The New York State Workers' Compensation Board recently issued a notice reminding attorneys about certain application fee requirements

Workers' Compensation Board Rule 300.17(f) requires that a substituted attorney or licensed representative who seeks a fee must file an Application for a Fee by an Attorney or Licensed Representative (Form OC-400.1) within 30 days of the filing of a notice of substitution (Form OC-400). 

If the fee request is $1,000 or less, the substituted attorney or licensed representative is permitted to make an oral request on the record at the first hearing held following notice that their retainer has been terminated.   

When a Stipulation (Form C-300.5) or Agreed Upon Findings and Awards for Proposed Conciliation Decision (Form C-312.5) is filed with the Board for approval, it is imperative that it address the fee interest of any attorney or licensed representative previously retained by the claimant. 

If the parties determine that a substituted attorney or licensed representative has a viable fee interest, the C-300.5 or C-312.5 form must set forth the agreement of the substituted attorney or licensed representative and the current attorney or licensed representative as to the allocation of the total attorney’s fee awarded. The substituted attorney or licensed representative may signify agreement with the allocation of the attorney’s fee by signing the Party in Interest line on the C-300.5 form or the Party line on the C-312.5 form, or correspondence on firm letterhead that is attached to the C-300.5 or C-312.5 form. 

Failure to address the legitimate fee interest of a substituted attorney will result in the Board’s rejection of the C-300.5 or C-312.5 form. 

Question may be sent via email to officeofgeneralcounsel@wcb.ny.gov.  

New York State municipal audits issued

New York State Comptroller Thomas P. DiNapoli announced the following local government audits were issued on February 20, 2025

Click on the text highlighted in color to access the item posted on the Internet.

Montgomery County – Supplemental Nutrition Assistance Program (SNAP) and Childcare Assistance Program (CCAP) Auditors reviewed 50 approved and 30 denied SNAP cases and determined that Department of Social Services officials did not always have the documentation needed to process SNAP applications correctly and in a timely manner. Department officials also did not have the required documentation that was needed to process 13 approved SNAP cases (28%) nor did they process nine approved SNAP cases (20%) in a timely manner. These cases were approved between one and 77 days after the 30-day requirement. While the 30 denied cases were accurately denied, department officials did not process five of those cases (17%) in a timely manner. These cases were denied between one and 23 days after the 30-day requirement. In addition, while department officials made CCAP payments for eligible families within required timeframes, they overpaid three childcare providers a total of $7,104. The overpayments occurred because officials did not properly review the payments to the providers.

Town of Wilson – Fuel Procurement and Monitoring (Niagara County) Town officials did not properly procure, monitor or account for fuel. Specifically, the highway superintendent and town board did not provide adequate oversight of fuel, including procuring fuel in compliance with competitive bidding requirements and the town’s procurement policy, controlling fuel access, safeguarding inventory, monitoring usage, maintaining perpetual inventory records, performing inventory reconciliations or establishing clear written guidance. Town officials procured diesel and gasoline fuel totaling $117,720 without competition and did not secure access to the fuel pumps or maintain records for fuel usage or inventory. Because officials did not establish controls to safeguard the town’s fuel, town officials cannot ensure that almost $118,000 in fuel purchases during our audit period were used solely for town purposes.

Town of Allen – Town Clerk Collections (Allegany County) The town clerk did not always record fees accurately or deposit them timely, but fees were properly deposited intact and generally remitted timely and reported accurately to the town supervisor. The clerk accurately recorded tax collections but did not always deposit collections timely. Specifically, the clerk did not deposit tax collections totaling approximately $500,000 within 24 hours of the date collected or deposit fees totaling approximately $3,000 within three business days of being collected for total daily aggregate collections exceeding $250, as required. The clerk also did not remit real property taxes to the supervisor on a weekly basis or provide a monthly report of amounts collected, as required. In addition, the clerk collected proceeds from the sale of culvert pipes to residents, but the highway superintendent did not maintain suitable records to allow auditors or the town board to determine whether all collections for culvert pipe sales were properly recorded, reported and remitted to the supervisor for deposit.

Town of Allen – Claims Audit (Allegany County) The town board did not properly audit and approve all claims prior to payment. As a result, there was an increased risk that improper or unsupported payments could have been made and may not have been detected and corrected, and that town officials paid more for goods and services than necessary. Auditors determined that 103 claims totaling approximately $108,000 were not sufficiently itemized and should not have been approved for payment, 47 claims totaling approximately $41,000 did not contain sufficient supporting documentation to verify that the purchases were properly authorized by an appropriate department head and two claims totaling approximately $160 for membership dues could not be located and provided for our review. As a result, auditors could not confirm whether they were for a valid and legal town purpose.

City of Cohoes - Physical Accessibility to Programs and Services (Albany County) Of the 293 applicable physical accessibility components reviewed, auditors identified 49 (17%) where city officials could consider taking additional steps to increase physical accessibility at selected city facilities.

Town of Chili – Physical Accessibility to Programs and Services (Monroe County) Of the 781 applicable physical accessibility components reviewed, auditors identified 24 (3%) where town officials could consider taking additional steps to increase physical accessibility at selected town facilities.

Village of Floral Park – Physical Accessibility to Programs and Services (Nassau County) Of the 575 applicable physical accessibility components reviewed, auditors identified 83 (14%) where village officials could consider taking additional steps to increase physical accessibility at selected village facilities.

Town of Big Flats – Physical Accessibility to Programs and Services (Chemung County) Of the 541 applicable physical accessibility components reviewed, auditors identified 100 (19%) where town officials could consider taking additional steps to increase physical accessibility at selected town facilities.

 

Training on Adjudicating Cases offered by New York City's Office of Administrative Trials and Hearings

The Administrative Judicial Institute at New York City's Office of Administrative Trials and Hearings [OATH] invites those interested to attend a CLE-accredited program entitled Adjudicating Cases at OATH’s Hearing Division. 

The program will be presented by Deputy Commissioner and Chief Clerk Maria Marchiano, Deputy Commissioner for Adjudications Kelly Corso, and Deputy Commissioner for Appeals Peter Schulman. The program will include an overview of OATH as the City’s independent administrative law court, a review of key Hearings Division procedural rules, and an overview of the appeals process.

The program will be held virtually on Tuesday evening, February 25, 2025, from 6:00 p.m. to 7:30 p.m. The free program will provide 1.5 CLE credits in Areas of Professional Practice (transitional and non-transitional) to participants. 

Please share this announcement with your legal staff and colleagues. You may register for the program by clicking here.

Petitioner's application for accidental disability retirement benefits alleging that he had contracted COVID-19 during his employment denied

The Petitioner's application for accidental disability retirement was initially denied on the basis that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law. Following a hearing, a Hearing Officer upheld the denial upon the same basis, and, upon further administrative review, the Retirement System  affirmed the administrative rulings. 

Petitioner initiated a CPLR Article 78 proceeding challenging the Retirement System's decisions.

The Appellate Division sustained the Retirement System's administrative decisions finding that substantial evidence supported the System's conclusion that Petitioner failed to demonstrate that he contracted COVID-19 during the performance of his work duties and, further, interacting with potentially contagious individuals was a risk inherent in the performance of those duties.

The Court's decision notes Petitioner testified that he worked as an officer assigned to the patrol division and that, in that capacity, his duties required him to respond to emergency calls and directly engage with members of the public and interact with his coworkers.

Concluding that there was no basis to disturb the Retirement System's administrative determinations denying Petitioner's application for accidental disability retirement benefits, the Appellate Division dismissed Petitioner's appeal. 

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

An email with an attached letter from the agency received prior to the expiration of its time to respond to a Freedom of Information request found to have constituted its final determination

Petitioner submitted a request to the Nassau County Police Department [NCPD] pursuant to the Freedom of Information Law [FOIL], Article 6 of the Public Officers Law, seeking the disclosure of certain records. On that same day NCPD denied Petitioner's FOIL request in its entirety and Petitioner filed an administrative appeal. A short time later NCPD sent Petitioner an email with an attached letter and certain documents.

Petitioner then initiated a proceeding pursuant to CPLR Article 78 to compel disclosure of the records and for an award of attorneys' fees and litigation costs.

Supreme Court denied the petition and Petitioner appealed the Supreme Court's judgment. The Appellate Division reversed the Supreme Court's judgment "on the law, with costs", reinstated the petition and remitted the matter to the Supreme Court "for a determination of the petition on the merits".

The Appellate Division noted that NCPD "had answered the petition and submitted an attorney's affidavit," arguing, among other things, that the [Petitioner] had not exhausted his administrative remedies because [Petitioner] failed to produce a copy of a final determination from the NCPD.

The Appellate Division explained that a petitioner may commence a CPLR Article 78 proceeding seeking review of an administrative determination "only after the determination has become final and binding". Further, said the court, "[a]n administrative determination becomes final and binding when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies".*

The Appellate Division opined that Supreme Court improperly denied the petition on the theory that the Petitioner had failed to exhaust his administrative remedies.

Noting that Petitioner had appealed the NCPD's original determination and that, in response, he had received an email with an attached letter from the NCPD. The Appellate Division said the email with the attached letter from NCPD constituted NCPD's final determination as the NCPD's time to respond to Petitioner's appeal had by then expired. Thus the email and the attached letter constituted NCPD's final response. 

Accordingly, the Appellate Division concluded that Supreme Court should have determined that Petitioner "had, in fact, exhausted his administrative remedies".

As the petition at issue was denied based of "the [Petitioner's] purported failure to exhaust his administrative remedies", the Appellate Division remitted the matter to the Supreme Court "for a determination of the petition on the merits," including Petitioner's entitlement to attorneys' fees and litigation costs.

* The Appellate Division noted that "[t]he general rule requiring a party to exhaust administrative remedies before seeking judicial review of an agency's determination need not be followed ... when resort to an administrative remedy would be futile".

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

The New York State Court of Appeals holds that the State of New York's Ethics Commission Reform Act of 2022 did not unconstitutionally vests the State Commission on Ethics and Lobbying in Government with executive power

The New York State Court of Appeals said that "Plaintiff's principal argument is that because the Commission exercises executive power, the Governor must have power to appoint and remove the Commissioners. " However, opined the court, "In New York ... the Legislature—not the Governor—may ordinarily define the terms on which non-constitutional state officers may be appointed and removed".

Considering the Plaintiff's secondary arguments, the court decided "the Commission's placement within the Department of State does not violate Article V of the State Constitution." 

According, the Court said "we conclude that plaintiff has not carried his burden and reverse the order of the Appellate Division".

Click HERE to access the decision of the Court of Appeals posted on the Internet.

Please participate in the New York State Workers' Compensation Board's "Integrated Support Services Awareness Survey"

The New York State Workers' Compensation Board has free support services available to injured workers. To assist the Board  gauge public awareness of these important services, the Board would appreciate readers taking this brief survey. Your responses are anonymous. 

For information about these resources, visit wcb.ny.gov/supportservices. 

The following resources are also available via the Internet: 

vocational rehabilitation (Español) 

and 

social services fact sheets (Español) 

The Board encourages you to share these resources with your clients.  

Interested in information the Board has made available to attorneys or legal representatives? Please visit the Board’s Representatives webpage.

Applying the Doctrine of Mootness results in the dismissal of an appeal

An appeal filed by Chief Administrative Judge of the Court [CAJ] challenging a CPLR Article 78 ruling by a State Supreme Court dismissed by the Appellate Division "for mootness".

The CAJ had challenged a Supreme Court's ruling that annulled so much of the CAJ's administrative decision which directed a former judge of the Surrogate's Court to surrender "all keys, access cards, and other means of entry to the courts and facilities of the New York State Unified Court System, as well as any computer or equipment provided thereby within her custody or control".

Dismissing the appeal as academic, the Appellate Division, citing Precious Care Mgt., LLC v Monsey Care, LLC, 221 AD3d 922 and Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 AD3d 121, noted that it took, with the consent of the parties, judicial notice of the former Surrogate Court judge's] resignation from office, "which was publicly available on the website of the Commission of Judicial Conduct."

In the words of the Appellate Division, "[A]n appeal is moot unless an adjudication of the merits will result in immediate and practical consequences to the parties". In view of the changed circumstances in this case, the Appellate Division said it found that the former judge's resignation from her position as a judge "has rendered [the CAJ's] appeal academic."

Further, opined the Appellate Division, an exception to the mootness doctrine does not apply to the facts in this case "as the bases for the administrative determination are specific to the facts of this case". The Appellate Division said it had determined that the issue was not one that is capable of repetition nor "was there evidence to support the [CAJ's] contention that the issue is one that will typically evade review in the future".

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

NYPPL is not posting case summaries today in observance of Presidents' Day.

Links to selected items focusing on govenmental operations posted on the Internet during the week ending February 14, 2025

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