Terminated individual holding a term appointment challenged her dismissal from the position before her term of office had expired

By resolution dated April 5, 2023, a New York State Incorporated Village [Village] appointed Petitioner as the Village's clerk-treasurer for a term of office set to expire June 30, 2024. By resolution dated May 24, 2023 the Village rescinded the Petitioner's appointment.

Petitioner brought the instant action in Supreme Court challenging the Village's termination of her employment, alleging that her removal "was not properly effectuated in accordance with Public Officers Law §36".* The Village moved pursuant to CPLR §§3211(a) and 7804(f) to dismiss Plaintiff's  petition, arguing, inter alia, that the proceeding initiated by Plaintiff was barred by the Doctrines of Res Judicata and Collateral Estoppel.

A New York State Supreme Court:

1. Granted Plaintiff's petition which was for an award of back pay, entitlements, and benefits from May 24, 2023, to June 30, 2024, and

2. Denied the motion of the Village pursuant to CPLR §§3211(a) and 7804(f) to dismiss that branch of the petition which was for an award of back pay, entitlements, and benefits from May 24, 2023, to June 30, 2024.

 

The Village appealed the Supreme Court's decision. The Appellate Division affirmed the Supreme Court's order and judgment "insofar as appealed from, with costs". 

Citing Joseph v Bank of N.Y. Mellon, 219 AD3d 596, the Appellate Division noted that:

1. "Pursuant to CPLR 3211(a)(5), a party may move to dismiss a [petition] based on the doctrine of res judicata or collateral estoppel";

2. "Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding"; and

3. "The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior action and is decisive of the present action, and the party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination".

Noting that to establish "privity" -- a relationship between parties having legal interest in the same right or property -- the Appellate Division's decision explores the connection between the parties which typically must demonstrate that "the interests of the nonparty can be said to have been represented in the prior proceeding" and privity "does not have a technical and well-defined meaning". 

The Appellate Division then observed that privity "is an amorphous concept not easy of application", and privity includes "those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and possibly co-parties to a prior action".

Further, the Appellate Division opined that "When the issue of privity is raised, 'courts must carefully analyze whether the party sought to be bound and the party against whom the litigated issue was decided have a relationship that would justify preclusion, and whether preclusion, with its severe consequences, would be fair under the particular circumstances'".

Contrary to the Village's contention, the Appellate Division held that the Village "... failed to demonstrate that the [Petitioner] was in privity with any of the parties [in] a separate proceeding commenced by the clerk-treasurer who preceded the [Petitioner] against, among others, the Village, and that the [Petitioner] was thereby bound by a judgment entered in that proceeding".

Accordingly, the Appellate Division concluded that the Village failed to establish that the doctrines of res judicata or collateral estoppel barred the instant proceeding and found  that "the Supreme Court properly granted that branch of the [Plaintiff's] petition which was for an award of back pay, entitlements, and benefits from May 24, 2023, to June 30, 2024, and denied that branch of the Village's motion which was pursuant to CPLR [§§]3211(a) and 7804(f) to dismiss that branch of the [Plaintiff's] petition".

* Public Officers Law §36 provides as follows: "Any town, village, improvement district or fire district officer, except a justice of the peace, may be removed from office by the supreme court for any misconuct [sic], maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town, village, improvement district or fire district or by the district attorney of the county in which such town, village or district is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town, village, improvement district or fire district. Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice".

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

Plaintiff's filing a timely notice of claim is a condition precedent to the maintenance of an action against a town arising out of the contractual relationship

Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Westchester County Local #860's, [Local 860]'s collective bargaining agreement [CBA] with the Town  provided, among other things, that seniority shall be the determining factor for selection to a vacant position where all other factors are equal. 

Town created a new general foreman position for which two applicants, A and B, applied. Town selected A for the appointment to the position and Local 860, on behalf of B, filed a grievance challenging the Town' appointing A to the position as provided by the relevant provision's set out in the CBA. 

Ultimately the parties proceeded to non-binding arbitration in accordance with provisions set out in the CBA. The arbitrator issued an award in favor of appointing B to the position, which decision was rejected by the Town.

Local 860 brought an action in Supreme Court challenging the Town's decision and Town moved for summary judgment. Supreme Court granted the Town's motion and Local 860 appealed the Supreme Court's ruling.

The Appellate Division affirmed Supreme Court's ruling, explaining:

1. The filing of a notice of claim is a condition precedent to the maintenance of an action against a town arising out of the contractual relationship between a plaintiff and a town and Town Law §65(3) provides that "no action shall be maintained against a town upon or arising out of a contract entered into by the town . . . unless a written verified claim shall have been filed with the town clerk within six months after the cause of action shall have accrued"; 

2. In contrast to other notice statutes, "Town Law §65(3) contains no provision allowing the court to excuse noncompliance with its requirements";

3. An exception to Town Law §65(3)'s notice of claim requirement is only applicable where a plaintiff has pleaded an ongoing or continuing violation, "which the complaint in the instant action did not"; and 

4. As the plaintiffs seek both the recovery of damages and equitable relief, "the filing of a notice of claim was a condition precedent" to the maintenance of the instant action.

In the words of the Appellate Division, "Accordingly, the Supreme Court properly granted that branch of the [Town's] motion which was for summary judgment dismissing the complaint".

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

On September 28, 2026, GT Weekly's Executive Editor, Noelle Knell, reported

"There’s new IT leadership in New York State following the announcement that CIO Dru Rai has left state service. 

Results reveal an evolving landscape on things like IT strategy, cybersecurity, AI and data management. 

We also checked in with South Carolina CIO Nathan Hogue, who shared that the state is now tracking 250 AI use cases. 

Meanwhile in Washington State, a new CISO has been named. 

Finally, while AI threats to cybersecurity have been dominating headlines, ransomware remains alive and well."

Owner of Ulster County medical transportation company sentenced to prison for stealing $1.1 million in Medicare fraud scheme

On September 25, 2026, New York State Comptroller Thomas P. DiNapoli and Ulster County District Attorney Emmanuel C. Nneji announced the owner of an Ulster County medical transportation service company today was sentenced to serve three to nine years in state prison and ordered to pay full restitution for stealing over $1.1 million by unlawfully billing the Medicaid program by inflating charges and billing for services that were never provided.

Muhammad W. Khan, 31, the owner of MAK Limo, pleaded guilty in March to grand larceny in Ulster County Court before Judge Bryan Rounds.

“Muhammad Khan falsified bills and bribed patients to deprive the Medicaid program of over a million dollars, taking money that should have rightly been spent on healthcare for New Yorkers,” DiNapoli said. “I thank Ulster County District Attorney Nneji for his partnership on this case and in fighting public fraud.”

“This huge theft scheme was uncovered, and the perpetrators brought to justice, by the tenacious and collaborative efforts of the investigators and lawyers dedicated to the case,” Nneji said. “I am grateful to Comptroller DiNapoli for his commitment to holding these operations accountable and recovering public funds stolen by the defendant.”

Under the Medicaid program, patients may use transportation services to go to legitimate medical appointments. Providers then bill the Medicaid program. Group rides are not allowed without prior authorization, and approved providers can only bill for mileage once for a group.

As part of the joint investigation, investigators found the defendant systematically billed the Medicaid program individually for rides that were actually group rides and for rides that never occurred. The investigation also found patients were paid kickbacks to use MAK Limo’s services and facilitate the fraud. The crimes occurred from November 2020 to August 2024.

Khan was arrested in June 2025 along with his father, Mohammad A. Khan, 69, the owner of Atlas Limo. Both companies were enrolled in the Medicaid program and received over $5.8 million dollars in Medicaid payments from New York state.

Mohammad A. Khan was charged with grand larceny in the second degree. He was accused of stealing $111,548.

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 filing a complaint online at https://www.osc.ny.gov/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

###

Selected items posted on the Internet during the week ending September 25, 2026

Automate Social Service Eligibility Verifications with Instant Results Automated verification solutions help agencies adapt to H.R. 1 without increasing administrative paperwork. Learn More

Making AI work today Discover where AI is delivering results, with examples from agencies. Get your free pass

Leveraging AI for IT & Security Operations Only 7% of orgs have AI security in practice. The other 93%? Start here. Download the eBook

Drawing on real-world examples from states and cities Explore how policymakers can build safeguards that keep pace with rapidly evolving technology.  DOWNLOAD

How the Philadelphia Water Department Builds Trust and Drives Action  Philadelphia Water Department used targeted, data-driven communications to increase resident engagement, improve service delivery and build trust around critical water infrastructure projects. READ NOW

Keeping Public Services Accessible During Emergencies Power outages, severe weather, and equipment failures don't stop the need for public services. Learn how agencies can prepare for unexpected disruptions while maintaining reliable communications with staff and the communities they serve. DOWNLOAD

Prepare Your Agency for New H.R. 1 Eligibility Requirements Bridge system gaps with automated tools that deliver fast, seamless verifications for agency compliance. Learn More

A Nationwide Study of Truck Parking on Interstate Ramps Every night, hundreds of trucks park on interstate ramps. This report maps where and why ramp parking occurs and what it means for corridor planning, safety, and funding strategy. DOWNLOAD

Working to control the dangers of AI. Below are some of the players and the efforts being considered:

1. www.gsb.stanford.edu › insights › blueprint-keeping A Blueprint for Keeping Humans in Control of AI Sep 10, 2026 · Stanford GSB researchers are building frameworks that keep AI under human control even as they become more autonomous. In a cooperative game, an AI agent learns when to check in with a person and when to act alone.

2. controlai.org Superintelligent AI: An Extinction Risk to Humanity | ControlAI With Superintelligent AI, the risks of unsafe development, deployment, or misuse could be catastrophic—even existential—as digital intelligence surpasses human capabilities.

3. cacm.acm.org › blogcacm › controlling-ai Controlling AI – Communications of the ACM Oct 1, 2023 · Earlier this week, British Prime Minister Rishi Sunak explicitly called for a CERN for AI, as well something like an IAEA for AI, all very much in line with what I and others have hoped for.

4. www.technologyreview.com › 2023/05/22 › 1073482 Our quick guide to the 6 ways we can regulate AI | MIT ... May 22, 2023 · We’ve analyzed six different international attempts to regulate artificial intelligence, set out the pros and cons of each, and given them a rough score indicating how influential we think... Author: Melissa Heikkilä

5. www.weforum.org › stories › artificial-intelligence The oversight paradox: Human control over AI may be eroding Jul 2, 2026 · AI requires human oversight, but the practice that requires is eroding. Here's why keeping humans in the governance loop will be key to governing AI well.

6. tech.yahoo.com › ai › articles Microsoft’s AI CEO says ‘controlling’ AI ‘is going to be a ... Sep 19, 2026 · "We should not create something that we can't control," Microsoft AI CEO Mustafa Suleyman said.

7. en.wikipedia.org › wiki › AI_capability_control AI capability control - Wikipedia Capability control, such as a "kill switch," becomes less effective as agents become more intelligent and their ability to exploit flaws in human control systems increases.

Employer served disciplinary charges on an Employee after Employee placed a racially inflammatory message on the Employee's Facebook page

In this CPLR Article 75* seeking to vacate a determination of a hearing officer made pursuant to Education Law §3020-a, Plaintiff appealed the Supreme Court's denying Plaintiff's petition.

Plaintiff, a tenured employee, was served with disciplinary charges alleging Employee posted a racially inflammatory message on Employee's Facebook page  which resulted in the School District [Employer] charging Plaintiff with misconduct and insubordination. Following an Education Law §3020-a disciplinary hearing, the hearing officer issued a determination sustained the charges and found that the appropriate penalty was termination of Plaintiff's employment.

Plaintiff commenced the instant CPLR Article 75 in Supreme Court seeking a court order vacating hearing officer's determination. Supreme Court denied the petition and the petitioner appealed.

The Appellate Division affirmed the Supreme Court's ruling, noting that:

1. "Where, as here, the obligation to arbitrate arises through statutory mandate ... the arbitrator's determination is subject to closer judicial scrutiny than it would receive had the arbitration been conducted voluntarily";

2. "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious";

3.  An "article 75 review questions whether the decision was rational or had a plausible basis"; and

4. In the event the evidence submitted may be interpreted in more than one way, "this Court must 'accept the arbitrator['s] credibility determinations, even where there is conflicting evidence and room for choice exists'".

The Appellate Division found that the hearing officer's determination had evidentiary support and was not arbitrary and capricious and appropriately credited the testimony of the different witnesses, and "there is no cause to disturb the hearing officer's credibility determinations without improperly substituting judgment".

Noting that "A court may set aside an administrative penalty only if "it is so  disproportionate to the offense as to be shocking to one's sense of fairness", the fact that "reasonable minds might disagree over what the proper penalty should have been does not provide a basis for . . . refashioning the penalty". 

Further, the Appellate Division said that "The question of whether the penalty is so disproportionate to the misconduct as to shock the conscience requires a case-by-case factual analysis" and concluded that "in light of the totality of the circumstances, including the adverse impact of the racially charged posting on the school and the community, the penalty of termination of employment is not irrational and does not shock the conscience".

Accordingly, the Appellate Division held that "Supreme Court properly denied the petition".

* Supreme Court incorrectly cited CPLR Article 78 instead of CPLR Article 75, which is the standard of review mandated by Education Law §3020-a(5)(a). Nevertheless, applying the proper standard, which was briefed by the parties, the Appellate Division affirmed.

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

New York State's Comptroller posts municipal Fiscal Stress Monitoring System scores

On September 24, 2026 New York State Comptroller Thomas P. DiNapoli reported that a total of 22 local governments in New York state were designated in fiscal stress for their local fiscal years ending (FYE) in 2025, down from 23 a year ago.

However, the number of municipalities in the most severe category, significant fiscal stress, increased from four to six, according to the report issued by Comptroller DiNapoli. 

These designations are based on the Comptroller’s Fiscal Stress Monitoring System (FSMS) scores.

Click HERE to access the Comptroller's Press Release concerning New York State local governments found to be in fiscal stress posted on the Internet.

Nearly $107 million in unclaimed funds reported awaiting being returned to rightful owners in Orange County by New State's State Comptroller Thomas P. DiNapoli

"Unclaimed funds" is money that has been lost or forgotten over time. This includes old bank accounts, uncashed checks, stock certificates and unused gift cards among other funds held by businesses and organizations. After a period of time, such "unclaimed funds" is considered abandoned property, and turned over to the New York State Comptroller’s office in accordance with New York State's Abandoned Property Law.

New York State Comptroller Thomas P. DiNapoli and State Senator James Skoufis joined local officials to highlight the return of $16,035.31 to the Town of Wallkill's Emergency Medical Services and raise awareness of the nearly $107 million dollars in unclaimed funds awaiting being claimed by Orange County residents, governmental entities, business and nonprofit organizations.

The Town of Wallkill EMS had been unable to access several insurance payments and checks it never received, which were eventually turned over to the DiNapoli’s Office of Unclaimed Funds. With the help of Skoufis’ office, the Town of Wallkill's EMS unit was able to recover more than $16,000 owed to the organization.

“Unclaimed funds belong in the hands of their rightful owners, and I am pleased we were able to return more than $16,000 to the Town of Wallkill EMS to support its critical work,” said DiNapoli. “I thank Senator Skoufis for helping connect the corps with my Office of Unclaimed Funds, and I encourage every New Yorker, business and organization to search our free online database to see if they have money waiting for them.”

“The Town of Wallkill EMS provides a critical service to the community,” said Skoufis. “They not only cover their own service area, but provide significant mutual aid to surrounding areas, and they need and deserve all our support. I’m thrilled they received their money, and that my office was helpful in connecting them with the Comptroller’s Office of Unclaimed Funds. This is government working in tandem for the common good.”

"Making my constituents aware of unclaimed funds has been an incredibly rewarding aspect of my constituent outreach over the past two years, and Comptroller DiNapoli’s office has been essential in organizing the many unclaimed funds events I’ve held,” said Assemblymember Paula Elaine Kay. “This money belongs to the people and it’s important we use our positions to elevate the accessibility of these funds. The $16,000 that the Wallkill Emergency Medical Service has recovered will go a long way in supporting their life saving operations in Orange County, so thank you to Senator Skoufis and Comptroller DiNapoli for their help in facilitating this recovery. If you haven’t already, I encourage all of my constituents to search through the Comptroller’s website to see if you are entitled to unclaimed funds; you never know what could come back."

“As an emergency services organization, we need resources to function safely, treat patients, and save lives,” said Alexandria Morrice, Executive Director, Town of Wallkill EMS. “Our service area is large and our call volume is high, so equipment, supplies, training, and support are always in demand, and $16,035.32 goes a long way. We’re grateful to Senator Skoufis’ office for facilitating the assistance and to the Comptroller’s Office of Unclaimed Funds for helping us access our money and getting it returned quickly to our accounts. These funds are being used to upgrade ALS equipment on each of our ambulances and fly cars." 

In Orange County, $106,801,944.89 in unclaimed funds is currently waiting to be claimed across 629,862 accounts. During State Fiscal Year 2025–26, DiNapoli’s office returned $2,761,974 in unclaimed funds to Orange County residents.

To return money even faster, DiNapoli launched the Expedited Payment Program in 2025. It sends certain unclaimed funds up to $5,000 to verified individuals in the mail without having to file a claim. Before a check is issued, the Comptroller’s office sends a notification letter.

In Orange County, $1,046,412 has been sent to residents through 6,496 expedited-payment checks. Since the program’s launch in 2025, more than 300,000 expedited-payment checks totaling more than $73 million have been mailed statewide, with an average check amount of $225.

DiNapoli’s Office of Unclaimed Funds returns over $2 million each day. Unclaimed funds never expire and are free to claim through the Comptroller’s website.

Individuals, organizations, businesses and other entities can search for and claim their funds at any time:

Online: osc.ny.gov/unclaimed-funds

By phone: (800) 221-9311, Monday through Friday, 8 a.m. to 5 p.m.

In person: at outreach events held across the state.

A map of unclaimed funds owed to New Yorkers by county and region is available here.

###

In this Freedom of Information Law action the Appellate Division said "in order to promote open government and public accountability, FOIL imposes a broader duty on government to make its records available to the public"

Petitioner's Freedom of Information Law [FOIL} request sought copies of the public calendars of the County Executive for the period January 1, 2022 through and including June 30, 2023.  The County denied Petitioner's request pursuant to Public Officers Law §87(2)(f), determining that "disclosure of this information would endanger the life or safety of individuals, notably the County Executive." Petitioner administratively appealed the denial, but the County did not respond.

Petitioner then commenced the instant CPLR Article 78 against the County and the FOIL Appeals Officer for the County (County) in Supreme Court seeking a court order compelling the production of the requested records - public calendars of the County Executive for the period of January 1, 2022, through June 30, 2023 - and for an award of attorneys' fees and litigation costs pursuant to Public Officers Law §89(4)(c). 

With respect to Petitioner's request for the production of certain cybersecurity contracts, Petitioner argued, among other things, that the County had failed to provide a "valid reason why every bit of the requested contracts," including the name of the vendors and the duration and cost of the contracts, "should be shielded from public disclosure."

Concerning Plaintiff's request for the County Executive's past public calendars, Petitioner contended that the County had failed to demonstrate "that the release of the calendar[s] would jeopardize the County Executive's safety, especially given that [the Petitioner] sought only the calendar[s] reflecting events that occurred in the past."

Supreme Court denied the petition and, in effect, dismissed the proceeding. 

Petitioner appealed the Supreme Court's ruling. Set out below is Appellate Division's decision addressing Petitioner's appeal.

In the Matter of Newsday, LLC, appellant,

v

County of Nassau, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-10010, (Index No. 619618/23)

Mark C. Dillon, J.P.

Valerie Brathwaite Nelson

Lillian Wan

Phillip Hom, JJ.

Ballard Spahr LLP, New York, NY (Alia L. Smith and Sasha Dudding of counsel), for appellant.

Rosenberg Calica Birney Liebman & Ross LLP, Garden City, NY (Joshua M. Liebman and Peter J. Clines of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and for an award of attorneys' fees and litigation costs, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Ellen Tobin, J.), entered July 11, 2024. The judgment denied the petition and, in effect, dismissed the proceeding.

ORDERED that the judgment is modified, on the law, (1) by deleting the provision thereof denying that branch of the petition which was to compel the production of all of the cybersecurity contracts of the respondent County of Nassau "in effect for the last 5 years" and, in effect, dismissing that portion of the proceeding, and substituting therefor a provision granting that branch of the petition to the extent that the respondent County of Nassau is directed to produce the records requested in an unredacted form for an in camera inspection by the Supreme Court, Nassau County, in accordance with this decision and order, (2) by deleting the provision thereof denying that branch of the petition which was to compel the production of the public calendars of the Nassau County Executive for the period of January 1, 2022, through June 30, 2023, and, in effect, dismissing that portion of the proceeding, and substituting therefor a provision granting that branch of the petition to the extent that the respondent County of Nassau is directed to produce the records requested in an unredacted form for an in camera inspection by the Supreme Court, Nassau County, and (3) by deleting the provision thereof denying that branch of the petition which was for an award of attorneys' fees and litigation costs and, in effect, dismissing that portion of the proceeding; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of those branches of the petition which were to compel the production of all of the cybersecurity contracts of the respondent County of Nassau "in effect for the last 5 years" and the public calendars of the Nassau County Executive for the period of January 1, 2022, through June 30, 2023, and for an award of attorneys' fees and litigation costs related to the petitioner's Freedom of Information Law requests based upon the in camera inspection.

In April 2023, pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art 6), the petitioner requested from the respondent County of Nassau all cybersecurity contracts "in effect for the last 5 years." The County denied the request on the ground that the requested records were exempt from disclosure under Public Officers Law § 87(2)(i). The petitioner administratively appealed. The County denied the appeal, determining that disclosing the requested records might allow a person or entity to implement an attack against its information technology assets and jeopardize the security of those assets. The County emphasized that this was "particularly so in light of unanimous agreement by our security and information technology experts that disclosure may jeopardize our technology assets."

In September 2023, the petitioner requested copies of the public calendars of the Nassau County Executive for the period of January 1, 2022, through June 30, 2023. The County denied the request pursuant to Public Officers Law § 87(2)(f), determining that "disclosure of this information would endanger the life or safety of individuals, notably the County Executive." On November 15, 2023, the petitioner administratively appealed the denial, but the County did not respond.

The petitioner then commenced this proceeding pursuant to CPLR article 78 against the County and Gregory Kalnitsky, in his official capacity as FOIL Appeals Officer for the County (hereinafter together the County), to compel production of the requested records and for an award of attorneys' fees and litigation costs pursuant to Public Officers Law § 89(4)(c). Concerning its request for the production of certain cybersecurity contracts, the petitioner argued, among other things, that the County had failed to provide a "valid reason why every bit of the requested contracts," including the name of the vendors and the duration and cost of the contracts, "should be shielded from public disclosure." Concerning its request for the County Executive's past public calendars, the petitioner argued that the County had failed to demonstrate "that the release of the calendar[s] would jeopardize the County Executive's safety, especially given that [the petitioner] sought only the calendar[s] reflecting events that occurred in the past."

In a judgment entered July 11, 2024, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.

"In order to promote open government and public accountability, FOIL imposes a broader duty on government to make its records available to the public" (Matter of Lane v County of Suffolk, 236 AD3d 791, 792 [internal quotation marks omitted]; see Matter of Sarkodie v Kings County Dist. Attorney, 226 AD3d 12, 15). "To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted" (Matter of Lockwood v County of Suffolk, 219 AD3d 728, 729 [internal quotation marks omitted]; see Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d 630, 631). An agency asserting an exemption to FOIL bears the burden of establishing that the documents qualify for that exemption and, "to meet that burden, the agency must articulate particularized and specific justification for denying disclosure" (Matter of Roth & Roth, LLP v Queens County Dist. Attorney's Off., 239 AD3d 657, 658 [internal quotation marks omitted]; see Matter of New York Civ. Liberties Union v Village of Freeport, 229 AD3d 629, 630). "If the agency fails to prove that a statutory exemption applies, FOIL compels disclosure, not concealment" (Matter of Lane v Port Wash. Police Dist., 221 AD3d 698, 700 [internal quotation marks omitted]). "The standard of review in a CPLR article 78 proceeding challenging an agency's denial of a FOIL request is much more stringent than the lenient standard generally applicable to CPLR article 78 review of agency actions" (id. at 700-701 [internal quotation marks omitted]). "A court is to presume that all records are open and it must construe the statutory exemptions narrowly" (id.). "If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 275).

On appeal and consistent with the CPLR article 78 petition, the petitioner states that it is only seeking access to "certain limited information about the County's cybersecurity contracts," namely, "the vendors' names, the cost, [and] the duration." "Public Officers Law § 87(2)(i) exempts material that, if disclosed, would jeopardize the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures" (Matter of TJS of N.Y., Inc. v New York State Dept. of Taxation & Fin., 89 AD3d 239, 243 [internal quotation marks omitted]).

Here, the County produced affidavits of four employees, each of whom summarily concluded that releasing any portion of the subject cybersecurity contracts would jeopardize the County's capacity to guarantee the security of its information technology assets. However, none of the affidavits explained how disclosure of the requested information, which consisted of "the vendors' names, the cost, [and] the duration" of the subject contracts, would jeopardize the County's capacity to guarantee the security of its information technology assets (cf. Matter of Freedom Found. v New York City Dept. of Citywide Admin. Servs., 230 AD3d 999, 1005; Matter of Miller v New York State Div. of Human Rights, 122 AD3d 431, 432). Accordingly, the Supreme Court should have granted that branch of the petition which sought the disclosure of all cybersecurity contracts "in effect for the last 5 years" to the extent that the petitioner sought the vendors' names, the cost, and the duration of those contracts. However, since the subject documents are not part of the record on appeal, we remit the matter to the Supreme Court, Nassau County, to conduct an in camera inspection of all representative documents to determine whether any of the material in those records falls within the asserted FOIL exemption, and whether that material should be redacted.

Public Officers Law § 87(2)(f) permits an agency to deny access to records that, if disclosed, could endanger the life or safety of any person (see Matter of New York Civ. Liberties Union v Village of Freeport, 229 AD3d at 630; Matter of Burns v Cooke, 189 AD3d 826, 828). "'The agency in question need only demonstrate a possibility of endanger[ment] in order to invoke this exemption'" (Matter of Burns v Cooke, 189 AD3d at 828, quoting Matter of Bellamy v New York City Police Dept., 87 AD3d 874, 875, affd 20 NY3d 1028).

Here, the County submitted an affirmation of Detective Sergeant Fintan McCormac, the Commanding Officer of the Special Investigation Squad (hereinafter SIS) of the Nassau County Police Department, who is "responsible for the safety and security of" Nassau County Executive Bruce Blakeman. McCormac stated that SIS had received "a wide range of threats directed at" the County Executive, including but not limited to "direct threats of physical harm made by individuals while attempting to approach [the County Executive] at public events," and that "there [had] been an increase in the volume of threats directed at [the County Executive] over the past year." McCormac stated that "even a prior calendar or schedule of past events, can be exploited by a potential bad actor to establish patterns of [the County Executive's] movements, which in turn can be used to anticipate his future movements by an individual or individuals seeking to attack or otherwise harm him."

McCormac's affirmation was insufficient to establish that the disclosure of any portion of the County Executive's past public calendars, including but not limited to the County Executive's public appearances, could endanger the County Executive's life or safety (see Matter of Dilworth v Westchester County Dept. of Correction, 93 AD3d 722, 724-725; see also Matter of Journal News v City of White Plains, 39 Misc 3d 1235[A], 2012 NY Slip Op 52487[U], *6-7 [Sup Ct, Westchester County]; cf. Matter of Burns v Cooke, 189 AD3d at 828). Accordingly, the Supreme Court should have granted that branch of the petition which sought to compel the disclosure of the County Executive's past public calendars for the period of January 1, 2022, through June 30, 2023. However, since the subject documents are not part of the record on appeal, we remit the matter to the Supreme Court, Nassau County, to conduct an in camera inspection of all representative documents to determine whether any of the material in those records falls within the asserted FOIL exemption, and whether that material should be redacted.

Under these circumstances, the petitioner's request for an award of attorneys' fees and litigation costs is premature (see Matter of Lane v Port Wash. Police Dist., 221 AD3d at 708).

In light of the foregoing, we need not reach the petitioner's remaining contentions.

DILLON, J.P., BRATHWAITE NELSON, WAN and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

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