Application submitted to New York State's Commissioner of Education seeking to reopen an appeal earlier decided by the Commissioner rejected

Petitioner sought to have the New York State Commissioner of Education reopen Decision Commissioner No. 18,682, which dismissed Petitioner's appeal from a determination of a Board of Education involving the Petitioner's application seeking an appointment to a position with the school district. Commissioner Betty A. Rosa ruled that Petitioner's application must be denied.

Pointing out §276.8 of the Commissioner’s regulations governs reopening a prior decision of the Commissioner and provides that applications to reopen are addressed solely by the Commissioner and are reopened at the discretion of the Commissioner, Dr. Rosa explained that an application to reopen a Decision of the Commissioner require a showing that:

(1) The original decision was rendered under a misapprehension as to the facts; and, or 

(2) There is new and material evidence that was not available at the time the original decision was made.

In addition, Commissioner Rosa said that an application to reopen:

1. May not advance previously undeveloped factual assertions and arguments; 

2. Advance new legal arguments, nor 

3. Merely seek to reargue issues presented in the prior appeal.

Explaining that Petitioner had not met the standard for reopening the appeal as the underlying appeal was dismissed as premature since, "at the time it was commenced  [Petitioner] remained an eligible candidate for an open position" with school district nor has Petitioner presented evidence that this conclusion rested upon a “misapprehension of fact” nor produced “new and material evidence” that would support a different outcome.

Dr. Rosa opined that it appears that Petitioner seeks to challenge school district's  subsequent selection of a different candidate for the appointment to the position in question.  Any challenge to this “discrete act,” however, “would have to be the subject of a new appeal under Education Law §310”.

Accordingly, the Commissioner concluded that Petitioner had not established grounds to reopen the appeal in accordance with the standard set forth in 8 NYCRR 276.8.

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

New York State's Department of Labor reports its proposed Repealing Outdated and Obsolete Regulations in the New York State Register dated June 17, 2026

The New York State Department of Labor has proposed repealing its rules listed below,  which it describes as being "Outdated and Obsolete Regulations": 

I.D. No. LAB-24-26-00009-P 

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule: 

Proposed Action: This is a consensus rule making to repeal Parts 12, 36, 38, 50, 82, 175, 176, 185, 187, ch. II, subchapter A, ch. IV, subchapter C, ch. IX, subchapter B, chs. XIII and XIV; amend ch. IX of Title 12 NYCRR. Statutory authority: Labor Law, section 21(11) Subject: EXPRESS NY - Repealing outdated and obsolete regulations. 

Purpose: This rulemaking would repeal outdated and obsolete regulations, thereby streamlining compliance for regulated parties.

Text of proposed rule: 

Parts 12, 36, 38, and 50 of Subchapter A of Chapter I of Title 12 of the New York Codes, Rules and Regulations (NYCRR) are repealed. 

Part 82 of Subchapter C of Chapter I of Title 12 of the NYCRR is repealed. 

Subchapter A of Chapter II of Title 12 of the NYCRR is repealed. 

Parts 175 and 176 of Subchapter D of Chapter II of Title 12 of the NYCRR are repealed. 

Parts 185 and 187 of Subchapter E of Chapter II of Title 12 of the NYCRR are repealed. 

Subchapter C of Chapter IV of Title 12 of the NYCRR is repealed. 

Subchapter B of Chapter IX of Title 12 of the NYCRR is repealed. 

Chapter XIII of Title 12 of the NYCRR is repealed. 

Chapter XIV of Title 12 of the NYCRR is repealed. 

Chapter IX of Title 12 of the NYCRR is amended to read as follows: 

Chapter IX. [Manpower Services Division] Apprenticeship and Training  

Text of proposed rule and any required statements and analyses may be obtained from: Andrew Schutts, Department of Labor, 1200 Washington Ave., Building 12, Suite 509, (518) 485-2191, email: regulations@labor.ny.gov 

Data, views or arguments may be submitted to: Same as above. 

Public comment will be received until: 60 days after publication of this notice. 

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register. 

Consensus Rule Making Determination 

The Department of Labor has determined that no person is likely to object to this rulemaking. The basis for this determination is that this rulemaking repeals regulations that are obsolete and that the Department of Labor does not and cannot use. This means that the only effect of this rulemaking would be to reorganize the Department of Labor’s regulations, which would benefit regulated parties, the public, and the Department of Labor. 

Job Impact Statement A Job Impact Statement is not required because the Department of Labor has determined that this rulemaking would not have a substantial adverse impact on jobs and employment opportunities. 

This rulemaking repeals outdated and obsolete regulations that the Department of Labor does not and cannot use. Because the Department of Labor does not and cannot use the regulations being repealed, this rulemaking would have no adverse impact on jobs and employment opportunities.

Police Department declined to give a retiring police office his badge and, or, "a good guy letter" affirming his right to carry a firearm upon his retirement

A New York State Supreme Court Judge denied Plaintiff's CPLR Article 78 petition seeking a court order annulling a New York City Police Department [NYPD] decision not to issue Plaintiff, a NYPD retiring police officer, his badge and, or, a "good guy letter" affirming his right to carry a firearm upon his retirement from NYPD. The Court, however, granted NYPD's cross-motion to dismiss the Plaintiff's petition as untimely and dismissed the Article 78 proceeding. 

Plaintiff appealed the Supreme Court's ruling, but the Appellate Division unanimously affirmed the Supreme Court's decision. Plaintiff subsequently applied for a retiree handgun license, which NYPD denied because Plaintiff did not have a "good guy letter". 

Citing Matter of Baloy v Kelly, 92 AD3d 521 and other New York State court decisions, the Appellate Division noted that NYPD's written denial of Plaintiff's application was a "final and binding" determination and the four-month statute of limitations began to run, at the latest, upon Plaintiff's receipt of the denial. In addition, the Appellate Division's decision notes that the possibility of Plaintiff obtaining administrative relief had been exhausted when Plaintiff retired "without a change in his [modified] duty status".

The Appellate Division then pointed out that although Plaintiff had sent NYPD a written request for reconsideration of NYPD's determination, to NYPD which had not respond, that communication did not extend the statute of limitations nor did the letter "give rise to a proceeding for mandamus to compel NYPD 'to perform its duty'" (see CPLR 217 [1]). 

Noting that Plaintiff did not assert any clear legal right to a good guy letter, which NYPD declined to issue in its exercise of its discretion, the Appellate Division held Petitioner "cannot circumvent the statute of limitations by demanding that [NYPD] change its determination and seeking mandamus to compel [it so do] when that demand is refused".

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

Appellate Division sustains a Supreme Court's dismissal a matter involving New York States Open Meeting Law as untimely

Plaintiffs in this action sought a judgment in a New York State Supreme Court declaring that a New York State Incorporated Village, its Mayor and other Village Officials[Village] and other non-Village defendants violated New York State's Open Meetings Law*. The Supreme Court held Plaintiffs' action was "time barred' and granted separate motions submitted by [1] the Village's and [2] the defendant New Cingular Wireless PCS, LLC, [New Cingular]  seeking summary judgment dismissing the Plaintiffs' complaint insofar as asserted against each of them. Supreme Court then denied the Plaintiff's cross-motion for leave to amend their complaint. Plaintiffs appealed. The Appellate Division sustained the Supreme Court's decision and ordered Plaintiffs' pay  costs to the Village and to New Cingular.

Plaintiffs, residents of the Village, challenge the Village's adoption of Village Resolution 20-27 authorizing the Village's mayor to negotiate a lease with the defendant New Cingular to permit the installation of a wireless facility on Village-owned land. Ultimately the lease was adopted by the Village's Board and three resolutions were adopted at public meeting. The meeting minutes were later approved and published. 

Plaintiffs brought an Article 78 action contending that the Board held secret evening meetings, during which competing proposals were discussed and that the lease was effectively approved during these meetings prior to the public vote. Defendants maintain that the cause of action based on alleged violations of the Open Meetings Law was time-barred. 

Although Defendants acknowledged that representatives of the Village and New Cingular met privately, the Defendants argued that this was not in violation of the Open Meetings Law as no quorum of the Board was present at such meetings and the Board took no official action during any nonpublic meeting. Supreme Court granted the Defendants' separate motions, concluding, among other things, that the cause of action alleging violations of the Open Meetings Law was time-barred and denied the Plaintiffs' cross-motion. The Plaintiffs appealed the Supreme Court's ruling.

The Appellate Division affirmed the lower Court's decision, explaining that:

1. "In enacting the Open Meetings Law, the Legislature sought to ensure that public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy";

2. A "[m]eeting" is defined as 'the official convening of a public body for the purpose of conducting public business', citing Public Officers Law §102[1]"; 

3. A "'Public body' means any entity, for which a quorum is required to conduct public business";

4. An "[e]xecutive session is 'that portion of a meeting not open to the general public"; 

5. 'The statute does not apply only to formal or regular meetings, but to any gathering or meeting of a quorum of a public body for the purpose of transacting public business"; and 

6. "An aggrieved person has standing to commence a proceeding pursuant to CPLR article 78 or an action for declaratory judgment and injunctive relief".

Addressing the issue of the timeliness of Plaintiff's Article 78, the Appellate Division observed although typically a proceeding against a body or officer pursuant to CPLR Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding. The Open Meetings Law, however, provides "[t]he statute of limitations in an article seventy-eight proceeding with respect to an action taken at executive session shall commence to run from the date the minutes of such executive session have been made available to the public" and the defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations "bears the initial burden of proving, prima facie, that the time in which to commence an action has expired". 

If the defendant meets this burden, the burden then shifts to the plaintiff to present evidence raising a triable issue of fact as to whether the action falls within an exception to the statute of limitations or whether the statute of limitations has been tolled.

In the words of the Appellate Division, "... the defendants established, prima facie, that the cause of action alleging violations of the Open Meetings Law was untimely".  As an initial matter, although Plaintiffs brought their legal challenge as an action seeking declaratory and injunctive relief, the substance of the action is a challenge to the actions of a municipal body, alleging failure to comply with the procedural requirements of the Open Meetings Law. As Plaintiff's "legal challenge could have been brought pursuant to CPLR article 78, the four-month statute of limitations applies".

The Appellate Division said that "Defendants met their initial burden and demonstrated that the action was not commenced within the four-month limitations period under CPLR 217(1) and demonstrated that the municipal determination at issue became final and binding no later than December 2020 and that no meetings attended by a quorum of the Board occurred prior to this date. Therefore, this action was not timely commenced".

As Plaintiffs failed to raise a triable issue of fact and failed to provide evidence sufficient to raise a triable issue of fact or to support their contention that the alleged secret meetings constitute executive sessions and, as a result, the four-month limitations period has not yet begun to run ...  relying "on hearsay allegations suggesting that such unauthorized meetings took place", Plaintiffs rely on "mere conjecture that any such meeting was attended by a quorum of the Board" and "failed to identify any specific executive session at which any official actions were taken or during which the lease was actually approved".

As Plaintiffs failed to establish that minutes of such executive session were created but not made available to the public, the Appellate Division held that Supreme Court properly determined that the cause of action alleging violations of the Open Meetings Law is time-barred under CPLR 217(1)".

* See New York State Public Officers Law Article 7.

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

Seeking court approval to proceed with the proposed litigation as a class action

In this action seeking to recover damages for alleged violations of Administrative Code of the City of New York §8-107, Plaintiffs appeal a Supreme Court order that denied the  Plaintiffs' motion for class certification filed pursuant to CPLR Article 9. The Appellate Division affirmed the Supreme Court' denial of Plaintiffs' motion. 

The Plaintiffs, New York City Police Captains of Asian descent, had not receive "discretionary promotions to the rank of Deputy Inspector" during the period September 27, 2018 through the present date. Plaintiffs alleged that the New York City Police Department [NYPD] denied them and the members of the putative class discretionary promotions beyond the rank of Captain due to their race in violation of the New York City Human Rights Law. 

The Appellate Division explained that the proponent of a motion for class certification bears the burden of meeting the requirements of §901 of CPLR Article 9, which set out the five prerequisites for obtaining class certification: 

1. Numerosity; 

2. Commonality; 

3. Typicality; 

4. Adequacy of representation; and 

5. Superiority.

Although the Appellate Division opined that these requirements "are to be liberally construed in keeping with the goals of CPLR Article 9", its decision, citing Yonkers Contr. Co. v Romano Enters. of N.Y., 304 AD2d 657, noted that "A class action certification must be founded upon an evidentiary basis", and observed that "Whether the facts presented on a motion for class certification satisfy the statutory criteria is within the sound discretion of the trial court"*. 

Further, the Appellate Division's decision notes that it "is vested with the same discretionary power and may exercise that power, even when there has been no abuse of discretion as a matter of law by the nisi prius court" and, citing Pludeman v Northern Leasing Sys., Inc., 74 AD3d 420, opined that "Conclusory assertions are insufficient to satisfy the statutory criteria."

In the words of the Appellate Division "... even assuming, arguendo, that Plaintiffs demonstrated that "there are questions of law or fact common to the class which predominate over any questions affecting only individual members", Plaintiffs' conclusory assertions that the class action "seeks widespread, systematic reform" were insufficient to establish that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy". 

The Appellate Division then observed  that "the Supreme Court providently exercised its discretion in denying the [Plaintiffs'] motion pursuant to CPLR article 9 for class certification".

* Also sometimes referred to as the nisi prius court.

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