Appeal from a judgment of the United States District Court for the Eastern
District of New York (Hall, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the September 30, 2025 judgment of the
district court is AFFIRMED.
Plaintiff-Appellant Tiffany Vesterman, a former employee of the New York
City Department of Education (“DOE”), challenges the constitutionality of the
DOE’s denial of her religious accommodation request from New York City’s
COVID-19 vaccine mandate (the “Vaccine Mandate”). Vesterman alleges that she
applied for a religious accommodation to the Vaccine Mandate in September 2021,
specifically seeking to be exempted from the mandate based on her Catholic faith.
The DOE denied Vesterman’s request and, after placing her on unpaid leave,
3
terminated her employment. Subsequently, Vesterman learned that the DOE
placed her fingerprints in a “problem code” database, which she asserts
stigmatized her for committing misconduct and prevented her from working in
education thereafter.
Vesterman now appeals from a judgment of the district court dismissing her
claims against Defendants-Appellees DOE and DOE Chancellor David C. Banks
(collectively “Defendants”). Vesterman, a teacher with the DOE since 2001, alleges
that Defendants violated the Free Exercise Clause of the First Amendment by
denying her a religious exemption from the Vaccine Mandate. She further argues
that Defendants violated her procedural due process rights by placing her
information in the problem code database without first providing her with a
name-clearing hearing. Finally, she contends that the district court erred in
dismissing her complaint with prejudice. We assume the parties’ familiarity with
the underlying facts, the procedural history, and the issues on appeal, to which we
refer only as necessary to explain our decision.
“We review de novo a district court’s dismissal of a complaint under Rule
12(b)(6), accepting all of the complaint’s non-conclusory factual allegations as true
and drawing all reasonable inferences in the plaintiffs’ favor.” Honickman v. BLOM
4
Bank SAL, 6 F.4th 487, 495 (2d Cir. 2021) (alteration adopted and internal quotation
marks omitted). “We review for abuse of discretion a district court’s decision
whether dismissal of a complaint should be with prejudice.” Cruz v.
FXDirectDealer, LLC, 720 F.3d 115, 125 (2d Cir. 2013).
I. First Amendment
Vesterman first brings an as-applied challenge to the Vaccine Mandate,
alleging that the DOE violated her First Amendment right to free exercise of
religion by denying her request to be exempted from vaccination without first
demonstrating that granting such accommodation would impose an undue
hardship.
“The First Amendment forbids the enactment of laws, either state or federal,
that ‘prohibit the free exercise’ of religion.” We The Patriots USA, Inc. v. Hochul, 17
F.4th 266, 280 (2d Cir.) (per curiam) (alteration adopted) (quoting U.S. Const.,
amend. I), opinion clarified, 17 F.4th 368 (2d Cir. 2021). “But not all laws that burden
an individual’s exercise of religion contravene this deeply rooted prohibition.” Id.
“[A] neutral law of general applicability is subject [only] to rational basis review
even if it incidentally burdens a particular religious practice.” Id. (internal
quotation marks omitted). However, “if a law is not neutral towards religion or is
5
not generally applicable,” then it will have to survive strict scrutiny. Id. at 281. To
do so, the law must be shown to be “narrowly tailored” to advance “a compelling
governmental interest.” Id. (internal quotation marks omitted).
We have applied the above principles in the context of the DOE’s Vaccine
Mandate on multiple occasions. We have addressed two instances in published
opinions directly relevant here. See Kane v. De Blasio, 19 F.4th 152, 167–70 (2d Cir.
2021) (per curiam); New Yorkers for Religious Liberty, Inc. v. City of New York, 125
F.4th 319, 332–34 (2d Cir. 2025) (per curiam). In both Kane and New Yorkers for
Religious Liberty, DOE employees brought as-applied challenges under the Free
Exercise Clause stemming from the DOE’s denial of their religious
accommodation requests. In these cases, we applied strict scrutiny and sustained
the plaintiffs’ claims on a motion to dismiss where they made plausible allegations
that the DOE denied an accommodation by questioning the legitimacy of their
religious beliefs. See, e.g., Kane, 19 F.4th at 168 (sustaining as-applied challenge
where DOE determined that an employee’s beliefs “were merely personal”
because “other Orthodox Christians” received vaccination). We have applied the
“low threshold” of rational basis review, however, where the DOE has denied an
accommodation “irrespective of [the employee’s] sincerely held religious beliefs”
6
on the basis of “undue hardship.” New Yorkers for Religious Liberty, 125 F.4th at 333
(internal quotation marks omitted). To survive rational basis review on a motion
to dismiss, an employee must make “a more-than-conclusory allegation that the
finding of undue hardship was erroneous or pretextual.” Id.
Here, Vesterman’s claim triggers only rational basis review because she has
not alleged that the DOE improperly scrutinized her religious beliefs or otherwise
denied her request in a way that was not neutral towards religion nor generally
applicable to all employees. Under rational basis review, Vesterman has failed to
plausibly allege that the DOE’s rationale—that her request imposed an “undue
hardship” because “unvaccinated employees cannot work in a school building
without posing a direct threat to health and safety,” App’x at 113—was either
erroneous or pretextual. Aside from one conclusory assertion that she “was
discriminated against for her religious beliefs,” her complaint does not allege any
facts regarding the DOE’s basis for denying her request. App’x at 35. Accordingly,
we affirm the district court’s dismissal of Vesterman’s First Amendment claim.
II. Due Process
Despite her briefs’ inconsistency on this point, as we discuss below,
Vesterman also at times seems to challenge the district court’s dismissal of her
7
stigma-plus claim under the Due Process Clause of the Fourteenth Amendment.
The district court dismissed that claim on the ground that Vesterman did not allege
it in her complaint. In her reply brief on appeal, Vesterman appears not to dispute
this ruling. Rather, she confirms that her complaint “asserts just one cause of
action, a religious discrimination claims [sic] in violation of her First Amendment
Rights.” Reply Br. at 2 n.1. Because “a party is not entitled to amend its complaint
through statements made in motion papers,” Wright v. Ernst & Young LLP, 152 F.3d
169, 178 (2d Cir. 1998), and we do not address arguments not raised on appeal, see
Anderson v. Branen, 27 F.3d 29, 30 (2d Cir. 1994) (per curiam), we need go no further
to affirm the dismissal of Vesterman’s stigma-plus claim.
Nevertheless, even if it had been properly pleaded in the district court (and
argued on appeal), Vesterman’s stigma-plus claim would fail. “Stigma plus refers
to a claim brought for injury to one’s reputation (the stigma) coupled with the
deprivation of some tangible interest or property right (the plus), without
adequate process.” DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003) (internal
quotation marks omitted). To state such a claim, a plaintiff must plausibly allege
that “the information [disseminated by the government] was stigmatizing, false,
8
and publicized by the state actor.” Kelly Kare, Ltd. v. O’Rourke, 930 F.2d 170, 177
(2d Cir. 1991).
Vesterman’s stigma-plus claim fails because she has not plausibly alleged
that her problem code designation is anything other than an accurate reflection of
her noncompliance with the Vaccine Mandate. She does not allege, for example,
that the designation is false because she actually received the COVID-19 vaccine.
Nor does she allege that the DOE issued the problem code for any reason other
than her failure to receive the vaccination. Thus, her claim fails because she does
not allege “the existence of a reputation-tarnishing statement that is false." Vega v.
Lantz, 596 F.3d 77, 82 (2d Cir. 2010) (emphasis in original); see also Russell v. Hodges,
470 F.2d 212, 217 (2d Cir. 1972) (Friendly, C.J.) (finding that a stigma-plus claim
requires “something considerably graver than a charge of failure to perform a
particular job, lying within the employee’s power to correct”).
Nor can Vesterman establish falsity by relying on any negative implications
arising from a problem code association. She alleges that being assigned to the
problem code is tantamount to a false accusation of misconduct or incompetence
because, on her account, the DOE uses such codes “for employees who have
committed . . . misconduct or were incompetent.” App’x at 36. Critically, however,
9
she does not allege that the DOE uses problem codes exclusively to denote
misconduct or incompetence, and not also for performance-neutral issues, like an
employee’s failure to satisfy a qualification of employment unrelated to job
performance. That a problem code might imply misconduct or incompetence,
without more, does not render it false. See Kelly Kare, 930 F.2d at 177 (“A freefloating liberty interest cannot rest on speculation that negative implications will
flow from a termination without cause.”); McGuire v. Warren, 207 F. App’x 34, 37
(2d Cir. 2006) (summary order) (finding that “innuendo” cannot support a stigmaplus claim).
Finally, we note that Vesterman has not plausibly alleged that the problem
code has “severely impede[d] her ability to continue in the education field.”
Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 633 (2d Cir. 1996). At
most, she alleges that the code makes her ineligible to work for the DOE, but “[i]t
stretches the [liberty interest] concept too far to suggest that a person is deprived
of ‘liberty’ when he simply is not rehired in one job but remains as free as before
to seek another.” The Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 575 (1972).
Accordingly, we affirm the dismissal of Vesterman’s stigma-plus claim.
10
III. Dismissal With Prejudice
Lastly, Vesterman argues that the district court erred in dismissing her
complaint with prejudice. She contends that the court erred in failing to respond
to a pre-motion letter she filed requesting leave to “amend as of right” pursuant to
Federal Rule of Civil Procedure 15(a). App’x 87. Perhaps because leave is not
required to amend as of right, the court never responded to Vesterman’s request.
See Sacerdote v. New York Univ., 9 F.4th 95, 115 (2d Cir. 2021) (“At the outset of the
litigation, a plaintiff may freely amend her pleadings pursuant to Rule 15(a)(1) as
of right without court permission.”).
Notwithstanding her stated intention, Vesterman never filed an amended
complaint within the timeframe set forth in Rule 15. See Fed. R. Civ. P. 15(a)(1).
Thereafter, she never sought leave to amend, formally moved to amend her
complaint, submitted a proposed amended complaint, or otherwise explained
how she would cure the complaint’s deficiencies. As we have explained, “[a]
counseled plaintiff is not necessarily entitled to a remand for repleading whenever
he has indicated a desire to amend his complaint, notwithstanding the failure of
plaintiff’s counsel to make a showing that the complaint’s defects can be cured.”
Porat v. Lincoln Towers Cmty. Ass’n, 464 F.3d 274, 276 (2d Cir. 2006) (per curiam).
11
As Vesterman has never demonstrated that she “could—or would—provide
additional allegations that might lead to a different result, the District Court did
not err in dismissing her claim with prejudice.” Gallop v. Cheney, 642 F.3d 364, 369
(2d Cir. 2011).
We have considered Vesterman’s remaining arguments and conclude they
are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Fisher And Mcshan, JJ.
Aarons, J.P.
Appeals (1) from an order of the Supreme Court (Peter Lynch, J.), entered October 17, 2024 in Albany County, which denied a motion by defendants Department of Corrections and Community Supervision and Victoria Barber to dismiss the complaint, and (2) from an order of said court, entered October 23, 2024 in Albany County, which denied defendants' motions for summary judgment dismissing the complaint and cross-claims.
Plaintiff, an African-American woman, began working for defendant North Country Community College (hereinafter NCCC) in August 2018 as an adjunct instructor, teaching one business course for the fall 2018 semester. As part of her employment, plaintiff also served as an instructor for the federally funded Second Chance Pell Program providing college-level courses to incarcerated individuals. For the spring 2019 semester, plaintiff taught two courses at NCCC and two courses at Franklin Correctional Facility (hereinafter Franklin CF). Plaintiff resigned from the Second Chance Pell Program and NCCC in July 2019 and January 2020, respectively, following a "series of incidents" which, she claimed, made her working conditions intolerable. These incidents included plaintiff's non-selection for a full-time business instructor position despite her "superior qualifications"; alleged sexual harassment by correction officers during the spring 2019 semester; a June 2019 email inquiry from defendant Victoria Barber, the deputy superintendent of Franklin CF, in which plaintiff claims she was "wrongfully accused of theft and sabotaging a co-worker's desk" after a classroom was found in "disarray"; an incident in July 2019 during which Barber denied plaintiff's entry into Franklin CF based upon plaintiff's hand tremor; a reduction in her NCCC course load from nine credits to zero and her assignment to a tutoring center; and NCCC's alleged provision of false information to the state Department of Labor, resulting in the denial of unemployment benefits during the summer of 2019.FN1
In February 2022, plaintiff commenced this action against NCCC and defendant Tara Evans,FN2 the human resources director at NCCC (hereinafter collectively referred to as the college defendants), as well as defendant Department of Corrections and Community Supervision (hereinafter DOCCS) and Barber (hereinafter collectively referred to as the state defendants), asserting causes of action for racial discrimination, gender discrimination, hostile work environment, constructive discharge and retaliation under the Human Rights Law and requesting punitive damages, among other things.FN3 The state defendants moved to dismiss the complaint, which motion Supreme Court denied. Following discovery, the state defendants and the college defendants moved, separately, for summary judgment dismissing the complaint in its entirety. Supreme Court denied the motions, concluding that "the record depicts a series of escalating events" that, taken together, could lead a reasonable jury to conclude that defendants violated the Human Rights Law. Defendants appeal.
As a threshold matter, we agree with the state defendants that Supreme Court erred in applying the present version of Executive Law § 296-d to plaintiff's claims. Though the present version expands employer liability from sexual harassment of non-employees to any "unlawful discrimination against non-employees in its workplace" (L 2019, ch 160, § 4), that expansion is applicable only to claims that accrued on or after October 11, 2019 — several months after the incidents giving rise to this action occurred (see L 2019, ch 161, § 4 [d]).
That said, Supreme Court properly denied the state defendants' motion to dismiss the complaint against them on the assertion that they were not plaintiff's employer (see CPLR 3211 [a] [7]). When determining who is an employer under the Human Rights Law, the key inquiry is "the alleged employer's power to order and control the employee in his or her performance of work" (Griffin v Sirva, Inc., 29 NY3d 174, 186 [2017] [internal quotation marks and citation omitted]). In her complaint, plaintiff asserted that she worked in DOCCS facilities, that her entry and movement in such facilities was controlled by DOCCS and that DOCCS reduced her course load in retaliation for her complaints about discrimination. Liberally construed and accepted as true, and according plaintiff the benefit of every favorable inference, the complaint sufficiently alleged facts from which to conclude that DOCCS and NCCC, together,FN4 were plaintiff's employer under the Human Rights Law, rendering dismissal of her claims inappropriate (see Cagino v Levine, 199 AD3d 1103, 1104 [3d Dept 2021] [internal quotation marks and citation omitted]; Carr v Wegmans Food Mkts., Inc., 182 AD3d 667, 669 [3d Dept 2020]; Zheng v Liberty Apparel Co. Inc., 355 F3d 61, 72 [2d Cir 2003]).
Turning to the summary judgment motions, and viewing the evidence in the light most favorable to plaintiff as nonmovant, the state defendants failed to establish entitlement to judgment as a matter of law dismissing the complaint on the ground that DOCCS was not plaintiff's employer (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Though there is no evidence that the state defendants had authority over plaintiff's hiring, compensation and other indicia of an employer-employee relationship, the evidence showed that the state defendants exercised a significant degree of control and supervision over her work. In particular, the record shows that correction officers monitored plaintiff's classroom, that the state defendants controlled her access to Franklin CF and on one occasion Barber collected the assignment plaintiff was to distribute and barred her from teaching that day. Accordingly, summary dismissal of the complaint against the state defendants on this ground was unwarranted (see generally Griffin v Sirva, Inc., 29 NY3d at 186).
We turn now to the substance of plaintiff's claims, starting with discrimination. To establish a claim for race or gender discrimination, "plaintiff must show that (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]). "To prevail on [their] summary judgment motion[s], defendant[s] must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for [their] challenged actions, the absence of a material issue of fact as to whether [their] explanations were pretextual" (White-Barnes v New York State Dept. of Corr. & Community Supervision, 214 AD3d 1230, 1231 [3d Dept 2023] [internal quotation marks and citations omitted]; see Kelderhouse v St. Cabrini Home, 259 AD2d 938, 939 [3d Dept 1999]).
None of the incidents of alleged discrimination survive defendants' motions. Initially, there is no dispute that plaintiff is a member of protected classes and that she was qualified to be an adjunct instructor. As for plaintiff's claim of gender and/or racial discrimination in the selection of a full-time business instructor, there is also no dispute that plaintiff met the minimum qualifications for that role when she submitted her application in January 2019, that plaintiff did not receive an interview and that the two open positions eventually went to two white males. Even assuming an inference of discrimination attaches to the college defendants' failure to hire her for one of those positions, Kim Irland, a member of NCCC's search committee, explained in an affidavit that, while plaintiff had the minimal qualifications, the two successful candidates had considerably more teaching experience — a desired quality listed in the job description for the full-time business instructor position. Thus, the college defendants supplied legitimate, nondiscriminatory reasons for passing over plaintiff. Plaintiff did not dispute that the successful candidates had more teaching experience, and she failed to raise a material issue of fact through her testimony that the successful candidates' materials had typing errors, included "opinion" pieces under publications or listed retail jobs under work experience (see Wozniak v Components Assembly Div., 220 AD2d 934, 935 [3d Dept 1995]).
To the extent plaintiff's intentional discrimination claim is based upon Barber's email regarding a classroom left in disarray, the email itself does not constitute an adverse employment action, which "requires a materially adverse change in the terms and conditions of employment" including "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits [or] significantly diminished material responsibilities" (Forrest v Jewish Guild for the Blind, 3 NY3dat 306 [internal quotation marks and citations omitted]; see Golston-Green v City of New York, 184 AD3d 24, 37 [2d Dept 2020]). As to the incident in which Barber refused plaintiff entry to Franklin CF, Barber denied plaintiff's allegation that she yelled at plaintiff, or accused her of alcohol use and reported said alcohol use to others as alleged by plaintiff. Instead, Barber affirmed that plaintiff was denied entry into the prison because plaintiff admitted she had not taken her medication, was nonverbal and was "visibly shaking," which Barber believed to be a safety and security issue, thereby providing a legitimate, nondiscriminatory reason for her actions (see White-Barnes v New York State Dept. of Corr. & Community Supervision, 214 AD3d at 1231). In opposition, plaintiff was required to submit proof raising an issue of fact as to whether "the stated reasons were false and that discrimination was the real reason" (Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 965 [1st Dept 2009] [internal quotation marks and citation omitted], lv denied 14 NY3d 701 [2010]). Plaintiff failed to do so, as she confirmed that she had neglected to take medication for a hand tremor she had recently developed, and her testimony that Barber's alleged accusations of alcohol intoxication were motivated by plaintiff's race, gender or both were conclusory and thus insufficient to meet her shifted burden (see Forrest v Jewish Guild for the Blind, 3 NY3d at 308 n 6; Wozniak v Components Assembly Div., 220 AD2d at 935).
Next, defendants seek summary judgment dismissing plaintiff's claims of a sexually hostile work environment and a race-based hostile work environment. To establish such claims, a plaintiff "must offer proof of a workplace permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive working environment" (Mikesh v County of Ulster, 237 AD3d 1285, 1288-1289 [3d Dept 2025] [internal quotation marks and citations omitted]). Under the existing law at the time of accrual, "[t]he acts alleged to be discriminatory must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive" (White-Barnes v New York State Dept. of Corr. & Community Supervision, 214 AD3d at 1231-1232 [internal quotation marks and citations omitted]; accord Mikesh v County of Ulster, 237 AD3d at 1289).
As to a hostile work environment due to sexual harassment, defendants met their initial summary judgment burden demonstrating that the conduct was not severe or pervasive. Plaintiff testified to "egregious" incidents by three different correction officers over a six-month period. According to plaintiff, one unnamed correction officer at Franklin CF would "take . . . every opportunity he had to be alone" with her and "tell [her] how hot [she] was." He told plaintiff that she "had to be careful around" the incarcerated individuals because "they were nasty guys," but that she "didn't have to worry because he would just . . . whip his c**k out at them." Another correction officer "would always insist on" escorting plaintiff to and from the classroom, and would "joke" that plaintiff was "really hot and you never know what might happen to . . . somebody sexy walking by themselves . . . at nighttime." A third unnamed correction officer informed plaintiff after class that the incarcerated individuals were looking at her backside while she had her back turned writing on the board, and the officer demonstrated plaintiff's movements to illustrate what the individuals saw. Although this alleged conduct was unquestionably inappropriate, these alleged incidents were insufficient as a matter of law to create an actionable sexually hostile or abusive work environment (see Vitale v Rosina Food Prods., 283 AD2d 141, 148 [4th Dept 2001]; compare Minckler v United Parcel Serv., Inc., 132 AD3d 1186, 1188-1189 [3d Dept 2015]).
Plaintiff's further testimony that DOCCS staff "routinely made sexually inappropriate comments" and that unspecified comments about her appearance began "[a]lmost as soon as she started working in the prison[s]" does not alter the analysis. In this connection, "the workplace must be both subjectively and objectively hostile. That is, a plaintiff must not only perceive that the conditions of his or her employment were altered because of discriminatory conduct, but the conduct also must have created an environment that a reasonable person would find to be hostile or abusive" (Pawson v Ross, 137 AD3d 1536, 1537 [3d Dept 2016]; see Reynolds v State of New York, 180 AD3d 1116, 1117-1118 [3d Dept 2020]). Thus, there must be evidence of discriminatory, harassing or demeaning conduct for the jury to assess; in our view, the generalizations and subjective characterizations to which plaintiff testified would not permit a jury to find that plaintiff's workplace was objectively hostile (cf. Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d 708, 712 [2d Dept 2022]).
As to the retaliation claim, defendants seeking summary judgment must either conclusively refute a plaintiff's prima facie claim that "(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action" (Forrest v Jewish Guild for the Blind, 3 NY3d at 312-313; see Matter of Clifton Park Apts., LLC v New York State Div. of Human Rights, 41 NY3d 326, 331 [2024]), or provide legitimate, non-pretextual reasons for the alleged retaliatory conduct (see Graham v New York State Off. of Mental Health, 154 AD3d 1214, 1221 [3d Dept 2017]). Protesting discrimination, whether formally or informally, constitutes protected activity (see Executive Law § 296 [7]).
Here, the record establishes, and defendants cannot seriously dispute, that plaintiff engaged in protected activity by reporting alleged racial discrimination by Barber to her supervisor at NCCC and alleged sexual harassment to a colleague who subsequently reported it to NCCC (see Albunio v City of New York, 16 NY3d 472, 479 [2011]). Viewed in the light most favorable to plaintiff, the record also shows that defendants were aware that plaintiff had voiced concern about discrimination and sexual harassment at Franklin CF, and it was only then that plaintiff began experiencing alleged retaliatory conduct. Some of that conduct — Barber's email regarding the state of the classroom assigned to plaintiff and Barber's denial of her entry to Franklin CF — did not qualify as an adverse employment consequence or came with unrebutted legitimate nondiscriminatory explanations, as discussed above. As to the reduction in plaintiff's fall 2019 course assignments and the college defendants' submission of allegedly false information to the Department of Labor in July 2019, these actions were adverse and so close in time to plaintiff's reports of discrimination and harassment as to not foreclose the possibility of a causal connection (compare Koester v New York Blood Ctr., 55 AD3d 447, 449 [1st Dept 2008]).
Defendants nevertheless established entitlement to dismissal of the retaliation claims as a matter of law through evidence of legitimate, nondiscriminatory and non-pretextual reasons for their conduct (see Graham v New York State Off. of Mental Health, 154 AD3d at 1221). Evans clarified that plaintiff's classes were cancelled due to low enrollment and that NCCC was contractually obligated to prioritize full-time faculty in the assignment of courses. The record confirms that plaintiff was aware of NCCC's policy and informed that her classes were cancelled pursuant to that policy. As to plaintiff's claim respecting her unemployment benefits application in July 2019, plaintiff informed the Department of Labor that she separated from employment for lack of work. Defendants' proof, however, established that plaintiff had been assigned to teach courses in the Second Chance program for the summer 2019 term, that plaintiff had resigned from her instructor position for the summer, and that the college defendants supplied documents to the Department of Labor so indicating. The burden thus shifted to plaintiff to submit proof raising an issue of fact as to whether defendants' proffered reasons were false and pretextual, which plaintiff failed to do (see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 741 [2d Dept 2013]; Pace v Ogden Servs. Corp., 257 AD2d 101, 104-105 [3d Dept 1999]; see also Clauberg v State of New York, 95 AD3d at 1387 [retaliatory hostile work environment]).
In light of the foregoing, plaintiff's constructive discharge claim — which requires a showing that "an employer deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign" — must be dismissed (White-Barnes v New York State Dept. of Corr. & Community Supervision, 214 AD3d at 1232 [internal quotation marks and citations omitted]). Plaintiff's aiding-and-abetting claims against the individual defendants must be dismissed as well (see Graham v New York State Off. of Mental Health, 154 AD3d at 1223). Defendants' remaining contentions are academic.FN5
Pritzker, Reynolds Fitzgerald, Fisher and McShan, JJ., concur.
ORDERED that the order entered October 17, 2024 is affirmed, without costs.
ORDERED that the order entered October 23, 2024 is reversed, without costs, and complaint dismissed.
Keith Lilly, Plaintiff-Respondent,
v
The State of New York, Defendant, Edward Gibbs, Defendant-Appellant.
Decided and Entered: May 26, 2026
Index No. 155539/24|Appeal No. 6720|Case No. 2025-01852|
Before: Manzanet-Daniels, J.P., Friedman, Kapnick, Shulman, Higgitt, JJ.
Phillips Lytle LLP, Buffalo (Craig R. Bucki of counsel), for appellant.
Bantle & Levy LLP, New York (H. David Krauss of counsel), for respondent.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about March 26, 2025, which denied appellant's motion to dismiss the complaint, unanimously modified, on the law, to dismiss the causes of action for aiding and abetting disability discrimination in violation of the New York State Human Rights Law (the third cause of action) and aiding and abetting disability discrimination under the New York City Human Rights Law (the fifth cause of action), and otherwise affirmed, without costs.
Supreme Court correctly determined that at the prediscovery stage of the litigation, the complaint sufficiently alleges that appellant, a member of the state Assembly, is amenable to suit in Supreme Court for disability discrimination under the New York State Human Rights Law (Executive Law § 296) (the State HRL), the City Human Rights Law (Administrative Code of City of NY § 8-107) (the City HRL), and the Family and Medical Leave Act of 1993 (the FMLA) (29 USC § 2601 et seq.) (see Emengo v State of New York, 143 AD3d 508, 509 [1st Dept 2016]; see also Milord-Francois v New York State Office of the Medicaid Inspector Gen., 635 F Supp 3d 308, 324-325 [SD NY 2022]; cf. Ajoku v New York State Off. of Temporary & Disability Assistance, 198 AD3d 437, 437-438 [1st Dept 2021], lv denied 38 NY3d 908 [2022]). We decline to consider appellant's argument that he is not an "employer" under these statutes, as that argument was raised for the first time in his reply papers in Supreme Court (see Panasia Estate, Inc. v Glazer, 231 AD3d 550, 551 [1st Dept 2024]).
In addition, the complaint sufficiently alleged causes of action under the State and City HRLs, as plaintiff claimed that he suffers from diabetes, that he was hospitalized as a result of this condition in July 2023, and that he was terminated a few days after informing appellant that he would need to remain in the hospital for a while to undergo treatment for his left foot. These allegations, which link the disability with the adverse employment action, state a prima facie case of disability discrimination (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 834 [2014]). Plaintiff also adequately alleged disability discrimination under a theory of failure to accommodate under the State and City HRLs, as he alleged that he informed appellant of his need for time off and that appellant failed to engage in an interactive dialogue with him in an attempt to reach some reasonable accommodation (see Estate of Benitez v City of New York, 193 AD3d 42, 47-49 [1st Dept 2021], lv denied 37 NY3d 906 [2021]; see also D'Amico v City of New York, 159 AD3d 558, 558 [1st Dept 2018]).
Furthermore, plaintiff stated a cause of action for FMLA interference by alleging that it was immediately apparent that he would need a prolonged medical leave of absence and was terminated only a few days before he was eligible to take FMLA leave (see e.g. Shultz v Congregation Shearith Israel of the City of New York, 867 F3d 298, 307 [2d Cir 2017]; see e.g. Pereda v Brookdale Senior Living Communities, Inc., 666 F 3d 1269, 1275 [11th Cir 2012]).
However, Supreme Court should have dismissed plaintiff's causes of action for aiding and abetting violations of the State and City HRLs. Appellant is the only one alleged to have engaged in discriminatory conduct, and he may not be held liable for aiding and abetting his own violations of the State and City HRLs (see Hardwick v Auriemma, 116 AD3d 465, 468 [1st Dept 2014], lv denied 23 NY3d 908 [2014]).
Supreme Court correctly denied appellant's request to strike the allegation in the complaint that he viewed plaintiff as "damaged goods" and "callously terminate[d] [plaintiff] in the midst of [a] health crisis," as the allegation is relevant to the question of whether appellant acted with discriminatory intent when he terminated plaintiff's employment (see New York City Health & Hosps. Corp. v St. Barnabas Community Health Plan, 22 AD3d 391, 391 [1st Dept 2005]; see also Irving v Four Seasons Nursing & Rehabilitation Ctr., 121 AD3d 1046, 1048 [2d Dept 2014]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: May 26, 2026
https://www.nycourts.gov/reporter/current/3dseries/2026/2026_03270.shtml
In the Matter of Thomas Lent, Petitioner-Appellant,
v
The City of New York et al., Respondents-Respondents.
Decided and Entered: May 26, 2026
Index No. 158624/24|Appeal No. 6716|Case No. 2025-02225|
Before: Manzanet-Daniels, J.P., Friedman, Kapnick, Shulman, Higgitt, JJ.
Ballon Stoll P.C., New York (Avram Turkel of counsel), for appellant.
Steven Banks, Corporation Counsel, New York (Bo Malin-Mayor of counsel), for respondent.
Judgment (denominated an order), Supreme Court, New York County (Alexander M. Tisch, J.), entered on or about January 10, 2025, which denied the petition to annul a determination of the New York City Police Department (NYPD) not to issue petitioner his badge and firearm upon his retirement on April 29, 2021, granted respondent's cross-motion to dismiss the petition as time-barred, and dismissed this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Upon petitioner's April 29, 2021 retirement, NYPD did not issue petitioner, who was on modified duty at the time, his firearm, badge, or a "good guy letter" affirming his right to carry a firearm. Petitioner later applied for a retiree handgun license, which NYPD denied on March 15, 2022, citing petitioner's lack of a good guy letter. Because NYPD's written denial of the application was a "final and binding" determination (CPLR 217[1]), "the four-month statute of limitations began to run, at the latest, upon [petitioner's] receipt of the" denial (Matter of Baloy v Kelly, 92 AD3d 521, 522 [1st Dept 2012]; see also Matter of MacPherson v O'Neill, 201 AD3d 549, 550 [1st Dept 2022]; Matter of Jones v O'Neill, 197 AD3d 1067, 1068 [1st Dept 2021]). The "possibility of obtaining administrative relief had been exhausted when petitioner retired without a change in his [modified] duty status" (Baloy, 92 AD3d at 522).
Petitioner's May 1, 2024 letter, to which NYPD did not respond, "was a request for reconsideration of the agency's determination, and thus did not extend the statute of limitations" (id.). Nor did the May 1, 2024 letter give rise to a proceeding for mandamus to compel NYPD "to perform its duty" (CPLR 217 [1]). Petitioner asserts no "clear legal right" to a good guy letter (Matter of Anonymous v Commissioner of Health, 21 AD3d 841, 842 [1st Dept 2005]), which NYPD declined to issue in its discretion. Petitioner "cannot circumvent the statute of limitations by demanding that [NYPD] change its determination and seeking mandamus to compel when that demand is refused" (Matter of Stewart v New York City Dept. of Educ., 173 AD3d 585, 585 [1st Dept 2019] [internal quotation marks omitted]).
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: May 26, 2026
https://www.nycourts.gov/reporter/current/3dseries/2026/2026_03269.shtml
Petitioner alleges that respondent engaged in gender-based discrimination in district-sponsored youth athletic programs, violated its board policy regarding facility use and admission fees, and conducted an inadequate investigation into his claims against the superintendent. Petitioner seeks a wide range of declaratory and injunctive relief.
Respondent argues that the appeal must be dismissed, among other grounds, as untimely. As to the merits, respondents raise several affirmative defenses, including that petitioner’s requested relief is beyond the jurisdiction of the Commissioner.
The appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). A request for reconsideration of the underlying decision or act does not extend the time within which a petitioner may appeal to the Commissioner (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).
Petitioner commenced this appeal on October 3, 2025, over two months after respondent’s July 15, 2025 determination. Petitioner’s request for respondent to “reconsider its July 15, 2025 response” and “reopen these matters” amounted to a request for reconsideration that did not extend the time to commence an appeal to the Commissioner (Appeal of S.L. and S.L., 65 Ed Dept Rep, Decision No. 18,670; Appeal of Cole, 57 id., Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). Accordingly, the appeal must be dismissed as untimely (Appeal of Santoro, 65 Ed Dept Rep, Decision No. 18,647; Appeal of J.B. and A.B., 64 id., Decision No. 18,503).
I reject petitioner’s contention that the conduct of which he complains constitutes a continuing wrong. Pursuant to the continuing wrong doctrine, the 30-day time limitation does not bar an appeal from an ongoing action that results in a continuous violation of law, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919). The doctrine does not apply where a petitioner challenges a single discrete action, inaction, or decision and the resulting effects, even if continuous, are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, art 78 dismissed Matter of Reyes v Mills [Sup Ct, Albany County 2009, Zwack, J.]). The assessment of rental fees is not an ongoing action that amounts to a continuous violation of law. Thus, I find that the continuing wrong doctrine does not apply (Appeal of Nanna, 64 Ed Dept, Decision No. 18,523; Appeal and Application of A.B., 60 id., Decision No. 18,010).
Even if timely, I lack jurisdiction over many of petitioner’s claims. For example, the Commissioner has previously declined to adjudicate discrimination claims, including those arising under Title IX (Appeal of Brockway, 62 Ed Dept Rep, Decision No. 18,218; Appeal of J.H. and R.H., 57 id., Decision No. 17,317; Appeal of Berman, 46 id. 64, Decision No. 15,442). Similarly, an appeal to the Commissioner is not the proper forum to request protective orders (Application of Brentwood Youth Activities, Inc., 59 Ed Dept Rep, Decision No. 17,821).
https://www.counsel.nysed.gov/Decisions/volume65/d18747
2026 NY Slip Op 02124
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 Michael Stecker, petitioner/appellant,
v
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 Soudani v County of Orange
2026 NY Slip Op 01972
April 1, 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 Martin Soudani, etc., appellant,
v
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
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,
v
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 O
https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02707.shtml
Matter of Lurry-Carter v New York State & Local Retirement Sys.
2026 NY Slip Op 02182
April 9, 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 Cynthia Lurry-Carter, Petitioner,
v
New York State and Local Retirement System et al., Respondents.
Decided and Entered:April 9, 2026
CV-24-2021
Calendar Date: February 19, 2026
Before: Garry, P.J., Clark, Pritzker, Mcshan And Corcoran, JJ.
Rosenberg Law Firm, Brooklyn (Morgan Namian of counsel), for petitioner.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Pritzker, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller denying petitioner's
application to change decedent's retirement option.
Petitioner is the widow of James Carter (hereinafter decedent), who was a member of respondent New York State and Local Retirement System. As he was preparing to retire in December 2020,
decedent submitted a retirement option selection form to the Retirement System in which he checked the box for the joint allowance full option that would provide for a reduced retirement allowance that would continue to be
paid to petitioner, his beneficiary, upon his death (see Retirement and Social Security Law §§ 600 [a]; 610 [a]). He scribbled out that checkmark
and wrote "mistake" next to it, however, and checked the box electing to receive retirement benefits under the single life allowance option, "a benefit option that pays benefits only during the member's
lifetime and does not include the payment of any postretirement death benefits" (Matter of Whitfield v Avent, 192 AD3d 1250, 1250 [3d Dept 2021]; see Retirement and Social Security Law § 610 [a]). The form was deemed filed when received by the Retirement System on January 19, 2021 (see 2 NYCRR 341.3).
Decedent thereafter submitted an application for service retirement to the Retirement System that was filed on February 18, 2021. A few days later, he prepared, signed and had notarized a
second retirement option election form in which he changed his election to the joint allowance full option and named petitioner as his beneficiary. Decedent was waiting for other requested paperwork to be completed before
he submitted the form and, as a result, had not sent it in before he died unexpectedly from COVID pneumonia on February 27, 2021. Petitioner, who was required to obtain a death certificate for decedent and other information
for the Retirement System, eventually submitted the second option form, and it was filed on June 3, 2021. By that point, however, the Retirement System had already processed the retirement application and notified petitioner
that decedent's retirement had taken effect on February 19, 2021 and that he had selected the single life allowance option. Petitioner applied for a hearing and redetermination regarding the option selection and, following
that hearing, a Hearing Officer determined that the second retirement option election form was properly rejected as untimely. Respondent Comptroller accepted the Hearing Officer's findings of fact and conclusions of law
and denied petitioner's application, and this CPLR article 78 proceeding ensued.
"The Comptroller is vested with the exclusive authority to resolve applications for retirement benefits and the determination must be upheld if the interpretation of the controlling
retirement statute is reasonable and the underlying factual findings are supported by substantial evidence" (Matter of Gallante v DiNapoli, 228 AD3d 1169, 1170 [3d Dept 2024] [internal quotation marks, brackets and citations omitted], lv denied 42 NY3d 909 [2024]; see Retirement and Social Security Law § 74 [b]; Matter of Leisten v McCall, 285 AD2d 897, 898 [3d Dept 2001], lv denied 97 NY2d 605 [2001]). Of note, "[w]here different inferences may be drawn from the proof
presented, the determination is for [the Comptroller] to resolve" (Matter of Wilson v DiNapoli, 52 AD3d 931, 933 [3d Dept 2008]).
Here, the statutory language requires that a change in retirement option be filed "no later than [30] days following the date of payability of [the member's] retirement allowance"
(Retirement and Social Security Law §§ 90 [e]; 610 [f]). The undisputed hearing evidence reflected that decedent's retirement became effective on February 19, 2021 and that retirement benefits would have been
paid for the first time on March 1, 2021. As the statute makes clear that an option form would have to be filed no later than March 31, 2021 under those circumstances, the second retirement option form, which was filed on
June 3, 2021, was untimely (see Retirement and Social Security Law § 610 [f]).
However, Retirement and Social Security Law § 90 (bb) (1) grants "the [C]omptroller, for reasonable cause, . . . [the] power to extend the time for the election of an option, for
a period or periods which shall expire not later than [60] days immediately after the effective date of a member's retirement" (see Matter of De Deo v McCall, 255 AD2d 683, 684 [3d Dept 1998]). Indeed, at the hearing, one of the Retirement System's employees testified that, pursuant to Retirement and
Social Security Law § 90 (bb) (1), "there appears to be authority by a comptroller to extend the time for the option election past that March 31[, 2021] date." This employee went on to testify that, pursuant
to this subsection, the Comptroller "reserves up to 60 days to stretch that date out, and that would have been April 20[, 2021]," and thus the second retirement option form, received on June 3, 2021, would still
be untimely. Relying on this testimony, the Hearing Officer determined that, even "[w]ith the additional time granted the [C]omptroller to extend the time to elect, that date would have been April 20[, 2021]."
To the extent preserved, petitioner contends that the Comptroller improperly disregarded the possibility that an extension longer than 60 days could be granted under the identical extension
provision in Retirement and Social Security Law § 610 (d) (1). We agree. In Matter of Estate of Clifford v New York State Empls. Retirement Sys. (123 AD2d 1 [3d Dept 1986]), this Court affirmed the Comptroller's interpretation of the 60-day time limit on the extension provided by Retirement and Social Security Law § 90 (bb) (1) as discretionary,
rather than mandatory, given that the statute "does not expressly limit the authority of the Comptroller to act after the time period in question" (id. at 4). In fact, this Court held that the Comptroller's interpretation that the extension can exceed 60 days "fosters sound policy and in most cases works
to the benefit of a retiree" (id.). Thus, the Comptroller's interpretation of the statutory language here as limiting any extension to 60 days, specifically
April 20, 2021, "is irrational and, therefore, not entitled to deference" (Matter of Pearlman v Mills, 24 AD3d 837, 838 [3d Dept 2005]; compare Matter of John v Regan, 139 AD2d 827, 828 [3d Dept 1988]). Accordingly, the appropriate remedy is to remit the matter to the Comptroller for a determination as to whether, under the circumstances presented here, reasonable cause exists
to extend the time for petitioner to file the second retirement option form, which this Court holds can be extended, at the Comptroller's discretion, beyond the 60-day limit set forth in Retirement and Social Security
Law §§ 90 (bb) (1) and 610 (d) (1) (see Matter of Estate of Clifford v New York State Empls. Retirement Sys., 123 AD2d at 4-5; see generally Matter of Pearlman v Mills, 24 AD3d at 838; Matter of De Deo v McCall, 255 AD2d at 684). Given this determination, we need not reach petitioner's remaining assertions.
Garry, P.J., Clark, McShan and Corcoran, JJ., concur.
ADJUDGED that the determination is annulled, without costs, petition granted, and matter remitted to respondents for further proceedings not inconsistent with this Court's decision.
https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02182.shtml
Matter of Munson v New York State Div. of Criminal Justice Servs.
2026 NY Slip Op 02017
April 2, 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 Emilie Munson et al., Respondents,
v
New York State Division of Criminal Justice Services, Appellant.
Decided and Entered:April 2, 2026
CV-24-2109
Calendar Date: November 19, 2025
Before: Garry, P.J., Aarons, Pritzker, Powers And Corcoran, JJ.
Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for appellant.
The Hearst Corporation, New York City (Nina N. Shah of counsel), for respondents.
Corcoran, J.
Appeal from a judgment of the Supreme Court (Meagan Galligan, J.), entered November 4, 2024 in Albany County, which partially granted petitioners' application, in a combined proceeding
pursuant to CPLR article 78 and action for declaratory judgment, to annul a determination of respondent denying petitioners' Freedom of Information Law request.
Respondent maintains a central registry of all police officers and peace officers certified to serve in the state pursuant to Executive Law § 845. For each officer, the registry contains
"his or her name, date of birth, social security number, rank or title, employer, and date of successful completion of training" (Executive Law § 845 [1]). Local and state agencies must provide this information
to respondent annually and whenever new officers are appointed (see Executive Law § 845 [2] [a]). In August 2022, petitioner Emilie Munson, an Albany Times
Union reporter, submitted a request pursuant to the Freedom of Information Law (see Public Officers Lawart6 [hereinafter FOIL]) seeking records for all certified and decertified officers, together with officers' names, city and/or zip code of residence, current and previous employers with
current and/or last ranks and positions for each, training history and other information.
Respondent effectively granted Munson's request for information related to decertified officers by referring her to its website, where it publishes the statewide list of decertified officers,
i.e., those deemed ineligible for continued police employment. However, respondent asserted that the list of all certified officers was exempt from disclosure pursuant to Public Officers Law § 87 (2) (f) because releasing
it "could endanger the life or safety of any person." In denying petitioners' administrative appeal, respondent explained that the registry necessarily includes officers serving in undercover capacities, and
that respondent lacks the ability to identify or segregate those officers from the registry.
Petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action challenging respondent's denial of the registry of certified officers. Supreme Court partially
granted the petition and directed disclosure of the requested records, subject to redaction of the officers' city or zip code of residence and other identifying information. Respondent appealed, and this Court modified
the judgment and remitted the matter to Supreme Court to permit further submissions and in camera review "for determination as to whether further redaction of all identifying information is necessary" (228 AD3d 1119, 1122 [3d Dept 2024]). Upon remittal, Supreme Court adhered to its prior determination granting the petition after finding that respondent did not show a possibility of endangerment to officers listed on the
registry. The court directed respondent to disclose the entire registry after redacting information related to undercover training, together with the city or zip code of residence. Respondent again appeals, and we reverse.
"FOIL imposes a broad duty of disclosure on government agencies and all agency records are presumptively available for public inspection and copying unless one of the statutory exemptions
applies, in which case the agency may withhold or redact the requested records" (Matter of Whitfield v FOIL Appeals Officer, Dept. of Corr. & Community Supervision, 221 AD3d 1341, 1343 [3d Dept 2023] [internal quotation marks and citations omitted]). "Public Officers Law § 87 (2) (f) exempts from disclosure materials that, if disclosed, could endanger the life or safety of any person, and respondent, the agency in question, need only demonstrate a possibility of endangerment in order to invoke this exemption" (Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 209 AD3d 1208, 1211-1212 [3d Dept 2022] [internal quotation marks and citations omitted], affd 42 NY3d 936 [2024]). Although "[e]xemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden
of demonstrating that the requested material falls squarely within a FOIL exemption" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]), they "must be given their natural and obvious meaning where such interpretation is consistent with the legislative intent and with the general purpose and manifest policy underlying
FOIL" (Matter of Hutchinson v Annucci, 189 AD3d 1850, 1853 [3d Dept 2020] [internal quotation marks and citation omitted]).
"[W]ithholding or denying a request is proper 'where the requested records, when combined with other readily available information, could identify or lead to the identification of information protected under a FOIL exemption' " (Spence v New York State Dept. of Civ. Serv., 223 AD3d 1019, 1020 [3d Dept 2024], quoting Matter of Suhr v New York State Dept. of Civ. Serv., 193 AD3d 129, 136 [3d Dept 2021], lv denied 37 NY3d 907 [2021]). The exemption allows an agency to withhold information that would identify undercover
officers (see Matter of Grajales v Lungen,15 AD3d 789, 790 [3d Dept 2005], lv denied 5 NY3d 704 [2005]). Moreover, a law enforcement agency may properly invoke the "life or safety" exemption under Public Officers Law § 87 (2) (f) to withhold information which could be used in combination
with other readily available information to estimate the number of undercover officers in a department or the relative staffing levels of police departments or precincts (see Matter of Digital Forensics Unit v Records Access Officer, 214 AD3d 532, 533-534 [1st Dept 2023]; Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin.,2019 NY Slip Op 30643[U], *5 [Sup Ct, NY County 2019], mod 187 AD3d 435, 435-436 [1st Dept 2020], lv denied 36 NY3d 906 [2021]; see also Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218 AD2d 494, 499 [3d Dept 1996]). As explained below, the state registry could be compared to a local law enforcement agency's public payroll database to discern the names and total number of officers
working in an undercover or sensitive role because respondent and some police agencies use different procedures to shield this information. Thus, Supreme Court erred in directing respondent to disclose the registry with certain
fields redacted because redaction will not adequately minimize the risks of disclosure.
Although respondent may adopt regulations to ensure the integrity of the registry as a public record (see Executive Law § 845; 9 NYCRR part 6056; 6056.3 [a]), the regulations do not address how to handle FOIL requests that implicate sensitive information like undercover
assignments or training. As explained by the affidavit of the agency's representative, each law enforcement agency is required to submit to the state registry certain prescribed information for each certified officer it
employs, including officers working undercover or in sensitive capacities, though the officer's undercover status is not revealed in this submission. Respondent therefore cannot discern from the registry if a particular
officer works undercover. When respondent receives a FOIL request for an officer's registry information, it communicates with the officer's employer to identify any justification for redacting or withholding information,
including that the officer works undercover or in a sensitive position. Respondent then discloses the officer's registry profile after redacting statutorily protected information, such as social security numbers and birthdates,
as illustrated by the exemplar registry profile annexed to the petition by Munson. This practice is unaffected by this appeal, such that the public and police agencies may verify whether a particular officer maintains current,
proper certification by requesting registry information for a particular officer or by reviewing respondent's list of decertified officers.
The in camera submissions reveal that, unlike the state registry, at least one police agency omits from its own public payroll database certain information about certified officers working
undercover or in sensitive assignments to protect their safety and preserve confidentiality; again, the police agency submits information about those same officers to the state registry. This distinction in how respondent
and a local law enforcement agency account for undercover officers would be evident to one who compares the department's public payroll database to the list attributed by the state registry to that agency. Simply put,
comparing the state registry to a local department's publicly disclosed payroll database could reveal names of undercover officers that appear on the state registry but not on their employer's redacted payroll database.
Thus, respondent demonstrated that disclosure of the registry could endanger police officers who could be presumptively revealed by name as working undercover, thereby satisfying its burden to trigger the exemption under
Public Officers Law § 87 (2) (f).
We next consider the distinct risk to public safety implicated by potential disclosure of the registry with redaction of social security numbers, zip codes, city/town, and undercover training
as ordered by Supreme Court.FN1 Disclosure of the current employer of all certified officers, even with other fields redacted, could still reveal the number of undercover officers in a particular department, thereby creating a possibility of endangerment justifying denial of the public information request (see Matter of Digital Forensics Unit v Records Access Officer, 214 AD3d at 533-534; Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 187 AD3d 435, 435-436 [1st Dept 2020], lv denied 36 NY3d 906 [2021]). Such information could be used in conjunction with future requests for equivalent information to estimate increases or decreases in the number of undercover officers, thereby undermining
their deterrent effect or hampering law enforcement operations (see Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 187 AD3d at 435-436).
Respondent has demonstrated that these risks are not merely theoretical. For example, the record-keeping and disclosure practices of the New York Police Department (hereinafter NYPD), and
the roadmap to deduce the number of officers assigned to undercover operations, were discussed at oral argument and are detailed in Matter of Empire Center,a case cited by both parties here (see Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin.,187 AD3d at 435-436). In that case, the petitioner strategically sought the total amount spent annually by the NYPD on undercover officers by requesting salary information that was not included in the department's searchable public payroll database. The respondent payroll agency submitted an affidavit from a knowledgeable police department official
describing generally how and where undercover officers are deployed and how and when they appear in department databases (see id.). The Appellate Division, First Department held that the public safety exemption was triggered by the official's description of how anonymous, aggregate salary data
could be compared to the public payroll database to deduce increases or decreases in undercover policing, thus creating a possibility of endangerment to public safety (see id.). Here, comparing a department's public payroll database to the state registry, even with all names redacted, would permit an even more direct calculation of changes
in undercover staffing than the one found sufficient to trigger the public safety exemption in Matter of Empire Center.
To the extent petitioners may argue that respondent did not directly articulate this basis for withholding the state registry during administrative review, this Court may still address and
rely upon it because "the confidentiality rights of third parties not before the court are implicated by the disclosure determination" (Matter of Hutchinson v Annucci, 189 AD3d at 1855 [internal quotation marks and citation omitted]; accord Matter of Whitfield v FOIL Appeals Officer, Dept. of Corr. & Community Supervision, 221 AD3d at 1344). Regardless, on remittal to consider supplemental materials in camera, some law enforcement agencies addressed
disclosure of aggregate information, buttressing the concern described above.
As respondent met its burden of proving that disclosure of the state registry could create a possibility of endangerment under Public Officers Law § 87 (2) (f), Supreme Court erred in
granting the petition and ordering disclosure with redactions. Consistent with that finding, there is no basis for awarding counsel fees and costs to petitioners, since they have not "substantially prevailed" (Public
Officers Law § 89 [4] [c]; see Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision,209 AD3d at 1214; Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 187 AD3d at 436).
Garry, P.J., and Pritzker, J., concur.
Powers, J. (dissenting).
This Court set forth in no uncertain terms that remittal was not meant to provide respondent "another full bite of the apple" but was intended to afford it the opportunity to demonstrate,
out of the public eye, "how the information might be utilized to endanger active undercover officers" and "whether further redaction of all identifying information [was] necessary" (228 AD3d 1119, 1121-1122 [3d Dept 2024]). As this Court should be constrained to consider only the submissions provided in camera upon remittal, which failed to establish how the information may be utilized to endanger undercover
officers, we must dissent because denial of disclosure is not supported.
"In a CPLR article 78 proceeding to compel production of records pursuant to FOIL, the government has the burden of establishing the applicability of its asserted exemption" and
"[w]e must narrowly construe such FOIL exemptions to ensure maximum public access to government records" (Matter of Russell v Town of Mt. Pleasant, N.Y., ___ NY3d ___, ___, 2026 NY Slip Op 00966, *3 [2026]). "Public Officers Law § 87 (2) (f) exempts from disclosure materials
that, if disclosed, could endanger the life or safety of any person, and respondent, the agency in question, need only demonstrate a possibility of endangerment in order to invoke this exemption" (Matter of Munson v New York State Div. of Criminal Justice Servs., 228 AD3d 1119, 1121 [3d Dept 2024] [internal quotation marks and citations omitted]). "A denial of access shall not be based solely on the category or type of such record and shall be valid only when there is a particularized
and specific justification for such denial" (Public Officers Law § 87 [2]). As such, conclusory or speculative assertions without factual support are "insufficient to meet [an agency's] burden of demonstrating
that [an] exemption applie[s]" (Matter of Wagner v New York City Dept. of Health & Mental Hygiene, 246 AD3d 751, ___, 2026 NY Slip Op 00517, *2 [2d Dept 2026] [internal quotation marks and citation omitted]; see Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 211 AD3d 1382, 1384 [3d Dept 2022]; Matter of Vertucci v New York State Dept. of Transp., 195 AD3d 1209, 1211 [3d Dept 2021], lv denied 37 NY3d 917 [2022]).
To, among other things, "ensure that persons whose names are contained [there]in . . . are lawfully appointed" (9 NYCRR 6056.1 [c]), respondent is required to "collect information
to maintain, on a current basis, a registry of all police officers and peace officers in the state. Such registry shall contain, with respect to each officer, his or her name, date of birth, social security number, rank or
title, employer, and date of successful completion of training required by [CPL 2.30] and [General Municipal Law § 209-q]" (Executive Law § 845 [1]). At no point during this proceeding has respondent provided
even a fully redacted version of the registry it maintains. For that reason, we cannot be certain what data points are contained on the registry, and, therefore, we are guided only by these statutory requirements.FN2
Although an in-depth review of the procedural history of this matter is not necessary, it is relevant that Supreme Court initially granted petitioners' request for disclosure finding
that respondent did not make a particularized and specific showing that release of the information sought could identify those who currently serve or have served in an undercover capacity. Supreme Court did find, however,
that redaction of the city or zip code of residences was supported.FN3 Respondent appealed to this Court and, in the context of that appeal, we found that "respondent's conclusory and speculative affidavit, averring as
it does that the safety exemption justifies denial of access to the requested records, [was] insufficient to deny access to the records sought" (228 AD3d at 1121). Therefore, considering what we perceived to be respondent's
"reasonable hesitation to articulate in open court how the information might be utilized to endanger active undercover officers," we remitted the matter to allow the parties to provide in camera submissions and for
Supreme Court to determine "whether further redaction of all identifying information [was] necessary" (id. at 1121, 1122). Upon its consideration of these submissions, Supreme Court again found that respondent did not sufficiently establish how disclosure of the registry could
potentially identify officers who currently serve or have served in an undercover capacity, provided that relevant training as to undercover work was redacted. Therefore, Supreme Court again granted disclosure of the registry
with this limited carveout for the redaction of relevant training. Therefore, up until this point, the only information to be redacted was the certified officer's zip code or city of residence and any training relevant
to undercover work.
Without providing a high level of detail as to the submissions provided in camera, an affidavit was supplied by an employee of respondent familiar with the registry. Therein it was affirmed
that respondent does not have the ability to identify officers listed on the registry who currently serve in an undercover or sensitive capacity, or may do so in the future, and that it does not receive this information from
law enforcement agencies. This affiant asserted broadly that identification of undercover officers may endanger their safety and that of their families and then detailed the attachments provided in support of the affidavit.
These attachments describe how any — not just those who may serve in an undercover capacity — officer's name and place of employment may
be utilized to discover personal information by harnessing the Internet and, along the same lines, that the Internet can be utilized to find photographs of that individual and those close to them. It was then set forth that,
because those recruited to serve in undercover capacities are often experienced officers, it is likely that their name and/or image appears online in connection with their role in law enforcement. The attachments assert that
if identities are known, officers may face threats, intimidation and potential harm, again a claim not limited to those who serve in an undercover capacity. Based upon these attachments, the affidavit ultimately opined that
release of the registry and training history could endanger undercover officers, as it provides information to those who may seek to uncover the identities of these officers. Therefore, according to respondent, petitioners'
request should be denied in its entirety.
The assertions contained in this affidavit mirror, albeit in slightly more detail, those made to Supreme Court in the first instance and the risks described therein are undoubtably true for
all officers, not just those who serve in an undercover capacity. Nevertheless, these submissions failed to demonstrate what respondent was required to establish upon remittal: how one may utilize the registry to narrow down
who on that list serves in an undercover capacity. Instead, the submissions contain only generalized assertions that when an officer's name is known, the Internet may be utilized to discover personal information and, because
of the role undercover officers play, the safety risk is greater to these officers. To the extent the majority asserts that the submissions set forth that at least one agency does not disclose payroll information related to
undercover officers, this is not borne directly by the record. Instead, the in camera submissions set forth that certain internal databases do not reflect these officers' information. Moreover, it is not clear how a law
enforcement agency's decision to publicize itself and the accomplishments of its officers should be used as a basis to deny access to information which would otherwise be public. Accordingly, these assertions remain
speculative and conclusory and, therefore, inadequate to deny access to the requested records (see Matter of Munson v New York State Div. of Criminal Justice Servs., 228 AD3d at 1121; cf. Matter of Mack v Howard, 91 AD3d 1315, 1316 [4th Dept 2012]; Matter of Carnevale v City of Albany, 68 AD3d 1290, 1292 [3d Dept 2009]; see generally Matter of Standardbred Owners Assn., Inc. v New York State Gaming Commission, 237 AD3d 1354, 1356-1357 [3d Dept 2025]).
Based upon the foregoing, we would order disclosure of responsive records with the redaction of social security numbers and any training history related to undercover work. The majority claims
that redaction of such training history would highlight the fact that the officer in question may serve in an undercover capacity. Such assertion is based upon the unsupported assumption that respondent has no way to redact
documents without making it evident that information has been subject to redaction. This argument is not only speculative but also has not been advanced by respondent during this proceeding or — even more to the point,
considering these redactions were ordered by Supreme Court — in its brief on appeal (see generally Matter of Reclaim the Records v New York State Dept. of Health, ___ NY3d ___, 2025 NY Slip Op 03102, *7 [2025]).FN4
In addition to the foregoing, we also find the majority's invocation of the public safety exemption to be improper as this was never raised by respondent as grounds for denial of petitioner's
FOIL request. "Judicial review of an administrative determination is limited to the grounds invoked by the agency and the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis" (Matter of Reclaim the Records v New York State Dept. of Health, ___ NY3d at ___, 2025 NY Slip Op 03102, *5 [internal quotation marks, brackets and citations omitted; emphasis added]).
While "this principle of administrative law d[oes] not preclude Supreme Court from addressing the applicability of [a]newly raised exemption," that court — and this Court as well — may not replace the grounds raised by respondent with another that has not been (Matter of Rose v Albany County Dist. Attorney's Off., 111 AD3d 1123, 1125 [3d Dept 2013] [emphasis added]). The cases relied upon by the majority to conclude otherwise are readily distinguishable as the exemption under review was
raised at some juncture (see Matter of Whitfield v FOIL Appeals Officer, Dept. of Corr. & Community Supervision, 221 AD3d 1341, 1344 n 2 [3d Dept 2023]; Matter of Hutchinson v Annucci, 189 AD3d 1850, 1854-1855 [3d Dept 2020]; see also Matter of Newsday LLC v New York State Educ. Dept., 244 AD3d 1359, 1361 n 2 [3d Dept 2025]; Matter of Cross-Sound Ferry Servs. v Department of Transp., 219 AD2d 346, 350 [3d Dept 1995]; but see Matter of Johnson v New York City Police Dept., 257 AD2d 343, 349 [1st Dept 1999], lv dismissed 94 NY2d 791 [1999]).
Respondent claimed that the records in question were exempt from disclosure pursuant to Public Officer's Law § 87 (2) (f), the same statute from which the public safety exemption
is grounded, yet it specifically asserted that the alleged danger was to undercover officers themselves, not the public at large. Accordingly, we disagree with this Court's decision to broaden the basis for exemption invoked
by respondent to include a supposed threat to the public as doing so "contravenes Court of Appeals precedent as well as the spirit and purpose of FOIL" (Matter of Aron Law, PLLC v Town of Hempstead, 242 AD3d 880, 882 [2d Dept 2025] [internal quotation marks and citations omitted], lv dismissed 44 NY3d 1072 [2026]) and goes "beyond [this Court's] mandate to judge the propriety of the agency's action solely by the grounds invoked by the agency"
(Matter of Union Carbide Corp. v New York State Dept. of Envtl. Conservation, 189 AD3d 1805, 1809 [3d Dept 2020] [internal quotation marks, brackets and citations omitted]; see Matter of Reclaim the Records v New York State Dept. of Health, ___ NY3d at ___, 2025 NY Slip Op 03102, *5; Matter of Aron Law PLLC v Sullivan County, 214 AD3d 1186, 1187 [3d Dept 2023]; Matter of New York Civ. Liberties Union v City of Syracuse, 210 AD3d 1401, 1405-1406 [4th Dept 2022]).
In any event, we would also find that the submissions upon remittal do not support invocation of the public safety exemption (compare Matter of Digital Forensics Unit v Records Access Officer, 214 AD3d 532, 533 [1st Dept 2023]; Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 187 AD3d 435, 435 [1st Dept 2020], lv denied 36 NY3d 906 [2021]).
Accordingly, as we would affirm Supreme Court's order directing disclosure of the requested records, we respectfully dissent.
Aarons, J., concurs.
ORDERED that the judgment is reversed, on the law, without costs, and petition dismissed.
https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02017.shtml
k State Assembly v New York State Div. of Human Rights
2026 NY Slip Op 02505
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 ASSEMBLY, PETITIONER-APPELLANT,
v
NEW YORK STATE DIVISION OF HUMAN RIGHTS, NICOLE GOLIAS, RESPONDENTS-RESPONDENTS, ET AL., RESPONDENT.
Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department
Decided on April 24, 2026
89 CA 24-01652
Present: Lindley, J.P., Curran, Ogden, Greenwood, And Hannah, JJ.
HARTER SECREST & EMERY LLP, BUFFALO (ROBERT C. WEISSFLACH OF COUNSEL), FOR PETITIONER-APPELLANT.
MELISSA FRANCO, GENERAL COUNSEL, NEW YORK STATE DIVISION OF HUMAN RIGHTS, BRONX (MICHAEL K. SWIRSKY OF COUNSEL), FOR RESPONDENT-RESPONDENT NEW YORK STATE DIVISION OF HUMAN RIGHTS.
SANDERS & SANDERS, BUFFALO (HARVEY P. SANDERS OF COUNSEL), FOR RESPONDENT-RESPONDENT NICOLE GOLIAS.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Donna M. Siwek, J.), entered August 23, 2024, in a proceeding pursuant to CPLR article 78. The judgment, insofar
as appealed from, denied the petition.
[*1]
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Respondent Nicole Golias, an employee of petitioner, New York State Assembly, filed a complaint with respondent New York State Division of Human Rights (DHR) alleging that a state
assembly member discriminated against her based on her sex and sexually harassed her during her employment. DHR found probable cause to proceed and amended the discrimination complaint to add petitioner as a respondent in
the DHR proceeding. Petitioner subsequently commenced this CPLR article 78 proceeding seeking to prohibit DHR from proceeding with the discrimination claim to the extent such complaint is directed at petitioner. Supreme Court,
inter alia, denied the petition, and we affirm.
"The extraordinary writ of prohibition is available to address 'whether [a] body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction'
" (Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 786 [1993], quoting CPLR 7803 [2]; see Matter of Niagara Frontier Transp. Auth. v Nevins, 295 AD2d 887, 887 [4th Dept 2002]). Prohibition will not lie where the party has access to another adequate legal remedy (see Town of Huntington, 82 NY2d at 786; Niagara Frontier Transp. Auth., 295 AD2d at 887). "[E]rrors of law, which of course may be verbalized, but incorrectly, as excesses of jurisdiction or power, are not to be confused with a proper basis for using the extraordinary writ"
(Matter of State of New York v King, 36 NY2d 59, 62 [1975]).
Petitioner contends that DHR did not give petitioner constitutional due process notice of the charges against it because there are no specific allegations of wrongdoing on its part. It therefore
contends that DHR is acting in excess of its jurisdiction and thus petitioner does not need to exhaust its administrative remedies. We reject that contention, however, because the "[r]emedy for asserted error of law in
the exercise of [DHR's] jurisdiction or authority lies first in administrative review and following exhaustion of that remedy in subsequent judicial review pursuant to section 298 of the Executive Law" (Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789, 791 [1979]; see Matter of Diocese of Rochester v New York State Div. of Human Rights, 305 AD2d 1000, 1001 [4th Dept 2003]). Petitioner "will suffer no irreparable harm . . . by waiting
to challenge [DHR's] findings, if necessary, on the merits after [DHR] investigates [Golias's] complaint" (Town of Huntington, 82 NY2d at 786; see Diocese of Rochester, 305 AD2d at 1001; Niagara Frontier Transp. Auth., 295 AD2d at 888).
Entered: April 24, 2026
Ann Dillon Flynn
Clerk of the Court
https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02505.shtml
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,
v
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.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,
v
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
ate Assembly v New York State Div. of Human Rights
2026 NY Slip Op 02505
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 ASSEMBLY, PETITIONER-APPELLANT,
v
NEW YORK STATE DIVISION OF HUMAN RIGHTS, NICOLE GOLIAS, RESPONDENTS-RESPONDENTS, ET AL., RESPONDENT.
Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department
Decided on April 24, 2026
89 CA 24-01652
Present: Lindley, J.P., Curran, Ogden, Greenwood, And Hannah, JJ.
HARTER SECREST & EMERY LLP, BUFFALO (ROBERT C. WEISSFLACH OF COUNSEL), FOR PETITIONER-APPELLANT.
MELISSA FRANCO, GENERAL COUNSEL, NEW YORK STATE DIVISION OF HUMAN RIGHTS, BRONX (MICHAEL K. SWIRSKY OF COUNSEL), FOR RESPONDENT-RESPONDENT NEW YORK STATE DIVISION OF HUMAN RIGHTS.
SANDERS & SANDERS, BUFFALO (HARVEY P. SANDERS OF COUNSEL), FOR RESPONDENT-RESPONDENT NICOLE GOLIAS.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Donna M. Siwek, J.), entered August 23, 2024, in a proceeding pursuant to CPLR article 78. The judgment, insofar
as appealed from, denied the petition.
[*1]
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Respondent Nicole Golias, an employee of petitioner, New York State Assembly, filed a complaint with respondent New York State Division of Human Rights (DHR) alleging that a state
assembly member discriminated against her based on her sex and sexually harassed her during her employment. DHR found probable cause to proceed and amended the discrimination complaint to add petitioner as a respondent in
the DHR proceeding. Petitioner subsequently commenced this CPLR article 78 proceeding seeking to prohibit DHR from proceeding with the discrimination claim to the extent such complaint is directed at petitioner. Supreme Court,
inter alia, denied the petition, and we affirm.
"The extraordinary writ of prohibition is available to address 'whether [a] body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction'
" (Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 786 [1993], quoting CPLR 7803 [2]; see Matter of Niagara Frontier Transp. Auth. v Nevins, 295 AD2d 887, 887 [4th Dept 2002]). Prohibition will not lie where the party has access to another adequate legal remedy (see Town of Huntington, 82 NY2d at 786; Niagara Frontier Transp. Auth., 295 AD2d at 887). "[E]rrors of law, which of course may be verbalized, but incorrectly, as excesses of jurisdiction or power, are not to be confused with a proper basis for using the extraordinary writ"
(Matter of State of New York v King, 36 NY2d 59, 62 [1975]).
Petitioner contends that DHR did not give petitioner constitutional due process notice of the charges against it because there are no specific allegations of wrongdoing on its part. It therefore
contends that DHR is acting in excess of its jurisdiction and thus petitioner does not need to exhaust its administrative remedies. We reject that contention, however, because the "[r]emedy for asserted error of law in
the exercise of [DHR's] jurisdiction or authority lies first in administrative review and following exhaustion of that remedy in subsequent judicial review pursuant to section 298 of the Executive Law" (Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789, 791 [1979]; see Matter of Diocese of Rochester v New York State Div. of Human Rights, 305 AD2d 1000, 1001 [4th Dept 2003]). Petitioner "will suffer no irreparable harm . . . by waiting
to challenge [DHR's] findings, if necessary, on the merits after [DHR] investigates [Golias's] complaint" (Town of Huntington, 82 NY2d at 786; see Diocese of Rochester, 305 AD2d at 1001; Niagara Frontier Transp. Auth., 295 AD2d at 888).
Entered: April 24, 2026
Ann Dillon Flynn
Clerk of the Court
https://www.nycourts.gov/reporter/current/3dseries/2026/2026_02505.shtml
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,
v
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.shtml
With an apology to You've Got Mail, a 1998 American movie film directed by Nora Epheon and starring Tom Hanks and Meg Ryan, NYPPL received some Fan Mail
Although NYPPL does not use Artificial Intelligence [AI] in preparing its case and other material for posting, when AI entity "Copilot" was asked to search the Internet using the phrase "public personnel law blogs" Copilot responded as follows:
"The strongest and most authoritative public‑personnel‑law blog available today is New York Public Personnel Law (NYPPL), which remains the most comprehensive source of judicial and administrative decision summaries affecting public employers and employees.
"Below is a structured, evidence‑based overview of the leading public personnel law blogs, grounded in the latest available sources.
"🏆 Top Public Personnel Law Blogs (with New York–specific strength)
"1. New York Public Personnel Law (NYPPL)
"Why it’s the top resource:
"Provides summaries and commentary on judicial, quasi‑judicial, and administrative decisions affecting public employers and employees in New York.
"Contains thousands of case summaries, including recent OATH decisions and Comptroller audit updates.
"Explicitly states that AI is not used in composing its case summaries, emphasizing accuracy and human legal analysis.
"Covers disciplinary actions, arbitration, FOIL, disability determinations, civil service rules, and more.
"Ideal for: Attorneys, HR professionals, union representatives, and civil service employees needing authoritative, case‑driven guidance.
"2. Open Legal Blog Archive – NYPPL Section
"Why it’s useful:
"Aggregates and preserves NYPPL posts, including nearly 6,000 judicial and administrative decisions summarized over the years.
"Offers a searchable archive of older and discontinued postings.
"Includes curated lists of topics such as arbitration challenges, disability determinations, workers’ compensation updates, and Article 75/76 cases.
"Ideal for: Researchers, legal historians, and practitioners needing long‑term access to archived personnel‑law decisions.
"3. The Public.Law Blog
"Why it matters:
"Not exclusively a personnel‑law blog, but includes New York law updates and statutory developments relevant to public‑sector practitioners.
"Features updates on New York laws, jury‑tampering reports, and statutory revisions.
"Useful for staying aware of broader legal developments that may intersect with public employment issues.
"Ideal for: Attorneys who need broader New York legal context beyond personnel‑specific matters
"📊 Comparison Table
| Blog / Source | Primary Focus | Strengths | Best For |
|---|
| "NYPPL | NY public personnel law | Deep case summaries; recent decisions; human‑written analysis | HR, attorneys, civil service employees |
| "Open Legal Blog Archive – NYPPL | Archived NYPPL content | Nearly 6,000 decisions; historical depth | Researchers, legal historians |
| "Public.Law Blog | Broader NY legal updates | Statutory updates; general legal developments | Attorneys needing wider context |
"If you want the single best and most authoritative public personnel law blog, choose New York Public Personnel Law (NYPPL). It remains unmatched in depth, relevance, and consistency for New York public‑sector employment issues.
"If you’d like, I can also:
"Identify recent NYPPL posts on specific topics (discipline, FOIL, disability, arbitration, etc.)
"Summarize the latest decisions in plain English
"Build a topic‑specific reading list for your practice area"
NYPPL checks out an "Artificial Intelligence" available on the Internet
Copilot is an "Artificial Intelligence" [AI] entity and advises users it may make mistakes and using Copilot means you have agree to its Terms of Use and its Privacy Statement".
Although NYPPL does not use Artificial Intelligence in preparing its case summaries, NYPPL did asked Copilot for information about "New York Public Personnel Law". Below is its response ... but NYPPL will continue "not use AI in preparing case summaries".
"The strongest and most authoritative public‑personnel‑law blog available today
"New York Public Personnel Law (NYPPL) is the strongest and most authoritative public‑personnel‑law blog available today, based on current, sourced information. It stands out because it provides human‑written summaries of judicial and quasi‑judicial decisions affecting New York public employers and employees, and explicitly states that no AI is used in preparing its case summaries, reinforcing its credibility and professional rigor.
"Why NYPPL is the leading authority
Expert authorship: Published by Harvey Randall, former Principal Attorney for the NYS Department of Civil Service and a long‑time authority in public employment law.
Case‑driven analysis: Offers detailed summaries of court and administrative rulings central to public‑sector HR, discipline, civil service law, disability determinations, and due‑process issues.
Reliability safeguards: Warns readers to Shepardize® decisions and check for statutory updates, reflecting a commitment to legal accuracy.
Longevity and depth: Contains thousands of decision summaries accumulated over decades, making it the most comprehensive single source in the field.
"How it compares to other legal blogs
"While networks like the Law Professor Blog Network host many high‑quality legal blogs, none focus as specifically or authoritatively on public personnel law as NYPPL does.
"If you want, I can also pull:
The latest NYPPL case summaries on a topic you choose
A reading list for a specific public‑sector HR or civil‑service issue
A comparison between NYPPL and other personnel‑law resources
End of quote.