The intra-military immunity doctrine bars certain lawsuits if the alleged injuries arise out of or are experienced the course of an activity with the State

Plaintiff in this CPLR Article 78 challenging his discharge from the New York Guard [NYG]* and New York Division of Military Affairs' [DMNA] alleged failure to respond to his FOIL request. Plaintiff sought, among other things, records related to the charges he had attempted to file. 

Plaintiff had served as a noncommissioned officer with the NYG. During his service, he was counseled over a series of months regarding various disciplinary incidents, most relevant here allegations that Plaintiff had made unauthorized inquiries into the number and identities of NYG service members who had been awarded State Guard Association of the United States [SGAUS] honors.

After Plaintiff attempted to initiate court martial proceedings by purporting to file formal charges with the New York State Division of Military and Naval Affairs [DMNA] against several officers involved in disciplinary incident in which he had been involved, he was honorably discharged from the NYG.

DMNA cross-moved to dismiss the Plaintiff's Article 78 petition on the grounds that Plaintiff's "challenge to his discharge was nonjusticiable and ... that he had failed to exhaust his administrative remedies as to his FOIL claims". Supreme Court granted DNMA's cross-motion and dismissed the proceeding explaining that Plaintiff's challenge to his discharge was barred by the intra-military immunity doctrine and Plaintiff's FOIL challenge was moot. Plaintiff appealed the Supreme Court's ruling.

Addressing the doctrine of intra-military immunity, which applies to both the federal armed forces and a state organized militia, the Appellate Division noted that the doctrine "bars a lawsuit if 'the injuries [for which a plaintiff seeks to recover] arise out of or are in the course of activity incident' involving the plaintiff's military service". However, opined the court, civilian judicial review of internal personnel matters of the military "are subject always to the civilian control" and that of the legislative and the executive branches of State government.

Finding that Plaintiff's challenge was nonjusticiable under the intra-military immunity doctrine, the Appellate Division held Plaintiff's "unsupported assertion that his discharge was retaliatory does not necessitate a contrary conclusion" and, contrary to Plaintiff's contentions, the status of SGAUS as a nonmilitary organization is of no moment inasmuch as Plaintiff's misconduct underlying his honorable discharge stems from his actions related to his service with the NYG.

The Appellate Division then held that Supreme Court properly dismissed Plaintiff FOIL claims as moot, inasmuch as the record reflects that he received responses to his requests.

Addressing Plaintiff's claim that the disclosures were inadequate, the Appellate Division found that Plaintiff had failed to exhaust his administrative remedies by first pursuing an administrative appeal.

* Akin to the New York National Guard, the New York Guard is authorized by Article VIII of New York State's Military Law and maintained at the Governor's discretion (See Military Law §165 [1]). The New York Guard is made up of unpaid volunteers and "augments and supports the New York National Guard," but they "are not federal military reservists as are members of New York State's Army National Guard, the State's Air National Guard" and the State's "Naval Militia".

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

Courts do not choose between differing professional opinions as that is the function of the administrative authority as long as it acts reasonably and responsibly

In a proceeding pursuant to CPLR Article 78 filed by a candidate for appointment as a police officer [Plaintiff] seeking judicial review of the determination of the Suffolk County Department of Civil Service [Department], affirming its earlier determination, that the Plaintiff was not qualified for employment as a police officer, Supreme Court dismiss the Plaintiff's petition. Plaintiff appealed. The Appellate Division affirmed the Supreme Court ruling, with costs.

Plaintiff had sought employment as a police officer with the Suffolk County Police Department. Candidates for such employment are required to undergo a background investigation and pass a psychological evaluation, among other things. Petitioner was not recommended for the position and the Civil Service Department notified Plaintiff that he had not been found qualified for the appointment. 

Plaintiff appealed the Department's determination, submitting an independent evaluation by a psychologist who disagreed with the conclusion of the Department's evaluator. Ultimately the Department concluded that there was no significant evidence to support reversing its disqualification of Plaintiff and affirmed its prior determination that the Petitioner was not qualified for employment as a police officer. 

Petitioner commenced the instant CPLR Article 78 proceeding seeing judicial review of the Department's determination. Suffolk County, pursuant to CPLR 3211(a) and 7804(f), moved to dismiss the Plaintiff's petition. In an order and judgment, Supreme Court, in effect, granted the County's motion, denied the Plaintiff's petition, and dismissed the proceeding. The Plaintiff appealed the Supreme Court's ruling. 

The Appellate Division found that Supreme Court had properly granted the County's motion to dismiss Plaintiff's petition, explaining that "An appointing authority has wide discretion in determining the fitness of candidates, and this discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied". The court also observed that "So long as the administrative determination is not irrational or arbitrary and capricious, this Court will not disturb it". 

Further, opined the Appellate Division, "If a determination is rational it must be sustained even if the court concludes that another result would also have been rational" and noted that in an Article 78 proceeding, "the reviewing court may not weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative factfinder".

Determining that the Supreme Court had properly concluded that the Department's decision disqualifying the Petitioner appoint to the position of police office was neither irrational nor arbitrary and capricious, the Appellate Division stated that "In determining whether a candidate is medically qualified to serve as a police officer, the appointing agency is 'entitled to rely upon the findings of its own medical personnel, even if those findings are contrary to those of professionals retained by the candidate'".

In the words of the Appellate Division, "It is not for the courts to choose between the diverse professional opinions. That is the function of the proper department heads and as long as they act reasonably and responsibly, the courts will not interfere".

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

A writ of prohibition is available to challenge an official or an agency proceeding, or when it is about to proceed, beyond its alleged lawful jurisdiction

An employee [Employee] filed a complaint with the New York State Division of Human Rights [DHR] alleging that a member [Respondent] of the New York State Assembly discriminated against her on the basis of gender and sexually harassed her during her employment. 

DHR found probable cause to proceed to investigate Employee's complaint and then amended the Employee's discrimination complaint by adding the New York State Assembly [NYSA] as a Respondent in the DHR in its investigation of the complaint submitted by Employee.

NYSA, contending that DHR did not give NYSA "constitutional due process notice of the charges against it because there are no specific allegations of wrongdoing on its part", initiated the instant CPLR Article 78 proceeding seeking a Writ of Prohibition* barring DHR from proceeding with the Employee's discrimination claim to the extent it named the NYSA in the DHR proceeding as a Respondent. Supreme Court denied NYSA's application for the Writ of Prohibition and NYSA appealed. 

Citing Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, and other New York State court decisions, the Appellate Division affirmed the Supreme Court's ruling, explaining that "The extraordinary writ of prohibition is available to address 'whether [a] body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction' ".

The Appellate Division also opined that "Prohibition will not lie where the party has access to another adequate legal remedy" and that "[E]rrors of law, which of course may be verbalized, but incorrectly, as excesses of jurisdiction or power, are not to be confused with a proper basis for using the extraordinary writ", quoting the Court of Appeals' decision in Matter of State of New York v King, 36 NY2d 59.

Addressing NYSA's argument that DHR acted in excess of its jurisdiction and thus NYSA was not required to exhaust its administrative remedies, the Appellate Division said it rejected that contention because the "[remedy] for asserted error of law in the exercise of [DHR's] jurisdiction or authority lies first in administrative review and following exhaustion of that remedy in subsequent judicial review pursuant to section 298 of the Executive Law", concluded that NYSA "will suffer no irreparable harm . . . by waiting to challenge [DHR's] findings, if necessary, on the merits after [DHR] investigates [the Employee's] complaint".

* A writ of prohibition is one of number of the ancient “common law” writs and is typically issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the ground that the lower tribunal "lacked jurisdiction."  Other ancients writs include a writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" the writ of injunction, a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority do you act]. New York State's Civil Practice Law and Rules [C{LR] set out the modern equivalents of such surviving ancient writs.

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

Employee served with disciplinary charges after failing to comply with supervisor's directives

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ] Kevin F. Casey recommended a 24-day suspension without pay after finding that a housekeeping aide employed by the NYC Health and Hospitals Corporation disobeyed orders to remove his gloves on two occasions and failed to wear his uniform shirt on four occasions

Click HERE to access Judge Casey's decision posted on the Internet.

New York State's Workers’ Comp 202 – Best Practices to Access Benefits for Workers

The New York State Office of the Advocate for Injured Workers continues its webinar series for workers and their advocates, and there is still time to register!

Workers’ Comp 202 is a deeper dive into best practices workers can use to access their workers’ compensation benefits. This presentation will cover:

• understanding labor market attachment,
• details on benefit periods and how benefit rates are calculated,
• the importance of items such as the degree of disability and the Carrier Continue Payments (CCP) order,
• how advocates can help workers and comply with privacy provisions,
• The Board’s New York Medical Treatment Guidelines, and more!

The sessions are free and there will be time for questions.

Register here

Wednesday, April 29, 2026

12:00 p.m. – 1:30 p.m.

Wednesday, May 27, 2026

12:00 p.m. – 1:30 p.m.

Wednesday, June 24, 2026

12:00 p.m. – 1:30 p.m.

For more information visit the Advocate for Injured Workers section of the New York State Workers Compensation Board’s website for additional resources or call the Advocate for Injured Workers at (877) 632-4996 or email advinjwkr@wcb.ny.gov.

Having difficulties registering? 

If you are having trouble registering for or attending any of these webinars, check out these Webinar FAQs.

 

Selected Webinars scheduled for the week ending May 1, 2026

MONDAY, APRIL 27 | 10:00 AM PT, 1:00 PM ET - High-Impact AI: Powering Public Innovation with Advanced Workstations Learn how edge AI and high-performance workstations help public agencies process data faster, reduce latency and drive innovation. REGISTER

TUESDAY, APRIL 28 | 11:00 AM PT, 2:00 PM ET - Modernizing Critical Physical Infrastructure for Today's Public-Sector Demands Learn how to identify risks in aging power, rack and cooling systems and modernize physical infrastructure to improve resiliency, support cybersecurity and enable reliable service delivery. REGISTER

WEDNESDAY, APRIL 29 | 11:00 AM PT, 2:00 PM ET - AI Readiness for Public Capital Programs Join this webinar to learn how to evaluate AI, ask the right vendor questions, and protect funding, data, and accountability from the start. REGISTER

THURSDAY, APRIL 30 | 10:00 AM PT, 1:00 PM ET Protecting Public Innovation: Security for Advanced Computing Workflows Explore strategies to secure high-performance computing environments while enabling innovative solutions. REGISTER

Selected items from Blogs posted during the week ending April 24, 2026

Webinar: AI Relief, Not Revolution Explore why AI adoption stalls and how to create a more coordinated approach. Save Your Seat

City & State published an op-ed by New York State Comptroller Thomas P. DiNapoli Items addressed: layoffs, entry level jobs and long-term business growth. Download

The 2026 Cyber Threat Trends Report Cyber incidents aren't slowing down; they're getting faster, more coordinated, and harder to detect. Drawing on over 500,000 hours of real-world investigations, this report breaks down how attackers are getting in, what they target first, and why recovery is becoming the real battleground. DOWNLOAD

Planning What’s Next for PeopleSoft Explore how organizations are evolving PeopleSoft to meet growing security and compliance demands in Atlanta on April 29. Join the Conversation 

Your voice shapes the future of public finance Take a few minutes to help us capture what government finance teams are really facing in 2026. Share Your Perspective 

What are finance teams across government dealing with? Weigh in on the challenges and priorities defining public sector finance this year. Take the Survey 

Modernizing Outdated Identity Tools in the Public Sector Many public sector organizations are trying to secure complex, modern IT environments with identity systems that were designed decades ago. This guide outlines a practical path to modern identity architecture. DOWNLOAD

The 2026 Cyber Threat Trends Report Cyber incidents aren't slowing down; they're getting faster, more coordinated, and harder to detect. Drawing on over 500,000 hours of real-world investigations, this report breaks down how attackers are getting in, what they target first, and why recovery is becoming the real battleground. DOWNLOAD

Integrating AI, Security and Advanced Network Tech in Government This guide explores how next-generation networking, AI-powered operations and modern security frameworks work together to create a more resilient, scalable foundation for government. DOWNLOAD

Benchmarking AI and Digital Performance Across Government Explore the data, benchmarks, and trends shaping modern public service delivery and what they mean for your agency. Download the Report.

AI-Powered Agencies are delivering 2.5x Higher Engagement Gain insights for improving service delivery and trust with digital benchmarks from thousands of governments. Get the Benchmarks.

Safer, Smarter AI Adoption Starts Here Help your team build shared AI fluency without adding complexity or risk. Get Details

AI in Government: What's Delivering Value; How Agencies Can Get Started Watch this webinar to hear real-world examples of how public-sector teams are applying agentic AI to streamline workflows, establish clear governance, and scale with accountability. WATCH NOW

Collaboration Tools that Protect the Public Conversation Explore how secure, integrated collaboration tools help communities respond faster to public safety incidents.  WATCH NOW

Creating the Modern Government Workplace Learn how to design modern government workplaces, from meeting space planning to collaboration tools and IT support. WATCH NOW

Flexible Tech Strategies for Uncertain Terrain Get fresh insights and actionable advice into the shifting government landscape and making the most of your technology investments. WATCH NOW

Building Resilient Government Services for Rural Communities Learn how rural agencies are scaling services, reducing risk, and improving access with automation, data sharing, and cross-agency collaboration. WATCH NOW

Moving Beyond Training: Needed, a Unified Approach Cyber Risk Explore how a unified cybersecurity approach helps agencies understand where risk is building and respond sooner. WATCH NOW 

The employer's failing to seek vacation or modification of an arbitration award within the statutorily prescribed 90 days period requires that the arbitration award be confirmed

Supreme Court denied, in part, an employee organization's petition to confirm an arbitration award. The Appellate Division unanimously reversed the Supreme Court's ruling on the law, without costs, vacated the modification and confirmed the arbitration award in its entirety.

The Appellate Division opined that Supreme Court should have confirmed "the entirety of the arbitration award",  explaining that CPLR §7510-a(a) addresses public sector employee arbitrations and provides that "[t]he court shall confirm an award in a public sector arbitration proceeding upon application of a party made within one year after its delivery to the party, unless an application to vacate or modify the award ... is made within ninety days after the delivery of the award to the party seeking to modify or vacate".

In this instance the employer did not seek to vacate or modify the award within the statutorily prescribed 90 days. 

Accordingly, the Appellate Division held that Supreme Court should have confirmed the arbitration award as the employee organization had preserved its claim by explicitly addressing the 90-day limitations period in its petition.

The Appellate Division also noted that the fact that an employee organization is not itself an employee of the employer but rather the representative of the public sector employees in the relevant collective bargaining unit does not change the application of CPLR §7510-a.

In addition, the Appellate Division observed that the legislative history of CPLR §7510-a "does not set forth any rationale for excluding unions from the definition of employees", citing the Assembly Memorandum in Support of the Bill, [Bill Jacket, Chapter 679 of the Laws of 2023].

The Court then directed its Clerk to enter judgment accordingly.

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

When may a municipality be said to have assumed a special duty of care with respect to a plaintiff

Appellate Division observed that this appeal presented it with an opportunity to provide "additional clarity" concerning when a municipality may be said to have assumed a special duty of care with respect to a plaintiff thereby subjecting the municipality to liability in negligence for breaching that special duty, and, relatedly, when the municipality may rely on the governmental function immunity defense. 

For the reasons set out in the decision of the Appellate Division in the instant matter, the Appellate Division held that a municipality may be said to have assumed a special duty of care with respect to a protected party, or the parent of a protected party, when responding to a request to enforce the "stay away" provisions of a court order such as the one at issue in this case. 

The Appellate Division concluded that Supreme Court erred when it granted the government defendants' separate motions to dismiss the amended complaint insofar as asserted against each of them.

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

Individual found guilty of stealing $90,000 in Emergency Rental Assistance Program (ERAP) funds

On April 20, 2026, New York State Comptroller Thomas P. DiNapoli, Albany County District Attorney Lee C. Kindlon and New York State Police Superintendent Steven G. James announced that a resident of Woodstock, New York was sentenced to five years’ probation for his role in stealing $90,000 in Emergency Rental Assistance Program (ERAP) funds to which he was not entitled. 

“As technology advances so do fraudsters, and this case shows that collaboration works in holding defendants accountable when they attempt to use deception to steal taxpayer dollars,” Kindlon said. “Kudos to the Comptroller’s Office, New York State Police and our Financial Crimes Unit in uncovering this attempt to defraud the state.”

“This sentencing significantly demonstrates the effectiveness of the measures taken to safeguard the application process for rental assistance. The State Police will continue to work to impede the use of false information to prevent individuals from fraudulently obtaining funds they are not entitled to. I commend the New York State Comptroller’s Office, our State Police members, and Albany County District Attorney’s Office for their combined effort in this sentencing,” James said.

To perpetrate their scheme, the defendants filed a phony application with the Office of Temporary and Disability Assistance (OTDA) to fraudulently obtain funding through the ERAP.

The ERAP program was created during the COVID-19 pandemic to help medium and low-income households at risk of eviction. Landlords or tenants could apply to OTDA for funds to cover unpaid back rent and future rent payments. If the tenant met the criteria, the payments would be made directly to the landlord.

The New York State Police received a complaint that a brother and his sister received ERAP funds that they were not entitled to. Based on the complaint, a joint investigation was launched by DiNapoli’s office and the State Police.

                                                              ###

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, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236 or by emailing a complaint to investigations@osc.ny.gov . 

Court orders terminated probationary employee's reinstatement after employer unable to show the dismissal was made in good faith

Plaintiff initiated an CPLR Article 78 preceding challenged the Nassau County Sheriff's Department's [Department] decision terminating his employment during Plaintiff's probationary employment as a correction officer. Plaintiff had alleged, among other things, that he was terminated in bad faith after he complained about being assigned excessive overtime hours.

Supreme Court granted Plaintiff's petition, in effect annulling the Department's decision to terminate Plaintiff during his probationary period. The Department appealed the Supreme Court's ruling.

Citing Matter of Lane v City of New York, 92 AD3d 786, Appellate Division noted that the employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law*. However, said the Appellate Division, "The petitioner bears the burden of presenting competent proof of the alleged bad faith, the violation of statutory or decisional law, or the constitutionally impermissible or illegal purpose", citing Matter of Capece v Schultz, 117 AD3d 1045 and Matter of Young v City of New York, 221 AD3d 721.

The Appellate Division held that the Plaintiff had "met his burden of demonstrating that the determination to terminate his probationary employment was made in bad faith" by establishing that his termination of probationary employment followed a complaint he made regarding being assigned excessive overtime hours and the purported failure of the Sheriff's to comply with Rule 20 of the Sheriff's Department Rules and Regulations, which requires equal distribution of overtime, noting that the Department "failed to establish, or even adequately allege, that the termination of the [Plaintiff's] probationary employment was made in good faith".

Accordingly, the Appellate Division opined that Supreme Court "properly granted the [Plaintiff's] petition and, in effect, annulled the [Department's] determination".

* In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

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