thereafter, the Association entered into the CBA with the Village. The first page of the CBA identifies the CBA as an "AGREEMENT Between VILLAGE OF WALDEN and VILLAGE OF WALDEN POLICE BENEVOLENT ASSOCIATION, INC." Article 1, section 1, of the CBA provides that the Village recognizes the Association "as the sole and exclusive [*2]representative for all full-time and part-time police officers . . . employed by the Village," subject to certain exceptions, "for the purpose of negotiating collectively in determination of all matters relating to wages, hours of work, working conditions, benefits, grievances and employment." Article 1, section 2, states that "[t]he Village agrees that the Association shall be guaranteed unchallenged representation status until the expiration of this Agreement."
Article 4 of the CBA, governing compensation, establishes a procedure "to regulate the application for, and the award and/or termination of," General Municipal Law § 207-c benefits for Village police officers injured in the line of duty. Under this procedure, an injured police officer, i.e., the claimant, or the claimant's representative must file a written application for General Municipal Law § 207-c benefits within 10 days after the incident giving rise to the claimant's alleged injury or within 10 days after the claimant becomes aware of the alleged injury, whichever is later. The Village's designated claims manager is then required, within a reasonable time, to issue a written determination as to whether the claimant is entitled to General Municipal Law § 207-c benefits. The procedure also authorizes a hearing at the claimant's request before a neutral hearing officer. In addition, article 13 of the CBA sets forth a three-step grievance procedure for challenging, inter alia, unfavorable determinations of applications for General Municipal Law § 207-c benefits. In Steps 1 and 2, respectively, the claimants themselves elect whether to present a grievance to the Chief of Police, and subsequently whether to appeal an unsatisfactory decision to the Village Manager. In Step 3 of the grievance procedure, however, it is the Association—not the claimant—that elects whether to "appeal an unsatisfactory decision of the Village Manager by submitting a Demand for Arbitration to the New York State Public Employment Relations Board ([hereinafter] PERB)."
This exclusive role of the Association is further reflected in the language of the signature page of the CBA. The signature page of the CBA includes a statement that the "parties have caused this Agreement to be executed by their authorized representatives," and directly underneath this statement, two entities are listed in all capital letters: on the left, "VILLAGE OF WALDEN," and on the right, "VILLAGE OF WALDEN POLICE BENEVOLENT ASSOCIATION, INC." Below the names of those two entities is a date line, reflecting that the CBA was executed on July 12, 2015. Beneath the date line are two columns of signature lines: on the left, under the heading "For the Village," appear the typewritten names "Susan Rumbold, Mayor," and "John Revella, Village Manager," and on the right, under the heading "For the P.B.A./UNION," appear the typewritten names "Robert Montanaro, P.B.A. President," and "Thomas Miller, Local 445." Each of these four typewritten signature lines bears a handwritten signature above it.
In 2021, the Village and the Association executed a "MEMORANDUM OF AGREEMENT" (hereinafter the 2021 agreement) extending the CBA, acknowledged by both parties to have expired on May 31, 2018, to cover the period from June 1, 2018, through May 31, 2025. The 2021 agreement incorporated certain modifications to the CBA, none of which affected the grievance and arbitration provisions thereof. The 2021 agreement bears two signatures, that of the Village Manager and that of the Association's president. Notably, the 2021 agreement does not include a signature of any representative of Local 445.
The events giving rise to this litigation occurred during the period covered by the 2021 agreement. In March 2022, the Village's claims manager issued a determination on an application dated June 14, 2021, for General Municipal Law § 207-c benefits for a certain Village police officer who claimed to have been injured after falling from a chair on which he was sitting (hereinafter the March 2022 determination). The claims manager, among other things, determined that the police officer's alleged injuries arising from the occurrence were fully resolved as of July 26, 2021, awarded the police officer General Municipal Law § 207-c benefits for a six-week period, and recommended that the police officer be directed to return to full duty. In April 2022, Local 445 wrote a letter on the police officer's behalf to the claims manager appealing the March 2022 determination and requesting a hearing. Local 445 then purported to present a Step 1 grievance on behalf of the police officer in May 2022, followed by a Step 2 grievance in June 2022. The Village responded to Local 445's correspondence, asserting, inter alia, that the proper procedures for presenting Step 1 and Step 2 grievances had not been followed. On June 16, 2022, Local 445 filed [*3]a Step 3 demand for arbitration with PERB, in its own name, to arbitrate the grievance between the police officer and the Village.
On July 6, 2022, the Village commenced this proceeding to permanently stay arbitration on the ground, among other things, that Local 445 is not a proper party authorized to demand arbitration under the CBA. Local 445 cross-petitioned to compel arbitration, contending, inter alia, that it had the authority to demand arbitration.
In an order dated April 5, 2023, the Supreme Court denied the petition and granted the cross-petition. The court rejected as "unavailing and without merit" the Village's contentions that Local 445 "was not the proper party" to present a grievance and that "only the Association (PBA) has the authority to appeal at the Step 3 stage." The court noted that in 2021, Local 445 had previously "litigated in its own name" another proceeding involving the same police officer, and in that litigation, the Village had failed to argue that Local 445 was not a proper party to present a grievance. The court reasoned that the Village had "thus conced[ed]" that Local 445 was "a proper party." The court further reasoned that Local 445 was "inextricably bound to the workings of the CBA including the arbitration provisions of the grievance procedure." The Village appeals.
"[O]ne who is a party to [a] contract to arbitrate" may serve upon another party to that contract a demand for arbitration or a notice of intention to arbitrate (Glasser v Price, 35 AD2d 98, 100; see CPLR 7503[c]). The right to demand arbitration is generally reserved to the designated parties to an agreement to arbitrate (see County of Westchester v Mahoney, 56 NY2d 756; Matter of Town of New Castle v L'Eplattenier, 236 AD2d 415, 416). "Generally, the right to compel arbitration does not extend to a nonparty unless the agreement itself so provides" (County of Onondaga v U.S. Sprint Communications Co., 192 AD2d 1108, 1109). "'A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal agreement to arbitrate'" (Matter of Jalas v Halperin, 85 AD3d 1178, 1182 [internal quotation marks omitted], quoting God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374; see Matter of Waldron [Goddess], 61 NY2d 181).
Importantly, in the case at bar, Local 445 does not contend that it filed its demand for arbitration on behalf of the Association or that it was acting as the Association's agent when it filed the demand. Rather, Local 445 has consistently argued, both before the Supreme Court and on appeal, that "Local 445 as such" (emphasis added) is entitled to demand arbitration under Step 3 of the CBA's grievance procedure because Local 445 is a "party" to the CBA between the Village and the Association. Accordingly, this appeal does not implicate the Association's right to be represented by Local 445, whether it be in arbitration proceedings, in contract negotiations, or otherwise. The record contains no evidence that the Association ever requested or authorized Local 445 to submit a demand for arbitration on the Association's behalf concerning the subject police officer. Rather, this appeal turns on Local 445's assertion that it is entitled, in its own words, to stand "in the shoes" of the Association "as a party to the CBA" and to demand arbitration under Step 3 of the grievance procedure in its own name.
However, the record does not support Local 445's contention that it is a party to the CBA. Local 445 relies on the fact that its representative's signature appears on the final page of the CBA. However, the presence of that signature alone is insufficient to confer upon Local 445 the status of a party to the agreement. Not every entity which affixes its signature to a contract will be deemed a party to that contract (see e.g. Selinger Enters., Inc. v Cassuto, 50 AD3d 766, 767; D'Angelo v State of New York, 285 App Div 29, 32), and the signatures on a contract "must be read, like any other portion of the instrument, not in isolation, but in the context of the instrument as a whole" (150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1, 7). It is not uncommon for a contract to include signature lines both for the parties and the parties' respective legal representatives (see e.g. In re Artha Mgt., Inc., 91 F3d 326, 330 [2d Cir]).
Here, it is clear from the natural reading of the CBA as a whole that the Village and the Association are the only two parties to the CBA. The title page identifies the CBA as an "AGREEMENT Between" the Village and the Association, and the body of the CBA defines the rights and responsibilities of the Village and the Association without any reference to Local 445. [*4]The first section of the CBA expressly states that the Association is "the sole and exclusive representative" of Village police officers in grievance proceedings. Although the signature page of the CBA includes a signature line for "Thomas Miller, Local 445" on behalf of the "P.B.A/UNION," a natural reading indicates that Miller signed the CBA, together with "Robert Montanaro, P.B.A. President," as one of the two "authorized representatives" of the Association, just as "Susan Rumbold, Mayor," and "John Revella, Village Manager," signed as the authorized representatives of the Village. In light of the numerous indicators that the Village and the Association are the intended parties to the CBA, coupled with the statement on the signature page that the "parties have caused this Agreement to be executed by their authorized representatives" (emphases added), we cannot agree with our dissenting colleague's conclusion that Local 445 signed the agreement "in its own right."
Moreover, the CBA bearing Miller's signature on behalf of Local 445 expired in 2018, and the 2021 agreement does not bear a signature on Local 445's behalf. Notably, the 2021 agreement does not acknowledge Local 445 as a party to the CBA. Instead, the 2021 agreement characterizes the CBA as an agreement between the Village and the Association.
The conclusion that Local 445 is not a party to the CBA between the Village and the Association is further supported by the affiliation agreement governing the relationship between Local 445 and the Association. We do not agree with our dissenting colleagues' statement that Local 445 represents the Association and its members "in all labor-related and collective bargaining matters" (emphasis added), as the affiliation agreement contains no such language. Despite the position taken by Local 445 before the Supreme Court, where it refused to "acknowledge that its role is in any way limited as a representative of the [Association]," the affiliation agreement between the Association and Local 445 defines the scope of the services to be provided by Local 445 and explicitly states that such services shall be provided only at the Association's request. These services include assistance with the arbitration of "meritorious" claims for General Municipal Law § 207-c benefits, "as determined by the Association." The affiliation agreement underscores the conclusion that the Association, and not Local 445, has the authority to determine whether and when to pursue arbitration of a particular claim for General Municipal Law § 207-c benefits.
The record likewise does not support Local 445's contention that past practices demonstrate that the Village regarded Local 445 as a party to the CBA. On the contrary, the record reflects that Local 445 departed from past practices when it served the arbitration demand at issue in its own name, rather than in the name of the Association. In at least three prior employee grievances, the demand for arbitration identified the Association as the "Name of Organization" demanding arbitration, and separately listed Local 445 as the "[r]epresentative to whom PERB should direct correspondence." By contrast, in the case at bar, the demand for arbitration lists Local 445 itself as the "Name of Organization" demanding arbitration. Neither the form demanding arbitration nor the accompanying cover letter contains any reference to the Association.
Contrary to Local 445's contention, the correspondence sent by Local 445 to the Village also does not demonstrate that the Village recognized Local 445 as the party authorized to submit a Step 3 grievance. The correspondence cited by Local 445 pertain to Step 1 and Step 2 of the grievance procedure and indicates that Local 445 was purporting to act on behalf of the injured police officer during those initial steps. Moreover, notably, one of the letters from Local 445 to the Village described the CBA as an agreement "with [the Association]," not as an agreement with Local 445.
The record also does not support the Supreme Court's conclusion that the Village "conced[ed]" in a prior litigation that Local 445 was a proper party to demand arbitration. The record reflects only that the Village previously objected to arbitration on grounds other than the ground now asserted on this appeal. As the Village correctly contends, the Village is not collaterally estopped from advancing an argument in this litigation based upon its failure to raise it in another litigation (see Ryan v New York Tel. Co., 62 NY2d 494, 500). To the extent that the Village's failure to object to Local 445's standing in a prior litigation could be deemed evidence of the parties' custom and practice in interpreting and enforcing the CBA, that interpretation, which was reached [*5]by the court herein, is belied by the record. As discussed above, prior demands for arbitration reflect that the Association was the party demanding arbitration, with Local 445 solely acting as an agent of the Association.
Finally, as a policy matter, if this Court were to accept Local 445's contention that it is a "party" to the CBA, such a determination could have broader implications beyond merely permitting Local 445 to demand on behalf of an individual police officer that the Village arbitrate a particular claim. If recognized as a purported "party" to the CBA, such recognition could serve as the basis for Local 445 to potentially assert additional rights reserved to the Association under the CBA, including "activities concerning wages, hours of work, working conditions, [and] benefits," or to otherwise usurp the Association's role as "the sole and exclusive representative for all full-time and part-time police officers" of the Village. There is no evidence in the record that the Association has delegated such broad authority upon Local 445 to act on behalf of the Association's members. To treat Local 445, in effect, as the alter ego of the Association would be an untenable result based on the record before this Court.
In summary, Local 445, on its own behalf, cannot compel the Village to arbitrate, as "[t]here is no writing in the record requiring arbitration of disputes between these parties" (Esquire Div. of L. Greif & Bros. [Div. of Genesco] v Finley, 54 AD2d 869, 869). Accordingly, the Supreme Court should have granted the Village's petition to permanently stay arbitration and denied Local 445's cross-petition to compel arbitration.
DILLON, J.P., CHAMBERS and VENTURA, JJ., concur.
DOWLING, J., dissents, and votes to affirm the order, with the following memorandum, in which BRATHWAITE NELSON, J., concurs:
In my view, the petitioner, Village of Walden, should be compelled to arbitrate the subject grievance with the respondent, Teamsters Local Union No. 445 (hereinafter Local 445). Therefore, respectfully, I dissent.
Pursuant to an affiliation agreement executed in 2009, Local 445 represents the Village of Walden Police Benevolent Association, Inc. (hereinafter the Association) and its members in all labor-related and collective-bargaining matters, including entitlements to General Municipal Law § 207-c benefits and the arbitration of grievances. It is undisputed that the Village has historically and repeatedly recognized Local 445's authority in this regard. In 2015, Local 445, along with the Association and the Village, executed a collective bargaining agreement (hereinafter the CBA) between the Village and the Association covering the period from June 1, 2013, through May 31, 2018. The CBA contained a grievance procedure to resolve disputes between the Village and the Association's members, including the arbitration of unresolved grievances. The subject grievance and arbitration provisions permitted continuation of "[a]ll past practices" and provided that the Association may appeal an unresolved grievance by submitting a demand for arbitration. By memorandum of agreement executed on July 26, 2021, the CBA was extended to include the period from June 1, 2018, through May 31, 2025, with certain modifications. The grievance and arbitration provisions of the CBA were not affected by the extension.
In March 2022, the Village terminated General Municipal Law § 207-c benefits for a certain Village police officer who was a member of the Association. In June 2022, during the extension period in which the CBA, as modified by the memorandum of agreement, remained in effect, Local 445 filed a demand for arbitration of a grievance between the police officer and the Village pursuant to the CBA. Local 445's demand for arbitration alleged that the Village had breached the CBA by failing to hold a hearing regarding termination of the police officer's General Municipal Law § 207-c benefits and by failing to continue to provide those benefits pending the hearing.
Thereafter, the Village commenced this proceeding to permanently stay arbitration on the ground, inter alia, that Local 445 is not a proper party authorized to demand arbitration under [*6]the CBA. Local 445 filed a cross-petition to compel arbitration, asserting that it is authorized to demand arbitration under the CBA as the bargaining representative of the Association and its members and that the demand for arbitration was filed in accordance with the parties' past practices. In an order dated April 5, 2023, the Supreme Court denied the petition and granted the cross-petition. The Village appeals.
The right to demand arbitration is generally reserved to the designated parties to an agreement to arbitrate (see County of Westchester v Mahoney, 56 NY2d 756; Matter of Town of New Castle v L'Eplattenier, 236 AD2d 415, 416). "'A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal agreement to arbitrate'" (Matter of Jalas v Halperin, 85 AD3d 1178, 1182 [internal quotation marks omitted], quoting God's Battalion of Prayer Pentecostal Chuch, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374).
Here, I do not agree with my colleagues in the majority that the Village may not be compelled to arbitrate the subject grievance with Local 445. Rather, under the circumstances of this particular case, I find the record more than adequate to support the Supreme Court's determination that Local 445 is not precluded from invoking the arbitration clause of the CBA on behalf of the Association and its members. Not only is Local 445 the undisputed bargaining representative of the Association and its members with regard to the CBA, but Local 445 signed the CBA in its own right under the section titled "For the P.B.A./UNION" (cf. Selinger Enters., Inc. v Cassuto, 50 AD3d 766, 767). Moreover, there is nothing in the record to indicate that Local 445 acted outside the confines of its relationship with the Association in filing the demand for arbitration (see generally Hirschfeld Prods. v Mirvish, 218 AD2d 567, 569, affd 88 NY2d 1054; cf. generally County of Westchester v Mahoney, 56 NY2d 756; Matter of Jalas v Halperin, 85 AD3d at 1181-1182; Matter of Gonzalez v County of Orange Dept. of Social Servs., 250 AD2d 849, 850; County of Onondaga v U.S. Sprint Communications Co., 192 AD2d 1108, 1109; Esquire Div. of L. Greif & Bros. [Div. of Genesco] v Finley, 54 AD2d 869, 869; Glasser v Price, 35 AD2d 98, 100-101; Matter of Sholgen [Lipsett, Inc.], 14 Misc 2d 296, 296-297 [Sup Ct, NY County]).
Based upon the prior negotiations in this matter between Local 445 and the Village, the proffered arguments by the Village to stay arbitration appear disingenuous and not to be asserted in good faith. Accordingly, I find that the Supreme Court properly denied the Village's petition to permanently stay arbitration and granted Local 445's cross-petition to compel arbitration, and vote to affirm the order.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_05090.htm
Appeals from the Hearings Division
Decision reversed.
An appellate decision reversed a hearing decision that sustained a violation of the New York City Administrative Code on the grounds of improper service. DOB v. Bazinova, Milena, Appeal No. 2500717 (Aug. 28, 2025).
Read more about DOB v. Bazinova, Milena and other Appeals from the Hearings Division.
Disciplinary Charges Dismissed.
ALJ Joycelyn McGeachy-Kuls recommended dismissal of disciplinary charges against a correction officer who failed to report for duty on 15 occasions. Dep’t of Correction v. Lee, OATH Index No. 3152/24 (Apr. 4, 2025), adopted, Comm’r Dec. (Aug. 11, 2025).
Read more about Dep’t of Correction v. Lee
| Matter of Beck v Suffolk County |
| 2025 NY Slip Op 04988 |
| Decided on September 17, 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. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
HELEN VOUTSINAS
DONNA-MARIE E. GOLIA, JJ.
2024-02004
(Index No. 205927/22)
v
Suffolk County, et al., respondents.
Zev Goldstein, New City, NY (Cory Morris of counsel), for appellant.
Christopher J. Clayton, County Attorney, Hauppauge, NY (Drew W. Schirmer of counsel), for respondents.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and action for declaratory relief, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (David T. Reilly, J.), dated January 18, 2024. The order and judgment, insofar as appealed from, granted those branches of the respondents/defendants' motion which were pursuant to CPLR 3211(a) to dismiss those branches of the petition/complaint which were to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and for an award of attorney's fees, and dismissed those portions of the proceeding/action.
ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.
In November 2022, the petitioner/plaintiff (hereinafter the petitioner) commenced this hybrid proceeding pursuant to CPLR article 78, inter alia, to compel the respondent/defendant Suffolk County Traffic and Parking Violations Agency, among others, to produce certain records in response to a request she made pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art 6) and action for declaratory relief. The respondents/defendants (hereinafter the respondents) moved, among other things, pursuant to CPLR 3211(a) to dismiss those branches of the petition/complaint which were to compel the production of the requested records pursuant to FOIL and for an award of attorney's fees. The petitioner opposed. In an order and judgment dated January 18, 2024, the Supreme Court, inter alia, granted those branches of the respondents' motion, and dismissed those portions of the proceeding/action. The petitioner appeals.
"To promote open government and public accountability, the FOIL imposes a broad duty on government to make its records available to the public" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274, citing Public Officers Law § 84). Thus, "[w]hen faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search" (Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, 440, citing Public Officers Law §§ 87[2]; 89[3]).
Public Officers Law § 89(3)(a), which provides that the agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search," is triggered "when, in lieu of granting a FOIL request, the agency finds that it either does not possess the item requested or is unable to locate it after a diligent search" (Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 232 [internal quotation marks omitted]].
Here, the respondents' disclosure of records in September 2022 was sufficient to satisfy their obligations under FOIL (see Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875).
Contrary to the petitioner's contention, given the respondents' disclosure of the records to the petitioner, they were not required, absent a request by the petitioner, to provide certification that additional records responsive to the FOIL request did not exist or could not be located after a diligent search (see Lewis v Hynes, 208 AD2d 731, 731; Public Officers Law § 89[3][a]). The record does not contain any such request by the petitioner.
The petitioner's remaining contention is without merit.
As the petitioner did not substantially prevail in the proceeding/action, the petitioner is not entitled to an award of attorney's fees and litigation costs (see Public Officers Law § 89[4][c][i]).
DUFFY, J.P., MILLER, VOUTSINAS and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_04988.htm
| Matter of Waldman v Suffolk County |
| 2025 NY Slip Op 04999 |
| Decided on September 17, 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. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
HELEN VOUTSINAS
DONNA-MARIE E. GOLIA, JJ.
2024-01370
(Index No. 609956/23)
v
Suffolk County, et al., respondents.
Zev Goldstein, New City, NY (Cory Morris of counsel), for appellant.
Christopher J. Clayton, County Attorney, Hauppauge, NY (Lisa Azzato of counsel), for respondents
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and action for declaratory relief, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated October 25, 2023. The order and judgment, insofar as appealed from, denied those branches of the petition/complaint which were to compel the immediate production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and for an award of attorney's fees and, in effect, dismissed those portions of the proceeding/action.
ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.
In April 2023, the petitioner/plaintiff (hereinafter the petitioner) commenced this hybrid proceeding pursuant to CPLR article 78, inter alia, to compel the respondents/defendants, Suffolk County, Suffolk County Police Department, Rodney Harrison, Jacqueline Caputi, and Janine Kehlegan (hereinafter collectively the respondents), to immediately produce certain records pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art 6) and action for declaratory relief. The respondents answered the petition/complaint and asserted, among other things, that the petitioner's FOIL request had not been denied and that their response to the petitioner, which included a date the respondents set forth for producing the responsive documents, was appropriate given, inter alia, the voluminous nature of the request and that a significant number of the documents to be reviewed were maintained only in paper form, not in an electronic format.
In an order and judgment dated October 25, 2023, the Supreme Court, among other things, denied those branches of the petition/complaint which sought to compel the immediate production of the requested records pursuant to FOIL and an award of attorney's fees and, in effect, dismissed those portions of the proceeding/action. The petitioner appeals.
"To promote open government and public accountability, the FOIL imposes a broad duty on government to make its records available to the public" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274, citing Public Officers Law § 84). Thus, "[w]hen faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific [*2]exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search" (Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, 440, citing Public Officers Law §§ 87[2]; 89[3]). "'If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgment of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part'" (Matter of Lepper v Village of Babylon, 190 AD3d 738, 742, quoting Public Officers Law § 89[3][a]).
Here, the Supreme Court properly denied those branches of the petition/complaint which sought to compel the immediate production of the requested records and an award of attorney's fees and, in effect, dismissed those portions of the proceeding/action. The respondents consented to produce records responsive to the petitioner's FOIL request, and their response adequately explained in detail the reasons for their inability to immediately provide the requested records and provided a reasonable timeline for the disclosure of such records. Under the circumstances presented in this case, the respondents met their obligations under FOIL (see Public Officers Law §§ 89[3][a]; [4][a]; Matter of Lepper v Village of Babylon, 190 AD3d at 742).
The parties' remaining contentions are either without merit or not properly before this Court.
Since the petitioner did not substantially prevail in the proceeding/action, the petitioner is not entitled to an award of attorney's fees and litigation costs (see Public Officers Law § 89[4][c][I]).
DUFFY, J.P., MILLER, VOUTSINAS and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_04999.htm
Reconsideration
22-1715-cv Tenemille v. Town of Ramapo UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of September, two thousand twenty-five. PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, JOSÉ A. CABRANES, BARRINGTON D. PARKER, Circuit Judges. _____________________________________ Ernst Theodore Tenemille, Plaintiff-Appellant, v. 22-1715 Town of Ramapo, Christopher St. Lawrence, Ex-Town Supervisor, Patrick Withers, Councilman, Town of Ramapo Police Department, Bradley R. Weidel, 2 Chief of Police, Thomas Cokeley, Chief of Staff, David Holmes, Police Lieutenant, William Gravina, ExAdministrative Lieutenant, Daniel Hyman, Squad Lieutenant, Brian Corbett, Detective Sergeant, Salomon Matos, Squad Sergeant, Christopher Franklin, Desk Sergeant, Al Gumbs, Police Sergeant, Defendants-Appellees. _____________________________________ FOR PLAINTIFF-APPELLANT: Ernst T. Tenemille, pro se, New City, NY. FOR DEFENDANTS-APPELLEES: Steven C. Stern, Sokoloff Stern LLP, Carle Place, NY. Appeal from a judgment and order of the United States District Court for the Southern District of New York (Kenneth M. Karas, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment and June 7, 2022 order of the district court are AFFIRMED. Ernst Theodore Tenemille, pro se, appeals from the district court’s dismissal of his employment discrimination action and the denial of his Federal Rule of Civil 3 Procedure 60(b) motion for reconsideration. Tenemille commenced this action against the Town of Ramapo (the “Town”), the Town of Ramapo Police Department (the “Department”) (his former employer), and Town and Department officials, alleging discrimination, harassment, and retaliation, culminating in his December 2016 termination, allegedly in violation of Title VII, 42 U.S.C. § 1983, and several state law provisions. Tenemille’s pro se fourth amended complaint alleged that he was employed by the Department as a police officer from August 2002 until December 2016. In November 2015, Tenemille was investigated by the Police Department for submitting allegedly improper sick notes for absences due to a minor injury, culminating in his termination on December 16, 2016. Tenemille alleged that the investigation and his termination were due to discrimination based on his national origin and/or his race, and as retaliation for his protected activity of questioning the Defendants’ access of his private medical information. The defendants moved, under Federal Rule of Civil Procedure 12(b)(6), to dismiss the fourth amended complaint as time-barred and for failure to state a claim. In January 2022, the district court granted the defendants’ motion to dismiss, reasoning that some of Tenemille’s allegations were time-barred, and that 4 his timely allegations failed to state a claim. The court granted Tenemille 30 days to file a fifth amended complaint. In lieu of amending, Tenemille moved for reconsideration. The district court construed the motion under Rule 60(b) and denied it, concluding that relief was not warranted. Tenemille timely appealed the district court’s judgment and the denial of his motion for reconsideration. We assume the parties’ familiarity with the remaining facts, the procedural history, and the issues on appeal. I. Dismissal of the Fourth Amended Complaint “We review a dismissal for failure to state a claim de novo.” Sharikov v. Philips Med. Sys. MR, Inc., 103 F.4th 159, 166 (2d Cir. 2024). “A complaint survives a Rule 12(b)(6) motion to dismiss if the facts, taken as true and with all reasonable inferences drawn in the plaintiff’s favor, state a plausible claim to relief.” Id. “While we are required to assume the truth of the ‘well-pleaded factual allegations’ in the complaint, that obligation is ‘inapplicable to legal conclusions,’ such as ‘[t]hreadbare recitals of the elements of a cause of action’ that are ‘supported by mere conclusory statements.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009)). 5 “[T]o properly assert a claim of discrimination against an employer under Title VII, a plaintiff must allege two elements: (1) the employer discriminated against [him] (2) because of [his] race, color, religion, sex, or national origin.” Buon v. Spindler, 65 F.4th 64, 78 (2d Cir. 2023) (internal quotation marks and citation omitted). “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” Id. (citation omitted). “A state employee acting in his official capacity is acting under color of state law,” and “[o]nce the color of law requirement is met, a plaintiff’s equal protection claim parallels his Title VII claim, except that a § 1983 claim, unlike a Title VII claim, can be brought against an individual.” Id. (citations omitted). “[F]or a discrimination claim to survive a motion to dismiss, absent direct evidence of discrimination, what must be plausibly supported by facts alleged in the complaint is that the plaintiff (1) is a member of a protected class, (2) was qualified, (3) suffered an adverse employment action, and (4) has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Id. (alterations, internal quotation marks, and citation omitted). 6 We agree with the district court that Tenemille’s allegations related to his doctors’ notes failed to plausibly allege discriminatory intent, as necessary to survive a motion to dismiss. To establish an inference of discrimination through the use of comparators, Tenemille was required to show “a reasonably close resemblance of the facts and circumstances of [his] and [his] comparator’s cases.” Radwan v. Manuel, 55 F.4th 101, 132 (2d Cir. 2022) (internal quotation marks and citation omitted). Here, Tenemille asserted that there were numerous “similarly situated” white officers who “turned in doctor’s notes identical to Plaintiff’s without legal challenge or investigation based on wording.” App’x 7 (Compl. ¶ 35). However, Tenemille failed to allege any further detail about these purportedly “identical” doctors’ notes or about the other officers that would suffice to show that he was “similarly situated” to these other officers “in all material respects.” Radwan, 55 F.4th at 132. Tenemille’s conclusory assertion was not enough to “nudg[e] [his] claims across the line from conceivable to plausible.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 7 II. Denial of the Motion for Reconsideration “A denial of a motion to vacate a judgment under Rule 60(b) is reviewed for abuse of discretion.” Mandala v. NTT Data, Inc., 88 F.4th 353, 359 (2d Cir. 2023) (citation omitted). “Under this standard, we must affirm the denial of vacatur, unless the ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. (alteration and citation omitted). The district court did not abuse its discretion by denying Tenemille’s Rule 60(b) motion. On appeal, Tenemille primarily argues that his motion for reconsideration alleged fraud warranting relief under Rule 60(b)(3). “To prevail on a Rule 60(b)(3) motion, a movant must show that the conduct complained of prevented the moving party from fully and fairly presenting his case.” State St. Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir. 2004) (internal quotation marks and citation omitted). Here, Tenemille’s allegations of fraud related solely to the alleged events underlying his fourth amended complaint. Because Tenemille did not show that the defendants prevented him from fully and fairly presenting his case, and instead merely reiterated his previous allegations, the district court did not abuse its discretion by denying Rule 60(b) relief. 8 We have considered Tenemille’s remaining arguments and conclude they are without merit. Accordingly, we AFFIRM the judgment and June 7, 2022 order of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
| Matter of Cuomo v JAMS, Inc. |
| 2025 NY Slip Op 05454 |
| Decided on October 07, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: 1Manzanet-Daniels, J.P., Kennedy, Shulman, Michael, Hagler, JJ.
Index No. 652945/23|Appeal No. 4877-4878|Case No. 2024-02157, 2024-02517|
v
JAMS, Inc., et al., Respondents-Respondents.
Geragos & Geragos, APC, New York (Tina Glandian of counsel), for appellant.
Elman Freiberg PLLC, New York (Yelena Rapoport of counsel), for respondents.
Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about March 12, 2024, which denied petitioner's motion for leave to conduct discovery and granted respondents' motion for summary judgment dismissing the proceeding brought pursuant to CPLR article 75 to stay a pending arbitration and disqualify the arbitrator selected by the parties, unanimously affirmed, with costs.
Petitioner argues that the arbitrator failed to disclose four CNN-related matters that Paul Hastings LLP's labor and employment division had worked on during his employment in that division, albeit he did not personally handle the cases, and that he personally handled a CNN matter for three months in 2003, which generated legal fees under $3,000 (2003 Matter). The arbitrator's formal disclosure stated that during his employment at Paul Hastings, attorneys in that law firm may have worked on matters that concerned the parties, but he had no personal recollection of those matters. As for the 2003 Matter, the arbitrator averred in a new affidavit that he had no recollection of the matter.
The court properly concluded that petitioner failed to raise a triable issue of fact (see Matter of TCR Sports Broadcasting Holding, LLP v WN Partner, LLC, 153 AD3d 140, 143-144, 150-151 [1st Dept 2017], affd as mod 40 NY3d 71 [2023]). Petitioner did not set forth facts to indicate that the arbitrator was biased in his handling of the arbitration for nearly a year. Petitioner's counsel had no objection to the 39 orders issued thus far in the arbitration. Nor did counsel claim there was any misconduct on the part of the arbitrator, and was willing to proceed with the arbitration, but only if a new arbitrator was selected by the parties. However, an arbitrator may not be disqualified solely because of his relationship to a party, but rather, upon facts demonstrating partiality to a litigant (see Matter of Astoria Med. Group [Health Ins. Plan of Greater N.Y.], 11 NY2d 128, 137 [1962]; Matter of Zurich Am. Ins. Co. v HBC US Holdings, Inc., 234 AD3d 465, 466 [1st Dept 2025]).
Petitioner's request for discovery to explore the arbitrator's veracity on whether he could recall the prior CNN matters while he was employed at Paul Hastings was properly denied as not material and necessary, as it is grounded only in speculation that the arbitrator was not forthright in his recollection. Further, while the arbitrator's relationship with CNN was "direct" in connection with the 2003 Matter, the 20-year-old representation matter was of short duration (three months) and involved little pecuniary value (see Matter of TCR Sports Broadcasting Holding, LLP, 153 AD3d at 151), and the arbitrator twice averred that he does not recollect it.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 7, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_05454.htm
| |
Contact: Matt Sweeney, 212-383-1388 DiNAPOLI: OWNER OF MEDICAL TRANSPORT COMPANY CHARGED WITH RUNNING SHAM TRANSPORTATION SERVICE SCHEMEJael Watts Thwarted In Attempt to Cheat New York State Out of $1.2M in Transportation Grant FundsNew York State Comptroller Thomas P. DiNapoli, Acting United States Attorney for the Northern District of New York John A. Sarcone III, and Acting Inspector General for U.S. Department of Transportation Office of Inspector General Mitch Behm announced the indictment of Jael Watts, the owner of Pearl Transit Corp., on ten counts of wire fraud for her role in a scheme to defraud New York State of over $1.2 million in transportation grant funds. “Jael Watts allegedly devised a fraud scheme to cheat New York State out of money meant to aid residents in need of transportation services. Thanks to my office and our partnership with federal law enforcement, her scam was exposed, and no money was paid,” said DiNapoli. “My thanks to Acting United States Attorney for the Northern District John A. Sarcone III and Special Agent in Charge, U.S. Department of Transportation Office of Inspector General, Northeast Region, Brian C. Gallagher for their partnership in protecting taxpayers’ money. This indictment should serve as a warning to those attempting to steal public funds – you will be held accountable.” Jael, 44, is the owner of Pearl Transit Corp., a non-profit company that claims to provide transportation assistance to seniors and people with disabilities. In 2024, Pearl Transit entered into a contract with the New York State Department of Transportation (NYS DOT) to “enhance the mobility” of seniors and people with disabilities in Suffolk, Putnam, Rockland, and Westchester counties by providing transportation services. The contract was funded by a pass-through federal grant from the Federal Transit Administration. To receive payment under the grant, Pearl Transit was required to submit invoices to the state for services provided. As part of the State Comptroller’s duty to audit state payments, DiNapoli’s office reviewed the invoices submitted by Pearl Transit and identified inconsistencies, leading to a joint investigation with U.S. Department of Transportation Office of Inspector General. The investigation revealed that starting in October of 2024, Watts created and submitted three false invoices totaling $1,275,550 for trips which never occurred. Investigators found that Watts fabricated proof to support these fraudulent trips, including fake time records for supposed drivers who never worked for her company. Watts was indicted on 10 ten counts of wire fraud and arraigned before Judge Daniel J. Stewart in the United States District Court for the Northern District of New York. The charges filed in this case are merely accusations and the defendants are presumed innocent unless and until proven guilty in a court of law. ### 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.
|
Albany Times Union 10-20-2025
SUNY Albany, unlawful discrimination case/sexual harassment, etc.
UAlbany settles discrimination lawsuit with former professor
Protests were the opposite of ‘anti-American’
America’s founders could have simply written in the Declaration of Independence something like, “We don’t take this step lightly.” But, mindful of the gravity of their break with Great Britain, they employed the eloquence of the age to provide a much fuller explanation: “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are suffer, he declared “Who cares?” and posted on social media an AI-generated video depicting him flying a fighter jet while wearing a crown, and dumping excrement on protesters. And Speaker of the House Mike Johnson, who seems to have no bottom to his self-debasement as the leader of an ostensibly co-equal branch of government, shrugged it off as satire and offered that at least Trump didn’t call for murdering his political opponents. (Just jailing or deporting them.) Trump, Johnson and their echo-chamber media allies had spent days trying to paint the “No Kings Day” protests as some kind of expression of hate against America. The same president who incited the Jan. 6, 2021, attack on Congress and then pardoned the miscreants who carried it out — even those who beat up police — predicted last weekend’s protesters would be violent and threatened severe consequences. When the day unfolded almost entirely peacefully, they tried to dismiss it. “I think it’s a joke,” Trump told reporters on Sunday. I suspect King George believed much the same. Maybe he only read Tory pamphlets, and surrounded himself with lapdogs who told him what an unbelievable job he was doing in the colonies. And then came the revolution. The day after the No Kings protests, I asked on social media: “OK. Now what?” People offered several ideas: a massive demonstration planned in Washington, D.C., on Nov. 5; mobilizing all those millions of protesters to vote, work for candidates or run for office; staging a general strike, with a clear list of demands including universal health care, climate action and green jobs, taxing the wealthy and corporations fairly, and defending civil, human and voting rights. No one suggested an armed revolution. Which suggests to me that the evils are still sufferable, as long as folks can have faith in the democratic process. The very process that Trump & Co. are trying to rig in their favor. Take that faith away, and I don’t know that prudence will prevail. That, I worry, is the fire Trump is playing with “by every act which may define a Tyrant … unfit to be the ruler of a free people.
| Dowlah v Professional Staff Congress (PSC-CUNY) |
| 2024 NY Slip Op 02980 [227 AD3d 609] |
| May 30, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
Supreme Court, New York County (Eric Schumacher, J.), entered October 25, 2023, which granted defendants' motions to dismiss the complaint pursuant to CPLR 3211 (a) (7), unanimously affirmed, without costs.
Pro se status does not excuse petitioner's failure to check the legal citations that he offers to a court
Supreme Court granted the Defendants' motions to dismiss Petitioner's complaint pursuant to CPLR 3211 (a) (7). The Appellate Division unanimously affirmed, the Supreme Court's ruling, explaining res judicata also bars Plaintiff from relitigating his prior appeals, and his arguments for recusal of Justices who participated in those appeals are entirely unsupported by evidence.
The Appellate Division then observed that Plaintiff, who appeared pro se, cited several nonexistent cases in his initial memorandum of law noting that in his reply brief Plaintiff acknowledged that these citations were the result of research using "legal software applications" that deploy artificial intelligence [AI].
Although Plaintiff told the court that he had "an LLM (among other advanced degrees) but not much 'legal expertise' and he apologizes for the fictitious precedents", the Appellate Division [caution Plaintiff that his pro se status does not excuse his failure to check the legal citations that he offers to a court".
| Dowlah v Professional Staff Congress (PSC-CUNY) |
| 2024 NY Slip Op 02980 [227 AD3d 609] |
| May 30, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
Supreme Court, New York County (Eric Schumacher, J.), entered October 25, 2023, which granted defendants' motions to dismiss the complaint pursuant to CPLR 3211 (a) (7), unanimously affirmed, without costs.
Pro se status does not excuse petitioner's failure to check the legal citations that he offers to a court
Supreme Court granted the Defendants' motions to dismiss Petitioner's complaint pursuant to CPLR 3211 (a) (7). The Appellate Division unanimously affirmed, the Supreme Court's ruling, explaining res judicata also bars Plaintiff from relitigating his prior appeals, and his arguments for recusal of Justices who participated in those appeals are entirely unsupported by evidence.
The Appellate Division then observed that Plaintiff, who appeared pro se, cited several nonexistent cases in his initial memorandum of law noting that in his reply brief Plaintiff acknowledged that these citations were the result of research using "legal software applications" that deploy artificial intelligence [AI].
Although Plaintiff told the court that he had "an LLM (among other advanced degrees) but not much 'legal expertise' and he apologizes for the fictitious precedents", the Appellate Division [caution Plaintiff that his pro se status does not excuse his failure to check the legal citations that he offers to a court".
Dowlah v Professional Staff Congress (PSC-CUNY) (2024 NY Slip Op 02980)
Dowlah v Professional Staff Congress (PSC-CUNY) (2024 NY Slip Op 02980)
Dowlah v Professional Staff Congress (PSC-CUNY) (2024 NY Slip Op 02980)
Dowlah v Professional Staff Congress (PSC-CUNY) (2024 NY Slip Op 02980)
Selected items posted on blogs during the week ending November 14, 2025
| Clarke v Town of Newburgh |
| 2025 NY Slip Op 06359 |
| Decided on November 20, 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. |
No. 84
v
Town of Newburgh, et al., Appellants; Letitia James, & c., Intervenor-Respondent.
Misha Tseytlin, for appellants.
Nicholas Stephanopoulos, for respondents.
Judith Vale, for intervenor-respondent.
Campaign Legal Center, New York Civil Liberties Union et al., Town of Mount Pleasant et al., NAACP Legal Defense & Educational Fund, Inc., Asian American Legal Defense and Education Fund et al., State of California et al., amici curiae.
This case presents the question whether the Town and Town Board of Newburgh—subordinate governmental entities created by, divisible by and even extinguishable by the State Legislature—can maintain this facial constitutional challenge to the vote dilution provision of the New York Voting Rights Act ("NYVRA") (codified at Election Law § 17-200 et seq.). They cannot.
Six Newburgh voters sued the Town and Town Board of Newburgh (collectively, "Newburgh") under Section 17-206 of the NYVRA, which provides that no political subdivision shall use a method of election that dilutes the votes of members of a protected class (Election Law § 17-206 [2] [a]). Plaintiffs allege that Newburgh's at-large system for electing Board members dilutes the voting power of Black and Hispanic residents. The Town of Newburgh is a political subdivision in Orange County with a population of about 32,000. The complaint alleges that as of 2022, approximately 15% of the Town's population was Black and 25% of the Town's population was Hispanic. The Town Board—which the complaint alleges has never had a Black or Hispanic member—is the Town's legislative and policy-making authority, and the five members of the Town Board are chosen through [*2]at-large elections, meaning that every registered voter residing within the Town is eligible to vote for each Town Board member position.
To make out a claim under Section 17-206 of the NYVRA, plaintiffs may show that the voting patterns are racially polarized—i.e., "there is a divergence in the candidate, political preferences, or electoral choice of members in a protected class from the candidates, or electoral choice of the rest of the electorate" (id. §§ 17-204 [6]; 17-206 [2] [b] [i] [A]). Plaintiffs may also show (alternatively or additionally) that under the totality of the circumstances, "the ability of members of the protected class to elect candidates of their choice or influence the outcome of elections is impaired" due to vote dilution (id. § 17-206 [2] [b] [i] [B]). If a plaintiff shows a violation of the vote dilution provision, the trial court must "implement appropriate remedies" to ensure voting groups have equitable access to fully participate in the political process (id. § 17-206 [5] [a]). The NYVRA mandates no specific remedy for vote dilution: among the lighter slate of remedies offered by the NYVRA for reference, a court could order additional voting hours, polling locations or voter education to cure a vote-dilution violation (id. § 17-206 [5]). Courts fashioning a remedy for a violation are not limited to the measures enumerated in the Act.
Plaintiffs allege that (1) voting patterns in Newburgh are racially polarized and (2) the at-large election system effectively disenfranchises Black and Hispanic voters, who cannot elect candidates of their choice or influence the outcome of elections. Plaintiffs seek a declaration that Newburgh's use of an at-large election system violates Section 17-206 and an injunction ordering Newburgh to implement either a districting plan or an alternative method of election for the 2025 Town Board election.
Newburgh moved for summary judgment on the bases that (1) Section 17-206 is facially unconstitutional because it violates the Equal Protection Clause of both the U.S. and New York Constitutions and (2) its Town Board elections comply with the NYVRA. Supreme Court granted Newburgh's motion for summary judgment and dismissed the complaint (see 2024 NY Slip Op 34184[U] [Sup Ct, Orange County 2024]), holding that although municipalities ordinarily may not challenge the constitutionality of State laws, Newburgh could because it alleged that it could not comply with the NYVRA without violating the Equal Protection Clause (id. at *12-13). Supreme Court also held that the NYVRA's vote dilution prohibition is facially unconstitutional (id. at *16), and struck the NYVRA "in its entirety," even though Newburgh sought to invalidate only a portion of the Act.
The Appellate Division reversed and denied Newburgh's motion for summary judgment (see 237 AD3d 14, 17, 29-30 [2d Dept 2025]). The Court held that Newburgh could not bring this constitutional challenge to the NYVRA because it failed to demonstrate that its compliance with the NYVRA would force it to violate equal protection (id. at 17, 29-30). Therefore, Newburgh could not overcome the general rule that legislative entities lack the right to sue to challenge State laws (id.). Additionally, the Appellate Division held that Supreme Court erred in striking down the NYVRA in toto (id. at 39-40); Newburgh does not challenge that latter holding on appeal. The Appellate Division granted Newburgh's motion for leave to appeal to this Court, certified the question whether its order was properly made and stayed proceedings in Supreme Court pending our ruling (see 2025 NY Slip Op 69546[U] [2d Dept 2025]).
Before we can reach the merits of Newburgh's constitutional claims, we must determine whether Newburgh, as a legislatively created political subdivision, can assert a facial constitutional challenge to the NYVRA's vote-dilution provision.
The longstanding rule in New York is that political subdivisions—as creatures of the State that "exist[] by virtue of the exercise of the power of the State through its legislative department"—cannot sue to invalidate State legislation (City of New York v State of New York, 86 NY2d 286, 289-290 [1995]; see also Williams v Mayor of Baltimore, 289 US 36, 40 [1933, Cardozo, J.] ["A municipal corporation . . . has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator"]). "From very early times," New York courts have "consistently applied the Federal rule in holding that political power conferred by the Legislature confers no vested right as against the government itself" (Black Riv. Regulating Dist. v Adirondack League Club, 307 NY 475, 488 [1954]). A political subdivision's "right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate" (Matter of World Trade Ctr. Lower Manhattan [*3]Disaster Site Litig., 30 NY3d 377, 384 [2017], quoting Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 156 [1994]).
That rule is a "necessary outgrowth" of separation of powers principles (City of New York, 86 NY2d at 295-296; see also World Trade Ctr., 30 NY3d at 385 ["th(e) capacity bar closes the courthouse doors to internal political disputes between the State and its subdivisions"]; Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 239 [1984] ["it is a fundamental principle . . . that each department of government should be free from interference, in the lawful discharge of duties expressly conferred, by either of the other branches"]). It "expresses the extreme reluctance of courts to intrude in the political relationships between the Legislature, the State and its governmental subdivisions" (City of New York, 86 NY2d at 295-296). Just as the legislature has the power to create entities to perform its functions, it has the power to change, and even destroy, those entities. Separation of powers principles accordingly demand that courts do not interfere in legislative disputes raised by legislative subordinates. Those principles are the bedrock of our federal and State Constitutions alike.
The rule is firm but not absolute. In City of New York, we noted four limited exceptions mentioned in our prior caselaw: (1) when there is express statutory authorization to bring the suit; (2) when a municipality's proprietary interest in a specific fund of moneys is adversely affected by State legislation; (3) when the statute impinges upon the constitutional "Home Rule" powers of a municipality; and (4) where compliance with the statute would force the municipal challengers to violate a constitutional proscription (86 NY2d at 291-292, citing Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283, 287 [1977]; Board of Educ. of Cent. School Dist. No. 1 v Allen (20 NY2d 109 [1967], affd 392 US 236 [1968] [other citations omitted]). We have "stress[ed] that the exceptions . . . are narrow" (World Trade Ctr., 30 NY3d at 387).
Newburgh does not contend that the first three exceptions have any application; it relies solely on the rare fourth exception—colloquially termed the "dilemma" exception—to contend that any compliance with the NYVRA would force it to violate the Equal Protection Clauses of the U.S. and New York Constitutions. Newburgh's failure to identify any case where a New York court has held that a political subdivision fit into the fourth exception evidences the narrowness of the exception. We have found no case in which a court has held it applicable. Newburgh relies on City of New York and the two cases cited therein, Matter of Jeter and Allen. In both City of New York and Jeter, neither governmental entity argued that it fit within any such exception (see City of New York, 86 NY2d at 295-296; Matter of Jeter, 41 NY2d at 287). In Allen we did not discuss or decide any issue of capacity; our holdings were limited to plaintiffs' standing and the constitutionality of the statute at issue (20 NY2d at 114-115 & n 1). The other of our cases cited by the parties do not hold that a municipality has the power to sue the State (see World Trade Ctr., 30 NY3d at 939 [holding that public benefit corporations are no different from any other governmental subdivision in their capacity to challenge State legislation]).
Newburgh's challenge to the NYVRA does not fall within the dilemma exception. Whatever might be said as to a municipality's ability to bring an as-applied challenge, showing that it will be forced to take a course of action that is unconstitutional, Newburgh is pursuing a facial invalidity claim. As we said in World Trade Center, a legislative entity's challenge to a State law must be "examined with a view towards the relief sought" (30 NY3d at 386 n3, quoting Excess Line Assn of N.Y. (ELANY) v Waldorf & Assoc., 30 NY3d 119, 123 [2017]). Newburgh seeks invalidation of the entire vote-dilution provision under Election Law § 17-206. For a facial constitutional challenge, principles of "judicial restraint" (World Trade Ctr., 30 NY3d at 385) counsel strongly against permitting subordinate units of state government from using the judiciary to second-guess the wisdom of enacted legislation. A municipality's authority to raise a challenge to a State law is at its lowest ebb when that challenge is a facial constitutional challenge, seeking to invalidate a statute in all possible applications, not merely because it allegedly placed the particular municipality in an allegedly untenable position. As we made clear in World Trade Center, "[o]ur capacity rule reflects a self-evident proposition about legislative intent: the 'manifest improbability' that the legislature would breathe constitutional rights into a public entity and then equip it with authority to police state legislation on the basis of those rights" (30 NY3d at 385, quoting City of New York, 86 NY2d at 293).
Newburgh's arguments about why we should hold that it meets a dilemma exception fail to persuade us. Newburgh has not shown that compliance with the NYVRA would force it into taking an unconstitutional action. [*4]The litigation has yet to even proceed to trial, making presently unknown: (1) whether Newburgh would face any liability; and (2) in the event it did, what a court would require it to do. The NYVRA's vote-dilution provision leaves courts wide latitude in designing remedies, so that to prevail on its facial challenge, Newburgh would have to show that "every conceivable application" of the NYVRA—i.e., every possibly remedy a trial court could order—would force it to take an unconstitutional act (McGowan v Burstein, 71 NY2d 729, 733 [1988] [to claim that a statute is "per se violative of the State Constitution," the challenging party must show the statute is unconstitutional "in every conceivable application"]). But that is not what Newburgh claims. Instead, it advances three novel arguments, none of which fits within any exception that might allow a local governmental entity to sue the State.
First, Newburgh argues that the rule preventing local legislative entities from suing the State does not apply when the local government is a defendant. It relies only on CPLR 3211 (a) (3), which allows a defendant to interpose a defense that the plaintiff asserting the cause of action against it lacks the capacity to sue, from which Newburgh argues that because it is not the plaintiff, no question of its capacity can be raised. Contrary to Newburgh's argument, the CPLR does not limit the circumstances under which the State may invoke this capacity bar, which is rooted in separation of powers principles and therefore analytically distinct from the "legal capacity to sue" (see CPLR 3211 [a] [3]). The rule barring local governments from suing the State is not grounded in a local government's general capacity to sue or be sued in its own name—which Newburgh has—but is a function of separation of powers doctrine that disables a local government from challenging the acts of the State (supra, pp. 5-6).
Second, Newburgh contends that because, in its view, the NYVRA violates the U.S. Constitution, the Supremacy Clause overcomes New York's bar prohibiting its subordinate local governments from suing it. Newburgh offers no authority for that novel proposition, which would authorize every local governmental entity to sue to challenge as unconstitutional any State legislation arguably affecting that subordinate entity.
Third, Newburgh argues that "any alteration of its race-neutral, at-large election system in order to comply with the NYVRA's vote-dilution provisions would be unconstitutional." But that contention, as explained by counsel at oral argument (see oral argument tr at 8-12), rests on the proposition that a mere finding of liability itself would place Newburgh in the position of violating the Constitution or obeying the order of the court—when there is no order of the court compelling it to do anything. And in any event, several of the potential remedies mentioned by the NYVRA to redress a finding of vote dilution—such as longer polling hours or enhanced voter education—cannot reasonably be described as alterations of an at-large election system.
Because we hold that Newburgh cannot assert this facial constitutional challenge, we do not reach the merits of its claims. Accordingly, the order of the Appellate Division should be affirmed, without costs, and the certified question answered in the affirmative.
Order affirmed, without costs, and certified question answered in the affirmative. Opinion by Chief Judge Wilson. Judges Rivera, Singas, Cannataro, Troutman, Kern and Kennedy concur. Judges Garcia and Halligan took no part.
Decided November 20, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06359.htm
| Lutfieva v Services for the Aged, Inc. |
| 2025 NY Slip Op 06390 |
| Decided on November 20, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Manzanet-Daniels, J.P., Kapnick, Shulman, Rodriguez, Hagler, JJ.
Index No. 161213/23|Appeal No. 5210|Case No. 2025-01508|
v
Services for the Aged, Inc. Doing Business as JASACARE, etc., et al., Defendants-Appellants.
Hogan Lovells US LLP, New York (Kenneth Kirschner of counsel), for appellants.
Virginia & Ambinder, LLP, New York (LaDonna Lusher of counsel), for respondents.
Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered on or about February 24, 2025, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss this Labor Law action, unanimously affirmed, with costs.
Plaintiffs, a group of home health aides employed by defendants, allege, among other things, that defendants failed to pay the minimum wage, overtime pay, and spread-of-hours pay in violation of Labor Law §§ 663 and 650 et. seq. and 12 NYCRR § 142-2.4. Defendants' documentary evidence, consisting of their certifications electing to pay the statutory minimum rate in lieu of minimum wage orders pursuant to Labor Law § 652, was submitted in support of their position that they are a non-profitmaking institution under Labor Law § 652(3) and thus exempt from the wage orders under Labor Law § 652(3)(b).
Even if the certifications were sufficient to show that defendants are a non-profitmaking institution exempt from the wage orders under Labor Law § 652(3)(b), Supreme Court correctly determined that this exemption is also contingent on defendants first showing that they "pa[id] and continue[d] to pay" plaintiffs the statutory minimum wage (see Smellie v Mount Sinai Hosp. , 2004 WL 2725124, *2, 2004 US Dist LEXIS 24006, *6 [SD NY, Nov. 29, 2004, No. 03 Civ. 0805 (LTS)(DFE)]); see also Dziura v Human Dev. Assn., Inc. , 2024 NY Slip Op 31234[U] at *3 [Sup Ct, NY County 2024]). Plaintiffs allege that defendants paid them for only 13 hours of work when they worked 24-hour shifts, which effectively reduced their hourly rate to an amount well below New York's statutory minimum wage for the period 2019 to 2021. Defendants failed to submit evidence disputing these allegations.
We have considered defendants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 20, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06390.htm
| Matter of Jaloza v New York City Dept. of Educ. |
| 2025 NY Slip Op 06320 |
| Decided on November 19, 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. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
HELEN VOUTSINAS
PHILLIP HOM, JJ.
2023-11126
(Index No. 706616/23)
v
New York City Department of Education, et al., respondents.
Gibson Law Firm, PLLC, Ithaca, NY (Sujata S. Gibson of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Richard Dearing, Melanie T. West, and Chase Henry Mechanick of counsel), for respondents.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78 and action, inter alia, to recover damages for employment discrimination on the basis of religion and disability in violation of the New York State Human Rights Law, the New York City Human Rights Law, and the New York State Constitution, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Tracy Catapano-Fox, J.), entered July 24, 2023. The order and judgment granted the cross-motion of the respondents/defendants pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition/complaint and dismissed the proceeding/action.
ORDERED that the order and judgment is affirmed, with costs.
In March 2023, the petitioner/plaintiff (hereinafter the petitioner) commenced this hybrid proceeding against the New York City Department of Education (hereinafter the DOE) and the City of New York (hereinafter together the City respondents) pursuant to CPLR article 78 to review a determination of the DOE to terminate her employment as a tenured teacher and action, inter alia, to recover damages for employment discrimination on the basis of religion and disability in violation of the New York State Human Rights Law, the New York City Human Rights Law, and the New York State Constitution.
In June 2023, the City respondents cross-moved pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition/complaint on the grounds, among others, that the cause of action challenging the DOE's determination was time-barred and the remaining causes of action were barred by the petitioner's failure to timely serve a notice of claim. The petitioner opposed. In an order and judgment entered July 24, 2023, the Supreme Court granted the cross-motion of the City respondents and dismissed the proceeding/action. The petitioner appeals.
"A proceeding pursuant to CPLR article 78 must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner" (Matter of Andrews v Incorporated Vil. of Freeport, 221 AD3d 809, 810; see St. John's Riverside Hosp. v City of Yonkers, 151 AD3d 786, 788). "In order for an agency determination to be deemed final and [*2]binding, first, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party" (Matter of Andrews v Incorporated Vil. of Freeport, 221 AD3d at 810-811 [alteration and internal quotation marks omitted]; see Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 230 AD3d 786, 789). "A determination generally becomes binding when the aggrieved party is notified" (Rock v New York City Employees' Retirement Sys., 231 AD3d 979, 982 [internal quotation marks omitted]; see Matter of Baker v Stanford, 183 AD3d 889, 890).
Here, the City respondents established that the petition was time-barred as it was filed more than four months after the petitioner was notified of the determination to terminate her employment. The City respondents submitted copies of documents sent to them by the petitioner and her email correspondence with the City respondents, which showed the date the petitioner was informed of the DOE's determination (see Matter of Munro v New York City Human Resources Admin., Off. of Child Support Enforcement, 221 AD3d 904, 906; Matter of Andrews v Incorporated Vil. of Freeport, 221 AD3d at 811). In opposition, the petitioner failed to raise a question of fact as to the statute of limitations. The petitioner's contention on appeal that she was not "unambiguously terminated" until December 8, 2022, was conclusory and without record support (see Matter of Davis v Peterson, 254 AD2d 287, 287).
Accordingly, the petition was properly dismissed as untimely (see Matter of Walshe v New York State Unified Ct. Sys. Off. of Ct. Admin., 230 AD3d 507, 508; Matter of Imandt v New York State Unified Ct. Sys., 168 AD3d 1051, 1053).
The causes of action alleging violations of the New York State Human Rights Law and the New York City Human Rights Law insofar as asserted against the DOE were also properly dismissed, albeit on grounds different than those relied upon by the Supreme Court (see Franco v Farr, ____ AD3d ____, ____, 2025 NY Slip Op 04880, *2; Bank of N.Y. Mellon v Greene, 210 AD3d 1042, 1043). A condition precedent to maintaining an action against the DOE requires that a notice of claim be served upon a school district within three months from accrual of the claim (see Education Law § 3813(1); see also Munro v Ossining Union Free School Dist., 55 AD3d 697, 698). Here, the City respondents established that the petitioner failed to timely serve a notice of claim within three months of the determination to terminate her employment (see Education Law § 3813[1]; Moore v Middletown Enlarged City School Dist., 57 AD3d 746, 748). In opposition, the petitioner failed to raise a question of fact nor did she demonstrate that an exception to the notice of claim requirement—commencing a proceeding to vindicate a public interest in the enforcement of a public right—was somehow applicable here (see Matter of McGovern v Mount Pleasant Cent. Sch. Dist., 114 AD3d 795, 796, affd 25 NY3d 1051).
The Supreme Court also properly dismissed the causes of action alleging violations of the New York State Human Rights Law and the New York City Human Rights Law insofar as asserted against the City.
On a motion to dismiss for failure to state a cause of action a court must accept "the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88). Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one (see Margarita v Mountain Time Health, LLC, 240 AD3d 584, 585).
Here, the petitioner's conclusory assertions that the City respondents discriminated against her based on her religion and disability were unsupported by factual allegations sufficient to sustain a cause of action under either the New York State Human Rights Law or the New York City Human Rights Law (see Shahid v City of New York, 231 AD3d 888, 888). Moreover, the petitioner failed to show that the City respondents did not engage in a cooperative dialogue with [*3]regard to her accommodation requests (see Walrond v New York City Health & Hosps. Corp., 240 AD3d 933, 935).
The Supreme Court also properly dismissed the cause of action alleging violations of the New York State Constitution. Since the petitioner could and did pursue causes of action for discrimination based on religion and disability pursuant to the New York City Human Rights Law and the New York State Human Rights Law, no cause of action alleging violations of the New York State Constitution was available (see Peterec v State of New York, 124 AD3d 858, 859).
In light of our determination, the parties' remaining contentions need not be reached.
DUFFY, J.P., MILLER, VOUTSINAS and HOM, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_06320.htm
| Matter of Khader v City of Yonkers |
| 2025 NY Slip Op 06321 |
| Decided on November 19, 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. |
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
JANICE A. TAYLOR
LOURDES M. VENTURA, JJ.
2023-08109
(Index No. 64734/22)
v
City of Yonkers, et al., appellants.
Harris Beach Murtha Cullina PLLC, Pittsford, NY (Kyle D. Gooch and Darius P. Chafizadeh of counsel), for appellants.
Newman Ferrara LLP, New York, NY (Randolph M. McLaughlin and Debra S. Cohen of counsel), for respondent.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Corporation Counsel of the City of Yonkers dated May 12, 2022, and action, inter alia, for declaratory relief, the City of Yonkers and Matthew Gallagher, in his official capacity as Corporation Counsel of the City of Yonkers, appeal from a judgment of the Supreme Court, Westchester County (Melissa A. Loehr, J.), dated July 5, 2023. The judgment, in effect, granted the petition, annulled the determination, declared that the City of Yonkers is obligated to pay the petitioner/plaintiff's attorneys' fees incurred in connection with the subject investigation, and directed the Corporation Counsel of the City of Yonkers to forward a proposed contract for the payment of attorneys' fees to the City Council of the City of Yonkers and related relief.
ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, the proceeding is dismissed, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate amended judgment, inter alia, declaring that the City of Yonkers is not obligated to pay the petitioner/plaintiff's attorneys' fees incurred in connection with the subject investigation.
In May 2021, a majority of the members of the City Council of the City of Yonkers (hereinafter the City Council) formally requested that the Inspector General of the City of Yonkers (hereinafter the Inspector General) open an inquiry into allegations of ethical misconduct and the creation of a hostile work environment by the petitioner/plaintiff (hereinafter the petitioner), who was then the president of the City Council. Thereafter, the Inspector General began an investigation into the matters and, in June 2021, issued a subpoena duces tecum, inter alia, requesting that the petitioner produce certain documents. On June 9, 2021, the petitioner sought legal representation from the respondent/defendant Matthew Gallagher, Corporation Counsel of the City of Yonkers, with respect to the investigation by the Inspector General. Gallagher advised the petitioner that, due to a conflict of interest, he could not provide the requested legal representation but that Gallagher had determined "for now" that the petitioner was entitled to be represented by private counsel of his choosing pursuant to Public Officers Law § 18(3)(b).
The petitioner retained private counsel and requested that the Inspector General [*2]withdraw the subpoena. The petitioner's counsel advised Gallagher that if the subpoena was not withdrawn, the petitioner would commence a special proceeding to quash the subpoena. On June 15, 2021, Gallagher advised the petitioner's counsel that a special proceeding would fall outside of the scope of representation previously authorized by Gallagher and would be at the petitioner's own expense. The petitioner's counsel objected. On July 1, 2021, Gallagher advised the petitioner's counsel that Public Officers Law § 18(3)(a) excluded defense of a civil action or proceeding brought against a public employee at the behest of the public entity employer and that the Inspector General was acting on behalf of the City. Gallagher further advised that, in any event, prosecuting a special proceeding against the City would fall outside of the defense and indemnification offered by Public Officers Law § 18.
The petitioner commenced a special proceeding, among other things, to quash the subpoena, and the Supreme Court quashed the subpoena, without prejudice. The Inspector General issued a second subpoena that was substantively the same as the first subpoena, and the petitioner commenced a special proceeding, inter alia, to quash the second subpoena. In an order dated March 11, 2022, the court denied the petition to quash the second subpoena and granted the Inspector General's cross-motion to compel the petitioner to comply with the subpoena.
Subsequently, the petitioner's counsel sought reimbursement for attorneys' fees. On May 12, 2022, Gallagher informed the petitioner's counsel that, in consideration of the language in Public Officers Law § 18(3)(a) excluding a proceeding brought at the behest of the public entity employing the public employee, any legal costs incurred as a result of the investigation would be at the petitioner's own expense. The petitioner then brought this hybrid proceeding pursuant to CPLR article 78 to review the determination dated May 12, 2022, and action, among other things, for declaratory relief and to recover damages for breach of contract against Gallagher, in his official capacity as Corporation Counsel of the City, and the City. The petitioner sought a judgment declaring, inter alia, that the City was obligated to pay the petitioner's attorneys' fees incurred in connection with the Inspector General's investigation. In an order dated March 24, 2023, the Supreme Court, among other things, pursuant to CPLR 103(c), converted the breach of contract cause of action to a cause of action pursuant to CPLR article 78. In a judgment dated July 5, 2023, the court, in effect, granted the petition, annulled the determination, declared that the City is obligated to pay the petitioner's attorneys' fees in connection with the Inspector General's investigation, and directed Gallagher to forward a proposed contract for the payment of the petitioner's attorneys' fees to the City Council and related relief. The City and Gallagher (hereinafter together the appellants) appeal.
Contrary to the appellants' contention, the CPLR article 78 proceeding was not time-barred, as the petition was filed within the four-month statute of limitations period following the May 12, 2022 determination that the City would not pay for any of the petitioner's attorneys' fees incurred in relation to the investigation (see CPLR 217[1]; Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 230 AD3d 786, 789; Matter of Andrews v Incorporated Vil. of Freeport, 221 AD3d 809, 811).
However, the Supreme Court erred in granting the petition. Generally, judicial review of an agency determination is limited to whether the determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803[3]; see Matter of Lemma v Nassau County Police Officer Indem. Bd., 31 NY3d 523, 528). A determination "is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Matter of Peckham v Calogero, 12 NY3d 424, 431; see Matter of Murphy v New York State Div. of Hous. & Community Renewal, 21 NY3d 649, 652).
When applicable (see Public Officers Law § 18[2]), Public Officers Law § 18 provides for the defense and indemnification of officers and employees of public entities. As relevant here, the statute requires the public entity to provide for the defense of an employee in any civil action or proceeding arising out of any alleged act which allegedly occurred while the employee was acting within the scope of his or her public employment or duties (see id. § 18[3][a]). When a conflict of interest prevents representation by the chief legal officer of the public entity or other [*3]counsel designated by the public entity, the employee shall be entitled to be represented by private counsel of the employee's choice, and reasonable attorneys' fees and litigation expenses shall be paid by the public entity (see id.§ 18[3][b]). However, "[the] duty to provide for a defense shall not arise where [the] civil action or proceeding is brought by or at the behest of the public entity employing such employee" (see id. § 18[3][a]).
Here, the Inspector General commenced the investigation into the petitioner at the behest at the petitioner's employer, and therefore, the City had no duty to provide the petitioner with a legal defense in relation to the Inspector General's investigation (see id. § 18[3][a]; Matter of Barkan v Roslyn Union Free School Dist., 67 AD3d 61, 65). Therefore, the determination that the petitioner was not entitled to reimbursement for such attorneys' fees had a rational basis and was not arbitrary and capricious (see Matter of Barkan v Roslyn Union Free School Dist., 67 AD3d at 63).
Contrary to the petitioner's contention, he was not entitled to reimbursement of his attorneys' fees based upon a theory of breach of contract. "It is well settled that an attorney may not be compensated with public funds for services rendered a municipal officer unless the attorney has been retained in accordance with statutory authority" (Moffatt v Christ, 74 AD2d 635, 635; see Corning v Village of Laurel Hollow, 48 NY2d 348, 351). The Yonkers City Charter provides that "[a]ny city officer or employee entitled to counsel pursuant to Public Officers Law § 18, shall inform the corporation counsel of the counsel who will represent the officer or employee. The corporation counsel shall forward to the City Council a proposed contract for such counsel and the Mayor shall submit a budget transfer to fund the proposed contract. If approved by the City Council, the corporation counsel shall enter into the contract with the officer's or employee's counsel" (Yonkers City Charter, Art. XIII, § C13-2[D]). It is undisputed that corporation counsel never forwarded a proposed contract to the City Council and that the City Council never approved a contract. Thus, contrary to the petitioner's contention, a valid contract for the payment of his attorneys' fees was not formed (see Matter of Atane Engrs., Architects & Land Surveyors, D.P.C. v Nassau County, 227 AD3d 708, 710-711; Moffatt v Christ, 74 AD2d at 635).
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Westchester County, for the entry of an appropriate amended judgment, inter alia, declaring that the City is not obligated to pay the petitioner's attorneys' fees incurred in connection with the Inspector General's investigation (see Lanza v Wagner, 11 NY2d 317, 334).
BARROS, J.P., BRATHWAITE NELSON, TAYLOR and VENTURA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_06321.htm
| Matter of Madrid v Mazur |
| 2025 NY Slip Op 06284 |
| Decided on November 18, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Webber, J.P., González, Mendez, Rodriguez, Pitt-Burke, JJ.
Index No. 100881/20|Appeal No. 5183|Case No. 2022-04959|
v
Jordan S. Mazur etc., Respondent-Respondent.
Manuel Madrid, appellant pro se.
Muriel Goode-Trufant, Corporation Counsel, New York (Shane Magnetti of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered on or about November 22, 2021, which denied petitioner's challenge to respondent's reply to his Freedom of Information Law (FOIL) request, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Initially, we exercise our discretion under CPLR 5520(a) and (c) to deem the notices of appeal dated July 14, 2021 and December 30, 2021, taken together, as timely filed and properly served.
The New York City Police Department's response to petitioner's FOIL request was not "affected by an error of law" (Matter of Jewish Press, Inc. v New York City Police Dept., 190 AD3d 490, 490 [1st Dept 2021], lv denied 37 NY3d 906 [2021] [internal quotation marks omitted]; see CPLR 7803[3]). In their response to petitioner's FOIL appeal, respondent properly advised petitioner that the additional records he sought, which related to his arrest and which he requested roughly 16 years after his arrest, could not be located after a diligent search. When an agency is unable to locate documents sought in a FOIL request, Public Officers Law § 89(3) requires the agency to certify that it does not have possession of a requested record or that such record cannot be located after a diligent search. The statute does not specify the form such certification must take, and "[n]either a detailed description of the search nor a personal statement from the person who actually conducted the search is required" for the certification to be valid (Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875 [2001]). Petitioner failed to articulate a factual basis for his contention that the unproduced records he sought exist (see Matter of Gould v New York City Police Dept., 89 NY2d 267, 279 [1996]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 18, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06284.htm
| Matter of Law Off. of Cyrus Joubin v Manhattan Dist. Attorney's Off. |
| 2025 NY Slip Op 06283 |
| Decided on November 18, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Webber, J.P., González, Mendez, Rodriguez, Pitt-Burke, JJ.
Index No. 158168/23|Appeal No. 5175-5176|Case No. 2024-02963, 2024-06707|
v
Manhattan District Attorney's Office, Respondent-Appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Christian Rose of counsel), for appellant.
Cyrus Joubin, New York, for respondent.
Supplemental order and judgment (one paper), Supreme Court, New York County (John J. Kelley, J.), entered March 26, 2024, which granted in part petitioner's application to annul respondent's July 28, 2023 denial of petitioner's Freedom of Information Law (FOIL) request for agency records to the extent of directing disclosure of a data sheet with redaction of certain personal identifying information, unanimously reversed, on the law, without costs, the petition denied in its entirety, and the proceeding brought pursuant to CPLR article 78 dismissed. Order, same court and Justice, entered October 10, 2024, which, to the extent appealed from as limited by the briefs, granted that branch of petitioner's motion for leave to reargue so much of the March 26, 2024 supplemental order and judgment as denied petitioner's request for an award of attorneys' fees and, upon reargument, granted so much of the petition as sought attorneys' fees and modified the March 26, 2024 supplemental order and judgment to award reasonable attorneys' fees and costs to petitioner, unanimously reversed, on the law, without costs, and the request for attorney's fees denied.
Supreme Court appropriately ordered an in camera inspection of all records responsive to petitioner's FOIL request, including the datasheet that was ultimately produced with redaction of personal information regarding certain people involved in the relevant criminal matter (Public Officers Law § 84 et seq.). However, those records should not have included the D.A. datasheet. This Court has previously held that the D.A. datasheet constitutes attorney work product, as it contains the analysis and conclusions of the intake attorney (see Matter of Law Off. of Cyrus Joubin, Esq. v Manhattan Dist. Attorney's Off., 234 AD3d 441, 441 [1st Dept 2025]; see Venture v Preferred Mut. Ins. Co., 180 AD3d 426, 426 [1st Dept 2020]). As a result, CPLR 3101(c) protects the datasheet from disclosure under FOIL, and it is not subject to disclosure even with redactions (see Public Officers Law § 87[2][a]; Matter of Stengel v Vance, 198 AD3d 434, 434 [1st Dept 2021]).
In light of this determination, the award of attorneys' fees is unwarranted, as petitioner has not "substantially prevailed" in its appeal of respondent's denial (Public Officers Law § 89[4][c][ii]). Furthermore, even had petitioner substantially prevailed, Supreme Court made no "find[ing] that the agency had no reasonable basis for denying access," and thus, there was no basis for an award of attorneys' fees to petitioner (id.; see also Matter of Jewish Press, Inc. v Kingsborough Community Coll., 201 AD3d 547, 548-549 [1st Dept 2022], lv denied 18 NY3d 806 [2012]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 18, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06283.htm
| Matter of Christian v Department of Educ. of the City of New York |
| 2025 NY Slip Op 06272 |
| Decided on November 18, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Kern, J.P., Scarpulla, Friedman, O'Neill Levy, Chan, JJ.
Index No. 159994/20|Appeal No. 5195|Case No. 2024-03953|
v
The Department of Education of the City of New York et al., Respondents-Respondents.
Stewart Lee Karlin Law Group, P.C., New York (Stewart Lee Karlin of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York (Amanda Abata of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about May 2, 2024, which, to the extent appealed from as limited by the briefs, denied in part petitioner's CPLR article 78 petition to annul respondent's determination, dated September 30, 2020, discontinuing petitioner's employment; for a declaration that petitioner acquired tenure by estoppel; and retroactive reinstatement to the position of a tenured teacher; and granted in part respondent's cross-motion to dismiss the petition, unanimously reversed, on the law, without costs, the petition granted, the cross-motion denied, and it is declared that petitioner acquired tenure by estoppel.
Petitioner's probationary period as a teacher with the Department of Education was extended by agreement until October 1, 2019, at which point she would either be granted completion of probation, denied completion of probation and/or discontinued, or granted an extension of probation. Prior to completion of that probationary period, petitioner took an approved leave of absence from September 3, 2019 to June 30, 2020. On September 30, 2020, respondents denied petitioner a completion of probation and terminated her employment as of the close of business that day.
Petitioner's leave of absence should be excluded from her probationary period. An employee's probationary term may be extended by the number of days that the probationary employee does not perform the duties of the position (see Tomlinson v Ward, 110 AD2d 537, 538 [1st Dept 1985], affd, 66 NY2d 771 [1985]). Education Law § 3012(3) provides that "no period in any school year for which there is no required service . . . shall in any event constitute a break or suspension of probationary period" (see also Education Law § 2573[15]). Consistent with this provision, petitioner's probation period paused when her leave of absence began on September 3, 2019, and resumed when her leave of absence ended on June 30, 2020. Because petitioner's probationary period was scheduled to end on October 1, 2019, this leaves 21 missed workdays as the remainder of her probationary period, to be applied after her leave of absence expired. Thus, petitioner's termination on September 30, 2020 occurred well after her probationary term was completed.
Petitioner further obtained tenure by estoppel (Matter of McManus v Board of Educ. of Hempstead Union Free School Dist. , 87 NY2d 183, 187 [1995]). As such, petitioner could not be terminated without a hearing pursuant to Education Law § 3020-a.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 18, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06272.htm
Decision No. 18,651
Appeal of CHRISTOPHER MANERI from action of the Board of Education of the Auburn Enlarged City School District regarding a personnel matter.
Decision No. 18,651
(November 4, 2025)
Ferrara Fiorenza PC, attorneys for respondent, Lindsay A.G. Plantholt, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Auburn Enlarged City School District (“respondent”) to terminate his employment. He also alleges that respondent retaliated against him after he filed a Dignity for All Students Act (“Dignity Act”) complaint on behalf of his child. The appeal must be dismissed.
Petitioner and his two children reside within respondent’s district. Petitioner was employed by respondent as a substitute teacher’s aide (2017-2022) and a groundskeeper (2022 to 2025).
In fall 2021, petitioner’s children complained of their treatment by a sports coach, the spouse of a board member (hereinafter, “board member”). Petitioner filed a complaint against the coach under the Dignity for All Students Act (“Dignity Act”) in fall 2022.
By letter dated April 23, 2023, respondent’s Dignity Act Coordinator informed petitioner that it has substantiated some of the allegations against the coach. The coordinator indicated that the district would address these findings internally but was precluded from “shar[ing] [the] … specific action to be taken.”
Throughout 2023 and 2024, petitioner alleges that the board member appeared at the district to observe him working. Petitioner suggests that the board member arranged these encounters to intimidate or harass him. Respondent denies these allegations, asserting that the simultaneous presence of petitioner and the board member was coincidental.
In February 2025, respondent voted to terminate petitioner’s employment with respondent. Seven members voted in favor, with the board member and a colleague abstaining. This appeal ensued.
Petitioner alleges that the board member retaliated against him by orchestrating his termination. For relief, petitioner requests that I “review the circumstances surrounding the DASA complaint and identified retaliation.” He seeks a finding that he was wrongfully terminated, an award of backpay, amendment of his employment file, and an order directing the board member to resign.
Respondent contends that the appeal must be dismissed against the board member as he was neither named in the caption of the appeal nor served with a copy thereof.[1] On the merits, respondent argues that petitioner has not articulated a clear legal right to his requested relief.
Initially, I decline to address petitioner’s claim of wrongful termination. “[E]mployee discipline is within respondent’s exclusive jurisdiction and is generally subject to procedures established in statute or in applicable collective bargaining agreements and/or employment contracts” (Appeal of X.R.O., 60 Ed Dept Rep, Decision No. 17,904; see Education Law §§ 1709 (16) and (33), 3020, 3020-a; Civil Service Law § 75). As such, I decline to “sit as a super-personnel department” and second-guess respondent’s employment decisions (Ghent v. Moore, 324 Fed Appx 55, 57 [2d Cir 2009]; see also Dale v. Chicago Trib. Co., 797 F2d 458, 464 [7th Cir 1986]; cf. Appeal of Rickson, 62 Ed Dept Rep, Decision No. 18,211 [reviewing discontinuance of a teacher’s probationary appointment, which is authorized by Education Law § 3012]). However, petitioner’s claim of retaliation for filing a Dignity Act complaint is within my jurisdiction and addressed below.
The Dignity Act prohibits school districts and their employees from “tak[ing] ... retaliatory action against any such person” who “makes ... a report” alleging bullying or harassment (Education Law § 16). A claim of retaliation requires a petitioner to show that he or she: (1) engaged in protected activity; (2) was subjected to adverse action; and (3) causation (see generally Vega v Hempstead Union Free Sch. Dist., 801 F3d 72, 90 [2d Cir 2015]; Application of the Board of Educ. of the City Sch. Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147).
In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
Petitioner has not met his burden of proving causation between his Dignity Act complaint and his termination. The precipitating event underlying petitioner’s termination was his use of a district vehicle to salt his driveway.[2] There is no evidence that respondent’s assistant superintendent for personnel, who investigated this incident, was aware of petitioner’s Dignity Act complaint.[3] Based on the results of the assistant superintendent’s investigation, the superintendent recommended that the board terminate petitioner’s employment. As the assistant superintendent indicates, there is no evidence that the board member “discuss[ed] his personal history with [p]etitioner with any other board member, or otherwise attempt[ed] to influence their votes regarding Petitioner’s termination.” Thus, petitioner has failed to meet his burden of proving causation between his Dignity Act complaint and his termination.
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
[1] To the extent the petition could be construed as an application to remove the board member, it does not comply with the applicable procedural requirements (8 NYCRR 277.1 [b]; Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).
[2] Petitioner claims that he accidentally engaged the salter mechanism.
[3] In this respect, the assistant superintendent began her employment in 2025, two years after the Dignity Act determination at issue herein.
https://www.counsel.nysed.gov/Decisions/volume65/d18651
In seeking to dismiss an action brought under color of CPLR 3211(a)(5) the moving party must show that the controlling statute of limitations has expired.
In CPLR Article 78 seeking judicial review of a 2021 determination of the Town Board [Town] which had adopted the report and recommendation of a hearing officer finding the Petitioner guilty of 12 specifications of misconduct and incompetence, and terminated the Petitioner's employment as a police officer, Petitioner appealed a Supreme Court order and judgment granting the Town's motion to dismiss the Petitioner's Article 78 action as untimely and dismissed the proceeding. Petitioner appeal the Supreme Court's ruling.
The Appellate Division affirmed the Supreme Court's order and judgment, with costs, explaining:
1. "On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired;
2. "The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period; and
3. "Unless a shorter time is provided in the law authorizing the proceeding, a four-month statute of limitations is generally applicable to proceedings pursuant to CPLR Article 78".
In this instance, the Count's Police Act, as amended, stated that the review of a disciplinary "conviction of any member of such police force" shall be presented to the court "within sixty days after the conviction". The Appellate Division's decision, noted that the Town "had established, prima facie", that the instant proceeding was time-barred by showing that the petition was not filed within 60 days from the Town's final determination and Petitioner failed to raise a question of fact as to whether the proceeding was timely commenced," opined that "[I]t is well settled that an argument 'may not be raised for the first time before the courts in an article 78 proceeding".
Finding that Petitioner did not raise his contention that his disciplinary proceeding was not governed by the County Police Act until the Petitioner commenced this Article 78 proceeding, Supreme Court should not have considered that issue. However, the Appellate Division concluded that Supreme Court had properly granted the Town's motion pursuant to CPLR 3211(a)(5) and 7804(f) to dismiss the petition as time-barred and dismissed the proceeding.
Click HERE to access the Appellate Division's decision posted on the Internet.
| Village of Briarcliff Manor v Village of Ossining |
| 2025 NY Slip Op 06214 |
| Decided on November 12, 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. |
CHERYL E. CHAMBERS, J.P.
LINDA CHRISTOPHER
CARL J. LANDICINO
JAMES P. MCCORMACK, JJ.
2023-10208
(Index No. 68054/18)
v
Village of Ossining, et al., respondents, et al., defendant.
Keane & Beane, P.C., Melville, NY (Richard K. Zuckerman and Edward J. Phillips of counsel), for appellant.
Hodges Walsh & Burke, LLP, White Plains, NY (Paul E. Svensson and Michael Burke of counsel), for respondents.
DECISION & ORDER
In an action to recover payments made by the plaintiff to its injured employee pursuant to General Municipal Law § 207-c(6), the plaintiff appeals from an order of the Supreme Court, Westchester County (William J. Giacomo, J.), dated June 30, 2023. The order granted the motion of the defendants Village of Ossining and Juan Encarnacion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Village of Ossining and Juan Encarnacion for summary judgment dismissing the complaint insofar as asserted against them is denied.
In October 2016, Nicole Corsi, a Village of Briarcliff Manor police officer, allegedly was injured in the line of duty as a result of an accident that occurred when a vehicle operated by the defendant Nathaniel J. Hester crashed into the rear of her patrol vehicle while Hester was being pursued by the defendant Juan Encarnacion, a police officer employed by the defendant Village of Ossining, on Route 9 in the Village of Briarcliff Manor. The plaintiff commenced the instant action against, among others, the Village of Ossining and Encarnacion pursuant to General Municipal Law § 207-c(6) for the reimbursement of all salary, benefits, and expenses paid by the plaintiff to Corsi as a result of injuries she sustained in the line of duty due to the allegedly reckless or negligent conduct of the Village of Ossining and Encarnacion that took place during Encarnacion's pursuit of Hester and Hester's eventual crash into Corsi's vehicle. The Village of Ossining and Encarnacion moved for summary judgment dismissing the complaint insofar as asserted against them. By order dated June 30, 2023, the Supreme Court granted the motion. The plaintiff appeals.
"The manner in which a police officer operates his or her vehicle in responding to an emergency may form the basis of civil liability to an injured third party if the officer acted in reckless disregard for the safety of others" (S.L. v City of Yonkers, 208 AD3d 1321, 1322 [internal quotation marks omitted]). "The reckless disregard standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow" (id. at 1322-1323 [internal quotation [*2]marks omitted]; see Saarinen v Kerr, 84 NY2d 494, 501).
Here, the Village of Ossining and Encarnacion failed to eliminate all triable issues of fact as to whether Encarnacion acted with reckless disregard for the safety of others and whether such conduct was a proximate cause of Corsi's injuries (see Kolvenbach v Cunningham, 224 AD3d 826, 828; Miller v Suffolk County Police Dept., 105 AD3d 918, 919-920). In support of their motion, the Village of Ossining and Encarnacion submitted, among other things, transcripts of the deposition testimony of Encarnacion, Hester, and Corsi, who collectively testified that on the day at issue, Encarnacion pursued Hester at high speeds through residential and commercial roads and that Hester struck another vehicle and narrowly avoided striking pedestrians during the chase. Thus, contrary to the determination of the Supreme Court, there are triable issues of fact as to whether Encarnacion acted in reckless disregard for the safety of others in continuing the pursuit of Hester and whether Encarnacion's continuation of the pursuit was a proximate cause of the accident (see Kolvenbach v Cunningham, 224 AD3d at 828; Foster v Suffolk County Police Dept., 137 AD3d 855, 856).
Accordingly, the Supreme Court should have denied the motion of the Village of Ossining and Encarnacion for summary judgment dismissing the complaint insofar as asserted against them without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
CHAMBERS, J.P., CHRISTOPHER, LANDICINO and MCCORMACK, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_06214.htm
| Matter of Krein v Green Haven Corr. Facility |
| 2025 NY Slip Op 06238 |
| Decided on November 13, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-1994
v
Green Haven Correctional Facility et al., Respondents. Workers' Compensation Board, Respondent.
Before:Pritzker, J.P., Reynolds Fitzgerald, Ceresia, McShan and Powers, JJ.
Erwin McCane & Daly LLP, Albany (Kevin F. McCane of counsel), for appellant.
David F. Wertheim, State Insurance Fund, Albany (Kara A. Schifano of counsel), for Green Haven Correctional Facility and another, respondents.
Reynolds Fitzgerald, J.
Appeal from a decision of the Workers' Compensation Board, filed May 29, 2025, which ruled, among other things, that claimant was entitled to a 12.5% schedule loss of use of his right leg (knee) as a result of a March 2020 accident.
In 1999, claimant sustained a work-related injury to his right knee and, in October 2000, was awarded a 12.5% schedule loss of use (hereinafter SLU) of the right leg (knee). In 2003, claimant sustained another work-related injury to his right knee; however, no findings of permanency were rendered (and thus no SLU award made) as the medical records reflect that, by July 2003, his right knee "seem[ed] to be totally improved." In March 2020, claimant sustained an additional right knee injury, and the underlying workers' compensation claim in this matter was established. Following evaluations for permanency by claimant's treating physician and an independent medical examiner, as well as depositions of those physicians, a Workers' Compensation Law Judge (hereinafter WCLJ) found, among other things, that claimant had sustained a 25% SLU of the right leg with 2.5% related to the preexisting range of motion deficits from his 1999 injury, resulting in a 22.5% SLU of the right leg causally-related to the March 2020 accident. Upon administrative review, the employer and its workers' compensation carrier, the State Insurance Fund (hereinafter collectively referred to as the SIF), did not dispute the finding of a 25% SLU of the right leg but argued that it was entitled to an offset or reduction of that 25% SLU by the 12.5% SLU that claimant was awarded in 2000 for his prior work-related injury to his right knee, and the Workers' Compensation Board agreed. The Board reasoned that, under Matter of Genduso v New York City Dept. of Educ. (164 AD3d 1509 [3d Dept 2018]), "an SLU must always be reduced by the amount of any prior SLU to the same statutory member" and modified the decision of the WCLJ by awarding claimant a 12.5% SLU of the right leg (knee). Claimant appeals.
We reverse. "SLU awards are made to compensate for the loss of earning power or capacity that is presumed to result, as a matter of law, from permanent impairments to statutorily-enumerated body members" (Matter of Taher v Yiota Taxi, Inc., 162 AD3d 1288, 1289 [3d Dept 2018], lv dismissed 32 NY3d 1197 [2019]; see Workers' Compensation Law § 15 [3] [a]-[v]; Matter of Mancini v Office of Children & Family Servs., 32 NY3d 521, 526 n [2018]; Matter of Webster v Office of Children & Family Servs., 233 AD3d 1228, 1229 [3d Dept 2024]; Matter of Genduso v New York City Dept. of Educ., 164 AD3d at 1510). "Although a claimant may receive more than one SLU award for a loss of use of more than one member or parts of members, such SLU awards are nonetheless limited to only those statutorily-enumerated members listed in Workers' Compensation Law § 15 (3)" (Matter of Kromer v UPS Supply Chain Solutions, 206 AD3d 1413, 1414 [3d Dept 2022] [internal quotation marks and citations omitted[*2], emphasis added]). "Pursuant to Matter of Genduso and its progeny, the Board may offset an SLU award by previous SLU awards for the same body member, regardless of whether the prior injuries involved the same or separate parts of that member" (id. at 1415 [citations omitted]; see Matter of Webster v Office of Children & Family Servs., 233 AD3d at 1230; Matter of Germano v Dynamic Appliances, Inc., 231 AD3d 1394, 1396 [3d Dept 2024]).
The Court of Appeals has clarified, however, that successive and "separate SLU awards for different injuries to the same statutory member are contemplated by [Workers' Compensation Law §] 15 and, when a claimant proves that the second injury, 'considered by itself and not in conjunction with the previous disability,' has caused an increased loss of use, the claimant is entitled to an SLU award commensurate with that increased loss of use" (Matter of Johnson v City of New York, 38 NY3d 431, 436-437 [2022], quoting Workers' Compensation Law § 15 [7]; accord Matter of Webster v Office of Children & Family Servs., 233 AD3d at 1230; Matter of Kromer v UPS Supply Chain Solutions, 206 AD3d at 1415).[FN1] Thus, a claimant's entitlement to an additional SLU award for a successive injury to the same statutory member "turns upon the sufficiency of the medical proof adduced" (Matter of Webster v Office of Children & Family Servs., 233 AD3d at 1231; see Matter of Johnson v City of New York, 38 NY3d at 445). "Such demonstration may include medical evidence that a prior injury and the current injury to the same member are 'separate pathologies that each individually caused a particular amount of loss of use of [the subject member]' and that the current injury resulted in a greater degree of loss of use of the body member in question 'beyond that . . . [of] the prior injury' " (Matter of Germano v Dynamic Appliances, Inc., 231 AD3d at 1396, quoting Matter of Johnson v City of New York, 38 NY3d at 444, 445). In this regard, "whether a claimant is entitled to an SLU award and, if so, the resulting percentage are factual questions for the Board to resolve and, thus, the Board's determination will be upheld provided that it is supported by substantial evidence" (Matter of Kromer v UPS Supply Chain Solutions, 206 AD3d at 1416 [internal quotation marks, brackets and citations omitted]; see Matter of Ward v NYC Tr. Auth., 214 AD3d 1277, 1279 [3d Dept 2023]).
Here, the standard articulated and then applied by the Board, which relied solely upon Matter of Genduso v New York City Dept. of Educ. (164 AD3d at 1510), was that an SLU "must always be reduced by the amount of any prior SLU to the same statutory member" (emphasis supplied). The Board is not required to reduce or offset the SLU by the prior SLU where a "claimant demonstrates that a subsequent injury increased the loss of use of a body member beyond that resulting from the prior injury" (Matter of Johnson v City of New York, 38 NY3d at 444). Given that the Board's decision did not consider[*3], or otherwise ascertain the credibility of, the conflicting medical evidence that was before it — which included documentary and testimonial evidence from claimant's treating physician — regarding the extent to which claimant's injuries were "separate pathologies that each individually caused a particular amount of loss of use" of his right leg (id. at 445), the Board's finding of a 12.5% SLU of the right leg must be reversed and the matter remitted for further consideration by the Board in accordance with the holding in Matter of Johnson (see id. at 445-446; cf. Matter of Germano v Dynamic Appliances, Inc., 231 AD3d at 1396; Matter of Kromer v UPS Supply Chain Solutions, 206 AD3d at 1417). In light of our decision, it is unnecessary to address claimant's remaining contentions.
Pritzker, J.P., Ceresia, McShan and Powers, JJ., concur.
ORDERED that the decision is reversed, without costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.
Footnote 1: "In other words, Workers' Compensation Law § 15 (7) 'provides that a claimant may receive more than one SLU award in connection with successive injuries to the same statutory body member' — as long as the award for the successive injury is 'limited to the loss of earning power caused by [the second or successive] injury' " (Matter of Webster v Office of Children & Family Servs., 233 AD3d at 1230-1231, quoting Matter of Johnson v City of New York, 38 NY3d at 442, 443; see Matter of Kromer v UPS Supply Chain Solutions, 206 AD3d at 1415).
https://nycourts.gov/reporter/3dseries/2025/2025_06238.htm
| Matter of Audia v DiNapoli |
| 2025 NY Slip Op 06235 |
| Decided on November 13, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-1356
v
Thomas P. DiNapoli, as State Comptroller, Respondent.
Before:Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Ceresia, JJ.
Schwab & Gasparini, PLLC, White Plains (Warren J. Roth of counsel), for petitioner.
Letitia James, Attorney General, Albany (Sean P. Mix of counsel), for respondent.
Garry, P.J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's applications for accidental and performance of duty disability retirement benefits.
After taking a service retirement in January 2016, petitioner, a police officer, filed applications for accidental and performance of duty disability retirement benefits based upon an injury allegedly sustained in May 2013. At the time of the underlying incident, petitioner was operating his patrol vehicle during the early morning hours when a deer ran out in front of him, causing petitioner to slam on his brakes and swerve to avoid a collision, whereupon he felt a "popping" in his back. Petitioner's respective applications were denied upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363 and that petitioner was not permanently incapacitated from the performance of his duties. Following a hearing and redetermination, a Hearing Officer upheld the denials. Respondent adopted the Hearing Officer's findings and conclusions, prompting this CPLR article 78 proceeding.
"In connection with any application for accidental or performance of duty disability retirement benefits, the applicant bears the burden of proving that he or she is permanently incapacitated from the performance of his or her job duties" (Matter of Hannon v DiNapoli, 226 AD3d 1122, 1123 [3d Dept 2024] [internal quotation marks and citations omitted]; see Retirement and Social Security Law §§ 363 [a] [1]; 363-c [b] [1]; Matter of Verille v Gardner, 177 AD3d 1068, 1069 [3d Dept 2019]). "Where, as here, there is conflicting medical evidence, respondent is vested with the exclusive authority to weigh such evidence and credit the opinion of one medical expert over another, and our review of respondent's determination is limited to ascertaining whether it is supported by substantial evidence" (Matter of Mozdziak v DiNapoli, 231 AD3d 1215, 1216 [3d Dept 2024] [internal quotation marks, brackets and citations omitted]; see Matter of Stefanik v Gardner, 236 AD3d 75, 78 [3d Dept 2025]; Matter of Romano v DiNapoli, 228 AD3d 1195, 1196 [3d Dept 2024]).
Petitioner testified that, following the May 2013 incident, he was out of work for two weeks, during which time he sought treatment from an orthopedic surgeon. According to petitioner, he was treated conservatively with physical therapy and anti-inflammatory medications and thereafter resumed his full duties as a patrol officer, which he continued until September 2015.[FN1] Petitioner moved out of state in mid-2016 and did not seek further treatment. The orthopedic surgeon who treated petitioner between 2013 and 2016 testified that petitioner "probably" would be unable to perform the exertional duties of a police officer due to the May 2013 incident and, therefore, was permanently disabled. A conflicting opinion was [*2]offered by the physician who evaluated petitioner on behalf of the New York State and Local Police and Fire Retirement System. The consulting orthopedist opined that, although petitioner suffered from preexisting multilevel degenerative disc disease, such condition was unrelated to the May 2013 incident and "in remission," such that, "from an orthopedic point of view, . . . there were no restrictions on [petitioner's] activities of daily living or work activity as a police officer." Accordingly, the consulting physician concluded that petitioner was not permanently incapacitated from the performance of his duties.
"[A]s the opinion of the Retirement System's expert was a rational fact-based opinion formed upon a physical examination of petitioner and a review of pertinent medical records, respondent was free to credit such opinion over that of petitioner's treating physician" (Matter of Mozdziak v DiNapoli, 231 AD3d at 1217 [internal quotation marks and citations omitted]). Thus, even assuming, without deciding, that the subject incident was an accident within the meaning of the Retirement and Social Security Law (see generally Matter of Bodenmiller v DiNapoli, 43 NY3d 43, 46-47 [2024]), substantial evidence supports respondent's finding that petitioner was not permanently incapacitated from the performance of his duties as a police officer and therefore not entitled to either accidental or performance of duty disability retirement benefits.
Clark, Aarons, Reynolds Fitzgerald and Ceresia, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Footnote 1: Petitioner apparently again injured his back in 2015, while jumping over a wall.
https://nycourts.gov/reporter/3dseries/2025/2025_06235.htm
23-7567 Lilly v. Hall UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of November, two thousand twenty-five. PRESENT: AMALYA L. KEARSE, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ______________________________________ EDWARD LILLY, Plaintiff-Appellee, v. No. 23-7567 BRANDON M. HALL, Defendant-Appellant, CRISTOPHER P. SALADA, LEWISTON POLICE DEPARTMENT, TOWN OF LEWISTON, 2 Defendants. _______________________________________ For Defendant-Appellant: Jenna W. Klucsik, Sugarman Law Firm, LLP, Syracuse, NY. For Plaintiff-Appellee: Edward Lilly, pro se, Lewiston, NY. Appeal from an order of the United States District Court for the Western District of New York (Lawrence J. Vilardo, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal is DISMISSED for lack of jurisdiction. Brandon Hall, an officer with the Lewiston, New York Police Department, appeals from an order of the district court denying his motion for summary judgment based on qualified immunity as to plaintiff Edward Lilly’s claim for First Amendment retaliation brought pursuant to 42 U.S.C. § 1983. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. On March 24, 2013, Hall issued Lilly a ticket for failing to have a front license plate on his car in violation of New York Vehicle & Traffic Law § 402(1). The parties dispute the reason for the stop and what ensued afterwards. According 3 to Lilly, there was no basis for Hall to stop his car, which did have a front license plate; Lilly instead maintains that Hall stopped and ticketed him in retaliation for his critical remarks concerning the state police that were published in local newspaper articles in January 2013. Indeed, Lilly asserts that he overheard Hall and his fellow officers at the scene saying that they needed to “teach [Lilly] a lesson” for criticizing the police in the articles. App’x at 100. For his part, Hall avers that Lilly’s car was in fact missing a front license plate and that, prior to the stop, he did not know anything about Lilly or his involvement in the newspaper articles. The district attorney ultimately declined to prosecute Lilly, leading to the dismissal of the ticket. On March 23, 2016, Lilly initiated this suit, alleging, as relevant here, that Hall infringed on his civil rights in violation of section 1983 and seeking compensatory and punitive damages. The district court later dismissed all but Lilly’s First Amendment retaliation claim against Hall. After the conclusion of fact discovery, Hall moved for summary judgment, arguing both that the undisputed facts warranted judgment in his favor and that, in any event, he was entitled to qualified immunity because his actions did not violate clearly established law. The district court denied that motion, and Hall timely appealed. 4 “Although neither party expressly argues that we lack appellate jurisdiction to hear this appeal, we have an independent obligation to consider the presence or absence of subject matter jurisdiction nostra sponte.” Franco v. Gunsalus, 972 F.3d 170, 174 (2d Cir. 2020) (alterations accepted and internal quotation marks omitted). An appellate court lacks jurisdiction to review a district court’s denial of qualified immunity where “there remains a genuine factual dispute.” Id. (citing Reyes v. Fischer, 934 F.3d 97, 106–07 (2d Cir. 2019)). Here, the parties’ submissions reflect continuing factual disputes over whether the ticket Hall issued was supported by probable cause and whether it was issued for a retaliatory purpose. Compare Hall Br. at 8–9 (“Officer Hall testified that he effectuated the traffic stop because when he passed a blue Toyota driving in the opposite direction, that vehicle did not have a front license plate” (emphasis added)), and id. at 9 (“The plaintiff testified that the blue Toyota he was driving did have a front license plate” (emphasis added)), with Lilly Br. at 6 (“Defendant concedes there is a dispute over whether plaintiff had a front license plate”); see also Mangino v. Inc. Vill. of Patchogue, 808 F.3d 951, 956 (2d Cir. 2015) (explaining that the existence of probable cause effectively negates “retaliatory motive” in a First Amendment retaliatory prosecution claim).1 1 Judge Sullivan believes that we have jurisdiction to hear this appeal because Hall’s arguments 5 Because “[f]actual questions that are crucial to the disposition of the defendant[’s] qualified immunity defense remain” – namely, whether the relevant ticket was issued in the absence of probable cause – we must dismiss Hall’s appeal for lack of jurisdiction. Reyes, 934 F.3d at 106; Brown v. Halpin, 885 F.3d 111, 117 (2d Cir. 2018) (“If a factual determination is a necessary predicate to the resolution of whether immunity is a bar, review is postponed and we dismiss the appeal.” (alteration accepted) (quoting State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 82 (2d Cir. 2007))). are premised on an assumption of Lilly’s “version of the facts.” Hall Br. at 1, 12, 14. He nevertheless would affirm the district court’s denial of summary judgment because “every reasonable official would have understood that” charging a baseless traffic offense in the absence of an actual violation to punish an individual for his protected speech was prohibited. Reichle v. Howards, 566 U.S. 658, 664 (2012) (alterations accepted and internal quotation marks omitted); see also Hartman v. Moore, 547 U.S. 250, 256 (2006) (“[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.”); Dobosz v. Walsh, 892 F.2d 1135, 1141 (2d Cir. 1989) (“[T]he proscription of retaliation for a plaintiff’s exercise of First Amendment rights has long been established.”). Judges Kearse and Chin are of the view that Hall has not accepted Lilly’s version of the facts for purposes of this appeal. 6 * * * We have considered Hall’s remaining arguments and find them to be without merit. Accordingly, we DISMISS Hall’s appeal for lack of jurisdiction. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
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24-2589-cv Allen et al. v. City of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of November, two thousand twenty-five. PRESENT: DENNY CHIN, EUNICE C. LEE, BETH ROBINSON, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x CLARENCE BOWEN ALLEN, on behalf of themselves and on behalf of all other similarly situated individuals, BRENDA BERMAN, on behalf of themselves and on behalf of all other similarly situated individuals, ANNETTE BIRDSONG, on behalf of themselves and on behalf of all other similarly situated individuals, WILLIAM HENRY, on behalf of themselves and on behalf of all other similarly situated individuals, JOSE JACOB, on behalf of themselves and on behalf of all other similarly situated individuals, JACQUELINE KING, on behalf of themselves and on behalf of all other similarly situated individuals, SUSAN LAMONICA, on behalf of themselves and on behalf of all other similarly situated individuals, JEAN PHIPPS, on behalf of themselves and on behalf of all other similarly situated individuals, ROSLYN PRESS, on behalf of themselves and on behalf of all other similarly situated individuals, HERBERT RICHARDSON, on behalf of themselves and on behalf of all other similarly situated individuals, VIRGINIA TUFARO, on behalf of themselves and on behalf of all other similarly situated individuals, 2 Plaintiffs-Appellants, -v- 24-2589-cv CITY OF NEW YORK, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendants-Appellees, JACOBI MEDICAL CENTER, Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x FOR PLAINTIFFS-APPELLANTS: ERICA T. HEALEY-KAGAN, Filippatos PLLC, New York, New York. FOR DEFENDANTS-APPELLEES: RICHARD DEARING (Claude S. Patton, Geoffrey E. Curfman, on the brief), for Muriel Goode-Trufant, Corporation Counsel of the City of New York, New York, New York. Appeal from the United States District Court for the Southern District of New York (Furman, J.). UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiffs-Appellants, eleven former employees of a public hospital operated by Defendants-Appellees New York City and the New York City Health and Hospitals Corporation (together, "H&H"), appeal from the district court's judgment entered August 29, 2024 granting summary judgment to H&H on their claims of race and age-based employment discrimination. Plaintiffs worked at Jacobi Medical Center 3 ("Jacobi"), an acute care facility managed by H&H. As part of an H&H-wide costcutting program, Jacobi underwent two rounds of "Managerial Efficiency Improvement Initiatives" ("MEIIs") in February and June 2017 that resulted in the elimination of a combined 45 positions -- 25 of which were held by non-White employees, and 43 of which were held by employees over the age of 40. Plaintiffs brought race- and agebased disparate impact and treatment claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; 42 U.S.C. § 1983; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107. The district court granted summary judgment for H&H on the federal claims. It then exercised supplemental jurisdiction over and dismissed on the merits the disparate impact claims under the NYSHRL and NYCHRL, and the disparate treatment claim under the NYSHRL. It declined to exercise supplemental jurisdiction over and instead dismissed the sole remaining discrimination claim, disparate treatment under the NYCHRL, without prejudice to refiling in state court.1 On appeal, Plaintiffs do not challenge the district court's summary judgment rulings as to their federal claims. See Appellants' Br. 2-3. Indeed, they have 1 The district court also dismissed the breach of contract claim without prejudice, reasoning that there was no federal analog. 4 failed to address the federal claims in their briefing on appeal, and thus those claims have been abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995). Plaintiffs instead challenge both the district court's decision to exercise supplemental jurisdiction over three of the four remaining state and city law claims, and its rulings on the merits of those claims. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We first address whether the district court abused its discretion in exercising supplemental jurisdiction over Plaintiffs' disparate impact claims under the NYSHRL and NYCHRL, and their disparate treatment claim under the NYSHRL. Concluding that it did not, we proceed to discuss whether the district court erred in its summary judgment rulings on the state and city disparate impact claims, followed by its ruling on the state disparate treatment claim. I. Supplemental Jurisdiction A district court may decline to exercise supplemental jurisdiction over pendent state law claims if it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). When deciding whether to exercise jurisdiction over pendent state law claims, courts weigh the factors of "judicial economy, convenience, fairness, and comity." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988), abrogated on other grounds by Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 39-41 (2025). 5 "[W]hen all federal claims are eliminated in the early stages of litigation, the balance of factors generally favors declining to exercise pendent jurisdiction over remaining state law claims . . . ." Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 103 (2d Cir. 1998) (citing Cohill, 484 U.S. at 350). We have upheld a district court's exercise of supplemental jurisdiction, however, when the federal claims were dismissed after proceedings were well underway, and where the pendent claims involved only settled legal principles, rather than novel state-law questions. See, e.g., Raucci v. Town of Rotterdam, 902 F.2d 1050, 1054-55 (2d Cir. 1990). We review a district court's exercise of supplemental jurisdiction for abuse of discretion. Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006). We conclude that the district court did not abuse its discretion in exercising supplemental jurisdiction over the NYSHRL and NYCHRL disparate impact claims and the NYSHRL disparate treatment claim. Because, as discussed below, the NYSHRL and NYCHRL standards at issue either mirror or overlap with the standards of their federal counterparts, the district court's adjudication of these state and city law claims involved only well-settled principles of anti-discrimination law and did not raise any substantial comity concerns. See Cohill, 484 U.S. at 350; see also Nowak v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1191-92 (2d Cir. 1996). Moreover, the district court's decision to exercise supplemental jurisdiction served the interests of judicial economy, because proceedings were well underway and discovery had already been completed in 6 what was then already a five-year-old litigation. See id.; Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014). Accordingly, we hold that the district court did not abuse its discretion in exercising jurisdiction over this set of NYSHRL and NYCHRL claims after dismissing the federal claims at the summary judgment stage. II. Disparate Impact 1. NYSHRL Plaintiffs have abandoned their federal law claims on appeal, and we thus do not decide the propriety of the district court's rulings on those claims. Because the standards governing the federal and analogous state claims are parallel, however, we will consider the district court's reasoning as to the federal claims for purposes of reviewing its rulings on the state claims. Disparate impact claims under Title VII and the ADEA are analyzed under a three-part burden-shifting analysis. Plaintiffs must first make out a prima facie case of discrimination by identifying a specific employment practice or policy, demonstrating that a disparity exists, and establishing a causal relationship between the two. Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 151 (2d Cir. 2012) (Title VII); Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir. 1980) (ADEA). Plaintiffs bear the burden of "isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Watson v. Forth Worth Bank & Tr., 487 U.S. 977, 994 (1998). If step one is met, the burden shifts to the employer to 7 undermine the causal analysis or mount a business necessity defense. Id. at 997-98. If the employer establishes that its actions served a business necessity, the burden shifts back to Plaintiffs to show that other non-discriminatory methods exist to meet the employer's legitimate business interest. Id. at 998. The district court found that Plaintiffs had not raised triable issues of fact as to their federal disparate impact claims because they had not isolated or identified a specific employment practice responsible for the race- and age-based disparities. See Chin, 685 F.3d at 154 (noting that, to sustain a disparate impact claim, Plaintiffs must "identify a specific discriminatory employment practice"). The two MEIIs involved different sets of Jacobi department heads independently identifying positions for elimination, and the second MEII, unlike the first MEII, incorporated reduction targets and standardized tables of reorganization provided by H&H. Whether we consider the MEIIs together or in isolation, Plaintiffs have not specified which part of the MEII decision-making process or criteria resulted in the disparate effects. See Smith v. City of Jackson, 544 U.S. 228, 241 (2005) ("[I]t is not enough to . . . point to a generalized policy that leads to [disparate] impact."). Plaintiffs' argument that Jacobi had a practice of excluding Group 12 employees from the layoffs also does not raise a factual dispute for trial, because, as the district court recognized, Plaintiffs have not pointed to any expert analysis or evidence that this distinction led to a disparate effect based on race or age. See Gulino v. N.Y. State Educ. Dep't, 460 F.3d 361, 382 (2d Cir. 2006). 8 Plaintiffs' disparate impact claim under the NYSHRL is subject to the same federal standards, and so fails for the same reasons. Although the NYSHRL was amended in 2019,2 Plaintiffs' claims accrued in 2017 and are thus governed by the preamendment standards. Alshami v. City Univ. of New York, 162 N.Y.S.3d 720, 720 n.1 (1st Dep't 2022). Under the pre-amendment regime, this Court has repeatedly held that discrimination claims under the NYSHRL are analyzed under the same framework as corresponding Title VII and ADEA claims. See Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (Title VII); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (ADEA). We are not persuaded by Plaintiffs' argument that the legal standards governing the NYSHRL and ADEA are different because the former protects employees over the age of 18, while the latter only protects those over 40. The fact that two statutes protect somewhat different categories of persons does not affect whether claims brought under them are assessed under the same legal standard. See Abdu-Brisson, 239 F.3d at 466 ("Although there are differences between the [NYSHRL] . . . and the 2 In August 2019, the New York State Legislature passed an amendment to the NYSHRL stating, in part, that the law's provisions "shall be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws including those laws with provisions worded comparably to the provisions of [the NYSHRL] have been so construed." N.Y. Exec. Law § 300 (McKinney 2019). The 2019 amendment has been interpreted to align prospective constructions of the NYSHRL's standards with the more lenient standards of the NYCHRL. See Wright v. White Plains Hosp. Med. Ctr., 232 N.Y.S.3d 594, 595-96 (2d Dep't 2025). 9 [ADEA], age discrimination suits brought under the [NYSHRL] . . . are subject to the same analysis as claims brought under the ADEA." (citation modified)). And the mismatch in the categories of individuals protected by the respective laws does not have any bearing on the pivotal issues in this case. Accordingly, Plaintiffs' federal and NYSHRL disparate impact claims rise and, in this case, fall together. On the merits, we conclude that Plaintiffs have not raised any triable issues of fact as to their prima facie case. Accordingly, the district court did not err in granting summary judgment for H&H on the NYSHRL disparate impact claim. 2. NYCHRL The NYCHRL prohibits policies or practices that, individually or in combination, "result[] in a disparate impact to the detriment of any group protected" by the NYCHRL. N.Y.C. Admin. Code § 8-107(17)(a)(1). NYCHRL claims must be analyzed "separately and independently" from federal and state claims under a more liberal standard. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). Under the NYCHRL, Plaintiffs must show that a "policy or practice" or "group of policies or practices" of an employer "results in a disparate impact to the detriment of any group protected." N.Y.C. Admin. Code, § 8-107(17)(a)(1). If the plaintiff shows "that a group of policies or practices results in a disparate impact," the plaintiff need not "demonstrate which specific policies or practices within the group results in such disparate impact." Id. § 8-107(17)(a)(2). An employer may "plead and 10 prove as an affirmative defense that each such policy or practice bears a significant relationship to a significant business objective" or "does not contribute to the disparate impact." Id. Plaintiffs may rebut a business objective defense if they produce "substantial evidence that an alternative policy or practice with less disparate impact is available" and when the employer fails to show that the alternative "would not serve [it] as well." Id. We need not decide whether the disparate impact under NYCHRL mirrors the federal analysis outlined above, nor whether Plaintiffs have identified a "policy or practice" or "group of policies or practices" that result in a disparate impact for purposes of the NYCHRL, because we conclude that H&H has shown that the MEIIs served a "significant business objective," and Plaintiffs have failed to produce substantial evidence that an alternative policy or practice with less disparate impact is available. Id. H&H undertook the MEIIs in response to a significant budget shortfall and anticipated an estimated $1.8 billion operating loss for fiscal year 2020. In the fiscal year of the layoffs, H&H sought to save $55 million through a workforce reduction of approximately 1,000 full-time employees, and to do so by focusing its layoffs on managerial positions that could be consolidated. H&H can thus show that it had a significant business objective for the MEIIs. 11 We reject Plaintiffs' argument that H&H is precluded from asserting this business necessity defense because the layoffs violated the state Civil Service Law. Plaintiffs did not introduce any evidence that the jobs impacted by the layoffs were civil service positions, and defendants put forward evidence indicating they were not. In addition, the New York Court of Appeals has held that the requirements of the Civil Service Law do "not apply to 'Group 11' or managerial employees" of New York City Health and Hospital Corporation. Burns v. Quinones, 68 N.Y.2d 719, 721 (1986). So we need not evaluate the merits of Plaintiffs' argument that non-compliance with applicable civil service laws precludes H&H’s "significant business objective" defense, because the premise of that argument -- that the layoffs violated civil service laws -- is unsupported. To rebut H&H's defense, Plaintiffs must "produce[] substantial evidence that an alternative policy or practice with less disparate impact is available." N.Y.C. Admin. Code § 8-107(a)(2). Plaintiffs have not done so. Accordingly, we hold that the district court did not err in granting summary judgment for H&H on Plaintiffs' NYCHRL disparate impact claim. III. Disparate Treatment Plaintiffs' disparate treatment claims brought under the NYSHRL are subject to the same standard as analogous claims brought under Title VII or the ADEA. See Patane, 508 F.3d at 113; Abdu-Brisson, 239 F.3d at 466. Both federal and NYSHRL 12 disparate treatment claims are governed at the summary judgment stage by the threepart "burden-shifting analysis first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)." Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (citation modified). Under that test, "a plaintiff first bears the minimal burden of setting out a prima facie discrimination case, and is then aided by a presumption of discrimination unless the defendant proffers a legitimate, nondiscriminatory reason for the adverse employment action, in which event, the presumption evaporates and the plaintiff must prove that the employer's proffered reason was a pretext for discrimination." McPherson v. N.Y.C. Dep't of Educ., 457 F.3d 211, 215 (2d Cir. 2006) (citation modified). The ages and races of those terminated could suggest disparate treatment. However, Plaintiffs did not introduce evidence of the age or racial composition of any similarly situated comparator groups for purposes of statistical analysis, nor did they introduce any admissible statements raising an inference of discrimination. Plaintiffs also fail to meaningfully engage with any part of the district court's analysis on appeal, and instead only insist in conclusory fashion that we review the district court's decision de novo. See Appellants' Br. at 13-15. Plaintiffs do not point to any concrete evidence of discrimination other than the bare ages and racial composition of those whose positions were eliminated. Moreover, Plaintiffs put forward no evidence to show that H&H’s showing of their business need to cut positions for budgetary reasons is pretextual. See Woroski v. Nashua Corp., 31 F.3d 105, 109-10 ("[S]ome evidence [of bias] is not sufficient to 13 withstand a properly supported motion for summary judgment. . . ."), abrogated on other grounds by Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000). Accordingly, we conclude that the district court did not err in granting summary judgment for H&H on the NYSHRL disparate treatment claim. * * * We have considered Plaintiffs' remaining arguments and conclude they are without merit. For the foregoing reasons, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O'Hagan Wolfe, Clerk
24-1747-pr Josey v. Bell, et al., UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of November, two thousand twenty-five. PRESENT: AMALYA L. KEARSE, DENNIS JACOBS, MARIA ARAÚJO KAHN, Circuit Judges. __________________________________________ DEREK JOSEY, Plaintiff-Appellant, v. No. 24-1747-pr CORRECTIONAL OFFICER BELL, CLINTON CORRECTIONAL FACILITY, CORRECTIONAL OFFICER TUCKER, CLINTON CORRECTIONAL FACILITY, SGT. JOHN DOE, CLINTON CORRECTIONAL FACILITY, Defendants-Appellees, 2 SUPERINTENDENT BELL, SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, Defendant. * ___________________________________________ FOR PLAINTIFF-APPELLANT: AARON M. GOLDSMITH, Law Office of Aaron M. Goldsmith, PC, New York, NY. FOR DEFENDANTS-APPELLEES: PATRICK A. WOODS (Barbara D. Underwood and Andrea Oser, on the brief) Assistant Solicitor General of Counsel, Solicitor General, and Deputy Solicitor General for Letitia James, Attorney General, State of New York. Appeal from a judgment of the United States District Court for the Northern District of New York (Brenda K. Sannes, Ch. J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on June 13, 2024 is AFFIRMED. Plaintiff-Appellant Derek Josey (“Josey”) was transferred to the Clinton Correctional Facility in December of 2017 and was in the custody of the New York State Department of Corrections and Community Supervision (“DCCS”) during all relevant time periods. Josey alleges that, for a period between May 16 and June 5, 2018, Defendants-Appellees DCCS Officers Dustin Bell and Jeremy Tucker as well as a Sergeant * The Clerk of Court is respectfully directed to amend the case caption as indicated above. 3 John Doe improperly denied him access to religious services and activities during Ramadan. Josey alleges that he filed two grievances regarding this denial, but that he received no response until he wrote to the DCCS central grievance office and was informed there were no records of such complaints. In their answer to Josey’s federal court complaint under 42 U.S.C. § 1983, Defendants-Appellees asserted Josey’s failure to exhaust his administrative remedies as an affirmative defense. Following an evidentiary hearing on the exhaustion issue, the district court granted Defendants-Appellees’ motion for summary judgment. The district court did not credit Josey’s testimony that he exhausted his administrative remedies by filing the grievances. Josey now argues that the district court erred in granting summary judgment and should have excused his failure to exhaust administrative remedies because the grievance process was unavailable to him. We assume the parties’ familiarity with the remaining facts, the procedural history, and the issues on appeal, to which we refer only as necessary to explain our decision. We review a district court’s grant of summary judgment de novo. Banks v. Gen. Motors, LLC, 81 F.4th 242, 258 (2d Cir. 2023). We review the district court’s findings of fact for clear error where, as here, the evidentiary hearing on the exhaustion issue “was the functional equivalent of a bench trial.” Clark v. Hanley, 89 F.4th 78, 93, 104 (2d Cir. 2023); see also Ceraso v. Motiva Enters., 326 F.3d 303, 316 (2d Cir. 2003) (“In reviewing findings for clear error, we are not allowed to second-guess either the trial court’s 4 credibility assessments or its choice between permissible competing inferences.”). Summary judgment is proper only if no “reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Prison Litigation Reform Act provides that incarcerated persons must exhaust available administrative procedures prior to suing under federal law. 42 U.S.C. § 1997e(a). Unexhausted claims may not be brought in court. Jones v. Bock, 549 U.S. 199, 211 (2007). The sole “textual exception” to mandatory exhaustion is for the actual unavailability of administrative remedies. Ross v. Blake, 578 U.S. 632, 642 (2016). An administrative remedy is unavailable when: 1) “it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; 2) it is ”so opaque that it becomes, practically speaking, incapable of use”; or, as Josey argues, 3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 643-44. Where, as here, defendants establish that a grievance process exists and applies, Josey bears the burden to demonstrate that the process was unavailable to him as a matter of fact. Hubbs v. Suffolk Cnty. Sheriff’s Dept., 788 F.3d 54, 59 (2d Cir. 2015). The district court did not clearly err in not crediting Josey’s testimony that he filed two grievances related to his claim of denial of access to religious services. See Fed. R. Civ. P. 52(a)(6) (“[T]he reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.”). Where the district court’s findings are 5 premised on credibility determinations, “we grant particularly strong deference to those findings.” United States v. Mendez, 315 F.3d 132, 135 (2d Cir. 2002). Although Josey testified that he had filed May 24, 2018 and June 5, 2018 grievances by placing them in the locked mailbox at the Clinton facility, the district court found that testimony not credible. The court credited testimony from Clinton officers or administrators as to how such prisoner mailings are handled, and it noted evidence that other Josey complaints were received by the grievance review committee. The court found that Josey had not filed the claimed May 24 and June 5 grievances, given the evidence that “he did file three grievances later in June that ma[d]e no mention of his Ramadan claims or the fact that he had grievances that were not being acted upon.” App’x at 307. The court added that its view would not be changed by the existence of carbon copies because “carbon copies could really be created at any time.” Id. at 308. Josey also failed to establish that the designated administrative remedies were otherwise unavailable to him. We reject Josey’s claim that he should not be required to exhaust his administrative remedies because Ramadan had ended by the time he learned there was no record of his grievances. Ramadan is an annual holiday, and Josey could have sought affirmative future guarantees of his ability to observe it through the grievance process. See N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(3)(ii) (contemplating institutional policy changes as remedies). Josey’s federal court complaint seeks monetary damages that are independent of Ramadan’s timing. Even where a petitioner seeks only money damages 6 and the grievance process does not provide for them, the Supreme Court has required administrative exhaustion because the grievance tribunal had the authority to take responsive action. Booth v. Churner, 532 U.S. 731, 741 (2001) (the exhaustion requirement applies “regardless of the relief offered through administrative procedures”). The grievance tribunals in New York are authorized to grant remedies beyond money damages. See N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.5(a)(2), (b)(3)(ii). As such, even if Josey sought only monetary relief after Ramadan concluded, he was still required to have exhausted his administrative remedies. * * * We have considered all of Josey’s contentions on this appeal and have found them to be without merit. For the reasons set forth above, the judgment of the district court is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
Attorney sanctioned after including AI generated hallucinations in material submitted to the court
New York State Justice Joel M. Cohen introduced his decision in the instant matter as follows: "This case adds yet another unfortunate chapter to the story of artificial intelligence misuse in the legal profession. Here, Defendants' counsel not only included an AI-hallucinated citation and quotations in the summary judgment brief that led to the filing of this motion for sanctions, but also included multiple new AI-hallucinated citations and quotations in Defendants' brief opposing this motion. In other words, counsel relied upon unvetted AI—in his telling, via inadequately supervised colleagues—to defend his use of unvetted AI."
Justice Cohen opined that the use of AI is not the problem per se, the problem arises "when attorneys abdicate their responsibility to ensure their factual and legal representations to the Court—even if originally sourced from AI—are accurate". In the words of the Court, "When attorneys fail to check their work—whether AI-generated or not—they prejudice their clients and do a disservice to the Court and the profession. In sum, counsel's duty of candor to the Court cannot be delegated to a software program".
Justice Cohen then:
"ORDERED that Plaintiff's motion for sanctions pursuant to 22 NYCRR § 130-1.1 is GRANTED, such that Defendants and their counsel are jointly and severally liable to compensate Plaintiff for her reasonable costs and attorney's fees incurred in connection with this [*4]motion, together with fees and costs attributable to addressing Defendants' unvetted AI citations and quotations in the summary judgment motion;
"ORDERED that Plaintiff shall submit an application with supporting documentation for the fees awarded above within fourteen (14) days of the date of this order; Defendants and their counsel may submit opposition thereto within fourteen (14) days of Plaintiff's application. Plaintiff shall notify the Court via letter filing on NYSCEF and by email when the application is complete and whether it is opposed or unopposed; and
"ORDERED that Plaintiff's counsel promptly submit a copy of this decision and order to the Grievance Committee for the Appellate Division, First Department and the New Jersey Office of Attorney Ethics, copying defense counsel and this Court on its transmittal letters."
Click HERE to access Supreme Court Justice Cohen's ruling posted on the Internet.
11-12
Noting that the use of AI is not the problem per se, the problem arises "when attorneys abdicate their responsibility to ensure their factual and legal representations to the Court—even if originally sourced from AI—are accurate". In the words of the court, "When attorneys fail to check their work—whether AI-generated or not—they prejudice their clients and do a disservice to the Court and the profession. In sum, counsel's duty of candor to the Court cannot be delegated to a software program".
Justice Cohen then:
1. "ORDERED that Plaintiff's motion for sanctions pursuant to 22 NYCRR § 130-1.1 is GRANTED, such that Defendants and their counsel are jointly and severally liable to compensate Plaintiff for her reasonable costs and attorney's fees incurred in connection with this [*4]motion, together with fees and costs attributable to addressing Defendants' unvetted AI citations and quotations in the summary judgment motion;
2. "ORDERED that Plaintiff shall submit an application with supporting documentation for the fees awarded above within fourteen (14) days of the date of this order; Defendants and their counsel may submit opposition thereto within fourteen (14) days of Plaintiff's application. Plaintiff shall notify the Court via letter filing on NYSCEF and by email when the application is complete and whether it is opposed or unopposed; and
3. "ORDERED that Plaintiff's counsel promptly submit a copy of this decision and order to the Grievance Committee for the Appellate Division, First Department and the New Jersey Office of Attorney Ethics, copying defense counsel and this Court on its transmittal letters."
Click HERE to access Supreme Court Justice Cohen's ruling posted on the Internet.
11-13
Controverting a claim that the employee contracted COVID19 while working at the worksite
The New York State Workers' Compensation Board, ruled that a public school custodian [Claimant] sustained an accidental injury in that the Claimant] contracted COVID-19 in the course of the Claimant's employment. The School District and its workers' compensation carrier [jointly referred to as "Carrier"] controverted the claim, contending, among other things, that the alleged injury did not occur in the course of Claimant's employment and that there was no causal relationship between such injury and Claimant's employment.
The Workers' Compensation Board [Board] reversed an Administrative Law Judge's finding the Claimant was qualified for workers' compensation benefit's, reasoning that Claimant's public-facing job exposed him to an elevated risk of contracting COVID-19. The Carrier appealed the Board's determination.
Acknowledging that "the contraction of COVID-19 in the workplace is compensable under the Workers' Compensation Law", the Appellate Division said that the issue of whether a compensable accident has occurred is a question of fact for the Board to resolve and that the Board's findings in this regard, if supported by substantial evidence, will not be disturbed. Further, the Appellate Division opined that case law makes clear that where, as here, the injured Claimant alleges that he or she contracted COVID-19 at work, such claimant "bears the burden of demonstrating either a specific exposure to COVID-19 or that COVID-19 was so prevalent in the work environment as to present an elevated risk of exposure constituting an extraordinary event", noting, for example, "workers with significant contact with the public in communities with high rates of infection or workers in a workplace experiencing high rates of infection".
Noting that the Claimant did not allege and the Board did not conclude, nor did the record does not support a finding that Claimant had a specific exposure to COVID-19, the Appellate Division decided that "the issue distills to whether substantial evidence supports the Board's finding that 'claimant's job as a high school custodian was a public-facing job that significantly elevated his risk of exposure to COVID-19 via contact with students'". Noting that the record was silent as to the rate of infection in either the school where Claimant worked or the surrounding community, the Court, considering the record as a whole, concluded that the Board's decision was not supported by substantial evidence, finding:
1. The record is devoid of proof that there was a high rate of infection present in Claimant's work environment at the relevant point in time;
2. Claimant's brief encounters with a passing group of students in a corridor falls short of the degree of regular, consistent and close interaction with the public at large necessary to sustain a finding of prevalence; and
3. The record reflects that either claimant or members of his household engaged in other in-person pursuits during the relevant time period.
In the words of the Appellate Division, "Under these circumstances, the Board's finding that [Claimant's] employment exposed him to an elevated risk of exposure to COVID-19 cannot stand" and reversed the Board's decision" and remanded the matter to the Board "to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision".
Click HERE to access the Appellate Division's decision posted on the Internet.
Footnote 1: The carrier's subsequent application for reconsideration and/or full Board review was denied but is not at issue on this appeal.
https://nycourts.gov/reporter/3dseries/2025/2025_05998.htm
| Matter of Dunkez Private Home Care, Inc. v McDonald |
| 2025 NY Slip Op 06107 |
| Decided on November 6, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-0907
v
James . McDonald, as Commissioner of Health, et al., Respondents.
Before:Pritzker, J.P., Reynolds Fitzgerald, Lynch, Fisher and Mackey, JJ.
Rivkin Radler LLP, Uniondale (Merril S. Biscone of counsel), for petitioner.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Reynolds Fitzgerald, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Health, among other things, revoking petitioner's license to operate as a home care services agency.
Petitioner is a licensed home care services agency (hereinafter LHCSA) located in Westchester County. LHCSAs are licensed by respondent Department of Health (hereinafter DOH) and are engaged in arranging or providing nursing services, home health aide services and other therapeutic and related services, which may be of a preventative, therapeutic, rehabilitative, health guidance and/or supportive nature to persons at home (see Public Health Law § 3602 [2]). As relevant here, petitioner provided home health aide and personal care aide services, which include, among other things, simple health care tasks, personal hygiene services and housekeeping tasks essential to a patient's health (see Public Health Law § 3602 [4], [5]). The law directs that these services shall be prescribed by a physician or nurse practitioner in accordance with a plan of care, under the supervision of a registered professional nurse from a certified home health agency such as a residential health care facility, hospital or LHCSA (see Public Health Law § 3602 [2], [4]). In December 2017, petitioner entered into a contract with CenterLight Healthcare, Inc., a managed care organization.[FN1] All of petitioner's patients between the years 2019 through 2021 were referred to petitioner by CenterLight.
To ensure compliance by LHCSAs with DOH's regulatory scheme, DOH employs surveyors to perform unannounced site visits to inspect registry, patient and personnel records maintained by the LHCSA. These inspections are referred to as surveys. In October 2019, DOH performed a survey of petitioner, found numerous deficiencies and cited petitioner for same. In January 2021, DOH conducted a second survey to ensure that petitioner had corrected the cited deficiencies and discovered it had not. In March 2021, DOH received and investigated a patient complaint, and found the complaint substantiated. As a result of the foregoing, in April 2021, petitioner's license was temporarily suspended for a period of 30 days. Notwithstanding this suspension, petitioner continued to operate its LHCSA. In January 2022, DOH served petitioner with a notice of hearing and an amended statement of charges consisting of 36 deficiencies and seeking revocation of petitioner's license (see Public Health Law § 3605-a [2]; 10 NYCRR 765-2.3 [c]).[FN2] Petitioner requested and was granted an administrative hearing, after which the Administrative Law Judge issued a determination sustaining all 36 charges, recommending revocation of petitioner's license and the imposition of a monetary penalty. Respondent Commissioner of Health adopted the Administrative Law Judge's findings and recommendations — with one exception, not relevant here — as part of his order[*2]. Petitioner thereafter commenced this CPLR article 78 proceeding against respondents seeking to annul the Commissioner's determination asserting that it lacked substantial evidence, and Supreme Court transferred the proceeding to this Court.
Judicial review of a determination made by an administrative agency, as a result of an evidentiary hearing, is limited to consideration of whether the findings were supported by substantial evidence (see CPLR 7803 [4]; Matter of Wegman v New York State Dept. of Health, 229 AD3d 862, 863 [3d Dept 2024]). "Substantial evidence consists of such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of P.C. v Stony Brook Univ., 43 NY3d 574, 580 [2025] [internal quotation marks and citation omitted]). "[T]he substantial evidence standard is a minimal standard. It is less than a preponderance of the evidence, and demands only that a given inference is reasonable and plausible, not necessarily the most probable" (Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, 1045-1046 [2018] [internal quotation marks and citations omitted]). "Stated otherwise, we review the administrative determination to see if it is supported by proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably — probatively and logically" (Matter of P.C. v Stony Brook Univ., 43 NY3d at 581[internal quotation marks and citation omitted]).
Initially, we reject respondents' argument that petitioner's brief should be rejected for failing to provide "a concise statement of the nature of the case and of the facts which should be known to determine the questions involved" (CPLR 5528 [a] [3]). Here, the record on appeal contains the verified petition, transcripts of the administrative hearings, and exhibits; thus, it is sufficient to permit review of the merits (see Merritt v Wynder, 212 AD3d 607, 608 [2d Dept 2023]; cf. Matter of Dixon v Rich, 200 AD3d 1378, 1379 [3d Dept 2021]).
Turning to the merits, DOH proffered the testimony of a licensed social worker surveyor, two registered nurse surveyors, the regional program manager of DOH's home and community-based services programs and submitted 86 exhibits into evidence.[FN3] The social worker surveyor stated that he conducted the 2019 and January 2021 surveys of petitioner's LHCSA. DOH's first registered nurse surveyor explained that surveys are conducted by two surveyors, one of whom is a nurse who typically reviews patients' records and aides' certifications, and that she participated in the January 2021 survey. The second registered nurse surveyor testified that she surveyed petitioner's LHCSA in March 2021 in response to a patient complaint, which she subsequently sustained. The DOH regional program manager testified that he coordinates and oversees surveillance activities and [*3]that he was the second-level supervisor of the nurse who conducted the 2019 survey and therefore is familiar with her notes and other documentation.[FN4] The program manager also testified that, due to the substantiated deficiencies against petitioner, DOH undertook enforcement action via a 30-day suspension — meaning the LHCSA was to discharge its patients to another organization and was prohibited from providing any patient services during the suspension period. He stated that DOH subsequently learned that, despite the suspension, petitioner continued to provide services to patients. The registered nurse surveyors described the procedure involved in licensing and relicensing LHCSAs, which includes making an unannounced visit to the LHCSA's facility, meeting with the operator or individual in charge of the LHCSA, and selecting a sample of clinical patient records and personnel records to determine if there are any deficiencies by the LHCSA in complying with DOH's statutes and regulations. After compiling the information, the surveyor informs the LHCSA of any deficiencies, issues a citation if necessary, and provides suggestions for corrective action. The social worker surveyor testified that this procedure was implemented in both the 2019 and January 2021 surveys. Cumulatively, the witnesses provided detailed accounts of all 36 charges, including, but not limited to, that there was no evidence that petitioner possessed patient discharge records or evidence that petitioner's nurse notified patients' doctors prior to discharge, no documentation regarding the clinical assessment of patients, no evidence of medical orders or that the aides were being properly supervised and oriented as to plans of care, nor any evidence of progress reports or that the patients were advised of the patient's bill of rights or complaint procedures. Additionally, the social worker surveyor stated that petitioner had a minimal policy regarding its database, which lacked numerous DOH regulatory requirements, including entries containing employees who were no longer employed by petitioner, entries that failed to include appropriate criminal history checks of its aides and entries that were not timely updated (see 10 NYCRR 403.5). He further relayed that, despite multiple attempts, he was unable to physically meet with or have telephone contact with petitioner's registered nurse during the surveys, which indicated to him that petitioner did not have in its employ a registered nurse qualified to work at the time of the surveys. Finally, he relayed that petitioner's operator did not provide all requested records and that many of the records that were produced were out of date.
Petitioner offered the testimony of its president and vice president who operate the LHCSA, a relative of one of petitioner's patients and two aides who were, at the time of the hearing, employed by petitioner. None of the witnesses' testimony contradicted the charge that petitioner failed to comply with the [*4]suspension order. In fact, their testimony confirmed that petitioner continued to send aides to perform patient care services throughout the operative period. Likewise, petitioner's president's and vice president's testimony did not contradict the evidence presented by DOH. Instead, the operators attempted to excuse their noncompliance by arguing that petitioner delegated its duties to CenterLight as part of its contract with said organization. This is unpersuasive. Although an LHCSA may enter into a contract with another organization, the contract does not diminish the LHCSA's responsibility to ensure compliance with all pertinent provisions of federal, state and local statutes, rules and regulations, to ensure the quality of all services provided and to ensure adherence by staff to the plan of care established for its patients (see 10 NYCRR 766.10). Based upon the foregoing and our review of the record, we are satisfied that the surveyors' testimony regarding the charges — which were corroborated by the exhibits, coupled with petitioner's witnesses' admissions — provided the requisite substantial evidence to support the Commissioner's determination (see Matter of Wegman v New York State Dept. of Health, 229 AD3d at 866; Matter of Salu v NYS Justice Ctr. for the Protection of People with Special Needs, 190 AD3d 1059, 1062 [3d Dept 2021], lv denied 37 NY3d 903 [2021], cert denied ___ US ___, 142 S Ct 802 [2022]).
Petitioner next asserts that the penalty imposed, consisting of revocation of its license and imposition of a monetary penalty, was too severe. We disagree. "[A]n administrative penalty must be upheld unless it is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law" (Matter of Lalima v New York State Dept. of State, 214 AD3d 1051, 1054 [3d Dept 2023] [internal quotation marks and citations omitted]; see Matter of Barros v John P. Picone, Inc., 188 AD3d 1397, 1400 [3d Dept 2020]). This standard has been characterized as rigorous (see Matter of Bolt v New York City Dept. of Educ., 30 NY3d 1065, 1070 [2018] [Rivera, J., concurring]). "This calculus involves consideration of whether the impact of the penalty on the [LHCSA] is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general" (id. [Rivera, J., concurring] [internal quotation marks and citation omitted]).Here, the Commissioner found that multiple sustained violations posed a serious and imminent danger to petitioner's patients' health,[FN5] and that petitioner's omissions, its explanation for said omissions, and the continued operation of its LHCSA after being served with a temporary order of suspension, rendered petitioner unable to continue to serve a very vulnerable segment of the state's population. As the record supports these findings, and the penalties imposed do not shock our sense of fairness, we will [*5]not disturb them (see Matter of Sunsea Energy LLC v New York State Pub. Serv. Commission, 229 AD3d 1021, 1026 [3d Dept 2024], lv denied 43 NY3d 901 [2025]; Matter of Ali v New York City Dept. of Corr., 205 AD3d 1247, 1250 [3d Dept 2022]; Matter of O'Connor v Cutting, 166 AD3d 1099, 1103 [3d Dept 2018]).We have examined petitioner's remaining contention and find it to be without merit.
Pritzker, J.P., Lynch, Fisher and Mackey, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Footnote 1: A managed care organization is a type of healthcare delivery system that coordinates and manages healthcare services for its members. The managed care organization contracts with hospitals, physicians and LHCSAs, who provide services to their members. The managed care organization uses a network of contracted providers to make a comprehensive range of medical services available to its members.
Footnote 2: The statement of charges was amended in April 2022 and August 2022. Numerous charges related to petitioner's failure to provide and maintain appropriate patient care, including failure to provide a bill of rights and complaint procedures to the patient, failure to employ supervising medical staff (a registered nurse), failure to conduct initial and other patient assessments, failure to provide plans of care and to obtain medical orders, failure to appropriately discharge patients and to notify the patient's physician upon discharge, and failure to maintain accurate patient records (see 10 NYCRR 766.1 [a] [1], [4], [8]; 766.2 [a] [1]-[2], [8]-[9]; 766.3 [a], [b], [d]; 766.4 [a]; 766.5 [a], [b] [3]-[4]; 766.6 [a] [3], [5], [10]; 766.9 [h], [j], [o]); additional charges related to petitioner's employees, including failure to obtain and maintain personnel records, to ensure that employed aides were properly certified, to conduct proper criminal record checks of petitioner's aide employees and to ensure that aides were properly vaccinated and immunized (see 10 NYCRR 766.11 [d], [g]; 766.12 [a] [3], [c]); other charges related to petitioner's operation of its LHCSA, including failure to establish and maintain policies and procedures as required by DOH (see 10 NYCRR 403.3 [b]; 766.9 [a]-[e], [1]); and failure to comply with a suspension order (see Public Health Law § 3605-a [2]; 10 NYCRR 765-2.3 [d]).
Footnote 3: All 86 exhibits were received into evidence.
Footnote 4: The nurse who conducted the 2019 survey was no longer employed by DOH and was unavailable to testify.
Footnote 5: The Administrative Law Judge found that 19 of the sustained violations, which is slightly more than half of the 36 violations, posed a danger to petitioner's patients.
24-1241-cv Leroy v. Livingston Manor Central School District United States Court of Appeals for the Second Circuit _____________________________________ August Term 2024 Argued: March 19, 2025 Decided: October 30, 2025 No. 24-1241 _____________________________________ CASE LEROY, Plaintiff-Appellant, — v. — LIVINGSTON MANOR CENTRAL SCHOOL DISTRICT, JOHN P. EVANS, in his capacity as Superintendent of Schools of Livingston Manor Central School District, Defendants-Appellees. _____________________________________ Appeal from the United States District Court for the Southern District of New York No. 7:21-cv-6008, Nelson S. Román, Judge _____________________________________ Before: PARKER, ROBINSON, and PÉREZ, Circuit Judges. Case Leroy, a high school senior in a New York public school, took a picture with his friends and posted it on social media while outside of his school campus and after school hours. He thought his post, which showed a picture of his friend kneeling on his neck with the caption “Cops got another,” was a joke, but he quickly realized others viewed it as racist because it evoked memories of the notorious murder of George Floyd. He removed his post after a few minutes, but not before another student took a screenshot, which was reposted on other social media platforms. After public outcry, in-school discussions, an assembly, a student demonstration, and a school investigation, the school superintendent suspended Leroy and barred him from participating in non-academic extracurricular activities for the remainder of the school year. Leroy sued, alleging that the school’s disciplinary actions violated the First Amendment. The district court granted the school’s motion for summary judgment, concluding that the school did not violate Leroy’s First Amendment rights because his off-campus speech caused substantial disruption in school. We disagree. Accordingly, we REVERSE the judgment of the district court and REMAND for further proceedings. Judge Pérez concurs in the judgment in a separate opinion.
| Gersbeck v Wiedmann |
| 2025 NY Slip Op 05669 |
| Decided on October 15, 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. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-09583
(Index No. 1907/13)
v
Robert Wiedmann, Jr., et al., appellants, Haldane Rodgers, et al., defendants, City of New York, respondent.
Kelner and Kelner, New York, NY (Joshua D. Kelner and Brian P. Hurley of counsel), for appellants.
Muriel Goode-Trufant, Corporation Counsel, New York, NY, (Rebecca L. Visgaitis and Geoffrey E. Curfman of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs Robert Wiedmann, Jr., and Catherine Wiedmann appeal from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated July 25, 2024. The order, insofar as appealed from, denied those plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a violation of General Municipal Law § 205-a insofar as asserted against the defendant City of New York, and granted that defendant's cross-motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In March 2012, the plaintiffs Robert Wiedmann, Jr. (hereinafter the injured plaintiff), and his wife Catherine Wiedmann (hereinafter together the plaintiffs) filed a notice of claim with the City of New York alleging that the City was negligent in operating, controlling, and supervising the Fire Department of New York (hereinafter the FDNY) and failed to provide the injured plaintiff, a firefighter with the FDNY, with sufficient and proper safety equipment, which caused him to sustain personal injuries while responding to a fire December 2011. A hearing pursuant to General Municipal Law § 50-h was held, and an investigation by the FDNY was conducted.
In February 2013, the injured plaintiff and Catherine Wiedmann, suing derivatively and as his agent, commenced this action against the City, among others, to recover damages for personal injuries pursuant to General Municipal Law § 205-a. The City answered. Thereafter, the plaintiffs moved for summary judgment on the issue of liability on to the cause of action alleging a violation of General Municipal Law § 205-a insofar as asserted against the City, and the City cross-moved for summary judgment dismissing the complaint insofar as asserted against it. In an order dated July 25, 2024, the Supreme Court, inter alia, denied the plaintiffs' motion and granted the City's cross-motion.
Contrary to the plaintiffs' contention, the court properly determined that their notice of claim was insufficient to enable the City to investigate, collect evidence, and evaluate the merits [*2]of the plaintiffs' allegations regarding negligent training in violation of General Municipal Law § 205-a. "To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim" (Bourque v County of Dutchess, 218 AD3d 430, 431 [internal quotation marks omitted]; see Mosley v City of New York, 217 AD3d 857, 858). "A notice of claim must set forth, among other things, the nature of the claim and the time when, the place where and the manner in which the claim arose" (Garland v City of New York, 237 AD3d 669, 670 [internal quotation marks omitted]; see Behrens v Town of Huntington, 230 AD3d 730, 731). "The requirements of the statute are met when the notice describes the incident with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the merits of the claim" (Garland v City of New York, 237 AD3d at 670 [internal quotation marks omitted]; see Conn v Tutor Perini Corp., 174 AD3d 680, 681).
Allegations concerning negligent training must be set forth in a notice of claim pursuant to General Municipal Law § 50-e(2) (see Colon v New York City Hous. Auth., 23 AD3d 425, 425; Dixon v Village of Spring Val., 6 AD3d 489, 490). "Causes of action for which a notice of claim is required which are not listed in the plaintiff's original notice of claim may not be interposed" (Mazzilli v City of New York, 154 AD2d 355, 357). Allowing the addition of causes of action which were not referred to either directly or indirectly in the notice of claim would substantially alter the nature of a plaintiff's claim (see Demorcy v City of New York, 137 AD2d 650, 651).
Here, the plaintiffs' notice of claim failed to set forth any negligent training allegations that could later form the basis of their cause of action alleging a violation of General Municipal Law § 205-a.
Moreover, notwithstanding the insufficiency of the notice of claim, the plaintiffs also failed to make a prima facie showing that they were entitled to summary judgment on the issue of liability on the cause of action alleging a violation of General Municipal Law § 205-a insofar as asserted against the City. "General Municipal Law § 205-a establishes the right of an injured firefighter to recover against any party whose neglect or omission to comply with governmental requirements results directly or indirectly in the firefighter's injury" (Annunziata v City of New York, 175 AD3d 438, 442 [internal quotation marks omitted]; see Shea v New York City Economic Dev. Corp., 161 AD3d 803, 805). "A plaintiff seeking recovery under General Municipal Law § 205-a must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter" (Annunziata v City of New York, 175 AD3d at 442 [alteration and internal quotation marks omitted]; see Shea v New York City Economic Dev. Corp., 161 AD3d at 805).
Here, the plaintiffs failed to establish, prima facie, that the City violated a valid predicate statute as required by General Municipal Law § 205-a (see Pomilla v Bangiyev, 197 AD3d 1187). The plaintiffs' theory of liability under General Municipal Law § 205-a—that the defendant failed to properly follow an FDNY internal training bulletin regarding the use of thermal imaging cameras—does not fall within the scope of General Municipal Law § 205-a (see Galapo v City of New York, 95 NY2d 568, 574-576; Desmond v City of New York, 88 NY2d 455, 463-464).
Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a violation of General Municipal Law § 205-a insofar as asserted against the City without regard to the sufficiency of the City's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
With respect to the City's cross-motion for summary judgment dismissing the complaint insofar as asserted against it, the City demonstrated, prima facie, that it trained its firefighters in compliance with applicable federal and state laws and regulations (see Labor Law § 27-a[3][a][1]; Occupational Safety and Health Act of 1970 [OSHA], 29 USC § 651 et seq.; see also Williams v City of New York, 2 NY3d 352, 364). In opposition, the plaintiffs failed to raise a triable [*3]issue of fact.
Accordingly, the Supreme Court also properly granted the City's cross-motion for summary judgment dismissing the complaint insofar as asserted against it.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
| Matter of Coritsidis v New York City Dept. of Educ. |
| 2025 NY Slip Op 05521 |
| Decided on October 8, 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. |
LARA J. GENOVESI, J.P.
LINDA CHRISTOPHER
DEBORAH A. DOWLING
LAURENCE L. LOVE, JJ.
2024-01654
(Index No. 701279/24)
v
New York City Department of Education, respondent.
Peter Coritsidis, Forest Hills, NY, appellant pro se.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Melanie T. West and Diana Lawless of counsel), for respondent.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78 and action for declaratory and injunctive relief, the petitioner/plaintiff appeals from a judgment of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered February 15, 2024. The judgment denied the petition and dismissed the proceeding/action.
ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the cause of action for declaratory relief, and adding thereto a provision declaring that the repeal of the religious exemption from the mandatory school vaccination requirements pursuant to Public Health Law § 2164 is constitutional; as so modified, the judgment is affirmed, with costs to the respondent/defendant.
On June 13, 2019, the New York State Legislature repealed the religious exemption from the mandatory school vaccination requirements for children who attend public and private schools in New York State (Public Health Law § 2164, as amended by L 2019, ch 35, §§ 1, 2).
On or about October 11, 2023, the respondent/defendant, New York City Department of Education (hereinafter NYCDOE), advised the petitioner/plaintiff (hereinafter the petitioner) that his daughter, L.C., could not return to school unless proof of mandatory school vaccinations was provided.
On October 25, 2023, the petitioner commenced a hybrid proceeding pursuant to CPLR article 78 and action against NYCDOE, inter alia, for injunctive relief and a judgment declaring that the current vaccine policy requiring children to be vaccinated to attend school was unconstitutional (hereinafter the 2023 proceeding/action). In an order and judgment (one paper) entered November 3, 2023, the Supreme Court denied the petition, for failure to exhaust administrative remedies, denied the petitioner's application for a preliminary injunction, and dismissed the 2023 proceeding/action.
On January 18, 2024, the petitioner commenced this hybrid proceeding pursuant to CPLR article 78 and action for declaratory and injunctive relief against NYCDOE on behalf of L.C. [*2]after his request for a medical exemption from the mandatory school vaccination requirements was denied. The petitioner alleges, among other things, that NYCDOE's denial of the request for a medical exemption from the mandatory school vaccination requirements was arbitrary and capricious and affected by an error of law and seeks a judgment declaring, in effect, that the repeal of the religious exemption from the mandatory school vaccination requirements pursuant to Public Health Law § 2164 is unconstitutional. In a judgment entered February 15, 2024, the Supreme Court denied the petition, inter alia, pursuant to the doctrine of res judicata based on the court's prior determination in the order and judgment entered November 3, 2023, rendered in the 2023 proceeding/action, and dismissed the instant proceeding/action. The petitioner appeals from the judgment entered February 15, 2024. We conclude that the petitioner is not entitled to relief, albeit on grounds different than those relied upon by the court (see Colucci v Gas Land Petroleum, Inc., 229 AD3d 681, 681).
The doctrine of res judicata "precludes a party from litigating a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter" (Ciafone v City of New York, 227 AD3d 946, 948 [internal quotation marks omitted]; see Lannon v Everest Natl. Ins. Co., 212 AD3d 798, 799). Here, the denial of the petition in the 2023 proceeding/action for failure to exhaust administrative remedies was not a determination on the merits. While the Supreme Court denied the petitioner's application for a preliminary injunction for failure to demonstrate a likelihood of success on the merits, it is well established that "[t]he denial of a motion for a preliminary injunction does not constitute . . . an adjudication on the merits" (Newrez, LLC v City of Middletown, 216 AD3d 655, 656; see Town of Concord v Duwe, 4 NY3d 870, 875). Moreover, to the extent the petitioner challenges NYCDOE's denial of his request for a medical exemption as arbitrary and capricious, that issue was not litigated in the 2023 proceeding/action (see Matter of Singh v New York State Div. of Human Rights, 186 AD3d 1694, 1695). Furthermore, the petitioner's constitutional challenges to the repeal of the religious exemption from the mandatory school vaccination requirements pursuant to Public Health Law § 2164 were not resolved on the merits in the 2023 proceeding/action. Accordingly, the petitioner's challenges herein are not barred by the doctrine of res judicata (see Newrez, LLC v City of Middletown, 216 AD3d at 656).
Nevertheless, in this hybrid proceeding and action, alleging, among other things, that NYCDOE's denial of the request for a medical exemption from the mandatory school vaccination requirements pursuant to Public Health Law § 2164 was arbitrary and capricious and affected by an error of law, the petitioner is not entitled to relief pursuant to CPLR article 78 because he failed to exhaust his administrative remedies or to establish that an exception to the exhaustion doctrine was applicable (see CPLR 7801[1]; 7803 [3]; Matter of World Motors, Inc. v Dugan, 226 AD3d 1037, 1038; Matter of Dozier v New York City, 130 AD2d 128, 135).
Further, the petitioner's constitutional challenges to the repeal of the religious exemption from the mandatory school vaccination requirements pursuant to Public Health Law § 2164 are without merit (see F.F. v State of New York, 194 AD3d 80, 89-90; Phillips v City of New York, 775 F3d 538, 542-544 [2d Cir]; see generally Ingraham v Wright, 430 US 651, 664). However, instead of dismissing the cause of action for declaratory relief, the Supreme Court should have made a declaration in favor of NYCDOE (see Lanza v Wagner, 11 NY2d 317, 334; Rockland Light & Power Co. v City of New York, 289 NY 45, 51). Accordingly, we modify the judgment so as to delete the provision thereof dismissing the cause of action for declaratory relief, and add thereto a provision declaring that the repeal of the religious exemption from the mandatory school vaccination requirements pursuant to Public Health Law § 2164 is constitutional.
The parties' remaining contentions need not be reached in light of our determination.
GENOVESI, J.P., CHRISTOPHER, DOWLING and LOVE, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_05521.htm
| Matter of Gunderson v New York City Employees' Retirement Sys. |
| 2025 NY Slip Op 05084 |
| Decided on September 24, 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. |
ANGELA G. IANNACCI, J.P.
ROBERT J. MILLER
LILLIAN WAN
CARL J. LANDICINO, JJ.
2024-08825
(Index No. 527284/23)
v
New York City Employees' Retirement System, et al., respondents.
Seelig Law Offices, LLC, New York, NY (Philip H. Seelig and Joshua Gohari of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Jeremy W. Shweder and Chase Henry Mechanick of counsel), for respondents.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System dated June 8, 2023, which denied the petitioner's application for accidental disability retirement benefits, the petitioner appeals from a judgment of the Supreme Court, Kings County (Anne J. Swern, J.), dated May 30, 2024. The judgment denied the petition and, in effect, dismissed the proceeding.
ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, the determination is annulled, and the matter is remitted to the Board of Trustees of the New York City Employees' Retirement System for further proceedings consistent herewith.
On April 6, 2020, the petitioner, an employee of the New York City Department of Sanitation, was walking inside the sanitation garage to which he was assigned when he slipped on a loose vinyl floor tile and fell on his left shoulder. The petitioner underwent three surgeries to his left shoulder, which did not significantly improve his condition. The petitioner applied to the respondent New York City Employees' Retirement System (hereinafter NYCERS), inter alia, for accidental disability retirement (hereinafter ADR) benefits under Retirement and Social Security Law § 605-b.
The Medical Board of NYCERS (hereinafter the Medical Board) determined that the petitioner was disabled due to internal derangement of his left shoulder and found that his fall on April 6, 2020, was the competent causal factor of his disability. However, the Medical Board found that the petitioner's fall was not an accident and, thus, recommended that he be denied ADR benefits. The Board of Trustees of NYCERS (hereinafter the Board of Trustees) adopted the recommendation of the Medical Board and denied the petitioner's application for ADR benefits.
The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination of the Board of Trustees. In a judgment dated May 30, 2024, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.
"A Department of Sanitation worker who 'is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident, not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service . . . shall be retired for accidental disability'" (Matter of Lanni v New York City Employees' Retirement Sys., 189 AD3d 841, 842, quoting Retirement and Social Security Law § 605-b[b][1]). An "accident" has been defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012; see Matter of Bodenmiller v DiNapoli, 43 NY3d 43, 46). "[A] precipitating event that could or should have reasonably been anticipated by a person in the claimant's circumstances is not an 'accident' for purposes of ADR benefits" (Matter of Bodenmiller v DiNapoli, 43 NY3d at 46-47).
Here, while the petitioner was aware before the day of his fall that the floor was in disrepair, there is insufficient record support for a conclusion that the petitioner was aware of the particular hazard that caused his fall, i.e., that the vinyl floor tiles might shift under his weight (cf. id. at 47). Under the circumstances, there was no rational, nonspeculative basis for the conclusion of the Medical Board and the Board of Trustees that the petitioner should have reasonably anticipated the precipitating event and, thus, that it was not an accident (see Matter of Lanni v New York City Employees' Retirement Sys., 189 AD3d at 842; Matter of Leary v New York City Employees' Retirement Sys., 59 AD3d 547, 549). Accordingly, since the determination of the Board of Trustees denying the petitioner's application for ADR benefits was arbitrary and capricious, we grant the petition, annul the determination, and remit the matter to the Board of Trustees for further proceedings consistent herewith.
IANNACCI, J.P., MILLER, WAN and LANDICINO, JJ., concur.
Darrell M. Joseph
Clerk of the CourtClerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_05084.htm
| Matter of Cabrera v New York City Hous. Auth. |
| 2025 NY Slip Op 05129 |
| Decided on September 25, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-23-2004
v
New York City Housing Authority, Respondent. Workers' Compensation Board, Respondent.
Before:Garry, P.J., Aarons, Fisher, McShan and Mackey, JJ.
Ginarte Gonzalez Winograd LLP, New York City (Patrick M. Quinn of counsel), for appellant.
Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe of counsel), for New York City Housing Authority, respondent.
Letitia James, Attorney General, New York City (Alison Kent-Friedman of counsel), for Workers' Compensation Board, respondent.
Garry, P.J.
Appeal from a decision of the Workers' Compensation Board, filed September 20, 2023, which, among other things, denied counsel's application for an award of counsel fees.
In 2022, after establishing a claim for workers' compensation benefits for various work-related injuries, claimant was classified with a permanent partial disability and tentative indemnity awards for a specified period were made, with direction that the self-insured employer continues payments at the permanent partial disability rate. Thereafter, claimant's counsel made a request for further action to address whether certain payments of the award were timely paid. Following a hearing at which the self-insured employer conceded that it failed to make certain compensation payments, the Workers' Compensation Law Judge imposed a late payment penalty pursuant to Workers' Compensation Law § 25 (1) (e), payable to claimant, but denied the application by claimant's counsel for fees in connection with securing the late payment penalty. Upon administrative appeal challenging the preclusion of counsel fees, the Workers' Compensation Board affirmed, finding that additional counsel fees were properly denied as the recent amendments to Workers' Compensation Law § 24, which set forth the schedule of counsel fees based upon awards, makes no provision for additional fees payable to a claimant's representative based upon the assessment of a late payment penalty. Claimant appeals.[FN1]
The Board's decision finding that it lacked authority under the recent amendments to Workers' Compensation Law § 24 to award counsel fees for legal services provided in procuring a late payment penalty is consistent with this Court's recent decision in Matter of Gonzalez v Northeast Parent & Child Socy. (232 AD3d 1011, 1011-1012 [3d Dept 2024], lv dismissed in part & granted in part 43 NY3d 937 [2025]) and its progeny (see Matter of Clifton v Research Found. of SUNY, 234 AD3d 1235, 1235-1236 [3d Dept 2025]). Accordingly, for the reasons set forth in Matter of Gonzalez, the Board's finding that claimant's counsel is not entitled to additional fees related to the late payment penalty will not be disturbed.
Aarons, Fisher, McShan and Mackey, JJ., concur.
ORDERED that the decision is affirmed, without costs.
Footnote 1: The sole issue raised on appeal is a challenge to the denial of counsel fees. As such, the notice of appeal — which was filed in claimant's name — should have been filed on behalf of the law firm (see Matter of Tompkins v Bedford Stone & Masonry, 198 AD3d 1031, 1032 n [3d Dept 2021];Matter of Dzielski v New York State Dept. of Corr. & Community Supervision, 195 AD3d 1255, 1256 n [3d Dept 2021]). Nevertheless, in the absence of any demonstrated prejudice, we will disregard this error (see CPLR 2001; Matter of Tompkins v Bedford Stone & Masonry, 198 AD3d at 1032 n).
https://nycourts.gov/reporter/3dseries/2025/2025_05129.htm
24-972-cv Chislett v. N.Y.C. Dep’t of Educ. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2024 Argued: April 4, 2025 Decided: September 25, 2025 No. 24-972-cv ______________________________________ LESLIE CHISLETT, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, RICHARD CARRANZA AS CHANCELLOR OF NEW YORK CITY DEPARTMENT OF EDUCATION, INDIVIDUALLY, Defendants-Appellees. ______________________________________ Before: LEVAL, BIANCO, and NARDINI, Circuit Judges. Plaintiff Leslie Chislett appeals from the grant of summary judgment by the United States District Court for the Southern District of New York (Rochon, J.) in favor of Defendants New York City Department of Education and Richard Carranza. Chislett, who is Caucasian, brought a 42 U.S.C. § 1983 claim of racial discrimination under three theories: (1) she was demoted pursuant to a municipal policy that made race a determinative factor in employment decisions; (2) she suffered a hostile work environment fostered by mandatory implicit bias trainings; and (3) she was constructively discharged. The district court rejected all three theories, largely on the basis that Plaintiff failed to demonstrate the existence of a municipal policy linked to the demotion, hostile work environment, and 2 constructive discharge. We conclude that the district court did not err in granting summary judgment on Plaintiff’s demotion and constructive discharge claims. However, we hold that genuine disputes of material fact precluded the grant of summary judgment on Plaintiff’s hostile work environment claim. We therefore AFFIRM in part, VACATE in part, and REMAND
https://ww3.ca2.uscourts.gov/decisions/isysquery/53fbb958-4e23-4040-9a77-3eb9a2d96d17/1/doc/24-972_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/53fbb958-4e23-4040-9a77-3eb9a2d96d17/1/hilite/
| Matter of Village of Walden v Teamsters Local Union No. 445 |
| 2025 NY Slip Op 05090 |
| Decided on September 24, 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. |
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
VALERIE BRATHWAITE NELSON
DEBORAH A. DOWLING
LOURDES M. VENTURA, JJ.
2023-04708
(Index No. 3620/22)
v
Teamsters Local Union No. 445, respondent.
Feerick Nugent MacCartney PLLC, South Nyack, NY (Brian D. Nugent and Dylan Lockyer of counsel), for appellant.
Barnes, Iaccarino & Shepard LLP, Elmsford, NY (Steven H. Kern of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the petitioner appeals from an order of the Supreme Court, Orange County (Maria S. Vazquez-Doles, J.), dated April 5, 2023. The order denied the petition to permanently stay arbitration and granted the cross-petition to compel arbitration.
ORDERED that the order is reversed, on the law, with costs, the petition to permanently stay arbitration is granted, the cross-petition to compel arbitration is denied, and the arbitration is permanently stayed.
The issue in this appeal is whether the respondent, Teamsters Local Union No. 445 (hereinafter Local 445), had the authority to demand arbitration under the terms of a collective bargaining agreement (hereinafter the CBA) between the petitioner, Village of Walden, and the Village of Walden Police Benevolent Association (hereinafter the Association). For the reasons that follow, we conclude that Local 445 did not have the authority to demand arbitration, as it was not a party to the CBA between the Village and the Association. We therefore conclude that the Supreme Court should have granted the Village's petition to permanently stay arbitration and denied Local 445's cross-petition to compel arbitration.
In 2009, the Association, a labor organization, entered into an "AFFILIATION AGREEMENT" with Local 445, a labor union. Under the affiliation agreement, the Association and Local 445 agreed, among other things, that the Association would pay dues to Local 445 and Local 445 would provide specific listed services "at the request of the Association." Local 445's services included pursuing arbitrations of Association members' "meritorious claims as determined by the Association" (emphases added), for benefits pursuant to General Municipal Law § 207-c.
Thereafter, the Association entered into the CBA with the Village. The first page of the CBA identifies the CBA as an "AGREEMENT Between VILLAGE OF WALDEN and VILLAGE OF WALDEN POLICE BENEVOLENT ASSOCIATION, INC." Article 1, section 1, of the CBA provides that the Village recognizes the Association "as the sole and exclusive [*2]representative for all full-time and part-time police officers . . . employed by the Village," subject to certain exceptions, "for the purpose of negotiating collectively in determination of all matters relating to wages, hours of work, working conditions, benefits, grievances and employment." Article 1, section 2, states that "[t]he Village agrees that the Association shall be guaranteed unchallenged representation status until the expiration of this Agreement."
Article 4 of the CBA, governing compensation, establishes a procedure "to regulate the application for, and the award and/or termination of," General Municipal Law § 207-c benefits for Village police officers injured in the line of duty. Under this procedure, an injured police officer, i.e., the claimant, or the claimant's representative must file a written application for General Municipal Law § 207-c benefits within 10 days after the incident giving rise to the claimant's alleged injury or within 10 days after the claimant becomes aware of the alleged injury, whichever is later. The Village's designated claims manager is then required, within a reasonable time, to issue a written determination as to whether the claimant is entitled to General Municipal Law § 207-c benefits. The procedure also authorizes a hearing at the claimant's request before a neutral hearing officer. In addition, article 13 of the CBA sets forth a three-step grievance procedure for challenging, inter alia, unfavorable determinations of applications for General Municipal Law § 207-c benefits. In Steps 1 and 2, respectively, the claimants themselves elect whether to present a grievance to the Chief of Police, and subsequently whether to appeal an unsatisfactory decision to the Village Manager. In Step 3 of the grievance procedure, however, it is the Association—not the claimant—that elects whether to "appeal an unsatisfactory decision of the Village Manager by submitting a Demand for Arbitration to the New York State Public Employment Relations Board ([hereinafter] PERB)."
This exclusive role of the Association is further reflected in the language of the signature page of the CBA. The signature page of the CBA includes a statement that the "parties have caused this Agreement to be executed by their authorized representatives," and directly underneath this statement, two entities are listed in all capital letters: on the left, "VILLAGE OF WALDEN," and on the right, "VILLAGE OF WALDEN POLICE BENEVOLENT ASSOCIATION, INC." Below the names of those two entities is a date line, reflecting that the CBA was executed on July 12, 2015. Beneath the date line are two columns of signature lines: on the left, under the heading "For the Village," appear the typewritten names "Susan Rumbold, Mayor," and "John Revella, Village Manager," and on the right, under the heading "For the P.B.A./UNION," appear the typewritten names "Robert Montanaro, P.B.A. President," and "Thomas Miller, Local 445." Each of these four typewritten signature lines bears a handwritten signature above it.
In 2021, the Village and the Association executed a "MEMORANDUM OF AGREEMENT" (hereinafter the 2021 agreement) extending the CBA, acknowledged by both parties to have expired on May 31, 2018, to cover the period from June 1, 2018, through May 31, 2025. The 2021 agreement incorporated certain modifications to the CBA, none of which affected the grievance and arbitration provisions thereof. The 2021 agreement bears two signatures, that of the Village Manager and that of the Association's president. Notably, the 2021 agreement does not include a signature of any representative of Local 445.
The events giving rise to this litigation occurred during the period covered by the 2021 agreement. In March 2022, the Village's claims manager issued a determination on an application dated June 14, 2021, for General Municipal Law § 207-c benefits for a certain Village police officer who claimed to have been injured after falling from a chair on which he was sitting (hereinafter the March 2022 determination). The claims manager, among other things, determined that the police officer's alleged injuries arising from the occurrence were fully resolved as of July 26, 2021, awarded the police officer General Municipal Law § 207-c benefits for a six-week period, and recommended that the police officer be directed to return to full duty. In April 2022, Local 445 wrote a letter on the police officer's behalf to the claims manager appealing the March 2022 determination and requesting a hearing. Local 445 then purported to present a Step 1 grievance on behalf of the police officer in May 2022, followed by a Step 2 grievance in June 2022. The Village responded to Local 445's correspondence, asserting, inter alia, that the proper procedures for presenting Step 1 and Step 2 grievances had not been followed. On June 16, 2022, Local 445 filed [*3]a Step 3 demand for arbitration with PERB, in its own name, to arbitrate the grievance between the police officer and the Village.
On July 6, 2022, the Village commenced this proceeding to permanently stay arbitration on the ground, among other things, that Local 445 is not a proper party authorized to demand arbitration under the CBA. Local 445 cross-petitioned to compel arbitration, contending, inter alia, that it had the authority to demand arbitration.
In an order dated April 5, 2023, the Supreme Court denied the petition and granted the cross-petition. The court rejected as "unavailing and without merit" the Village's contentions that Local 445 "was not the proper party" to present a grievance and that "only the Association (PBA) has the authority to appeal at the Step 3 stage." The court noted that in 2021, Local 445 had previously "litigated in its own name" another proceeding involving the same police officer, and in that litigation, the Village had failed to argue that Local 445 was not a proper party to present a grievance. The court reasoned that the Village had "thus conced[ed]" that Local 445 was "a proper party." The court further reasoned that Local 445 was "inextricably bound to the workings of the CBA including the arbitration provisions of the grievance procedure." The Village appeals.
"[O]ne who is a party to [a] contract to arbitrate" may serve upon another party to that contract a demand for arbitration or a notice of intention to arbitrate (Glasser v Price, 35 AD2d 98, 100; see CPLR 7503[c]). The right to demand arbitration is generally reserved to the designated parties to an agreement to arbitrate (see County of Westchester v Mahoney, 56 NY2d 756; Matter of Town of New Castle v L'Eplattenier, 236 AD2d 415, 416). "Generally, the right to compel arbitration does not extend to a nonparty unless the agreement itself so provides" (County of Onondaga v U.S. Sprint Communications Co., 192 AD2d 1108, 1109). "'A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal agreement to arbitrate'" (Matter of Jalas v Halperin, 85 AD3d 1178, 1182 [internal quotation marks omitted], quoting God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374; see Matter of Waldron [Goddess], 61 NY2d 181).
Importantly, in the case at bar, Local 445 does not contend that it filed its demand for arbitration on behalf of the Association or that it was acting as the Association's agent when it filed the demand. Rather, Local 445 has consistently argued, both before the Supreme Court and on appeal, that "Local 445 as such" (emphasis added) is entitled to demand arbitration under Step 3 of the CBA's grievance procedure because Local 445 is a "party" to the CBA between the Village and the Association. Accordingly, this appeal does not implicate the Association's right to be represented by Local 445, whether it be in arbitration proceedings, in contract negotiations, or otherwise. The record contains no evidence that the Association ever requested or authorized Local 445 to submit a demand for arbitration on the Association's behalf concerning the subject police officer. Rather, this appeal turns on Local 445's assertion that it is entitled, in its own words, to stand "in the shoes" of the Association "as a party to the CBA" and to demand arbitration under Step 3 of the grievance procedure in its own name.
However, the record does not support Local 445's contention that it is a party to the CBA. Local 445 relies on the fact that its representative's signature appears on the final page of the CBA. However, the presence of that signature alone is insufficient to confer upon Local 445 the status of a party to the agreement. Not every entity which affixes its signature to a contract will be deemed a party to that contract (see e.g. Selinger Enters., Inc. v Cassuto, 50 AD3d 766, 767; D'Angelo v State of New York, 285 App Div 29, 32), and the signatures on a contract "must be read, like any other portion of the instrument, not in isolation, but in the context of the instrument as a whole" (150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1, 7). It is not uncommon for a contract to include signature lines both for the parties and the parties' respective legal representatives (see e.g. In re Artha Mgt., Inc., 91 F3d 326, 330 [2d Cir]).
Here, it is clear from the natural reading of the CBA as a whole that the Village and the Association are the only two parties to the CBA. The title page identifies the CBA as an "AGREEMENT Between" the Village and the Association, and the body of the CBA defines the rights and responsibilities of the Village and the Association without any reference to Local 445. [*4]The first section of the CBA expressly states that the Association is "the sole and exclusive representative" of Village police officers in grievance proceedings. Although the signature page of the CBA includes a signature line for "Thomas Miller, Local 445" on behalf of the "P.B.A/UNION," a natural reading indicates that Miller signed the CBA, together with "Robert Montanaro, P.B.A. President," as one of the two "authorized representatives" of the Association, just as "Susan Rumbold, Mayor," and "John Revella, Village Manager," signed as the authorized representatives of the Village. In light of the numerous indicators that the Village and the Association are the intended parties to the CBA, coupled with the statement on the signature page that the "parties have caused this Agreement to be executed by their authorized representatives" (emphases added), we cannot agree with our dissenting colleague's conclusion that Local 445 signed the agreement "in its own right."
Moreover, the CBA bearing Miller's signature on behalf of Local 445 expired in 2018, and the 2021 agreement does not bear a signature on Local 445's behalf. Notably, the 2021 agreement does not acknowledge Local 445 as a party to the CBA. Instead, the 2021 agreement characterizes the CBA as an agreement between the Village and the Association.
The conclusion that Local 445 is not a party to the CBA between the Village and the Association is further supported by the affiliation agreement governing the relationship between Local 445 and the Association. We do not agree with our dissenting colleagues' statement that Local 445 represents the Association and its members "in all labor-related and collective bargaining matters" (emphasis added), as the affiliation agreement contains no such language. Despite the position taken by Local 445 before the Supreme Court, where it refused to "acknowledge that its role is in any way limited as a representative of the [Association]," the affiliation agreement between the Association and Local 445 defines the scope of the services to be provided by Local 445 and explicitly states that such services shall be provided only at the Association's request. These services include assistance with the arbitration of "meritorious" claims for General Municipal Law § 207-c benefits, "as determined by the Association." The affiliation agreement underscores the conclusion that the Association, and not Local 445, has the authority to determine whether and when to pursue arbitration of a particular claim for General Municipal Law § 207-c benefits.
The record likewise does not support Local 445's contention that past practices demonstrate that the Village regarded Local 445 as a party to the CBA. On the contrary, the record reflects that Local 445 departed from past practices when it served the arbitration demand at issue in its own name, rather than in the name of the Association. In at least three prior employee grievances, the demand for arbitration identified the Association as the "Name of Organization" demanding arbitration, and separately listed Local 445 as the "[r]epresentative to whom PERB should direct correspondence." By contrast, in the case at bar, the demand for arbitration lists Local 445 itself as the "Name of Organization" demanding arbitration. Neither the form demanding arbitration nor the accompanying cover letter contains any reference to the Association.
Contrary to Local 445's contention, the correspondence sent by Local 445 to the Village also does not demonstrate that the Village recognized Local 445 as the party authorized to submit a Step 3 grievance. The correspondence cited by Local 445 pertain to Step 1 and Step 2 of the grievance procedure and indicates that Local 445 was purporting to act on behalf of the injured police officer during those initial steps. Moreover, notably, one of the letters from Local 445 to the Village described the CBA as an agreement "with [the Association]," not as an agreement with Local 445.
The record also does not support the Supreme Court's conclusion that the Village "conced[ed]" in a prior litigation that Local 445 was a proper party to demand arbitration. The record reflects only that the Village previously objected to arbitration on grounds other than the ground now asserted on this appeal. As the Village correctly contends, the Village is not collaterally estopped from advancing an argument in this litigation based upon its failure to raise it in another litigation (see Ryan v New York Tel. Co., 62 NY2d 494, 500). To the extent that the Village's failure to object to Local 445's standing in a prior litigation could be deemed evidence of the parties' custom and practice in interpreting and enforcing the CBA, that interpretation, which was reached [*5]by the court herein, is belied by the record. As discussed above, prior demands for arbitration reflect that the Association was the party demanding arbitration, with Local 445 solely acting as an agent of the Association.
Finally, as a policy matter, if this Court were to accept Local 445's contention that it is a "party" to the CBA, such a determination could have broader implications beyond merely permitting Local 445 to demand on behalf of an individual police officer that the Village arbitrate a particular claim. If recognized as a purported "party" to the CBA, such recognition could serve as the basis for Local 445 to potentially assert additional rights reserved to the Association under the CBA, including "activities concerning wages, hours of work, working conditions, [and] benefits," or to otherwise usurp the Association's role as "the sole and exclusive representative for all full-time and part-time police officers" of the Village. There is no evidence in the record that the Association has delegated such broad authority upon Local 445 to act on behalf of the Association's members. To treat Local 445, in effect, as the alter ego of the Association would be an untenable result based on the record before this Court.
In summary, Local 445, on its own behalf, cannot compel the Village to arbitrate, as "[t]here is no writing in the record requiring arbitration of disputes between these parties" (Esquire Div. of L. Greif & Bros. [Div. of Genesco] v Finley, 54 AD2d 869, 869). Accordingly, the Supreme Court should have granted the Village's petition to permanently stay arbitration and denied Local 445's cross-petition to compel arbitration.
DILLON, J.P., CHAMBERS and VENTURA, JJ., concur.
DOWLING, J., dissents, and votes to affirm the order, with the following memorandum, in which BRATHWAITE NELSON, J., concurs:
In my view, the petitioner, Village of Walden, should be compelled to arbitrate the subject grievance with the respondent, Teamsters Local Union No. 445 (hereinafter Local 445). Therefore, respectfully, I dissent.
Pursuant to an affiliation agreement executed in 2009, Local 445 represents the Village of Walden Police Benevolent Association, Inc. (hereinafter the Association) and its members in all labor-related and collective-bargaining matters, including entitlements to General Municipal Law § 207-c benefits and the arbitration of grievances. It is undisputed that the Village has historically and repeatedly recognized Local 445's authority in this regard. In 2015, Local 445, along with the Association and the Village, executed a collective bargaining agreement (hereinafter the CBA) between the Village and the Association covering the period from June 1, 2013, through May 31, 2018. The CBA contained a grievance procedure to resolve disputes between the Village and the Association's members, including the arbitration of unresolved grievances. The subject grievance and arbitration provisions permitted continuation of "[a]ll past practices" and provided that the Association may appeal an unresolved grievance by submitting a demand for arbitration. By memorandum of agreement executed on July 26, 2021, the CBA was extended to include the period from June 1, 2018, through May 31, 2025, with certain modifications. The grievance and arbitration provisions of the CBA were not affected by the extension.
In March 2022, the Village terminated General Municipal Law § 207-c benefits for a certain Village police officer who was a member of the Association. In June 2022, during the extension period in which the CBA, as modified by the memorandum of agreement, remained in effect, Local 445 filed a demand for arbitration of a grievance between the police officer and the Village pursuant to the CBA. Local 445's demand for arbitration alleged that the Village had breached the CBA by failing to hold a hearing regarding termination of the police officer's General Municipal Law § 207-c benefits and by failing to continue to provide those benefits pending the hearing.
Thereafter, the Village commenced this proceeding to permanently stay arbitration on the ground, inter alia, that Local 445 is not a proper party authorized to demand arbitration under [*6]the CBA. Local 445 filed a cross-petition to compel arbitration, asserting that it is authorized to demand arbitration under the CBA as the bargaining representative of the Association and its members and that the demand for arbitration was filed in accordance with the parties' past practices. In an order dated April 5, 2023, the Supreme Court denied the petition and granted the cross-petition. The Village appeals.
The right to demand arbitration is generally reserved to the designated parties to an agreement to arbitrate (see County of Westchester v Mahoney, 56 NY2d 756; Matter of Town of New Castle v L'Eplattenier, 236 AD2d 415, 416). "'A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal agreement to arbitrate'" (Matter of Jalas v Halperin, 85 AD3d 1178, 1182 [internal quotation marks omitted], quoting God's Battalion of Prayer Pentecostal Chuch, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374).
Here, I do not agree with my colleagues in the majority that the Village may not be compelled to arbitrate the subject grievance with Local 445. Rather, under the circumstances of this particular case, I find the record more than adequate to support the Supreme Court's determination that Local 445 is not precluded from invoking the arbitration clause of the CBA on behalf of the Association and its members. Not only is Local 445 the undisputed bargaining representative of the Association and its members with regard to the CBA, but Local 445 signed the CBA in its own right under the section titled "For the P.B.A./UNION" (cf. Selinger Enters., Inc. v Cassuto, 50 AD3d 766, 767). Moreover, there is nothing in the record to indicate that Local 445 acted outside the confines of its relationship with the Association in filing the demand for arbitration (see generally Hirschfeld Prods. v Mirvish, 218 AD2d 567, 569, affd 88 NY2d 1054; cf. generally County of Westchester v Mahoney, 56 NY2d 756; Matter of Jalas v Halperin, 85 AD3d at 1181-1182; Matter of Gonzalez v County of Orange Dept. of Social Servs., 250 AD2d 849, 850; County of Onondaga v U.S. Sprint Communications Co., 192 AD2d 1108, 1109; Esquire Div. of L. Greif & Bros. [Div. of Genesco] v Finley, 54 AD2d 869, 869; Glasser v Price, 35 AD2d 98, 100-101; Matter of Sholgen [Lipsett, Inc.], 14 Misc 2d 296, 296-297 [Sup Ct, NY County]).
Based upon the prior negotiations in this matter between Local 445 and the Village, the proffered arguments by the Village to stay arbitration appear disingenuous and not to be asserted in good faith. Accordingly, I find that the Supreme Court properly denied the Village's petition to permanently stay arbitration and granted Local 445's cross-petition to compel arbitration, and vote to affirm the order.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_05090.htm
| Matter of Arluck v Board of Educ., Orange-Ulster Bd. of Coop. Educ. Servs. |
| 2025 NY Slip Op 05076 |
| Decided on September 24, 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. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
HELEN VOUTSINAS
DONNA-MARIE E. GOLIA, JJ.
2023-11876
(Index No. 4652/22)
v
Board of Education, Orange-Ulster Board of Cooperative Educational Services, et al., appellants.
Bond, Schoeneck & King, PLLC, Garden City, NY (Alyson Mathews, Craig L. Olivo, and Howard M. Miller of counsel), for appellants.
Robert T. Reilly, New York, NY (Oriana Vigliotti of counsel), for respondents.
https://nycourts.gov/reporter/3dseries/2025/2025_05076.htm
| Matter of Gunderson v New York City Employees' Retirement Sys. |
| 2025 NY Slip Op 05084 |
| Decided on September 24, 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. |
ANGELA G. IANNACCI, J.P.
ROBERT J. MILLER
LILLIAN WAN
CARL J. LANDICINO, JJ.
2024-08825
(Index No. 527284/23)
v
New York City Employees' Retirement System, et al., respondents.
Seelig Law Offices, LLC, New York, NY (Philip H. Seelig and Joshua Gohari of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Jeremy W. Shweder and Chase Henry Mechanick of counsel), for respondents.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees' Retirement System dated June 8, 2023, which denied the petitioner's application for accidental disability retirement benefits, the petitioner appeals from a judgment of the Supreme Court, Kings County (Anne J. Swern, J.), dated May 30, 2024. The judgment denied the petition and, in effect, dismissed the proceeding.
ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, the determination is annulled, and the matter is remitted to the Board of Trustees of the New York City Employees' Retirement System for further proceedings consistent herewith.
On April 6, 2020, the petitioner, an employee of the New York City Department of Sanitation, was walking inside the sanitation garage to which he was assigned when he slipped on a loose vinyl floor tile and fell on his left shoulder. The petitioner underwent three surgeries to his left shoulder, which did not significantly improve his condition. The petitioner applied to the respondent New York City Employees' Retirement System (hereinafter NYCERS), inter alia, for accidental disability retirement (hereinafter ADR) benefits under Retirement and Social Security Law § 605-b.
The Medical Board of NYCERS (hereinafter the Medical Board) determined that the petitioner was disabled due to internal derangement of his left shoulder and found that his fall on April 6, 2020, was the competent causal factor of his disability. However, the Medical Board found that the petitioner's fall was not an accident and, thus, recommended that he be denied ADR benefits. The Board of Trustees of NYCERS (hereinafter the Board of Trustees) adopted the recommendation of the Medical Board and denied the petitioner's application for ADR benefits.
The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination of the Board of Trustees. In a judgment dated May 30, 2024, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.
"A Department of Sanitation worker who 'is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident, not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service . . . shall be retired for accidental disability'" (Matter of Lanni v New York City Employees' Retirement Sys., 189 AD3d 841, 842, quoting Retirement and Social Security Law § 605-b[b][1]). An "accident" has been defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012; see Matter of Bodenmiller v DiNapoli, 43 NY3d 43, 46). "[A] precipitating event that could or should have reasonably been anticipated by a person in the claimant's circumstances is not an 'accident' for purposes of ADR benefits" (Matter of Bodenmiller v DiNapoli, 43 NY3d at 46-47).
Here, while the petitioner was aware before the day of his fall that the floor was in disrepair, there is insufficient record support for a conclusion that the petitioner was aware of the particular hazard that caused his fall, i.e., that the vinyl floor tiles might shift under his weight (cf. id. at 47). Under the circumstances, there was no rational, nonspeculative basis for the conclusion of the Medical Board and the Board of Trustees that the petitioner should have reasonably anticipated the precipitating event and, thus, that it was not an accident (see Matter of Lanni v New York City Employees' Retirement Sys., 189 AD3d at 842; Matter of Leary v New York City Employees' Retirement Sys., 59 AD3d 547, 549). Accordingly, since the determination of the Board of Trustees denying the petitioner's application for ADR benefits was arbitrary and capricious, we grant the petition, annul the determination, and remit the matter to the Board of Trustees for further proceedings consistent herewith.
IANNACCI, J.P., MILLER, WAN and LANDICINO, JJ., concur.
Darrell M. Joseph
Clerk of the CourtClerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_05084.htm
| Matter of Lopez v DiNapoli |
| 2025 NY Slip Op 05130 |
| Decided on September 25, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-23-2026
v
Thomas P. DiNapoli, as State Comptroller, Respondent.
Before:Garry, P.J., Pritzker, McShan, Powers and Mackey, JJ.
Schwab & Gasparini, PLLC, Albany (James A. Resila of counsel), for petitioner.
Letitia James, Attorney General, Albany (Alexandria Twinem of counsel), for respondent.
McShan, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for accidental disability retirement benefits.
In April 2021, petitioner filed an application for accidental disability retirement benefits contending that he was permanently incapacitated from the performance of his duties as the result of an incident that occurred in January 2015. At the time of the incident, petitioner was a police detective assigned to an executive protection detail. In that capacity, petitioner would provide security services for high-ranking municipal officials. The New York State and Local Police and Fire Retirement System denied the application upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363. Following a hearing and redetermination in November 2022,[FN1] the Hearing Officer upheld the denial and, upon administrative review, respondent affirmed. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge respondent's determination.
We confirm. "As the applicant, petitioner bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, and respondent's determination in this regard will be upheld if supported by substantial evidence" (Matter of Hamblin v DiNapoli, 229 AD3d 922, 923 [3d Dept 2024] [internal quotation marks and citations omitted]; see Matter of Cuppek v DiNapoli, 238 AD3d 1238, 1238 [3d Dept 2025]; Matter of Croly v New York State Comptroller, 236 AD3d 1277, 1277-1278 [3d Dept 2025]). "An accident in this context means a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" (Matter of Stefanik v Gardner, 236 AD3d 75, 80 [3d Dept 2025] [internal quotation marks and citations omitted]; see Matter of Buonora v Gardner, 235 AD3d 1056, 1057 [3d Dept 2025], lv denied 43 NY3d 907 [2025]; Matter of Buddenhagen v DiNapoli, 224 AD3d 1061, 1062 [3d Dept 2024]). "Thus, an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury" (Matter of McQuade v New York State Comptroller, 236 AD3d 1290, 1291 [3d Dept 2025] [internal quotation marks and citations omitted]; see Matter of Croly v New York State Comptroller, 236 AD3d at 1278; Matter of Hamblin v DiNapoli, 229 AD3d at 923).
Petitioner testified that, on the day in question, he was assigned to the executive protection detail and, in that capacity, had transported a county executive to various meetings. At the end of the day, petitioner returned the departmental vehicle he was using to the employer's parking lot and, as he exited the vehicle, he experienced chest pains. Petitioner reported this incident to his supervisor [*2]and drove himself to a local emergency room, where he was evaluated and discharged with a diagnosis of chest pain and palpitations. Petitioner, who had been diagnosed with sarcoidosis in 2015, testified that he subsequently was diagnosed with cardiac sarcoidosis in 2021.
When questioned regarding his activities on the day in question, petitioner testified that he did not recall anything significant occurring, and the record fails to disclose that petitioner engaged in any particularly stressful or strenuous activity prior to exiting his vehicle. To the extent that petitioner suggests that the chest pain he experienced — in and of itself — was sudden and unexpected and, hence, qualified as a precipitating accidental event, we disagree (cf. Matter of Warshawsky v DiNapoli, 73 AD3d 1357, 1360 [3d Dept 2010]). Further, "the risks associated with exiting a police car are inherent in the performance of [petitioner's] routine duties, and petitioner has offered no evidence indicating that his exit was accompanied by anything out of the ordinary" (Matter of Ashley v DiNapoli, 97 AD3d 1057, 1058 [3d Dept 2012] [internal quotation marks and citation omitted]). Under these circumstances, respondent's determination denying petitioner's application for accidental disability retirement benefits will not be disturbed (see id.; see generally Matter of Hamblin v DiNapoli, 229 AD3d at 923-924; Matter of Bornholz v DiNapoli, 225 AD3d 1079, 1081-1082 [3d Dept 2024]). Petitioner's remaining arguments on this point, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Pritzker, Powers and Mackey, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Footnote 1: At the time of the hearing, petitioner was working for the employer as a tactical flight officer.
https://nycourts.gov/reporter/3dseries/2025/2025_05130.htm
| Matter of Cabrera v New York City Hous. Auth. |
| 2025 NY Slip Op 05129 |
| Decided on September 25, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-23-2004
v
New York City Housing Authority, Respondent. Workers' Compensation Board, Respondent.
Before:Garry, P.J., Aarons, Fisher, McShan and Mackey, JJ.
Ginarte Gonzalez Winograd LLP, New York City (Patrick M. Quinn of counsel), for appellant.
Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe of counsel), for New York City Housing Authority, respondent.
Letitia James, Attorney General, New York City (Alison Kent-Friedman of counsel), for Workers' Compensation Board, respondent.
Garry, P.J.
Appeal from a decision of the Workers' Compensation Board, filed September 20, 2023, which, among other things, denied counsel's application for an award of counsel fees.
In 2022, after establishing a claim for workers' compensation benefits for various work-related injuries, claimant was classified with a permanent partial disability and tentative indemnity awards for a specified period were made, with direction that the self-insured employer continues payments at the permanent partial disability rate. Thereafter, claimant's counsel made a request for further action to address whether certain payments of the award were timely paid. Following a hearing at which the self-insured employer conceded that it failed to make certain compensation payments, the Workers' Compensation Law Judge imposed a late payment penalty pursuant to Workers' Compensation Law § 25 (1) (e), payable to claimant, but denied the application by claimant's counsel for fees in connection with securing the late payment penalty. Upon administrative appeal challenging the preclusion of counsel fees, the Workers' Compensation Board affirmed, finding that additional counsel fees were properly denied as the recent amendments to Workers' Compensation Law § 24, which set forth the schedule of counsel fees based upon awards, makes no provision for additional fees payable to a claimant's representative based upon the assessment of a late payment penalty. Claimant appeals.[FN1]
The Board's decision finding that it lacked authority under the recent amendments to Workers' Compensation Law § 24 to award counsel fees for legal services provided in procuring a late payment penalty is consistent with this Court's recent decision in Matter of Gonzalez v Northeast Parent & Child Socy. (232 AD3d 1011, 1011-1012 [3d Dept 2024], lv dismissed in part & granted in part 43 NY3d 937 [2025]) and its progeny (see Matter of Clifton v Research Found. of SUNY, 234 AD3d 1235, 1235-1236 [3d Dept 2025]). Accordingly, for the reasons set forth in Matter of Gonzalez, the Board's finding that claimant's counsel is not entitled to additional fees related to the late payment penalty will not be disturbed.
Aarons, Fisher, McShan and Mackey, JJ., concur.
ORDERED that the decision is affirmed, without costs.
Footnote 1: The sole issue raised on appeal is a challenge to the denial of counsel fees. As such, the notice of appeal — which was filed in claimant's name — should have been filed on behalf of the law firm (see Matter of Tompkins v Bedford Stone & Masonry, 198 AD3d 1031, 1032 n [3d Dept 2021];Matter of Dzielski v New York State Dept. of Corr. & Community Supervision, 195 AD3d 1255, 1256 n [3d Dept 2021]). Nevertheless, in the absence of any demonstrated prejudice, we will disregard this error (see CPLR 2001; Matter of Tompkins v Bedford Stone & Masonry, 198 AD3d at 1032 n).
https://nycourts.gov/reporter/3dseries/2025/2025_05129.htm
24-972-cv Chislett v. N.Y.C. Dep’t of Educ. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2024 Argued: April 4, 2025 Decided: September 25, 2025 No. 24-972-cv ______________________________________ LESLIE CHISLETT, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, RICHARD CARRANZA AS CHANCELLOR OF NEW YORK CITY DEPARTMENT OF EDUCATION, INDIVIDUALLY, Defendants-Appellees. ______________________________________ Before: LEVAL, BIANCO, and NARDINI, Circuit Judges. Plaintiff Leslie Chislett appeals from the grant of summary judgment by the United States District Court for the Southern District of New York (Rochon, J.) in favor of Defendants New York City Department of Education and Richard Carranza. Chislett, who is Caucasian, brought a 42 U.S.C. § 1983 claim of racial discrimination under three theories: (1) she was demoted pursuant to a municipal policy that made race a determinative factor in employment decisions; (2) she suffered a hostile work environment fostered by mandatory implicit bias trainings; and (3) she was constructively discharged. The district court rejected all three theories, largely on the basis that Plaintiff failed to demonstrate the existence of a municipal policy linked to the demotion, hostile work environment, and 2 constructive discharge. We conclude that the district court did not err in granting summary judgment on Plaintiff’s demotion and constructive discharge claims. However, we hold that genuine disputes of material fact precluded the grant of summary judgment on Plaintiff’s hostile work environment claim. We therefore AFFIRM in part, VACATE in part, and REMAND
https://ww3.ca2.uscourts.gov/decisions/isysquery/53fbb958-4e23-4040-9a77-3eb9a2d96d17/1/doc/24-972_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/53fbb958-4e23-4040-9a77-3eb9a2d96d17/1/hilite/
ALJ Joycelyn McGeachy-Kuls recommended dismissal of disciplinary charges against a correction officer who failed to report for duty on 15 occasions. The Department, seeking a 30-day suspension, alleged that the officer did not have authorization for these absences. The officer did not dispute her absences but testified that she requested personal emergency leave on each occasion in accordance with Department procedure due to a lack of childcare for her seven-year-old daughter. For five of the officer’s absences, the ALJ dismissed the misconduct charges because the Department’s own evidence established that the Department granted the officer’s leave requests for those days. For the remaining ten absences, the ALJ found that the officer proved she followed Department procedure for requesting personal emergency leave through her presentation of extensive credible evidence that she called her command to request leave before each absence and submitted written documentation upon her return. Because the officer’s compliance with Department procedure went undisputed, the Department had to establish why the officer’s leave requests were denied to prove misconduct. The ALJ held that the Department did not make this showing and that it failed to inform the officer that it denied her requests and provide reasons for the denials. As a result, the ALJ found that the Department failed to prove the charges and recommended dismissal. The ALJ’s recommended decision was issued and sent to the Department on April 4, 2025. The Department of Correction Commissioner fully adopted the ALJ’s findings on August 11, 2025. Dep’t of Correction v. Lee, OATH Index No. 3152/24 (Apr. 4, 2025), adopted, Comm’r Dec. (Aug. 11, 2025).
| Matter of Village of Walden v Teamsters Local Union No. 445 |
| 2025 NY Slip Op 05090 |
| Decided on September 24, 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. |
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
VALERIE BRATHWAITE NELSON
DEBORAH A. DOWLING
LOURDES M. VENTURA, JJ.
2023-04708
(Index No. 3620/22)
v
Teamsters Local Union No. 445, respondent.
Feerick Nugent MacCartney PLLC, South Nyack, NY (Brian D. Nugent and Dylan Lockyer of counsel), for appellant.
Barnes, Iaccarino & Shepard LLP, Elmsford, NY (Steven H. Kern of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the petitioner appeals from an order of the Supreme Court, Orange County (Maria S. Vazquez-Doles, J.), dated April 5, 2023. The order denied the petition to permanently stay arbitration and granted the cross-petition to compel arbitration.
ORDERED that the order is reversed, on the law, with costs, the petition to permanently stay arbitration is granted, the cross-petition to compel arbitration is denied, and the arbitration is permanently stayed.
The issue in this appeal is whether the respondent, Teamsters Local Union No. 445 (hereinafter Local 445), had the authority to demand arbitration under the terms of a collective bargaining agreement (hereinafter the CBA) between the petitioner, Village of Walden, and the Village of Walden Police Benevolent Association (hereinafter the Association). For the reasons that follow, we conclude that Local 445 did not have the authority to demand arbitration, as it was not a party to the CBA between the Village and the Association. We therefore conclude that the Supreme Court should have granted the Village's petition to permanently stay arbitration and denied Local 445's cross-petition to compel arbitration.
In 2009, the Association, a labor organization, entered into an "AFFILIATION AGREEMENT" with Local 445, a labor union. Under the affiliation agreement, the Association and Local 445 agreed, among other things, that the Association would pay dues to Local 445 and Local 445 would provide specific listed services "at the request of the Association." Local 445's services included pursuing arbitrations of Association members' "meritorious claims as determined by the Association" (emphases added), for benefits pursuant to General Municipal Law § 207-c.
Thereafter, the Association entered into the CBA with the Village. The first page of the CBA identifies the CBA as an "AGREEMENT Between VILLAGE OF WALDEN and VILLAGE OF WALDEN POLICE BENEVOLENT ASSOCIATION, INC." Article 1, section 1, of the CBA provides that the Village recognizes the Association "as the sole and exclusive [*2]representative for all full-time and part-time police officers . . . employed by the Village," subject to certain exceptions, "for the purpose of negotiating collectively in determination of all matters relating to wages, hours of work, working conditions, benefits, grievances and employment." Article 1, section 2, states that "[t]he Village agrees that the Association shall be guaranteed unchallenged representation status until the expiration of this Agreement."
Article 4 of the CBA, governing compensation, establishes a procedure "to regulate the application for, and the award and/or termination of," General Municipal Law § 207-c benefits for Village police officers injured in the line of duty. Under this procedure, an injured police officer, i.e., the claimant, or the claimant's representative must file a written application for General Municipal Law § 207-c benefits within 10 days after the incident giving rise to the claimant's alleged injury or within 10 days after the claimant becomes aware of the alleged injury, whichever is later. The Village's designated claims manager is then required, within a reasonable time, to issue a written determination as to whether the claimant is entitled to General Municipal Law § 207-c benefits. The procedure also authorizes a hearing at the claimant's request before a neutral hearing officer. In addition, article 13 of the CBA sets forth a three-step grievance procedure for challenging, inter alia, unfavorable determinations of applications for General Municipal Law § 207-c benefits. In Steps 1 and 2, respectively, the claimants themselves elect whether to present a grievance to the Chief of Police, and subsequently whether to appeal an unsatisfactory decision to the Village Manager. In Step 3 of the grievance procedure, however, it is the Association—not the claimant—that elects whether to "appeal an unsatisfactory decision of the Village Manager by submitting a Demand for Arbitration to the New York State Public Employment Relations Board ([hereinafter] PERB)."
This exclusive role of the Association is further reflected in the language of the signature page of the CBA. The signature page of the CBA includes a statement that the "parties have caused this Agreement to be executed by their authorized representatives," and directly underneath this statement, two entities are listed in all capital letters: on the left, "VILLAGE OF WALDEN," and on the right, "VILLAGE OF WALDEN POLICE BENEVOLENT ASSOCIATION, INC." Below the names of those two entities is a date line, reflecting that the CBA was executed on July 12, 2015. Beneath the date line are two columns of signature lines: on the left, under the heading "For the Village," appear the typewritten names "Susan Rumbold, Mayor," and "John Revella, Village Manager," and on the right, under the heading "For the P.B.A./UNION," appear the typewritten names "Robert Montanaro, P.B.A. President," and "Thomas Miller, Local 445." Each of these four typewritten signature lines bears a handwritten signature above it.
In 2021, the Village and the Association executed a "MEMORANDUM OF AGREEMENT" (hereinafter the 2021 agreement) extending the CBA, acknowledged by both parties to have expired on May 31, 2018, to cover the period from June 1, 2018, through May 31, 2025. The 2021 agreement incorporated certain modifications to the CBA, none of which affected the grievance and arbitration provisions thereof. The 2021 agreement bears two signatures, that of the Village Manager and that of the Association's president. Notably, the 2021 agreement does not include a signature of any representative of Local 445.
The events giving rise to this litigation occurred during the period covered by the 2021 agreement. In March 2022, the Village's claims manager issued a determination on an application dated June 14, 2021, for General Municipal Law § 207-c benefits for a certain Village police officer who claimed to have been injured after falling from a chair on which he was sitting (hereinafter the March 2022 determination). The claims manager, among other things, determined that the police officer's alleged injuries arising from the occurrence were fully resolved as of July 26, 2021, awarded the police officer General Municipal Law § 207-c benefits for a six-week period, and recommended that the police officer be directed to return to full duty. In April 2022, Local 445 wrote a letter on the police officer's behalf to the claims manager appealing the March 2022 determination and requesting a hearing. Local 445 then purported to present a Step 1 grievance on behalf of the police officer in May 2022, followed by a Step 2 grievance in June 2022. The Village responded to Local 445's correspondence, asserting, inter alia, that the proper procedures for presenting Step 1 and Step 2 grievances had not been followed. On June 16, 2022, Local 445 filed [*3]a Step 3 demand for arbitration with PERB, in its own name, to arbitrate the grievance between the police officer and the Village.
On July 6, 2022, the Village commenced this proceeding to permanently stay arbitration on the ground, among other things, that Local 445 is not a proper party authorized to demand arbitration under the CBA. Local 445 cross-petitioned to compel arbitration, contending, inter alia, that it had the authority to demand arbitration.
In an order dated April 5, 2023, the Supreme Court denied the petition and granted the cross-petition. The court rejected as "unavailing and without merit" the Village's contentions that Local 445 "was not the proper party" to present a grievance and that "only the Association (PBA) has the authority to appeal at the Step 3 stage." The court noted that in 2021, Local 445 had previously "litigated in its own name" another proceeding involving the same police officer, and in that litigation, the Village had failed to argue that Local 445 was not a proper party to present a grievance. The court reasoned that the Village had "thus conced[ed]" that Local 445 was "a proper party." The court further reasoned that Local 445 was "inextricably bound to the workings of the CBA including the arbitration provisions of the grievance procedure." The Village appeals.
"[O]ne who is a party to [a] contract to arbitrate" may serve upon another party to that contract a demand for arbitration or a notice of intention to arbitrate (Glasser v Price, 35 AD2d 98, 100; see CPLR 7503[c]). The right to demand arbitration is generally reserved to the designated parties to an agreement to arbitrate (see County of Westchester v Mahoney, 56 NY2d 756; Matter of Town of New Castle v L'Eplattenier, 236 AD2d 415, 416). "Generally, the right to compel arbitration does not extend to a nonparty unless the agreement itself so provides" (County of Onondaga v U.S. Sprint Communications Co., 192 AD2d 1108, 1109). "'A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal agreement to arbitrate'" (Matter of Jalas v Halperin, 85 AD3d 1178, 1182 [internal quotation marks omitted], quoting God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374; see Matter of Waldron [Goddess], 61 NY2d 181).
Importantly, in the case at bar, Local 445 does not contend that it filed its demand for arbitration on behalf of the Association or that it was acting as the Association's agent when it filed the demand. Rather, Local 445 has consistently argued, both before the Supreme Court and on appeal, that "Local 445 as such" (emphasis added) is entitled to demand arbitration under Step 3 of the CBA's grievance procedure because Local 445 is a "party" to the CBA between the Village and the Association. Accordingly, this appeal does not implicate the Association's right to be represented by Local 445, whether it be in arbitration proceedings, in contract negotiations, or otherwise. The record contains no evidence that the Association ever requested or authorized Local 445 to submit a demand for arbitration on the Association's behalf concerning the subject police officer. Rather, this appeal turns on Local 445's assertion that it is entitled, in its own words, to stand "in the shoes" of the Association "as a party to the CBA" and to demand arbitration under Step 3 of the grievance procedure in its own name.
However, the record does not support Local 445's contention that it is a party to the CBA. Local 445 relies on the fact that its representative's signature appears on the final page of the CBA. However, the presence of that signature alone is insufficient to confer upon Local 445 the status of a party to the agreement. Not every entity which affixes its signature to a contract will be deemed a party to that contract (see e.g. Selinger Enters., Inc. v Cassuto, 50 AD3d 766, 767; D'Angelo v State of New York, 285 App Div 29, 32), and the signatures on a contract "must be read, like any other portion of the instrument, not in isolation, but in the context of the instrument as a whole" (150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1, 7). It is not uncommon for a contract to include signature lines both for the parties and the parties' respective legal representatives (see e.g. In re Artha Mgt., Inc., 91 F3d 326, 330 [2d Cir]).
Here, it is clear from the natural reading of the CBA as a whole that the Village and the Association are the only two parties to the CBA. The title page identifies the CBA as an "AGREEMENT Between" the Village and the Association, and the body of the CBA defines the rights and responsibilities of the Village and the Association without any reference to Local 445. [*4]The first section of the CBA expressly states that the Association is "the sole and exclusive representative" of Village police officers in grievance proceedings. Although the signature page of the CBA includes a signature line for "Thomas Miller, Local 445" on behalf of the "P.B.A/UNION," a natural reading indicates that Miller signed the CBA, together with "Robert Montanaro, P.B.A. President," as one of the two "authorized representatives" of the Association, just as "Susan Rumbold, Mayor," and "John Revella, Village Manager," signed as the authorized representatives of the Village. In light of the numerous indicators that the Village and the Association are the intended parties to the CBA, coupled with the statement on the signature page that the "parties have caused this Agreement to be executed by their authorized representatives" (emphases added), we cannot agree with our dissenting colleague's conclusion that Local 445 signed the agreement "in its own right."
Moreover, the CBA bearing Miller's signature on behalf of Local 445 expired in 2018, and the 2021 agreement does not bear a signature on Local 445's behalf. Notably, the 2021 agreement does not acknowledge Local 445 as a party to the CBA. Instead, the 2021 agreement characterizes the CBA as an agreement between the Village and the Association.
The conclusion that Local 445 is not a party to the CBA between the Village and the Association is further supported by the affiliation agreement governing the relationship between Local 445 and the Association. We do not agree with our dissenting colleagues' statement that Local 445 represents the Association and its members "in all labor-related and collective bargaining matters" (emphasis added), as the affiliation agreement contains no such language. Despite the position taken by Local 445 before the Supreme Court, where it refused to "acknowledge that its role is in any way limited as a representative of the [Association]," the affiliation agreement between the Association and Local 445 defines the scope of the services to be provided by Local 445 and explicitly states that such services shall be provided only at the Association's request. These services include assistance with the arbitration of "meritorious" claims for General Municipal Law § 207-c benefits, "as determined by the Association." The affiliation agreement underscores the conclusion that the Association, and not Local 445, has the authority to determine whether and when to pursue arbitration of a particular claim for General Municipal Law § 207-c benefits.
The record likewise does not support Local 445's contention that past practices demonstrate that the Village regarded Local 445 as a party to the CBA. On the contrary, the record reflects that Local 445 departed from past practices when it served the arbitration demand at issue in its own name, rather than in the name of the Association. In at least three prior employee grievances, the demand for arbitration identified the Association as the "Name of Organization" demanding arbitration, and separately listed Local 445 as the "[r]epresentative to whom PERB should direct correspondence." By contrast, in the case at bar, the demand for arbitration lists Local 445 itself as the "Name of Organization" demanding arbitration. Neither the form demanding arbitration nor the accompanying cover letter contains any reference to the Association.
Contrary to Local 445's contention, the correspondence sent by Local 445 to the Village also does not demonstrate that the Village recognized Local 445 as the party authorized to submit a Step 3 grievance. The correspondence cited by Local 445 pertain to Step 1 and Step 2 of the grievance procedure and indicates that Local 445 was purporting to act on behalf of the injured police officer during those initial steps. Moreover, notably, one of the letters from Local 445 to the Village described the CBA as an agreement "with [the Association]," not as an agreement with Local 445.
The record also does not support the Supreme Court's conclusion that the Village "conced[ed]" in a prior litigation that Local 445 was a proper party to demand arbitration. The record reflects only that the Village previously objected to arbitration on grounds other than the ground now asserted on this appeal. As the Village correctly contends, the Village is not collaterally estopped from advancing an argument in this litigation based upon its failure to raise it in another litigation (see Ryan v New York Tel. Co., 62 NY2d 494, 500). To the extent that the Village's failure to object to Local 445's standing in a prior litigation could be deemed evidence of the parties' custom and practice in interpreting and enforcing the CBA, that interpretation, which was reached [*5]by the court herein, is belied by the record. As discussed above, prior demands for arbitration reflect that the Association was the party demanding arbitration, with Local 445 solely acting as an agent of the Association.
Finally, as a policy matter, if this Court were to accept Local 445's contention that it is a "party" to the CBA, such a determination could have broader implications beyond merely permitting Local 445 to demand on behalf of an individual police officer that the Village arbitrate a particular claim. If recognized as a purported "party" to the CBA, such recognition could serve as the basis for Local 445 to potentially assert additional rights reserved to the Association under the CBA, including "activities concerning wages, hours of work, working conditions, [and] benefits," or to otherwise usurp the Association's role as "the sole and exclusive representative for all full-time and part-time police officers" of the Village. There is no evidence in the record that the Association has delegated such broad authority upon Local 445 to act on behalf of the Association's members. To treat Local 445, in effect, as the alter ego of the Association would be an untenable result based on the record before this Court.
In summary, Local 445, on its own behalf, cannot compel the Village to arbitrate, as "[t]here is no writing in the record requiring arbitration of disputes between these parties" (Esquire Div. of L. Greif & Bros. [Div. of Genesco] v Finley, 54 AD2d 869, 869). Accordingly, the Supreme Court should have granted the Village's petition to permanently stay arbitration and denied Local 445's cross-petition to compel arbitration.
DILLON, J.P., CHAMBERS and VENTURA, JJ., concur.
DOWLING, J., dissents, and votes to affirm the order, with the following memorandum, in which BRATHWAITE NELSON, J., concurs:
In my view, the petitioner, Village of Walden, should be compelled to arbitrate the subject grievance with the respondent, Teamsters Local Union No. 445 (hereinafter Local 445). Therefore, respectfully, I dissent.
Pursuant to an affiliation agreement executed in 2009, Local 445 represents the Village of Walden Police Benevolent Association, Inc. (hereinafter the Association) and its members in all labor-related and collective-bargaining matters, including entitlements to General Municipal Law § 207-c benefits and the arbitration of grievances. It is undisputed that the Village has historically and repeatedly recognized Local 445's authority in this regard. In 2015, Local 445, along with the Association and the Village, executed a collective bargaining agreement (hereinafter the CBA) between the Village and the Association covering the period from June 1, 2013, through May 31, 2018. The CBA contained a grievance procedure to resolve disputes between the Village and the Association's members, including the arbitration of unresolved grievances. The subject grievance and arbitration provisions permitted continuation of "[a]ll past practices" and provided that the Association may appeal an unresolved grievance by submitting a demand for arbitration. By memorandum of agreement executed on July 26, 2021, the CBA was extended to include the period from June 1, 2018, through May 31, 2025, with certain modifications. The grievance and arbitration provisions of the CBA were not affected by the extension.
In March 2022, the Village terminated General Municipal Law § 207-c benefits for a certain Village police officer who was a member of the Association. In June 2022, during the extension period in which the CBA, as modified by the memorandum of agreement, remained in effect, Local 445 filed a demand for arbitration of a grievance between the police officer and the Village pursuant to the CBA. Local 445's demand for arbitration alleged that the Village had breached the CBA by failing to hold a hearing regarding termination of the police officer's General Municipal Law § 207-c benefits and by failing to continue to provide those benefits pending the hearing.
Thereafter, the Village commenced this proceeding to permanently stay arbitration on the ground, inter alia, that Local 445 is not a proper party authorized to demand arbitration under [*6]the CBA. Local 445 filed a cross-petition to compel arbitration, asserting that it is authorized to demand arbitration under the CBA as the bargaining representative of the Association and its members and that the demand for arbitration was filed in accordance with the parties' past practices. In an order dated April 5, 2023, the Supreme Court denied the petition and granted the cross-petition. The Village appeals.
The right to demand arbitration is generally reserved to the designated parties to an agreement to arbitrate (see County of Westchester v Mahoney, 56 NY2d 756; Matter of Town of New Castle v L'Eplattenier, 236 AD2d 415, 416). "'A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal agreement to arbitrate'" (Matter of Jalas v Halperin, 85 AD3d 1178, 1182 [internal quotation marks omitted], quoting God's Battalion of Prayer Pentecostal Chuch, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374).
Here, I do not agree with my colleagues in the majority that the Village may not be compelled to arbitrate the subject grievance with Local 445. Rather, under the circumstances of this particular case, I find the record more than adequate to support the Supreme Court's determination that Local 445 is not precluded from invoking the arbitration clause of the CBA on behalf of the Association and its members. Not only is Local 445 the undisputed bargaining representative of the Association and its members with regard to the CBA, but Local 445 signed the CBA in its own right under the section titled "For the P.B.A./UNION" (cf. Selinger Enters., Inc. v Cassuto, 50 AD3d 766, 767). Moreover, there is nothing in the record to indicate that Local 445 acted outside the confines of its relationship with the Association in filing the demand for arbitration (see generally Hirschfeld Prods. v Mirvish, 218 AD2d 567, 569, affd 88 NY2d 1054; cf. generally County of Westchester v Mahoney, 56 NY2d 756; Matter of Jalas v Halperin, 85 AD3d at 1181-1182; Matter of Gonzalez v County of Orange Dept. of Social Servs., 250 AD2d 849, 850; County of Onondaga v U.S. Sprint Communications Co., 192 AD2d 1108, 1109; Esquire Div. of L. Greif & Bros. [Div. of Genesco] v Finley, 54 AD2d 869, 869; Glasser v Price, 35 AD2d 98, 100-101; Matter of Sholgen [Lipsett, Inc.], 14 Misc 2d 296, 296-297 [Sup Ct, NY County]).
Based upon the prior negotiations in this matter between Local 445 and the Village, the proffered arguments by the Village to stay arbitration appear disingenuous and not to be asserted in good faith. Accordingly, I find that the Supreme Court properly denied the Village's petition to permanently stay arbitration and granted Local 445's cross-petition to compel arbitration, and vote to affirm the order.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_05090.htm
Appeals from the Hearings Division
Decision reversed.
An appellate decision reversed a hearing decision that sustained a violation of the New York City Administrative Code on the grounds of improper service. DOB v. Bazinova, Milena, Appeal No. 2500717 (Aug. 28, 2025).
Read more about DOB v. Bazinova, Milena and other Appeals from the Hearings Division.
Disciplinary Charges Dismissed.
ALJ Joycelyn McGeachy-Kuls recommended dismissal of disciplinary charges against a correction officer who failed to report for duty on 15 occasions. Dep’t of Correction v. Lee, OATH Index No. 3152/24 (Apr. 4, 2025), adopted, Comm’r Dec. (Aug. 11, 2025).
Read more about Dep’t of Correction v. Lee
| Matter of Beck v Suffolk County |
| 2025 NY Slip Op 04988 |
| Decided on September 17, 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. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
HELEN VOUTSINAS
DONNA-MARIE E. GOLIA, JJ.
2024-02004
(Index No. 205927/22)
v
Suffolk County, et al., respondents.
Zev Goldstein, New City, NY (Cory Morris of counsel), for appellant.
Christopher J. Clayton, County Attorney, Hauppauge, NY (Drew W. Schirmer of counsel), for respondents.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and action for declaratory relief, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (David T. Reilly, J.), dated January 18, 2024. The order and judgment, insofar as appealed from, granted those branches of the respondents/defendants' motion which were pursuant to CPLR 3211(a) to dismiss those branches of the petition/complaint which were to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and for an award of attorney's fees, and dismissed those portions of the proceeding/action.
ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.
In November 2022, the petitioner/plaintiff (hereinafter the petitioner) commenced this hybrid proceeding pursuant to CPLR article 78, inter alia, to compel the respondent/defendant Suffolk County Traffic and Parking Violations Agency, among others, to produce certain records in response to a request she made pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art 6) and action for declaratory relief. The respondents/defendants (hereinafter the respondents) moved, among other things, pursuant to CPLR 3211(a) to dismiss those branches of the petition/complaint which were to compel the production of the requested records pursuant to FOIL and for an award of attorney's fees. The petitioner opposed. In an order and judgment dated January 18, 2024, the Supreme Court, inter alia, granted those branches of the respondents' motion, and dismissed those portions of the proceeding/action. The petitioner appeals.
"To promote open government and public accountability, the FOIL imposes a broad duty on government to make its records available to the public" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274, citing Public Officers Law § 84). Thus, "[w]hen faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search" (Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, 440, citing Public Officers Law §§ 87[2]; 89[3]).
Public Officers Law § 89(3)(a), which provides that the agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search," is triggered "when, in lieu of granting a FOIL request, the agency finds that it either does not possess the item requested or is unable to locate it after a diligent search" (Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 232 [internal quotation marks omitted]].
Here, the respondents' disclosure of records in September 2022 was sufficient to satisfy their obligations under FOIL (see Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875).
Contrary to the petitioner's contention, given the respondents' disclosure of the records to the petitioner, they were not required, absent a request by the petitioner, to provide certification that additional records responsive to the FOIL request did not exist or could not be located after a diligent search (see Lewis v Hynes, 208 AD2d 731, 731; Public Officers Law § 89[3][a]). The record does not contain any such request by the petitioner.
The petitioner's remaining contention is without merit.
As the petitioner did not substantially prevail in the proceeding/action, the petitioner is not entitled to an award of attorney's fees and litigation costs (see Public Officers Law § 89[4][c][i]).
DUFFY, J.P., MILLER, VOUTSINAS and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_04988.htm
| Matter of Waldman v Suffolk County |
| 2025 NY Slip Op 04999 |
| Decided on September 17, 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. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
HELEN VOUTSINAS
DONNA-MARIE E. GOLIA, JJ.
2024-01370
(Index No. 609956/23)
v
Suffolk County, et al., respondents.
Zev Goldstein, New City, NY (Cory Morris of counsel), for appellant.
Christopher J. Clayton, County Attorney, Hauppauge, NY (Lisa Azzato of counsel), for respondents
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and action for declaratory relief, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated October 25, 2023. The order and judgment, insofar as appealed from, denied those branches of the petition/complaint which were to compel the immediate production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and for an award of attorney's fees and, in effect, dismissed those portions of the proceeding/action.
ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.
In April 2023, the petitioner/plaintiff (hereinafter the petitioner) commenced this hybrid proceeding pursuant to CPLR article 78, inter alia, to compel the respondents/defendants, Suffolk County, Suffolk County Police Department, Rodney Harrison, Jacqueline Caputi, and Janine Kehlegan (hereinafter collectively the respondents), to immediately produce certain records pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art 6) and action for declaratory relief. The respondents answered the petition/complaint and asserted, among other things, that the petitioner's FOIL request had not been denied and that their response to the petitioner, which included a date the respondents set forth for producing the responsive documents, was appropriate given, inter alia, the voluminous nature of the request and that a significant number of the documents to be reviewed were maintained only in paper form, not in an electronic format.
In an order and judgment dated October 25, 2023, the Supreme Court, among other things, denied those branches of the petition/complaint which sought to compel the immediate production of the requested records pursuant to FOIL and an award of attorney's fees and, in effect, dismissed those portions of the proceeding/action. The petitioner appeals.
"To promote open government and public accountability, the FOIL imposes a broad duty on government to make its records available to the public" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274, citing Public Officers Law § 84). Thus, "[w]hen faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific [*2]exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search" (Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, 440, citing Public Officers Law §§ 87[2]; 89[3]). "'If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgment of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part'" (Matter of Lepper v Village of Babylon, 190 AD3d 738, 742, quoting Public Officers Law § 89[3][a]).
Here, the Supreme Court properly denied those branches of the petition/complaint which sought to compel the immediate production of the requested records and an award of attorney's fees and, in effect, dismissed those portions of the proceeding/action. The respondents consented to produce records responsive to the petitioner's FOIL request, and their response adequately explained in detail the reasons for their inability to immediately provide the requested records and provided a reasonable timeline for the disclosure of such records. Under the circumstances presented in this case, the respondents met their obligations under FOIL (see Public Officers Law §§ 89[3][a]; [4][a]; Matter of Lepper v Village of Babylon, 190 AD3d at 742).
The parties' remaining contentions are either without merit or not properly before this Court.
Since the petitioner did not substantially prevail in the proceeding/action, the petitioner is not entitled to an award of attorney's fees and litigation costs (see Public Officers Law § 89[4][c][I]).
DUFFY, J.P., MILLER, VOUTSINAS and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
https://nycourts.gov/reporter/3dseries/2025/2025_04999.htm
Reconsideration
22-1715-cv Tenemille v. Town of Ramapo UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of September, two thousand twenty-five. PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, JOSÉ A. CABRANES, BARRINGTON D. PARKER, Circuit Judges. _____________________________________ Ernst Theodore Tenemille, Plaintiff-Appellant, v. 22-1715 Town of Ramapo, Christopher St. Lawrence, Ex-Town Supervisor, Patrick Withers, Councilman, Town of Ramapo Police Department, Bradley R. Weidel, 2 Chief of Police, Thomas Cokeley, Chief of Staff, David Holmes, Police Lieutenant, William Gravina, ExAdministrative Lieutenant, Daniel Hyman, Squad Lieutenant, Brian Corbett, Detective Sergeant, Salomon Matos, Squad Sergeant, Christopher Franklin, Desk Sergeant, Al Gumbs, Police Sergeant, Defendants-Appellees. _____________________________________ FOR PLAINTIFF-APPELLANT: Ernst T. Tenemille, pro se, New City, NY. FOR DEFENDANTS-APPELLEES: Steven C. Stern, Sokoloff Stern LLP, Carle Place, NY. Appeal from a judgment and order of the United States District Court for the Southern District of New York (Kenneth M. Karas, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment and June 7, 2022 order of the district court are AFFIRMED. Ernst Theodore Tenemille, pro se, appeals from the district court’s dismissal of his employment discrimination action and the denial of his Federal Rule of Civil 3 Procedure 60(b) motion for reconsideration. Tenemille commenced this action against the Town of Ramapo (the “Town”), the Town of Ramapo Police Department (the “Department”) (his former employer), and Town and Department officials, alleging discrimination, harassment, and retaliation, culminating in his December 2016 termination, allegedly in violation of Title VII, 42 U.S.C. § 1983, and several state law provisions. Tenemille’s pro se fourth amended complaint alleged that he was employed by the Department as a police officer from August 2002 until December 2016. In November 2015, Tenemille was investigated by the Police Department for submitting allegedly improper sick notes for absences due to a minor injury, culminating in his termination on December 16, 2016. Tenemille alleged that the investigation and his termination were due to discrimination based on his national origin and/or his race, and as retaliation for his protected activity of questioning the Defendants’ access of his private medical information. The defendants moved, under Federal Rule of Civil Procedure 12(b)(6), to dismiss the fourth amended complaint as time-barred and for failure to state a claim. In January 2022, the district court granted the defendants’ motion to dismiss, reasoning that some of Tenemille’s allegations were time-barred, and that 4 his timely allegations failed to state a claim. The court granted Tenemille 30 days to file a fifth amended complaint. In lieu of amending, Tenemille moved for reconsideration. The district court construed the motion under Rule 60(b) and denied it, concluding that relief was not warranted. Tenemille timely appealed the district court’s judgment and the denial of his motion for reconsideration. We assume the parties’ familiarity with the remaining facts, the procedural history, and the issues on appeal. I. Dismissal of the Fourth Amended Complaint “We review a dismissal for failure to state a claim de novo.” Sharikov v. Philips Med. Sys. MR, Inc., 103 F.4th 159, 166 (2d Cir. 2024). “A complaint survives a Rule 12(b)(6) motion to dismiss if the facts, taken as true and with all reasonable inferences drawn in the plaintiff’s favor, state a plausible claim to relief.” Id. “While we are required to assume the truth of the ‘well-pleaded factual allegations’ in the complaint, that obligation is ‘inapplicable to legal conclusions,’ such as ‘[t]hreadbare recitals of the elements of a cause of action’ that are ‘supported by mere conclusory statements.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009)). 5 “[T]o properly assert a claim of discrimination against an employer under Title VII, a plaintiff must allege two elements: (1) the employer discriminated against [him] (2) because of [his] race, color, religion, sex, or national origin.” Buon v. Spindler, 65 F.4th 64, 78 (2d Cir. 2023) (internal quotation marks and citation omitted). “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” Id. (citation omitted). “A state employee acting in his official capacity is acting under color of state law,” and “[o]nce the color of law requirement is met, a plaintiff’s equal protection claim parallels his Title VII claim, except that a § 1983 claim, unlike a Title VII claim, can be brought against an individual.” Id. (citations omitted). “[F]or a discrimination claim to survive a motion to dismiss, absent direct evidence of discrimination, what must be plausibly supported by facts alleged in the complaint is that the plaintiff (1) is a member of a protected class, (2) was qualified, (3) suffered an adverse employment action, and (4) has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Id. (alterations, internal quotation marks, and citation omitted). 6 We agree with the district court that Tenemille’s allegations related to his doctors’ notes failed to plausibly allege discriminatory intent, as necessary to survive a motion to dismiss. To establish an inference of discrimination through the use of comparators, Tenemille was required to show “a reasonably close resemblance of the facts and circumstances of [his] and [his] comparator’s cases.” Radwan v. Manuel, 55 F.4th 101, 132 (2d Cir. 2022) (internal quotation marks and citation omitted). Here, Tenemille asserted that there were numerous “similarly situated” white officers who “turned in doctor’s notes identical to Plaintiff’s without legal challenge or investigation based on wording.” App’x 7 (Compl. ¶ 35). However, Tenemille failed to allege any further detail about these purportedly “identical” doctors’ notes or about the other officers that would suffice to show that he was “similarly situated” to these other officers “in all material respects.” Radwan, 55 F.4th at 132. Tenemille’s conclusory assertion was not enough to “nudg[e] [his] claims across the line from conceivable to plausible.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 7 II. Denial of the Motion for Reconsideration “A denial of a motion to vacate a judgment under Rule 60(b) is reviewed for abuse of discretion.” Mandala v. NTT Data, Inc., 88 F.4th 353, 359 (2d Cir. 2023) (citation omitted). “Under this standard, we must affirm the denial of vacatur, unless the ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. (alteration and citation omitted). The district court did not abuse its discretion by denying Tenemille’s Rule 60(b) motion. On appeal, Tenemille primarily argues that his motion for reconsideration alleged fraud warranting relief under Rule 60(b)(3). “To prevail on a Rule 60(b)(3) motion, a movant must show that the conduct complained of prevented the moving party from fully and fairly presenting his case.” State St. Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir. 2004) (internal quotation marks and citation omitted). Here, Tenemille’s allegations of fraud related solely to the alleged events underlying his fourth amended complaint. Because Tenemille did not show that the defendants prevented him from fully and fairly presenting his case, and instead merely reiterated his previous allegations, the district court did not abuse its discretion by denying Rule 60(b) relief. 8 We have considered Tenemille’s remaining arguments and conclude they are without merit. Accordingly, we AFFIRM the judgment and June 7, 2022 order of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
| Matter of Cuomo v JAMS, Inc. |
| 2025 NY Slip Op 05454 |
| Decided on October 07, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: 1Manzanet-Daniels, J.P., Kennedy, Shulman, Michael, Hagler, JJ.
Index No. 652945/23|Appeal No. 4877-4878|Case No. 2024-02157, 2024-02517|
v
JAMS, Inc., et al., Respondents-Respondents.
Geragos & Geragos, APC, New York (Tina Glandian of counsel), for appellant.
Elman Freiberg PLLC, New York (Yelena Rapoport of counsel), for respondents.
Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about March 12, 2024, which denied petitioner's motion for leave to conduct discovery and granted respondents' motion for summary judgment dismissing the proceeding brought pursuant to CPLR article 75 to stay a pending arbitration and disqualify the arbitrator selected by the parties, unanimously affirmed, with costs.
Petitioner argues that the arbitrator failed to disclose four CNN-related matters that Paul Hastings LLP's labor and employment division had worked on during his employment in that division, albeit he did not personally handle the cases, and that he personally handled a CNN matter for three months in 2003, which generated legal fees under $3,000 (2003 Matter). The arbitrator's formal disclosure stated that during his employment at Paul Hastings, attorneys in that law firm may have worked on matters that concerned the parties, but he had no personal recollection of those matters. As for the 2003 Matter, the arbitrator averred in a new affidavit that he had no recollection of the matter.
The court properly concluded that petitioner failed to raise a triable issue of fact (see Matter of TCR Sports Broadcasting Holding, LLP v WN Partner, LLC, 153 AD3d 140, 143-144, 150-151 [1st Dept 2017], affd as mod 40 NY3d 71 [2023]). Petitioner did not set forth facts to indicate that the arbitrator was biased in his handling of the arbitration for nearly a year. Petitioner's counsel had no objection to the 39 orders issued thus far in the arbitration. Nor did counsel claim there was any misconduct on the part of the arbitrator, and was willing to proceed with the arbitration, but only if a new arbitrator was selected by the parties. However, an arbitrator may not be disqualified solely because of his relationship to a party, but rather, upon facts demonstrating partiality to a litigant (see Matter of Astoria Med. Group [Health Ins. Plan of Greater N.Y.], 11 NY2d 128, 137 [1962]; Matter of Zurich Am. Ins. Co. v HBC US Holdings, Inc., 234 AD3d 465, 466 [1st Dept 2025]).
Petitioner's request for discovery to explore the arbitrator's veracity on whether he could recall the prior CNN matters while he was employed at Paul Hastings was properly denied as not material and necessary, as it is grounded only in speculation that the arbitrator was not forthright in his recollection. Further, while the arbitrator's relationship with CNN was "direct" in connection with the 2003 Matter, the 20-year-old representation matter was of short duration (three months) and involved little pecuniary value (see Matter of TCR Sports Broadcasting Holding, LLP, 153 AD3d at 151), and the arbitrator twice averred that he does not recollect it.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 7, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_05454.htm
| |
Contact: Matt Sweeney, 212-383-1388 DiNAPOLI: OWNER OF MEDICAL TRANSPORT COMPANY CHARGED WITH RUNNING SHAM TRANSPORTATION SERVICE SCHEMEJael Watts Thwarted In Attempt to Cheat New York State Out of $1.2M in Transportation Grant FundsNew York State Comptroller Thomas P. DiNapoli, Acting United States Attorney for the Northern District of New York John A. Sarcone III, and Acting Inspector General for U.S. Department of Transportation Office of Inspector General Mitch Behm announced the indictment of Jael Watts, the owner of Pearl Transit Corp., on ten counts of wire fraud for her role in a scheme to defraud New York State of over $1.2 million in transportation grant funds. “Jael Watts allegedly devised a fraud scheme to cheat New York State out of money meant to aid residents in need of transportation services. Thanks to my office and our partnership with federal law enforcement, her scam was exposed, and no money was paid,” said DiNapoli. “My thanks to Acting United States Attorney for the Northern District John A. Sarcone III and Special Agent in Charge, U.S. Department of Transportation Office of Inspector General, Northeast Region, Brian C. Gallagher for their partnership in protecting taxpayers’ money. This indictment should serve as a warning to those attempting to steal public funds – you will be held accountable.” Jael, 44, is the owner of Pearl Transit Corp., a non-profit company that claims to provide transportation assistance to seniors and people with disabilities. In 2024, Pearl Transit entered into a contract with the New York State Department of Transportation (NYS DOT) to “enhance the mobility” of seniors and people with disabilities in Suffolk, Putnam, Rockland, and Westchester counties by providing transportation services. The contract was funded by a pass-through federal grant from the Federal Transit Administration. To receive payment under the grant, Pearl Transit was required to submit invoices to the state for services provided. As part of the State Comptroller’s duty to audit state payments, DiNapoli’s office reviewed the invoices submitted by Pearl Transit and identified inconsistencies, leading to a joint investigation with U.S. Department of Transportation Office of Inspector General. The investigation revealed that starting in October of 2024, Watts created and submitted three false invoices totaling $1,275,550 for trips which never occurred. Investigators found that Watts fabricated proof to support these fraudulent trips, including fake time records for supposed drivers who never worked for her company. Watts was indicted on 10 ten counts of wire fraud and arraigned before Judge Daniel J. Stewart in the United States District Court for the Northern District of New York. The charges filed in this case are merely accusations and the defendants are presumed innocent unless and until proven guilty in a court of law. ### 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.
|
Albany Times Union 10-20-2025
SUNY Albany, unlawful discrimination case/sexual harassment, etc.
UAlbany settles discrimination lawsuit with former professor
Protests were the opposite of ‘anti-American’
America’s founders could have simply written in the Declaration of Independence something like, “We don’t take this step lightly.” But, mindful of the gravity of their break with Great Britain, they employed the eloquence of the age to provide a much fuller explanation: “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are suffer, he declared “Who cares?” and posted on social media an AI-generated video depicting him flying a fighter jet while wearing a crown, and dumping excrement on protesters. And Speaker of the House Mike Johnson, who seems to have no bottom to his self-debasement as the leader of an ostensibly co-equal branch of government, shrugged it off as satire and offered that at least Trump didn’t call for murdering his political opponents. (Just jailing or deporting them.) Trump, Johnson and their echo-chamber media allies had spent days trying to paint the “No Kings Day” protests as some kind of expression of hate against America. The same president who incited the Jan. 6, 2021, attack on Congress and then pardoned the miscreants who carried it out — even those who beat up police — predicted last weekend’s protesters would be violent and threatened severe consequences. When the day unfolded almost entirely peacefully, they tried to dismiss it. “I think it’s a joke,” Trump told reporters on Sunday. I suspect King George believed much the same. Maybe he only read Tory pamphlets, and surrounded himself with lapdogs who told him what an unbelievable job he was doing in the colonies. And then came the revolution. The day after the No Kings protests, I asked on social media: “OK. Now what?” People offered several ideas: a massive demonstration planned in Washington, D.C., on Nov. 5; mobilizing all those millions of protesters to vote, work for candidates or run for office; staging a general strike, with a clear list of demands including universal health care, climate action and green jobs, taxing the wealthy and corporations fairly, and defending civil, human and voting rights. No one suggested an armed revolution. Which suggests to me that the evils are still sufferable, as long as folks can have faith in the democratic process. The very process that Trump & Co. are trying to rig in their favor. Take that faith away, and I don’t know that prudence will prevail. That, I worry, is the fire Trump is playing with “by every act which may define a Tyrant … unfit to be the ruler of a free people.
| Dowlah v Professional Staff Congress (PSC-CUNY) |
| 2024 NY Slip Op 02980 [227 AD3d 609] |
| May 30, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
Supreme Court, New York County (Eric Schumacher, J.), entered October 25, 2023, which granted defendants' motions to dismiss the complaint pursuant to CPLR 3211 (a) (7), unanimously affirmed, without costs.
Pro se status does not excuse petitioner's failure to check the legal citations that he offers to a court
Supreme Court granted the Defendants' motions to dismiss Petitioner's complaint pursuant to CPLR 3211 (a) (7). The Appellate Division unanimously affirmed, the Supreme Court's ruling, explaining res judicata also bars Plaintiff from relitigating his prior appeals, and his arguments for recusal of Justices who participated in those appeals are entirely unsupported by evidence.
The Appellate Division then observed that Plaintiff, who appeared pro se, cited several nonexistent cases in his initial memorandum of law noting that in his reply brief Plaintiff acknowledged that these citations were the result of research using "legal software applications" that deploy artificial intelligence [AI].
Although Plaintiff told the court that he had "an LLM (among other advanced degrees) but not much 'legal expertise' and he apologizes for the fictitious precedents", the Appellate Division [caution Plaintiff that his pro se status does not excuse his failure to check the legal citations that he offers to a court".
| Dowlah v Professional Staff Congress (PSC-CUNY) |
| 2024 NY Slip Op 02980 [227 AD3d 609] |
| May 30, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
Supreme Court, New York County (Eric Schumacher, J.), entered October 25, 2023, which granted defendants' motions to dismiss the complaint pursuant to CPLR 3211 (a) (7), unanimously affirmed, without costs.
Pro se status does not excuse petitioner's failure to check the legal citations that he offers to a court
Supreme Court granted the Defendants' motions to dismiss Petitioner's complaint pursuant to CPLR 3211 (a) (7). The Appellate Division unanimously affirmed, the Supreme Court's ruling, explaining res judicata also bars Plaintiff from relitigating his prior appeals, and his arguments for recusal of Justices who participated in those appeals are entirely unsupported by evidence.
The Appellate Division then observed that Plaintiff, who appeared pro se, cited several nonexistent cases in his initial memorandum of law noting that in his reply brief Plaintiff acknowledged that these citations were the result of research using "legal software applications" that deploy artificial intelligence [AI].
Although Plaintiff told the court that he had "an LLM (among other advanced degrees) but not much 'legal expertise' and he apologizes for the fictitious precedents", the Appellate Division [caution Plaintiff that his pro se status does not excuse his failure to check the legal citations that he offers to a court".
Dowlah v Professional Staff Congress (PSC-CUNY) (2024 NY Slip Op 02980)
Dowlah v Professional Staff Congress (PSC-CUNY) (2024 NY Slip Op 02980)
Dowlah v Professional Staff Congress (PSC-CUNY) (2024 NY Slip Op 02980)
Dowlah v Professional Staff Congress (PSC-CUNY) (2024 NY Slip Op 02980)
| Matter of Detering v New York City Envtl. Control Bd. |
| 2025 NY Slip Op 06646 |
| Decided on December 02, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Renwick, P.J., Scarpulla, Kapnick, Mendez, O'Neill Levy, JJ.
Index No. 159847/23|Appeal No. 5273|Case No. 2024-04806|
v
New York City Environmental Control Board, et al., Respondents-Respondents.
Cohen & Green PLLC, Ridgewood (J. Remy Green of counsel), for appellants.
Muriel Goode-Trufant, Corporation Counsel, New York (Amy McCamphill of counsel), for respondents.
Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about June 13, 2024, which, to the extent appealed from as limited by the briefs, denied so much of the amended petition and complaint, in this hybrid proceeding brought pursuant to CPLR articles 30 and 78, seeking a judgment declaring unconstitutional an amendment to the Administrative Code of the City of New York enacted by respondent New York City Council (City Council) and seeking to annul passage of the law as arbitrary and capricious due to the failure to conduct an environmental review, unanimously affirmed, without costs.
Petitioners' contentions that Local Law No. 16 of 2024 (Local Law 16) unconstitutionally impedes an alleged contract between them and the City under which they bring civil enforcement proceedings of the Noise Control Code at their own expense, violates their due process rights, and effects a taking of private property without just compensation are meritless (see Administrative Code of City of NY § 24-261[d]-[e]; Local Law No. 16 [2024] of City of NY, §§ 1-2).
"[A]bsent some clear indication that the Legislature intends to bind the State contractually, a statute is presumed not to create private contractual or vested rights, but merely to declare a policy to be pursued until the Legislature shall ordain otherwise" (Medical Socy. of State of N.Y. v Sobol, 192 AD2d 78, 80 [3d Dept 1993], appeal dismissed 82 NY2d 802 [1993], cert denied 511 US 1152 [1994]). Indeed, "it is settled that, before a law may be deemed to amount to a contract between the State and a third party, the statutory language must be examined and found to be 'plain and susceptible of no other reasonable construction' than that a contract was intended" (Pennsylvania R.R. Co. v State of New York, 11 NY2d 504, 511 [1962] [internal quotation marks and citation omitted]).
The Noise Control Code does not create a contract between petitioners, as citizen complainants, and the City regarding either complainants' ability to commence and prosecute administrative enforcement actions or their eventual recovery of "fair and reasonable compensation" to be paid "out of the proceeds collected" (Administrative Code § 24-261[c]-[e]; see generally American Economy Ins. Co. v State of New York, 30 NY3d 136, 150 [2017], quoting General Motors Corp. v Romein, 503 US 181, 186 [1992]). The fact that the respondent agency, the Environmental Control Board (ECB), "may remit, in whole or in part . . . a civil penalty if, at the conclusion of the hearing or at the time of the board determination . . . the respondent is no longer in violation" (Administrative Code § 24-257[b][5]), renders any purported agreement to pay compensation under the Noise Control Code illusory (see Lend Lease (US) Constr. LMB Inc. v Zurich Am. Ins. Co., 28 NY3d 675, 684 [2017]). Moreover, the citizen nforcement provision is akin to federal qui tam statutes allowing citizens to assert claims in litigation on behalf of the government and collect from any judgment imposed. The federal courts have rejected the argument that such a law is "a unilateral contract offer" as "inconsistent with the history of qui tam provisions" (Brooks v Dunlop Mfg. Inc., 702 F3d 624, 632 [Fed Cir 2012]). Because "there is no existing contractual agreement regarding the terms changed by the legislation, there is no need to consider whether there was in fact an impairment and whether it was substantial" (Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327, 359 [2005]).
Similarly, petitioners fail to demonstrate the existence of a "vested property interest and then demonstrate how the legislative amendment adversely impacts that property interest," sufficient to support the constitutional takings and due process violations asserted (American Economy Ins. Co., 30 NY3d at 157). Petitioners' asserted rights are not vested but "inchoate and subject to contingencies" because any right to recover does not inure to a citizen complainant's benefit until a proceeding is concluded and the City has collected the penalty, and because ECB is empowered to remit the penalty entirely (American Economy Ins. Co., 30 NY3d at 157; see Administrative Code § 24-257[b][5]; see also Brooks, 702 F3d at 632; Rogers v Tristar Products, Inc., 559 F Appx 1042, 1045 [Fed Cir 2012]).
Additionally, the alleged retroactivity of Local Law 16 does not violate due process, as it does not "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed" (Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 365 [2020], quoting Landgraf v USI Film Products, 511 US 244, 280 [1994]). Even if the challenged law were retroactive, the record demonstrates that the City Council had "'a legitimate legislative purpose furthered by rational means'" (American Economy Ins. Co., 30 NY3d at 157-158, quoting General Motors Corp., 503 US at 191).
Turning to petitioners' allegations of a SEQRA violation, it is "manifestly clear that the activity involved meets the criteria defining a particular class of type II actions" (Matter of Hazan v Howe, 214 AD2d 797, 799-800 [3d Dept 1994]). Local Law 16 constitutes a "local legislative decision[] in connection with" civil administrative enforcement proceedings, and thus, it is exempt from environmental review (6 NYCRR 617.5[c][33], [35]).
We have considered petitioners' remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 2, 2025
| Black v City of New York |
| 2025 NY Slip Op 06641 |
| Decided on December 02, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Kern, J.P., Friedman, Kapnick, Gesmer, Rodriguez, JJ.
Index No. 26000/19|Appeal No. 4910|Case No. 2024-03203|
v
The City of New York, et al., Defendants-Respondents.
Sacco & Fillas, LLP, Astoria (Justin M. Bettis of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York (Karin Wolfe of counsel), for respondents.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered March 14, 2024, which denied plaintiff's cross-motion to amend the complaint to add individually named defendants under CPLR 3025 and 203 and granted defendants' motion to dismiss the complaint and for summary judgment dismissing the complaint, unanimously affirmed, without costs.
As a preliminary matter, leave to amend, by which plaintiff sought to add the individual police officers as named defendants, was properly denied. Among other things, the claims against them are now time-barred, and plaintiff cannot rely on the relation-back doctrine. Although the new claims arise from the same transaction or occurrence as the original claims, the proposed defendants and the City are not "united in interest" because "[t]he City cannot be held vicariously liable for its employees' violations of 42 USC § 1983" (Thomas v City of New York, 154 AD3d 417, 418 [1st Dept 2017]; see Matter of Nemeth v K-Tooling, 40 NY3d 405, 407-408 [2023]). Moreover, the proposed defendants have entirely different defenses (see Higgins v City of New York, 144 AD3d 511, 513-514 [1st Dept 2016]). We note that as early as December 7, 2018, well before the expiration of any statute of limitations, plaintiff was aware of the identity of at least one of the officers, who was identified by name and shield number in his notice of claim. Although the officer named other witnesses to the events in question within the statutory period, plaintiff made no effort to amend his complaint to add them at that time. While the City's discovery responses may have been less than prompt or forthcoming, it was incumbent on plaintiff to seek further discovery promptly (see Irvine v City of New York, 232 AD3d 467, 468 [1st Dept 2024]; Misa v Hossain, 42 AD3d 484, 486 [2d Dept 2007]). Plaintiff cannot claim that he failed to name the proposed defendants because of any mistake, nor did he demonstrate that the proposed defendants knew or should have known that, but for a genuine mistake on his part, they would have been named as defendants, especially given the passage of time (see Crawford v City of New York, 129 AD3d 554, 555 [1st Dept 2015]).
Plaintiff's causes of action for malicious prosecution and abuse of process were properly dismissed. To state a claim for malicious prosecution, a plaintiff must assert non-conclusory allegations that the defendant commenced or continued a criminal proceeding against the plaintiff, termination of the proceeding in plaintiff's favor, actual malice, and lack of probable cause to initiate the prosecution (see Mendez v City of New York, 137 AD3d 468, 471 [1st Dept 2016]). Actual malice requires allegations that the City "commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served" (Burgos-Lugo v City of New York, 146 AD3d 660, 662 [1st Dept 2017] [internal quotation marks omitted]). In this respect, plaintiff's complaint is devoid of anything other than conclusory statements, which are insufficient to support a claim for malicious prosecution (see Cruz v City of New York, 148 AD3d 617, 618 [1st Dept 2017]). As for his abuse of process claim, plaintiff fails to allege that the process, here, the criminal prosecution, was used against him "in a perverted manner," to obtain a collateral objective, or that the process was used improperly after it was issued (see Curiano v Suozzi, 63 NY2d 113, 116 [1984]).
Supreme Court did not err in dismissing plaintiff's claim for false arrest and false imprisonment as time-barred. Plaintiff failed to raise any waiver issue in opposition before Supreme Court, and on appeal plaintiff provides no authority for the proposition that his unpreserved argument may be raised (see e.g. Leveron v Prana Growth Fund I, L.P., 181 AD3d 449, 450 [1st Dept 2020]; Lozano v New York City Hous. Auth., 153 AD3d 1173, 1174 [1st Dept 2017]).
Plaintiff's causes of action sounding in intentional infliction of emotional distress and negligent infliction of emotional distress were both properly dismissed. No claim for intentional infliction of emotional distress lies against the City as a matter of public policy (see Melendez v City of New York, 171 AD3d 566, 567 [1st Dept 2019], lv denied 33 NY3d 914 [2019]), and, in light of our conclusion that the court did not abuse its discretion in denying amendment of the complaint to include individual officers, that claim is moot. Plaintiff's negligent infliction of emotional distress claim is "supported solely by allegations of intentional conduct" and warrants dismissal as a result (Mees v Stibbe N.Y. B.V., 195 AD3d 569, 570 [1st Dept 2021]; see Santana v Leith, 117 AD3d 711, 712 [2d Dept 2014] ["A cause of action to recover damages for negligent infliction of emotional distress, . . . must fail where . . . no allegations of negligence appear in the pleadings"] [internal quotation marks omitted]).
The court properly dismissed plaintiff's causes of action for general negligence and Monell v Department of Social Servs. of City of NY (436 US 658 [1978]) as unopposed. Plaintiff, apparently believing that he would be allowed to amend his complaint, provided no arguments on the merits of the causes of action, and these arguments are unpreserved (see Diarrassouba v Consolidated Edison Co. of N.Y. Inc., 123 AD3d 525, 525 [1st Dept 2014]). Even on the merits, plaintiff's Monell claim fails as there is nothing in the complaint alleging that an official policy or custom deprived him of a constitutional right, or that there was a policy or custom that caused his purported injury (see De Lourde Torres v Jones, 26 NY3d 742, 768-769 [2016]; see also Graham v City of New York, 279 AD2d 435 [1st Dept 2001]). Further, general negligence is not a cause of action under the circumstances, because specific torts such as false arrest and false imprisonment must be pleaded (see Ferguson v Dollar Rent A Car, Inc., 102 AD3d 600, 601 [1st Dept 2013], lv denied 21 NY3d 854 [2013]).
As plaintiff concedes, his complaint as against the NYPD was properly dismissed. Under § 396 of the New York City Charter, the NYPD, as a department of the City, cannot be sued independently, as it is "a non-suable agency of the City" (Troy v City of New York, 160 AD3d 410, 411 [1st Dept 2018]).
We have considered plaintiff's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 2, 2025
https://nycourts.gov/reporter/3dseries/2025/2025_06641.htm