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New York State municipal audited posted on the Internet

Harvey: Here is the SJ decision. The trial was 2 weeks and the jury found that Ms. Stashenko had been discriminated against in 2 promotions based on her female gender and her having kids. (I also attach the completed verdict sheet) In the first promotion, 4 women were competing with one male. The male was the only one without a college degree, had been on the job the least amount of time as compared to the 4 women. He also had no children. On the second promotion, there were 3 women competing and the 2 with children were more qualified but the one without children was selected. If you need anything more, let me know. Kevin

In the Matter of Martin Soudani, etc., appellant,

County of Orange, et al., respondents.

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

Decided on April 1, 2026

2025-11394, (Index No. 5975/25)

Hector D. Lasalle, P.J.

Linda Christopher

Carl J. Landicino

James P. Mccormack, JJ.

Lewis Baach Kaufmann Middlemiss PLLC, New York, NY (Arthur D. Middlemiss, Marc Frazier Scholl, and Seung Heon Lee of counsel), for appellant.

Richard B. Golden, County Attorney, Goshen, NY (Carol C. Pierce of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Steven M. Neuhaus dated June 16, 2025, determining that the estate of Stewart Rosenwasser is not entitled to defense or indemnification in an action entitled Soudani v County of Orange, pending in the United States District Court for the Southern District of New York, under Case No. 25-CV-4320, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Orange County (Sherri L. Eisenpress, J.), dated September 16, 2025. The order and judgment, in effect, granted the respondents' motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, denied the petition, and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, with costs.

In September 2024, a federal grand jury indicted Stewart Rosenwasser and Mout'z Soudani (hereinafter Mout'z) on charges, among other things, of bribery and conspiracy to commit bribery, based on allegations that Rosenwasser, while employed as a prosecutor with the Orange County District Attorney's Office (hereinafter the OCDA), had accepted at least $63,000 in payments from Mout'z in exchange for using Rosenwasser's position with the OCDA, inter alia, to investigate and prosecute Mout'z's sister, Eman Soudani (hereinafter Eman), and her son, Martin Soudani (hereinafter the petitioner, and together with Eman, the claimants), for allegedly stealing money from Mout'z (hereinafter the federal indictment). Rosenwasser died before he was arrested on the charges.

In May 2025, the claimants commenced a federal action against, among others, the County of Orange, the OCDA, and "John Doe," as the administrator of the estate of Rosenwasser (hereinafter the Estate), among other things, to recover damages for civil rights violations pursuant to 42 USC § 1983. Subsequently, the petitioner was appointed as the temporary limited administrator of the Estate.

Thereafter, the petitioner requested that the County defend and indemnify the Estate in the federal action in accordance with Local Law No. 3 of 1998 of the County (hereinafter Local Law 3). In a determination dated June 16, 2025, the County Executive, Steven M. Neuhaus, upon the advice of the County Attorney, determined that the Estate was not entitled to defense and indemnification in the federal action because the acts alleged therein and in the federal indictment were not within the scope of Rosenwasser's public employment or duties.

Subsequently, the petitioner commenced this CPLR article 78 proceeding against the County and Neuhaus to review Neuhaus's determination. The respondents moved pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition. In an order and judgment dated September 16, 2025, the Supreme Court, in effect, granted the respondents' motion, denied the petition, and dismissed the proceeding. The petitioner appeals.

As relevant herein, Local Law 3 provides that the County "shall provide for the defense of [a County] employee in any civil action or proceeding in any state or federal court . . . arising out of any alleged act or omission which occurred or is alleged to have occurred while the employee was acting within the scope of his or her public employment or duties" (Local Law 3 § 4[1]). The issue of whether such an employee's act was "committed within the scope of his [or her] public employment and the discharge of his [or her] duties raises factual questions" (Matter of Williams v New York, 64 NY2d 800, 802). Under Local Law 3, the determination as to whether a County employee was so acting and, thus is entitled to defense and indemnification, is to be made in the first instance by the County Executive for executive branch employees, such as Rosenwasser, and such a "determination may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious" (Matter of Williams v New York, 64 NY2d at 802; see Matter of DiLeonardo v Nassau County Police Officer Indem. Bd., 148 AD3d 701, 702).

Here, Neuhaus's determination that Rosenwasser was not acting within the scope of his employment or duties with the OCDA in connection with the conduct alleged in the federal action and, thus that the Estate was not entitled to defense and indemnification therein, had a factual basis and was not arbitrary and capricious (see Matter of DiLeonardo v Nassau County Police Officer Indem. Bd., 148 AD3d at 702). In particular, Neuhaus rationally based his determination on the allegations of the complaint in the federal action and in the underlying federal indictment demonstrating that Rosenwasser's actions in investigating and prosecuting Eman and the petitioner were not undertaken as part of Rosenwasser's normal duties as an OCDA prosecutor but rather were undertaken in connection with an illegal bribery scheme carried out with his friend, Mout'z, purely for personal purposes, and which was actively concealed from the OCDA (see id.; Stavitz v New York, 98 AD2d 529, 531).

The petitioner's remaining contentions are without merit.

LASALLE, P.J., CHRISTOPHER, LANDICINO and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_01972.shtml

In the Matter of Angel S. DuBose, Petitioner-Appellant,

City of New York, et al., Respondents-Respondents.

Decided and Entered: April 23, 2026

Index No. 101289/24|Appeal No. 6433|Case No. 2025-03737|

Before: Scarpulla, J.P., Friedman, Gesmer, Shulman, Chan, JJ.

Angel S. Dubose, appellant pro se.

Steven Banks, Corporation Counsel, New York (Michael Shang of counsel), for respondents.

Judgment (denominated an order), Supreme Court, New York County (Paul A. Goetz, J.), entered May 27, 2025, which granted the cross-motion of respondents to dismiss the petition to compel respondent Department of Investigation (DOI) to investigate criminal activity allegedly perpetrated against petitioner while she was employed by the New York City Public Advocate's Office, and dismissed the proceeding brought pursuant to CPLR article 78, and bringing up for review the order, same court, Justice, and date, denying petitioner's motion for recusal of the assigned Justice, unanimously affirmed, without costs.

A writ of mandamus may be sought "to enforce the performance of a ministerial duty" but not "to compel an act in respect to which a public officer may exercise judgment or discretion" (Alliance to End Chickens as Kaporos v New York City Police Dept., 32 NY3d 1091, 1093 [2018], cert denied 587 US 1027 [2019] [internal quotation marks and brackets omitted]). The DOI commissioner "is authorized and empowered to make any study or investigation which in his opinion may be in the best interest of the City" (NY City Charter § 803 [b]). Thus, "the decision not to conduct an investigation was a matter of discretion and the remedy of mandamus does not lie" (Matter of Iocovello v City of New York, 272 AD2d 201, 201 [1st Dept 2000], lv dismissed 95 NY2d 879 [2000]). Contrary to petitioner's contention, the Mayor's Executive Order on the Commissioner of Investigation, Inspectors General, and Standards of Public Service (NY City Executive Order [Koch] No. 16) does not direct investigations into criminal conduct of the nature alleged to have occurred here.

The decision not to investigate the matter was not arbitrary and capricious (CPLR 7803 [3]; see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Instead, DOI rationally directed the Public Advocate's Office to have petitioner report the alleged criminal conduct to the police.

Supreme Court providently denied petitioner's recusal motion. The assigned Justice was not "a party" to and had not "been an attorney or counsel" in this proceeding, and petitioner does not contend that the Justice had "an interest" in the proceeding or was related to the parties (Judiciary Law § 14). It is inconsequential that the Justice was represented by the Office of the Attorney General in unrelated litigation before this Court. In the absence of any statutorily mandated disqualification and any legitimate suggestions of bias or impartiality to which petitioner can point, the assigned Justice's decision not to recuse was appropriate "as a matter of personal conscience" (People v Smith, 63 NY2d 41, 68 [1984], cert denied 469 US 1227 [1985]; see also 22 NYCRR 100.3[E][1]).

We have considered petitioner's remaining contentions and find them unavailing.

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

ENTERED: April 23, 2026

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02449.shtml

Matter of Shara v Van Fossen

2026 NY Slip Op 02707

April 30, 2026

Appellate Division, Third Department

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

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

In the Matter of James Shara, Respondent,

Jason R. Van Fossen, as Superintendent of the Maine- Endwell Central School District, et al., Appellants, et al., Respondent.

Decided and Entered:April 30, 2026

CV-25-0883

Calendar Date: March 25, 2026

Before: Garry, P.J., Reynolds Fitzgerald, Powers, Mackey And Ryba, JJ.

Bond, Schoeneck & King, PLLC, Syracuse (Angelo D. Catalano of counsel), for appellants.

Law Office of Ronald R. Benjamin, Binghamton (Ronald R. Benjamin of counsel), for James Shara, respondent.

Ryba, J.

Appeal from an order of the Supreme Court (Joseph McBride, J.), entered February 12, 2025 in Broome County, which, in a combined proceeding pursuant to CPLR article 78 and plenary action, denied certain respondents' motion to dismiss the petition/complaint.

As alleged in the petition/complaint, petitioner was formerly employed as a school bus driver for respondent Maine-Endwell Central School District (hereinafter the School District) while also serving as vice president of the employee organization representing its bus drivers (hereinafter the Union). In 2019, the School District placed petitioner on administrative leave and terminated his employment after he raised various safety concerns on behalf of the Union. The Union thereafter filed an improper practice charge with the Public Employment Relations Board (hereinafter PERB) alleging that the School District's conduct was retaliation for petitioner's participation in protected union activities. Although the Union ultimately prevailed in the PERB proceeding and petitioner was reinstated to his employment effective December 11, 2023, the School District immediately filed disciplinary charges against petitioner upon his return to work. Disciplinary proceedings pursuant to Civil Service Law § 75 ensued, concluding with respondent Board of Education of Maine-Endwell Central School District (hereinafter the School Board) issuing a determination terminating petitioner's employment effective June 14, 2024.

In October 2024, petitioner commenced this combined CPLR article 78 proceeding and plenary action against, as is relevant here, the School District and respondents superintendent, president, vice president and individual members of the School Board (hereinafter collectively referred to as respondents) seeking to annul the determination terminating his employment and alleging retaliatory discharge in violation of Civil Service Law § 75-b as well as due process violations under 42 USC § 1983.FN1 Respondents moved to dismiss the petition/complaint, arguing that petitioner's claims failed to state a cause of action, were improperly asserted against the individual respondents, and were barred by the doctrine of collateral estoppel due to determinations made in the PERB proceeding. Supreme Court denied the motion to dismiss, finding that petitioner sufficiently stated claims for relief pursuant to CPLR article 78, Civil Service Law § 75-b and 42 USC § 1983. With respect to respondents' collateral estoppel argument, Supreme Court found that respondents' failure to offer the record of the PERB proceeding precluded dismissal on this ground. Accordingly, Supreme Court directed respondents to file and serve an answer with the certified record.FN2 Respondents appeal, challenging only the denial of their motion to dismiss petitioner's causes of action asserted pursuant to Civil Service Law § 75-b and 42 USC § 1983.

First, we reject respondents' contention that Supreme Court erred in denying their motion to dismiss the petition/complaint on collateral estoppel grounds. Collateral estoppel, also known as "issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party," regardless of the legal context in which the issue was raised (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999] [internal quotation marks and citation omitted]; see Bryant v Gulnick, 212 AD3d 78, 82 [3d Dept 2022]; Rockwell v Despart, 205 AD3d 1165, 1167 [3d Dept 2022]). The doctrine is, as a result, "applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies" (Ryan v New York Tel. Co., 62 NY2d 494, 499 [1984]; see Matter of Kibler v New York State Dept. of Correctional Servs., 91 AD3d 1218, 1220 [3d Dept 2012], lv denied 19 NY3d 803 [2012]). The preclusive effect of collateral estoppel applies only to identical "issues that were actually litigated, squarely addressed and specifically decided" in the prior matter (Church v New York State Thruway Auth., 16 AD3d 808, 810 [3d Dept 2005] [internal quotation marks and citation omitted]; see Matter of Theopheles v County of Rensselaer,229 AD3d 1026, 1029 [3d Dept 2024]).On a motion to dismiss, "[t]he burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349 [internal quotation marks and citation omitted]; see Matter of Nesconset Ctr. for Nursing & Rehabilitation v Commissioner of Health of the State of N.Y., 225 AD3d 956, 958 [3d Dept 2024], lv denied 42 NY3d 904 [2024]; Abele v City of Albany, N.Y., 214 AD3d 1107, 1109 [3d Dept 2023]).

Here, inasmuch as respondents failed to include the underlying record from the PERB proceeding in support of their motion to dismiss, Supreme Court was unable to evaluate whether and to what extent the issues raised in this matter were identical to those decided in the PERB proceeding. To the extent that respondents seek application of the doctrine of collateral estoppel related to findings made by PERB in the context of petitioner's proceeding to enforce its reinstatement order, the record was also insufficient to render a determination. In view of the above, Supreme Court properly found that respondents failed to demonstrate that dismissal on collateral estoppel grounds was warranted (see e.g. Capitaland United Soccer Club v Capital Dist. Sports & Entertainment, 238 AD2d 777, 780 [3d Dept 1997]).

We likewise reject respondents' argument that the allegations in the petition/complaint were insufficient to state a cause of action for retaliatory discharge pursuant to Civil Service Law § 75-b. That statute prohibits a public employer from, among other things, taking adverse employment actions against an employee in retaliation for reporting what the employee reasonably believes to be improper governmental action (see Civil Service Law § 75-b [2] [a]; Matter of Hardy v Kraham, 224 AD3d 946, 949-950 [3d Dept 2024]). Here, petitioner alleges that he was first terminated after reporting bus safety issues and that, after the Union successfully challenged that termination and PERB directed his reinstatement, the School Board passed a resolution to proceed with new disciplinary charges minutes after reinstating his employment. Liberally construing these allegations in petitioner's favor, affording petitioner the benefit of every favorable inference and accepting the facts alleged as true, we find that they sufficiently state a claim for retaliation in violation of Civil Service Law § 75-b (see Lilley v Greene Cent. Sch. Dist., 168 AD3d 1180, 1182 [3d Dept 2019]). Applying the same liberal pleading standard to the 42 USC § 1983 cause of action, petitioner's allegations that respondents infringed upon his constitutional freedom of association and his property interest in continued employment set forth a cognizable cause of action predicated upon alleged due process violations (see State Emp. Bargaining Agent Coalition v Rowland,718 F3d 126, 132 [2d Cir 2013], cert dismissed 571 US 1116 [2014], cert denied 571 US 1170 [2014]; Ciambriello v County of Nassau, 292 F3d 307, 313 [2d Cir 2002]). Accordingly, Supreme Court properly found that a 42 USC § 1983 claim was sufficiently stated.

However, we reach a different conclusion with respect to that portion of respondent's motion which sought dismissal of petitioner's claims against the individual respondents. To the extent that petitioner's Civil Service Law § 75-b cause of action is asserted against certain of the individual respondents, such a claim cannot be maintained against individual public employees (see Frank v State of N.Y., Off. of Mental Retardation & Dev. Disabilities, 86 AD3d 183, 188 [3d Dept 2011]; Moore v County of Rockland, 192 AD2d 1021, 1024 [3d Dept 1993]). As for the 42 USC § 1983 claim, it is well settled that liability will not attach to a government employee in his or her official capacity (see Corvetti v Town of Lake Pleasant,146 AD3d 1118, 1124-1125 [3d Dept 2017]; Shelton v New York State Liq. Auth.,61 AD3d 1145, 1148 [3d Dept 2009]), and only attaches to such an employee in their individual capacity if they were "personally involved" in the alleged constitutional violation (Lewis v Annucci, 154 AD3d 1025, 1026 [3d Dept 2017] [internal quotation marks and citations omitted]; see Johnson v Collyer, 191 AD3d 1192, 1194 [3d Dept 2021]). To that end, petitioner was required to "allege particular facts indicating that each of the individual [respondents] was personally involved in the deprivation of [his] constitutional rights; mere bald assertions and conclusions of law do not suffice" (Johnson v Collyer, 191 AD3d at 1194 [internal quotation marks and citations omitted]; see Corvetti v Town of Lake Pleasant,146 AD3d at 1126; Shelton v New York State Liq. Auth.,61 AD3d at 1148). The mere assumption that the individual respondents were personally involved simply by virtue of their official positions is insufficient (see Shelton v New York State Liquor Auth.,61 AD3d at 1148-1149). In the present case, petitioner did not articulate specific facts to identify the manner in which each of the individual respondents personally engaged in conduct that violated his constitutional rights. Under these circumstances, Supreme Court should have granted the motion to dismiss with respect to the individual respondents.

We have examined the remaining contentions of the parties and have found them to be without merit or otherwise unnecessary to address.

Garry, P.J., Reynolds Fitzgerald, Powers and Mackey, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as denied the portion of the motion seeking dismissal of the claims against respondents Jason R. Van Fossen, Melinda Spooner, Lynn Ross, Gregg Armezzani, Lindsey Stanton, Michael Chudacik, Megan Gorski, Kathy Baker and Brady Lindsey; motion granted to that extent; and, as so modified, affirmed.

Footnotes

Footnote 1

Petitioner also named counsel for the School District and School Board as a party, but he was not involved in the motion practice at issue here.

Footnote 2

We note that the portion of the petition/complaint challenging the disciplinary determination pursuant to CPLR article 78 was transferred to this Court after the appealed-from order was issued, where it remains pending (2026 NY Slip Op 62008[U] [3d Dept 2026]; 2025 NY Slip Op 77895[U] [3d Dept 2025]).

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02707.shtml

In the Matter of Bridge and Tunnel Officers Benevolent Association, Inc., Petitioner-Appellant

Supreme Court denied in part the petition to confirm a 2023 arbitration award, modified the arbitration award to strike the cease-and-desist order. The Appellate Division unanimously reversed the Supreme Court action "on the law", vacated the modification and granted the petition to confirm award "in its entirety" and directed the Court's Clerk is directed "to enter judgment accordingly".

The court should have confirmed the entirety of the arbitration award. CPLR 7510-a(a) concerns public sector employee arbitrations and requires 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" (CPLR 7510-a[a]). Because respondent did not seek to vacate or modify the award within the statutorily prescribed 90 days, the award should have been confirmed (see id.). Petitioner preserved this claim by explicitly addressing the 90-day limitations period in the petition.

The fact that petitioner is not itself an employee of respondent, but rather a representative of respondent's public sector employees, does not change the application of CPLR 7510-a. The legislative history for CPLR 7510-a(a) does not set forth any rationale for excluding unions from the definition of employees is set forth in the legislative history (Assembly Mem in Support, Bill Jacket, L 2023, ch 679).

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02444.shtml

Order, Supreme Court, New York County (Shahabuddeen Abid Ally, J.), entered on or about October 1, 2024, which denied the petition to confirm an arbitration award, granted respondent New York City Transit Authority's cross-motion to vacate the award, and remitted the matter to a different arbitrator for further determination, unanimously reversed, on the law, without costs, the arbitration award reinstated, the cross-motion denied, and the petition granted.

Supreme Court improperly vacated the arbitration award as violative of public policy (see CPLR 7511[b][1]; Denson v Donald J. Trump for President, Inc., 180 AD3d 446, 450 [1st Dept 2020]). The arbitrator issued a reasoned decision acknowledging the limits of his authority under both the applicable regulations and the collective bargaining agreement (see Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 14 NY3d 119, 124-125 [2010]). As in Matter of Dowleyne v New York City Tr. Auth. (309 AD2d 583 [1st Dept 2003], revd 3 NY3d 633 [2004]), the arbitrator properly reviewed the process by which the Medical Review Officer (MRO) came to his conclusion (see 49 CFR 40.209; see also 40.149[a][5]), not the substantive medical determination of the MRO (see 49 CFR 40.149[c]). The arbitrator found the inexperienced MRO was improperly influenced by the Designated Employer Representative, who was not permitted to act. The improper influence included urging the MRO to rescind his determination, after the MRO canceled the initial "refusal" drug test result (see 49 CFR 40.193[d][1][i], [i]; see also 40.123[a]). Contrary to respondent's contention, federal preemption does not compel a different result.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT,Muriel Goode-Trufant, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.

Mosey v Office of Ct. Admin.

2026 NY Slip Op 02538

April 24, 2026

Appellate Division, Fourth Department

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

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

HON. ACEA M. MOSEY, PETITIONER-PLAINTIFF-RESPONDENT,

OFFICE OF COURT ADMINISTRATION, RESPONDENT-DEFENDANT-APPELLANT.

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

Decided on April 24, 2026

194 CA 25-00553

Present: Lindley, J.P., Smith, Greenwood, And Delconte, JJ.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (PATRICK A. WOODS OF COUNSEL), FOR RESPONDENT-DEFENDANT-APPELLANT.

FEATHERSTONHAUGH, CLYNE & MCCARDLE, LLP, ALBANY (JAMES D. FEATHERSTONHAUGH OF COUNSEL), FOR PETITIONER-PLAINTIFF-RESPONDENT.

Appeal from a judgment (denominated order and judgment) of the Supreme Court, Erie County (Catherine R. Nugent Panepinto, J.), entered September 10, 2024, in a proceeding pursuant to CPLR article 78 and declaratory judgment action. The judgment, inter alia, declared that the term nonjudicial personnel in Judiciary Law § 211 (1) (d) does not apply to Chief Clerks and Deputy Chief Clerks in Surrogates' Courts.

[*1]

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the decretal paragraphs are vacated, the petition-complaint insofar as it seeks relief pursuant to CPLR article 78 is denied, and judgment is granted in favor of respondent-defendant as follows:

It is ADJUDGED and DECLARED that: (1) the term "nonjudicial personnel" in Judiciary Law § 211 (1) (d) applies to and includes the Chief Clerks and Deputy Chief Clerks of the Surrogates' Courts of the State of New York; (2) article VI, § 28 of the New York Constitution supersedes sections 2605 and 2606 of the Surrogate's Court Procedure Act; and (3) Judiciary Law § 211 and 22 NYCRR 80.1, through the authority of article VI, § 28 of the New York Constitution, vest the Chief Administrator of the Courts with the power and authority to appoint the Chief Clerks and Deputy Chief Clerks of the Surrogates' Courts of the State of New York to the exclusion of the Surrogates.

Memorandum: This hybrid CPLR article 78 proceeding and declaratory judgment action arises from a dispute between petitioner-plaintiff (plaintiff), who is the Erie County Surrogate, and respondent-defendant (defendant) over who has the authority to appoint the Chief Clerks and Deputy Chief Clerks of the Surrogates' Courts—the respective local Surrogates or the Chief Administrator of the Courts (Chief Administrator). Plaintiff commenced this proceeding-action seeking, inter alia, a declaration that she held the authority to make appointments to the Chief Clerk and Deputy Chief Clerk positions in Erie County Surrogate's Court. Supreme Court agreed with plaintiff and, inter alia, granted declaratory relief effectively providing her with the relevant appointment authority to the exclusion of the Chief Administrator. We reverse inasmuch as we conclude that the Chief Administrator, to the exclusion of the respective Surrogates, possesses the power and authority to appoint the Chief Clerks and Deputy Chief Clerks of the Surrogates' Courts.

It is undisputed that the plain terms of Surrogate's Court Procedure Act article 26, enacted in 1966, placed the authority to appoint the Chief Clerks and Deputy Chief Clerks with the respective Surrogates (see SCPA 2605 [1], [2]). Notwithstanding that statutory provision, however, New York Constitution, article VI, § 28, effective in 1977, "expressly vests the Chief Administrator, on behalf of the Chief Judge, with the broad power to supervise the administration and operation of the Unified Court System" (Matter of Met Council v Crosson, 84 NY2d 328, 334-335 [1994]). The Unified Court System includes the Surrogates' Courts (see NY Const, art VI, § 1). "The powers of the Chief Judge are said to be 'complete' and may be exercised fully by the Chief Administrator on behalf of the Chief Judge" (Met Council, 84 NY2d at 335). On behalf of the Chief Judge, those powers include the power to appoint and remove "all nonjudicial officers and employees" with exceptions not presently relevant (22 NYCRR 80.1 [b] [3]; see Judiciary Law § 211 [1] [d]; see also Met Council, 84 NY2d at 335).

Although the Chief Clerks and Deputy Chief Clerks of the Surrogates' Courts possess significant authority, we agree with defendant that they are, nevertheless, nonjudicial officers. The Chief Clerks, for example, have the authority to sign papers or records of the courts, to adjourn matters, to administer oaths, to supervise disclosure and, in certain circumstances, to hear and report matters to the Surrogates (see SCPA 506 [6] [a]; 2609). Such responsibilities, however, are akin to those of referees (see SCPA 506; CPLR 4201), which are themselves "nonjudicial officers of the court appointed to assist it in the performance of its judicial functions" (Met Council, 84 NY2d at 332; see generally CPLR 4312 [5]; People v Davis, 13 NY3d 17, 25-26 [2009]). Thus, given the "nature of the position[s]," we agree with defendant that the Chief Clerks and Deputy Chief Clerks of the Surrogates' Courts are nonjudicial positions and, "[a]s such, they are subject to the constitutional appointment power of the Chief Administrator, notwithstanding [article 26 of the Surrogate's Court Procedure Act]. Since the appointment powers of the Chief Administrator flow from the State Constitution, they cannot be abrogated by statute" (Met Council, 84 NY2d at 335).

Entered: April 24, 2026

Ann Dillon Flynn

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02538.shtm

In the Matter of Rocco Cangero, respondent,

County of Nassau, et al., appellants.

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

Decided on April 15, 2026

2022-08251, (Index No. 603859/22)

Hector D. Lasalle, P.J.

Francesca E. Connolly

Lourdes M. Ventura

Elena Goldberg Velazquez, JJ.

Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag of counsel), for appellants.

Law Offices of Eyal Talassazan, P.C., Garden City, NY, for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Nassau County Sheriff's Department dated February 2, 2022, which terminated the petitioner's probationary employment as a correction officer, the appeal is from a judgment of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered August 24, 2022. The judgment granted the petition and, in effect, annulled the determination.

ORDERED that the judgment is affirmed, with costs.

In March 2022, the petitioner commenced this proceeding pursuant to CPLR article 78 to review a determination of the Nassau County Sheriff's Department (hereinafter the Sheriff's Department) dated February 2, 2022, which terminated the petitioner's probationary employment as a correction officer. The petitioner alleged, among other things, that he was terminated in bad faith after he complained about being assigned excessive overtime hours. In a judgment entered August 24, 2022, the Supreme Court granted the petition and, in effect, annulled the determination. This appeal ensued.

"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" (Matter of Lane v City of New York, 92 AD3d 786, 786). "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" (Matter of Capece v Schultz, 117 AD3d 1045, 1046; see Matter of Young v City of New York, 221 AD3d 721, 722).

Here, the petitioner met his burden of demonstrating that the determination to terminate his probationary employment was made in bad faith. The petitioner established 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 Department to comply with Rule 20 of the Sheriff's Department Rules and Regulations, which requires equal distribution of overtime (see Matter of Capece v Schultz, 117 AD3d at 1046; Matter of Johnson v City of New York, 34 AD3d 484, 485). In response to the petitioner's showing, the appellants failed to establish, or even adequately allege, that the termination of the petitioner's probationary employment was made in good faith (see Matter of Capece v Schultz, 117 AD3d at 1046; Matter of Johnson v City of New York, 34 AD3d at 485).

Accordingly, the Supreme Court properly granted the petition and, in effect, annulled the determination.

LASALLE, P.J., CONNOLLY, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02265.shtml

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about March 28, 2025, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff, an assistant principal at all times relevant to this action, commenced this action alleging that defendant retaliated against her after she reported a violation of Social Services Law § 413 by her then-principal, and that she ultimately was constructively discharged. She asserts a claim pursuant to Civil Service Law § 75-b (2) (a), alleging that defendant dismissed or took other disciplinary or other adverse personnel action against her because of her report. However, a public employee may be required to arbitrate such a claim where she "is subject to dismissal or other disciplinary action under a final and binding arbitration provision" (id. subd 3 [a]) or where she "is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement" (id. subd 3 [b]).

Pursuant to the terms of the collective bargaining agreement (CBA) between plaintiff's union and defendant, grievances which are not resolved after a two-step internal process must be submitted to arbitration. The CBA defines a "grievance," as relevant here, as "[a] complaint by a supervisor covered by this Agreement that there has been as to him/her a violation, misinterpretation or inequitable application of any of the provisions of this Agreement." A subsequent Memorandum of Agreement (MOA) between plaintiff's union and defendant, which by its terms became part and parcel of the CBA, added an antiretaliation provision that provides, among other things, "The harassment, intimidation, retaliation and discrimination of any kind because an employee in good faith raises a concern or reports a violation or suspected violation of any Department policy, rule/law/regulation or contractual provision . . . is prohibited."

Since the MOA is incorporated into the CBA, plaintiff's claims of retaliation in violation of the MOA's antiretaliation provision constitute a grievance under the CBA. Accordingly, plaintiff was required to grieve her complaint before commencing this action, and Supreme Court properly granted defendant's motion to dismiss based on plaintiff's failure to exhaust her administrative remedies. Indeed, plaintiff's course of conduct in demanding arbitration, citing to the CBA's grievance procedures and the MOA's antiretaliation provision, confirms that the arbitration of the claim was required (see generally e.g. Matter of Bank of N.Y. Mellon, 202 AD3d 465, 466 [1st Dept 2022]).

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: April 9, 2026

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02151.shtml

George Anthony Reichenbach, appellant,

Garden City Public Schools, et al., respondents.

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

Decided on April 22, 2026

2024-02997, (Index No. 900399/21)

Lara J. Genovesi, J.P.

Linda Christopher

Lillian Wan

Donna-Marie E. Golia, JJ.

Barket Epstein Kearon Aldea & Loturco, LLP, Garden City, NY (Danielle Muscatello and Donna Aldea of counsel), for appellant.

McGivney, Kluger, Clark & Intoccia, P.C., New York, NY (Gary J. Intoccia, Mindy Kallus, and Matthew Williams of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for negligence, the plaintiff appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), dated January 31, 2024. The order, insofar as appealed from, granted that branch of the defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant Garden City Public Schools.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action pursuant to the Child Victims Act (see CPLR 214-g) to recover damages he allegedly sustained as a result of the defendants' negligent failure to prevent sexual abuse perpetrated by a teacher employed by the defendants. The defendants moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against the defendant Garden City Public Schools (hereinafter Public Schools) on the ground that Public Schools lacked actual or constructive notice of the teacher's alleged propensity to engage in sexual abuse or of the abuse that the teacher allegedly perpetrated. By order dated January 31, 2024, the Supreme Court, among other things, granted that branch of the defendants' motion. The plaintiff appeals.

"'When an employer has notice of its employee's propensity to engage in tortious conduct, yet retains and fails to reasonably supervise such employee, the employer may become liable for injuries thereafter proximately caused by its negligent supervision and retention'" (Nellenback v Madison County, ___ NY3d ___, ___, 2025 NY Slip Op 02263, *1, quoting Moore Charitable Found. v PJT Partners, Inc., 40 NY3d 150, 157). "For prior conduct to provide notice of an employee's propensity to commit a tort, that conduct must be similar to the . . . injury-causing act" (Moore Charitable Found. v PJT Partners, Inc., 40 NY3d at 159 [internal quotation marks omitted]).

"'Where the complaint alleges negligent supervision due to injuries related to an individual's intentional acts, the plaintiff generally must allege that the [school] knew or should have known of the individual's propensity to engage in such conduct, such that the individual's acts could be anticipated or were foreseeable'" (Brauner v Locust Val. Cent. Sch. Dist., 234 AD3d 914, 916, quoting Kwitko v Camp Shane, Inc., 224 AD3d 895, 896; see Nellenback v Madison County, ___ NY3d at ___, 2025 NY Slip Op 02263, *3). "Therefore, actual or constructive notice to the school of prior similar conduct generally is required" (Brauner v Locust Val. Cent. Sch. Dist., 234 AD3d at 916 [internal quotation marks omitted]; see Moore Charitable Found. v PJT Partners, Inc., 40 NY3d at 159).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against Public Schools by submitting, inter alia, the teacher's personnel file, which demonstrated that Public Schools had no actual knowledge that the teacher had previously committed or had any propensity to commit sexual abuse (see Nellenback v Madison County, ___ NY3d at ___, 2025 NY Slip Op 02263, *3). Although the teacher was once accused of sexually inappropriate behavior with a fellow teacher (hereinafter the accusing teacher), his personnel file demonstrated that Public Schools investigated that accusation when the accusation was made and determined that the allegation was unfounded.

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's contentions that the investigation was biased or that there was a conspiracy to silence the accusing teacher are entirely speculative and therefore insufficient to raise a triable issue of fact (see id. at *4).

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against Public Schools.

The plaintiff's remaining contention is without merit.

GENOVESI, J.P., CHRISTOPHER, WAN and GOLIA, JJ., concur.

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02427.shtml

Matter of Curatolo v Donahue

2026 NY Slip Op 02111

April 8, 2026

Appellate Division, Second Department

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

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

In the Matter of Mark Curatolo, appellant,

Daniel Donahue, as Under-Sheriff of the Sheriff's Department, et al., respondents.

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

Decided on April 8, 2026

2022-02928, (Index No. 602980/20)

Angela G. Iannacci, J.P.

Valerie Brathwaite Nelson

Deborah A. Dowling

Donna-Marie E. Golia, JJ.

Isaacs Devasia Castro & Wien, LLP, New York, NY (Liam L. Castro of counsel), for appellant.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Daniel Donahue, as Under-Sheriff of the Sheriff's Department, dated November 14, 2019, which denied the petitioner's request to be designated an investigator in the Nassau County Sheriff's Department pursuant to Civil Service Law § 58(4), the petitioner appeals from a judgment of the Supreme Court, Nassau County (Helen Voutsinas, J.), dated March 20, 2022. The judgment, after a nonjury trial pursuant to CPLR 7804(h), denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, without costs or disbursements.

The petitioner has been employed as a correction sergeant with the respondent Nassau County Sheriff's Department since 2017. In November 2019, the petitioner requested to be designated an investigator pursuant to Civil Service Law § 58(4). In a determination dated November 14, 2019, the respondent Daniel Donahue, as Under-Sheriff of the Sheriff's Department, denied the petitioner's request. Thereafter, the petitioner commenced this proceeding pursuant to CPLR article 78 to annul the determination. In a judgment dated March 20, 2022, the Supreme Court, after a nonjury trial pursuant to CPLR 7804(h), denied the petition and dismissed the proceeding. The petitioner appeals.

The Supreme Court properly denied the petition and dismissed the proceeding. Civil Service Law § 58(4)(b)(ii) (former [c][ii]) provides, in relevant part, that "any person who has received permanent appointment to the position of . . . correction officer of any rank . . . and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment . . . exceeds eighteen months, be permanently designated as a detective or investigator" (see Matter of Wood v Irving, 85 NY2d 238, 242; Matter of Calabrese v Commissioner of Police of City of Yonkers, 282 AD2d 457, 457). Here, the petitioner was not entitled to be designated an investigator pursuant to Civil Service Law § 58(4) because he was not temporarily assigned to perform the duties of an investigator in his position as correction sergeant (see Matter of Cieslinski v Cassino, 282 AD2d 457, 458; Matter of Calabrese v Commissioner of Police of City of Yonkers, 282 AD2d at 457).

The petitioner's remaining contentions are without merit.

IANNACCI, J.P., BRATHWAITE NELSON, DOWLING and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Matter of Gannett Co., Inc. v City of Mount Vernon Police Dept.

2026 NY Slip Op 02267

April 15, 2026

Appellate Division, Second Department

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

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

In the Matter of Gannett Co., Inc., etc., respondent,

City of Mount Vernon Police Department, et al., appellants.

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

Decided on April 15, 2026

2024-01016, (Index No. 60904/22)

Mark C. Dillon, J.P.

Linda Christopher

Barry E. Warhit

Carl J. Landicino, JJ.

Harris Beach Murtha Cullina PLLC, White Plains, NY (Brian D. Ginsberg, Deana J. DiBenedetto, and Megan Knepka of counsel), for appellants.

Greenberg Traurig, LLP, Albany, NY (Michael J. Grygiel, Kelly L. McNamee, and Christina N. Hernsdorf of counsel), for respondent.

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 attorney's fees and litigation costs, the appeal is from a judgment of the Supreme Court, Westchester County (George E. Fufidio, Jr., J.), dated December 13, 2023. The judgment, insofar as appealed from, granted that branch of the petition which was for an award of attorney's fees and litigation costs.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

In June 2020, the petitioner, through an entity it had engaged for the purpose of obtaining police department disciplinary records statewide, submitted a request to the respondent City of Mount Vernon Police Department (hereinafter the MVPD) pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art 6) seeking disclosure of certain law enforcement disciplinary records. On May 7, 2021, the petitioner's counsel sent a letter to the MVPD seeking a response to the petitioner's FOIL request (hereinafter the May 7 letter). In a letter dated May 14, 2021, the respondent City of Mount Vernon stated, among other things, that the City's Law Department did not have any record of the petitioner's FOIL request and that it was the City's goal to complete the request within 30 business days from its receipt of the May 7 letter, but "due to the number of requests being processed, [the] request might be completed beyond the date provided." Subsequently, the petitioner's counsel sent an additional letter to the City in November 2021, inter alia, seeking a response to the petitioner's FOIL request. After receiving no response, the petitioner's counsel sent a letter to the City dated January 12, 2022, appealing the constructive denial of the petitioner's FOIL request, and the City again failed to respond.

Thereafter, in May 2022, the petitioner commenced this proceeding pursuant to CPLR article 78 to compel the MVPD, the City, Glenn Scott, Marcel Olifiers, and Brian G. Johnson (hereinafter collectively the respondents) to produce the subject records and for an award of attorney's fees and litigation costs. In a judgment dated December 13, 2023, the Supreme Court granted the petition. The respondents appeal from so much of the judgment as granted that branch of the petition which was for an award of attorney's fees and litigation costs.

"In order to create a clear deterrent to unreasonable delays and denials of access and thus, encourage government to make a good faith effort to comply with the requirements of FOIL, the legislature has provided for the assessment of attorney's fees and other litigation costs in FOIL proceedings" (Matter of Law Offs. of Cory H. Morris v County of Nassau, 184 AD3d 830, 832; see Public Officers Law § 89[4][c]; Matter of Ateres Bais Yaakov Academy of Rockland v Town of Clarkstown, 218 AD3d 462, 465). Thus, the court "shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of" Public Officers Law § 89 "in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access" (Public Officers Law § 89[4][c][ii]; see Matter of Tsunis Gasparis, LLP v Stony Brook Fire Dist., 238 AD3d 1059, 1060; Matter of Ateres Bais Yaakov Academy of Rockland v Town of Clarkstown, 218 AD3d at 466). "A petitioner has 'substantially prevailed' within the meaning of Public Officers Law § 89(4)(c) when the commencement of the CPLR article 78 proceeding ultimately succeeds in obtaining the records responsive to the FOIL request, whether by court order or by voluntary disclosure" (Matter of Lane v County of Nassau, 221 AD3d 1008, 1011 [internal quotation marks omitted]; see Matter of McNerney v Carmel Cent. Sch. Dist., 204 AD3d 1012, 1014).

Here, the petitioner substantially prevailed in this proceeding. Moreover, contrary to the respondents' contention, they failed to demonstrate a reasonable basis for denying access to the records requested by the petitioner (see Matter of New York Civ. Liberties Union v Village of Freeport, 229 AD3d 629, 632; Matter of New York Civ. Liberties Union v Nassau County, 228 AD3d 864, 866; cf. Matter of Puig v City of Middletown, 230 AD3d 794, 796).

Accordingly, the Supreme Court properly granted that branch of the petition which was for an award of attorney's fees and litigation costs.

In light of our determination, we need not reach the parties' remaining contentions.

DILLON, J.P., CHRISTOPHER, WARHIT and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02267.shtml

In the Matter of Michael Stecker, petitioner/appellant,

New York State Unified Court System-Office of Court Administration, respondent/respondent.

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

Decided on April 8, 2026

2024-01090 DECISION, ORDER & JUDGMENT, (Index No. 615146/23)

Betsy Barros, J.P.

Angela G. Iannacci

Helen Voutsinas

Elena Goldberg Velazquez, JJ.

Scott Lockwood, Deer Park, NY, for petitioner/appellant.

David Nocenti, New York, NY (Pedro Morales of counsel), for respondent/respondent.

Proceeding pursuant to CPLR article 78 to review a revised determination of the New York State Office of Court Administration dated March 15, 2023, which adopted the report and recommendations of a hearing officer dated June 27, 2022, made after a hearing, finding that the petitioner was guilty of misconduct, and terminated the petitioner's employment as a court officer, which proceeding was transferred to this Court pursuant to CPLR 7804(g) by order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated October 18, 2023, and appeal by the petitioner from the same order. Justice Goldberg Velazquez has been substituted for former Justice Miller (see 22 NYCRR 1250.1[b]).

ORDERED that the appeal is dismissed (see CPLR 5701[b]; 7804[g]); and it is further,

ADJUDGED that the revised determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

The petitioner was employed as a court officer by the New York State Unified Court System (hereinafter UCS) for approximately 14 years. On or about December 21, 2021, the New York State Office of Court Administration (hereinafter OCA) filed a notice of charges against the petitioner, alleging, in one charge, that he had engaged in specified acts of misconduct when, between January 28, 2021, and March 27, 2021, he shared 26 posts on Facebook that featured biased and discriminatory language and images. The petitioner denied the charge.

In March 2022, a disciplinary hearing was held. At the conclusion of the hearing, a hearing officer issued a report and recommendations dated June 27, 2022, finding the petitioner guilty of each specified act of misconduct and recommending that the petitioner's employment be terminated. In a determination dated July 13, 2022, Deputy Chief Administrative Judge Norman St. George adopted the hearing officer's report and recommendations and terminated the petitioner's employment. Thereafter, on March 15, 2023, Deputy Chief Administrative Judge St. George issued a revised determination in which he again adopted the hearing officer's report and recommendations and terminated the petitioner's employment. The petitioner commenced this proceeding pursuant to CPLR article 78 to review the revised determination, and the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).

In a proceeding pursuant to CPLR article 78, "[j]udicial review of an administrative determination made after a hearing required by law, at which evidence was taken, is limited to whether that determination is supported by substantial evidence" (Matter of Afolayan v Industrial Bd. of Appeals, 229 AD3d 698, 699 [internal quotation marks omitted]; see CPLR 7803[4]). "Substantial evidence is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of World Motors, Inc. v Dugan, 226 AD3d 1037, 1039 [internal quotation marks omitted]). This is a "minimal standard, demanding only that a given inference is reasonable and plausible, not necessarily the most probable, and where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently" (Matter of Linksman v New York State Dept. of Motor Vehs., 218 AD3d 685, 686 [alteration and internal quotation marks omitted]).

Here, the finding that the petitioner committed misconduct was supported by substantial evidence. OCA demonstrated that the biased nature of the petitioner's comments, which were connected to a public Facebook profile that identified him as a Sergeant with UCS, violated the internal rules and regulations, as well as the ethical codes, of UCS (see 22 NYCRR 50.1[II][C]). Further, given the public facing nature of the petitioner's position in a system that requires fairness and equality, the administrative record supports the conclusion that the bias illustrated by the petitioner's posts negatively impacted UCS's ability to maintain neutrality and serve vulnerable populations.

Contrary to the petitioner's contentions, the revised determination did not violate his First Amendment right to free speech, as OCA met its burden of establishing that discipline arising out of the petitioner's protected activity was justified (see Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23 NY3d 251, 263-265). Nor did the revised determination violate the petitioner's First Amendment right to the free exercise of religion, because the prohibition on discriminatory speech was neutral with respect to religion and generally applicable to all UCS employees (see C.F. v New York City. Dept. of Health & Mental Hygiene, 191 AD3d 52, 76).

"Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law" (Matter of Maselli v Yonkers Bd. of Educ., 231 AD3d 1029, 1030-1031 [internal quotation marks omitted]). "An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness" (Matter of Guarnieri v County of Rockland, 226 AD3d 1018, 1020 [internal quotation marks omitted]). Contrary to the petitioner's contention, the penalty of termination of employment was not so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Phelps v State of N.Y.—Unified Ct. Sys., 208 AD3d 880, 881; Matter of Sekul v City of Poughkeepsie, 195 AD3d 622, 625).

Accordingly, we confirm the revised determination, deny the petition, and dismiss the proceeding.

BARROS, J.P., IANNACCI, VOUTSINAS and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02124.shtml

Matter of Shara v Van Fossen

2026 NY Slip Op 02707

April 30, 2026

Appellate Division, Third Department

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

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

In the Matter of James Shara, Respondent,

Jason R. Van Fossen, as Superintendent of the Maine- Endwell Central School District, et al., Appellants, et al., Respondent.

Decided and Entered:April 30, 2026

CV-25-0883

Calendar Date: March 25, 2026

Before: Garry, P.J., Reynolds Fitzgerald, Powers, Mackey And Ryba, JJ.

Bond, Schoeneck & King, PLLC, Syracuse (Angelo D. Catalano of counsel), for appellants.

Law Office of Ronald R. Benjamin, Binghamton (Ronald R. Benjamin of counsel), for James Shara, respondent.

Ryba, J.

We have examined the remaining contentions of the parties and have found them to be without merit or otherwise unnecessary to address.

Garry, P.J., Reynolds Fitzgerald, Powers and Mackey, JJ., concur.

Footnote 1

Petitioner also named counsel for the School District and School Board as a party, but he was not involved in the motion practice at issue here.

Footnote 2

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02707.shtml

Rohauer v Guilderland Cent. Sch. Dist.

2026 NY Slip Op 02709

April 30, 2026

Appellate Division, Third Department

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

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

Riley Rohauer, Appellant,

Guilderland Central School District et al., Respondents.

Decided and Entered:April 30, 2026

CV-25-1521

Calendar Date: March 25, 2026

Before: Reynolds Fitzgerald, J.P., Powers, Mackey And Ryba, JJ.

The Scagnelli Law Firm, PC, Albany (Peter J. Scagnelli of counsel), for appellant.

Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for Guilderland Central School District, respondent.

The Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of counsel), for Jon Kauffmann, respondent.

Reynolds Fitzgerald, J.P.

Appeal from an order of the Supreme Court (Kimberly O'Connor, J.), entered September 4, 2025 in Albany County, which partially denied plaintiff's motion to amend the complaint.

In November 2019, plaintiff was a student at defendant Guilderland Central School District and was attending defendant Jon Kauffmann's history class when she was struck in the back of the head by Kauffmann. In August 2022, plaintiff commenced this action and moved to serve a late notice of claim, which was granted by Supreme Court in January 2023.FN1 The complaint contained causes of action against Kauffmann for battery and intentional infliction of emotional distress, and asserted negligent hiring, training and supervision and negligent infliction of emotional distress against Guilderland.

A General Municipal Law § 50-h hearing was held in April 2023 and discovery ensued. Immediately upon conclusion of depositions, and prior to the filing of the note of issue, Guilderland moved for summary judgment seeking to dismiss the complaint against it. Thereafter, plaintiff moved to amend the pleadings to, among other things, include a cause of action in negligence, and Supreme Court denied this request, concluding both that plaintiff failed to offer a reasonable explanation for her delay and that the amendment would prejudice Guilderland. Plaintiff appeals.

Plaintiff contends that Supreme Court erred in denying her motion to amend the complaint to add a claim in negligence. "Pursuant to CPLR 3025 (b), a party may amend its pleadings at any time by leave of the court, which shall be freely given upon such terms as may be just" (Passeri v Brody, 199 AD3d 1260, 1261 [3d Dept 2021] [internal quotation marks and citations omitted]; accord Mohammed v New York State Professional Fire Fighters Assn., Inc., 209 AD3d 1151, 1152 [3d Dept 2022]). Permission to amend may be granted "before or after judgment to conform [the pleadings] to the evidence" (CPLR 3025 [c]). "The rule on a motion for leave to amend a pleading is that, in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (Walden v Varricchio, 195 AD3d 1111, 1113 [3d Dept 2021] [internal quotation marks and citations omitted]; see Passeri v Brody, 199 AD3d at 1261). "Supreme Court, which has considerable latitude in exercising its discretion, may consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated and whether a reasonable excuse for the delay was offered, particularly where the delay is on the eve of trial" (NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 156 AD3d 99, 103 [3d Dept 2017] [internal quotation marks, brackets and citations omitted]; see Place v Preferred Mut. Ins. Co., 190 AD3d 1208, 1212 [3d Dept 2021]). "The decision to grant leave to amend a complaint is within the trial court's sound discretion and will not be disturbed absent a clear abuse of that discretion" (Walden v Varricchio, 195 AD3d at 1112-1113 [internal quotation marks and citations omitted]; see NYAHSA Servs., Inc. Self-Ins. Trust v People Care Inc., 156 AD3d at 101).

In this instance, we find that Supreme Court abused its discretion in denying plaintiff's motion to amend the complaint to add a negligence cause of action (see Mohammed v New York State Professional Fire Fighters Assn., Inc., 209 AD3d at 1152; Passeri v Brody, 199 AD3d at 1262). Initially, we note that this pre-note of issue motion was not brought on the eve of trial. The parties had just completed depositions, and, in fact, plaintiff asserts that certain testimony given at Kauffmann's deposition prompted her motion. As to Supreme Court's finding that a negligence cause of action is inconsistent with plaintiff's assertion that defendants acted intentionally, plaintiff need not establish the merits of the proposed amendments at this stage (see Matter of Falck, 232 AD3d 1150, 1154 [3d Dept 2024]; Matter of Perkins v Town of Dryden Planning Bd., 172 AD3d 1695, 1697 [3d Dept 2019]), but is only required to demonstrate that the proposed amendment is not palpably insufficient or patently meritless. Here, especially in light of Kauffmann's deposition testimony wherein he testified that he did not intentionally strike plaintiff, it is not. Additionally, Guilderland cannot allege surprise, since shortly after the incident was reported to school officials, it investigated the incident and learned that Kauffmann contended his contact with plaintiff's head was accidental. Furthermore, Guilderland's argument that it would be prejudiced because it would be subject to increased liability is unavailing as prejudice is more than the mere exposure of an opposing party to greater liability (see NYAHSA Servs., Inc. Self-Ins. Trust v People Care Inc., 156 AD3d at 103; Rutz v Kellum, 144 AD2d 1017, 1018 [4th Dept 1988]; Perkins v New York State Elec. & Gas Corp., 91 AD2d 1121, 1122 [3d Dept 1983]).

Powers, Mackey and Ryba, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as denied the portion of plaintiff's motion seeking to amend her complaint to add a negligence cause of action; motion granted to that extent; and, as so modified, affirmed, and plaintiff is directed to serve the amended complaint within 20 days of the date of this Court's decision.

Footnotes

Footnote 1

As plaintiff was an infant at the time of the commencement of the action, the action was brought by her parents on her behalf. Plaintiff achieved majority during the pendency of the action, and the caption was amended. For purposes of clarity, this decision uses the term plaintiff in all instances.

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02709.shtml

Matter of New York State Police v Galliher

2026 NY Slip Op 02510

April 24, 2026

Appellate Division, Fourth Department

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

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

IN THE MATTER OF NEW YORK STATE POLICE, PETITIONER-APPELLANT,

MATHEW J. GALLIHER, RESPONDENT-RESPONDENT.

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

Decided on April 24, 2026

109 CA 25-00442

Present: Bannister, J.P., Montour, Smith, Nowak, And Delconte, JJ.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (SARAH COCO OF COUNSEL), FOR PETITIONER-APPELLANT.

LUIBRAND LAW FIRM, PLLC, LATHAM (KEVIN A. LUIBRAND OF COUNSEL), FOR RESPONDENT-RESPONDENT.

FRESHFIELDS US LLP, WASHINGTON, DC (JENNIFER B. LOEB OF COUNSEL), FOR BRADY CENTER TO PREVENT GUN VIOLENCE AND GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE, AMICI CURIAE.

Appeal from an order of the Supreme Court, Oneida County (Peter M. Rayhill, J.), entered February 25, 2025, in a proceeding pursuant to CPLR article 63-A. The order denied the petition for an extreme risk protection order.

[*1]

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the application is reinstated, the application insofar as it seeks the issuance of a final extreme risk protection order is granted, and the matter is remitted to Supreme Court, Oneida County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to the Extreme Risk Protection Act (see CPLR art 63-A), petitioner appeals from an order that, after a hearing, denied a final extreme risk protection order (ERPO) against respondent. We reverse.

Respondent and several other Department of Corrections and Community Supervision (DOCCS) correction officers participated in the gang assault of a restrained incarcerated individual (victim). Respondent and the other correction officers failed to activate their body-worn cameras during the assault in violation of DOCCS policy, but the Office of Special Investigations was able to retrieve "recall video" that depicted the assault without audio. The victim ultimately died as a result of the injuries he sustained.

Shortly thereafter, petitioner filed the instant application seeking a temporary and final ERPO based upon respondent's involvement in the victim's death. On the same day that the application was filed, Supreme Court denied the temporary ERPO and scheduled a final ERPO hearing. At the hearing, the court heard testimony from a DOCCS investigator tasked with investigating misconduct within correctional facilities across the State and received the recall body-worn camera footage as exhibits. Respondent invoked his Fifth Amendment right against self-incrimination beginning with the first question, and continued to invoke that right on each question thereafter.

Following the hearing, the court issued a written decision and order in which it concluded that, "[a]s troubling as the evidence provided is, it does not demonstrate that [r]espondent is likely to engage in conduct that would result in serious harm to himself or others." The court thus denied the final ERPO.

At the outset, we note that respondent was criminally charged for his role in the victim's death, but was ultimately acquitted of all charges against him. Inasmuch as respondent was acquitted and is thus not prohibited as a result of that prosecution from possessing any firearms, rifles, or shotguns (see Penal Law § 400.00 [1] [c]), this appeal is not moot (cf. Matter of New York State Police v Kingsley, — AD3d —, —, 2026 NY Slip Op 01668, *1 [4th Dept 2026]).

On the merits, we agree with petitioner that the court erred as a matter of law in refusing to issue a final ERPO. At a hearing to determine whether a final ERPO should be issued, "the petitioner shall have the burden of proving, by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself . . . or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law" (CPLR 6343 [2]). Pursuant to Mental Hygiene Law § 9.39 (a), " '[l]ikelihood to result in serious harm' . . . shall mean," as relevant here, "a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" (§ 9.39 [a] [2]).

In determining whether the petitioner has met their burden, "[t]he court may consider," inter alia, "any evidence submitted by the petitioner, any evidence submitted by the respondent, [and] any testimony presented" (CPLR 6343 [2]), and "shall also consider the [eight] factors set forth in [CPLR 6342 (2) with respect to whether to issue a temporary ERPO]" (id. [emphasis added]). While those factors are non-exhaustive, the first factor is a prior "threat or act of violence or use of physical force directed toward self, the petitioner, or another person" (CPLR 6342 [2] [a]).

Here, at the outset of the hearing, the court recited the appropriate standard set forth in CPLR 6343 (2) and Mental Hygiene Law § 9.39 (a) (2), and expressly concluded following the hearing that the evidence established that respondent "participated with others in an act of violence against a New York State DOCCS inmate in restraints that caused serious physical harm and, ultimately, death to that individual." Nonetheless, the court held that respondent was not "likely" to engage in conduct that would result in serious harm to himself or others, relying upon the Merriam-Webster Dictionary's definition of "likely," rather than the express statutory definition in Mental Hygiene Law § 9.39 (a) (2) as incorporated into the statutory scheme. That was error.

As set forth above, the burden was on petitioner under the circumstances here to establish, by clear and convincing evidence, that respondent posed "a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" (Mental Hygiene Law § 9.39 [a] [2]; see CPLR 6343 [2]). Petitioner met that burden by establishing that respondent actively participated in the assault of a restrained incarcerated individual by grabbing the victim by the chest and holding him down while other officers kicked the victim in the abdomen and groin (see CPLR 6342 [2] [a]). Indeed, that conduct is particularly egregious in this case because "DOCCS regulations require correction officers to exercise '[t]he greatest caution and conservative judgment' in determining whether physical force against an inmate is necessary" (Rivera v State of New York, 34 NY3d 383, 391 [2019], quoting 7 NYCRR 251-1.2 [a]), inasmuch as "[c]orrection officers are tasked with the formidable and critical responsibility of protecting the safety of inmates and coworkers while maintaining order in correctional facilities" (id. at 385). Respondent adduced no evidence to the contrary at the hearing.

To the extent that the court appears to have implicitly concluded that it is inappropriate to issue an ERPO based upon past acts of violence as opposed to threats of future violence, we note that CPLR article 63-A does not require either an explicit threat or expert testimony to predict a respondent's future conduct (see CPLR 6342 [2]; Matter of R.M. v C.M., 226 AD3d 153, 162 [2d Dept 2024]). To the contrary, each of the eight factors that the court "shall" consider in determining whether to issue a final ERPO (CPLR 6343 [2]) is based upon past conduct (see CPLR 6342 [2]). Likewise, the court's tacit conclusion that an ERPO should not be issued where the parties have other civil or criminal remedies is similarly without merit. Although a respondent may ultimately face criminal charges for their conduct, the mere prospect of criminal charges does not preclude the issuance of an ERPO. If that were the case, no ERPO could ever be issued against a perpetrator of domestic abuse who owned firearms, because the perpetrator could be prosecuted criminally. That is simply not the law in New York (see Matter of Orangetown Police Dept. v Cashell, 238 AD3d 1152, 1154-1155 [2d Dept 2025]; see generally R.M., 226 AD3d at 163).

We therefore reverse the order, reinstate the application, grant the application insofar as it seeks the issuance of a final ERPO, and remit the matter to Supreme Court for further proceedings pursuant to CPLR 6343 (3).

Entered: April 24, 2026

Ann Dillon Flynn

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02510.shtml

Matter of Scanlon v Miller-Williams

2026 NY Slip Op 02543

April 24, 2026

Appellate Division, Fourth Department

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

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

IN THE MATTER OF HON. CHRISTOPHER P. SCANLON, AS MAYOR OF CITY OF BUFFALO, AND HON. MITCHELL P. NOWAKOWSKI, AS MEMBER OF COMMON COUNCIL OF CITY OF BUFFALO, PETITIONERS-RESPONDENTS,

BARBARA MILLER-WILLIAMS, AS COMPTROLLER OF CITY OF BUFFALO, RESPONDENT-APPELLANT.

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

Decided on April 24, 2026

213.1 CA 25-01798

Present: Lindley, J.P., Bannister, Greenwood, Nowak, And Hannah, JJ.

WOODS OVIATT GILMAN LLP, BUFFALO (WILLIAM F. SAVINO OF COUNSEL), FOR RESPONDENT-APPELLANT.

CONNORS LLP, BUFFALO (TERRENCE M. CONNORS OF COUNSEL), FOR PETITIONERS-RESPONDENTS.

Appeal from a judgment (denominated order and judgment) of the Supreme Court, Erie County (Emilio Colaiacovo, J.), entered September 25, 2025, in a proceeding pursuant to CPLR article 78. The judgment granted the petition to compel respondent to issue and sell certain bonds.

[*1]

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to CPLR article 78, respondent appeals from a judgment granting the petition seeking a writ of mandamus compelling respondent to issue and sell bonds pursuant to resolutions duly adopted by the City of Buffalo Common Council (Common Council). We affirm.

Mandamus to compel lies "only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law . . . While [it] is an appropriate remedy to enforce the performance of a ministerial duty, . . . it will not be awarded to compel an act in respect to which [a public] officer may exercise judgment or discretion" (Alliance to End Chickens as Kaporos v New York City Police Dept., 32 NY3d 1091, 1093 [2018], cert denied 587 US 1027 [2019], reh denied 588 US 934 [2019] [internal quotation marks omitted]; see Klostermann v Cuomo, 61 NY2d 525, 539-540 [1984]). "A discretionary act involve[s] the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" (Matter of COR Van Rensselaer St. Co. III, Inc. v New York State Urban Dev. Corp., 221 AD3d 1524, 1528 [4th Dept 2023], lv denied 41 NY3d 907 [2024] [internal quotation marks omitted]; see New York Civ. Liberties Union v State of New York, 4 NY3d 175, 184 [2005], rearg denied 4 NY3d 882 [2005]). Mandamus is an appropriate remedy to enforce the performance of "those acts which are mandatory but are executed through means that are discretionary" (Klostermann, 61 NY2d at 539).

Contrary to respondent's assertion, the comptroller possesses no discretion over whether to issue bonds (see generally Matter of Cohalan v Caputo, 94 AD2d 742, 742-743 [2d Dept 1983]). The Charter of the City of Buffalo (City Charter) grants the Common Council the power to "authorize the borrowing of funds by the city in accordance with article VIII of the constitution of the state of New York and applicable provisions of state law" (City Charter § 3-7 [f]). The City Charter provides that expenditures pursuant to the capital improvement budget "may not be made unless and until the council by appropriate action for the payment thereof provides funds or authorizes the issuance of serial bonds or other capital obligations" (City Charter § 20-27), and that "no debt shall be incurred for any capital improvement except as further authorized pursuant to" the Local Finance Law (City Charter § 20-30). The comptroller's involvement in the capital improvement budget process consists primarily of preparing a report listing the city's outstanding capital debt, "commenting in detail about the city's financial condition," and "advising as to the maximum amount of capital debt that the city may prudently incur" over the next five years "without impairing [its] credit rating and financial stability" (City Charter § 20-21). If the proposed capital budget exceeds the recommended cap, the comptroller must submit an additional report to the Common Council "advising as to the probable effect of such debt on the city's financial condition" (City Charter § 20-25).

The Local Finance Law gives the Common Council, as a finance board (§ 2.00 [4] [b] [2]) "the power to authorize the issuance of bonds and notes" (Local Finance Law § 30.00 [a]). Although the Common Council may delegate certain powers to the comptroller, its chief fiscal officer (§ 2.00 [5] [b]; see City Charter § 7-4), by resolution (Local Finance Law § 30.00 [a], [c]; see § 56.00 [a], [b]), we reject respondent's contention that the Common Council delegated all of its authority as a finance board to the comptroller in resolutions passed in 1945 and 1994. Those resolutions involved the delegation of powers relating to the issuance of specific types of bonds and notes, but neither resolution provided the comptroller with the power to authorize, or prevent the authorization of, the issuance of such bonds and notes. In other words, the Common Council delegated certain powers to the comptroller relating to how to issue bonds but did not delegate the threshold power found in Local Finance Law § 30.00 regarding whether to issue them. Thus, the Common Council did not provide the comptroller with the power to, in effect, veto Common Council authorizations directing her to issue bonds or notes for specific projects.

Inasmuch as respondent's duty to issue bonds was ministerial (see Klostermann, 61 NY2d at 539; Holroyd v Town of Indian Lake, 180 NY 318, 324 [1905]; Cohalan, 94 AD2d at 742-743; see generally 1991 Ops St Comp No. 91-8), Supreme Court did not err in granting the petition.

Entered: April 24, 2026

Ann Dillon Flynn

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02543.shtml

Broton v County of Onondaga

2026 NY Slip Op 02581

April 24, 2026

Appellate Division, Fourth Department

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

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

SHAWN BROTON, PLAINTIFF-APPELLANT,

COUNTY OF ONONDAGA, WILLIAM J. FITZPATRICK, INDIVIDUALLY AND IN HIS CAPACITY AS ONONDAGA COUNTY DISTRICT ATTORNEY, ROBERT DURR, INDIVIDUALLY AND IN HIS CAPACITY AS ONONDAGA COUNTY ATTORNEY, DUANE OWENS, INDIVIDUALLY AND IN HIS CAPACITY AS ONONDAGA COUNTY COMMISSIONER OF PERSONNEL, AND STEVEN WILLIAMS, INDIVIDUALLY AND IN HIS CAPACITY AS INVESTIGATIVE CONSULTANT TO ONONDAGA COUNTY BOARD OF ETHICS, DEFENDANTS-RESPONDENTS.

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

Decided on April 24, 2026

966 CA 25-00216

Present: Curran, J.P., Bannister, Nowak, Delconte, And Hannah, JJ.

GARY J. LAVINE, SYRACUSE, FOR PLAINTIFF-APPELLANT.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (DONALD S. DIBENEDETTO OF COUNSEL), FOR DEFENDANT-RESPONDENT WILLIAM J. FITZPATRICK, INDIVIDUALLY AND IN HIS CAPACITY AS ONONDAGA COUNTY DISTRICT ATTORNEY.

MACKENZIE HUGHES LLP, SYRACUSE (CHRISTOPHER A. POWERS OF COUNSEL), FOR DEFENDANT-RESPONDENT DUANE OWENS, INDIVIDUALLY AND IN HIS CAPACITY AS

Appeal from an order of the Supreme Court, Onondaga County (Gregory R. Gilbert, J.), entered August 30, 2024. The order granted the motions for summary judgment of defendants William J. Fitzpatrick, individually and in his capacity as Onondaga County District Attorney, Duane Owens, individually and in his capacity as Onondaga County Commissioner of Personnel, and Steven Williams, individually and in his capacity as Investigative Consultant to Onondaga County Board of Ethics, and dismissed the second amended complaint in its entirety.

[*1]

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this action asserting, among other things, state and federal constitutional tort claims, plaintiff appeals from an order that granted the motions of defendants William J. Fitzpatrick, individually and in his capacity as Onondaga County District Attorney, Duane Owens, individually and in his capacity as Onondaga County Commissioner of Personnel, and Steven Williams, individually and in his capacity as investigative consultant to the Onondaga County Board of Ethics, for summary judgment dismissing the second amended complaint against them, and also granted summary judgment dismissing the second amended complaint against defendants County of Onondaga (County) and Robert Durr, individually and in his capacity as Onondaga County Attorney. We affirm.

Plaintiff was appointed Deputy Chief of Police by the former Mayor of the City of Syracuse. When a new mayor was elected in 2017, plaintiff was removed as Deputy Chief and requested to be reinstated as a rank-and-file member of the Syracuse Police Department. Owens denied that request on or about December 18, 2017. In July 2019, plaintiff made a complaint to the Onondaga County Board of Ethics (BOE), alleging that Fitzpatrick had improperly influenced Owens to deny plaintiff's request for reinstatement. In January 2020, Williams, the outside counsel hired by the BOE to conduct the investigation into plaintiff's complaint, determined that plaintiff's allegations were unfounded.

Plaintiff commenced this action in January 2022, and in his second amended complaint, he asserts 12 causes of action. Following discovery, Fitzpatrick, Owens, and Williams (moving defendants) separately moved for summary judgment dismissing the second amended complaint against them. Supreme Court determined that, as a threshold issue, all causes of action are untimely and barred by the statute of limitations. The court further concluded in the alternative that the moving defendants are entitled to summary judgment on the merits, and also granted summary judgment dismissing the second amended complaint against the nonmoving defendants, i.e., the County and Durr, with prejudice.

At the outset, we note that on appeal plaintiff has not raised any challenge to the court's determination to dismiss the second amended complaint against Durr or the County, and he has therefore abandoned any such contention (see Ciesinski v Town of Aurora, 202 AD2d 984, 984 [4th Dept 1994]). We further note that, inasmuch as plaintiff does not contend that the 7th, 8th, 9th, 10th, and 11th causes of action were timely commenced, he has thus abandoned any challenge to the dismissal of those causes of action on statute of limitations grounds (see id.), and his contention that he raised issues of fact with respect to those causes of action is academic (see generally Matter of Sportsmen's Tavern LLC v New York State Liq. Auth., 195 AD3d 1557, 1558 [4th Dept 2021]).

On appeal, plaintiff contends that his causes of action against the moving defendants arising under the New York Constitution and 42 USC § 1983 are timely. Plaintiff's state constitutional tort claims, the 1st through 6th causes of action, are subject to a three-year statute of limitations (see CPLR 214 [5]; Brown v State of New York, 250 AD2d 314, 318 [3d Dept 1998]), as is plaintiff's 12th cause of action, asserting various 42 USC § 1983 claims (see CPLR 214 [5]; BL Doe 3 v Female Academy of the Sacred Heart, 199 AD3d 1419, 1420-1421 [4th Dept 2021]). The moving defendants established that those causes of action accrued on December 18, 2017, when Owens denied plaintiff's request for reinstatement. Thus, taking into account tolling of the statute of limitations pursuant to executive orders during the COVID-19 pandemic, the statute of limitations expired on August 3, 2021—228 days after December 18, 2020 (see generally 9 NYCRR 8.202.8 et seq.; State of New York v Williams, 224 AD3d 1356, 1357 [4th Dept 2024]). Plaintiff commenced this action in January 2022, which was after the expiration of the limitations period.

Plaintiff contends that his action was timely based on the continuing wrong doctrine. We reject that contention because the continuing wrong doctrine "does not apply where . . . [the] plaintiff's allegation of damages is predicated on a single specific act" (Fang v Town of Amherst, 238 AD3d 1473, 1475 [4th Dept 2025]) and, here, the damages are predicated on a single act, i.e., Owens' denial of plaintiff's request to be reinstated. Moreover, that doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" (Coe v Village of Waterloo, 229 AD3d 1119, 1121 [4th Dept 2024], lv denied 42 NY3d 912 [2025] [internal quotation marks omitted]), and there are no continuing unlawful acts.

To the extent that plaintiff's causes of action against Williams may have been timely filed, we conclude that, contrary to plaintiff's contention, Williams is entitled to summary judgment dismissing the second amended complaint against him. In support of his motion, Williams submitted admissible evidence establishing that he is not liable under any of the causes of action asserted against him inasmuch as he merely investigated the BOE ethics complaint, did not take any adverse action against plaintiff, and was uninvolved in the decision to terminate plaintiff which occurred some three years before Williams' involvement (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition to Williams' motion, plaintiff has not shown that he was injured by any act or omission of Williams during the course of the BOE investigation, or that the BOE investigation impacted plaintiff's termination some three years earlier. We conclude that "[t]he proof submitted by [plaintiff] in opposition to the motion consisted of unsubstantiated allegations and mere conclusions that were lacking in evidentiary support and thus insufficient to defeat summary judgment" (I.P.L. Corp. v Industrial Power & Light. Corp., 202 AD2d 1029, 1029 [4th Dept 1994]).

We have reviewed plaintiff's remaining contentions and conclude that none warrants modification or reversal of the order.

Entered: April 24, 2026

Ann Dillon Flynn

Clerk of the Court

https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02581.shtml

A former volunteer firefighter [Firefighter] with the Verplanck Fire District [District] appealed from the grant of summary judgment by the United States District Court for the Southern District of New York in favor of the District. Firefighter had suffered injury to his foot while traveling aboard a ship owned by the District to the reported site of a boat fire on the Hudson River, when Firefighter extended his leg to fend off a collision with another vessel. Having previously obtained compensation under New York’s Volunteer Firefighters’ Benefit Law, filed the instant claim in response to the District’s petition in the United States district court to limit its liability to the value of the vessel pursuant to the Limitation of Liability Act of 1851, 46 U.S.C. §30523, and Rule F of the Supplemental Rules for Admiralty and Maritime Claims.

Firefighter'd claim alleged (i) negligence and unseaworthiness pursuant to the Jones Act, 46 U.S.C. § 30104; (ii) unseaworthiness under Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); and (iii) negligence under general maritime law.

The district court granted summary judgment to the District, finding the Firefighter was not eligible to bring claims pursuant to the Jones Act or Sieracki, and that the exclusive remedy provision of New York’s Volunteer Firefighters’ Benefit Law barred Firefighter from bringing his general maritime law claim. Firefighter appealed the district court’s ruling, with the exception of the denial of Firefighter Jones Act claim.

The Second Circuit concludes that the district court erred in ruling by summary judgment that Firefighter was not entitled to the warranty of seaworthiness extended to a Sieracki seaman, and in ruling that New York’s Volunteer Firefighters’ Benefit Law barred Firefighter federal negligence claim under general maritime law.

Accordingly, the Second Circuit Court of Appeals vacated the District Court's judgment and the matter to the District Court for further consideration

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

https://ww3.ca2.uscourts.gov/decisions/OPN/23-1218_opn.pdf

New York Public Personnel Law

May 2, 2026

Selected items from Blogs posted during the week ending May 2, 2026

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Footnotes

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Matter of Shara v Van Fossen

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Footnotes

Matter of New York State Police v Galliher

Matter of Scanlon v Miller-Williams

Broton v County of Onondaga

CAUTION