New York City Office of Administrative Trials and Hearings Administrative Law Judge recommended Appointing Authority dismiss of all disciplinary charges filed against employee

ALJ Christine Stecura recommended dismissal of charges against Respondent, a correction officer, after Petitioner failed to prove that Respondent had engaged in undue familiarity with detainees. 

Petitioner, the Department of Correction, brought disciplinary charges against Respondent, an investigator with the Correction Intelligence Bureau (“CIB”), for allegedly standing by a partially obscured open cell door that blocked her from camera view while speaking to detainees, giving and receiving unidentified items to and from detainees, and using her cell phone in front of detainees. 

Petitioner relied on security camera footage, and testimony from an investigator and an assistant deputy warden in charge of CIB, to support its allegations. 

Respondent did not dispute that she spoke with detainees at length in the housing areas or used her cell phone in front of detainees but argued that her conduct was related to her work duties as a CIB investigator, which requires speaking with detainees to build rapport and gain intelligence. Testimony from the retired warden of the facility and the assistant deputy warden in charge of CIB bolstered Respondent’s testimony. 

Regarding the allegation that Respondent gave and received unidentified items from detainees, the ALJ concluded that the video evidence showed Respondent passing a paper bag out of camera view to detainees standing behind a cell door. It also showed Respondent on another occasion removing a bag from her pocket, moving it out of camera view behind a cell door, and then returning the bag to her pocket. 

However, Petitioner failed to show that in either instance impermissible items were given or received, or that Respondent’s actions violated security procedures. 

Accordingly, the ALJ recommended dismissal of all charges against Respondent. 

Click HERE to access Judge Stecura's findings and recommendation posted on the Internet.

Plaintiff is not required to exhaust administrative remedies when the cause of action by the plaintiff is not controlled by a provision in a collective bargaining agreement

In an action to recover damages pursuant to Civil Service Law §75-b and for alleged  employment discrimination on the basis of gender and disability, a Plaintiff employed by the New York City Police Department [NYPD] contended the City of New York and NYPD acted in violation of the New York State Human Rights Law (Executive Law Article 15) and the New York City Human Rights Law (Administrative Code of City of NY § 8-101 et seq.).

The City of New York moved, among other things, to dismiss certain causes of action asserted it. Supreme Court granted those branches of the City's motion and Plaintiff appealed.

The Appellate Division held that:

1. "On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference";

2. Citing NFA Group v Lotus Research, Inc., 180 AD3d 1060, the Court noted that "[e]videntiary material submitted by the plaintiff in opposition to such a motion may be considered to remedy defects in the complaint"; and

3. "An employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies".

However, opined the Appellate Division "[t]here is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the [collective bargaining agreement]". 

In the instant appeal the Appellate Division, citing Flynn v New York State Dept. of Corr. & Community Supervision, 201 AD3d at 886, observed "the [Plaintiff] is not alleging that the City violated a provision of the applicable collective bargaining agreement, but rather that the City took an adverse personnel action against her in retaliation for a disclosure protected under Civil Service Law §75-b(2)(a),".

Accepting the facts as alleged in the complaint as true, and according Plaintiff "the benefit of every possible favorable inference", the Appellate Division concluded "Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of [Plaintiff's] second cause of action as alleged, in effect, a violation of Civil Service Law §75-b insofar as asserted against the City."

The Appellate Division's decision is set out below.

Warmbier v City of New York

2025 NY Slip Op 02810

Decided on May 7, 2025

Appellate Division, Second Department

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

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

Decided on May 7, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
PAUL WOOTEN
BARRY E. WARHIT
CARL J. LANDICINO, JJ.

2023-10996
(Index No. 701224/22)

[*1]Grace Warmbier, appellant,

v

City of New York, respondents, et al., defendants.

Augello Law Group, P.C., New York, NY (Cynthia A. Augello of counsel), for appellant.

Muriel Goode-Trufant, Corporation Counsel, New York, NY (Melanie T. West and Chloé K. Moon of counsel), for respondent City of New York.

DECISION & ORDER

In an action, inter alia, in effect, to recover damages pursuant to Civil Service Law § 75-b and for employment discrimination on the basis of gender and disability, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered August 1, 2023. The order, insofar as appealed from, granted those branches of the motion of the defendants City of New York and New York City Police Department which were pursuant to CPLR 3211(a)(7) to dismiss the third through eighth causes of action and so much of the second cause of action as alleged, in effect, a violation of Civil Service Law § 75-b insofar as asserted against the defendant City of New York.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants City of New York and New York City Police Department which was pursuant to CPLR 3211(a)(7) to dismiss so much of the second cause of action as alleged, in effect, a violation of Civil Service Law § 75-b insofar as asserted against the defendant City of New York, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff was employed as a "Criminalist III" with the defendant New York City Police Department (hereinafter NYPD). In May 2022, the plaintiff commenced this action against the NYPD and the defendant City of New York (hereinafter together the defendants), among others, inter alia, in effect, to recover damages pursuant to Civil Service Law § 75-b and for employment discrimination on the basis of gender and disability in violation of the New York State Human Rights Law (Executive Law art 15) and the New York City Human Rights Law (Administrative Code of City of NY § 8-101 et seq.). The defendants moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the third through eighth causes of action and so much of the second cause of action as alleged, in effect, a violation of Civil Service Law § 75-b insofar as asserted against the City. In an order entered August 1, 2023, the Supreme Court, inter alia, granted those branches of the motion. The plaintiff appeals.

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the [*2]benefit of every possible favorable inference" (Dee v Rakower, 112 AD3d 204, 208; see 1470 39th St., LLC v Goldberg, 226 AD3d 853, 854). Further, "[e]videntiary material submitted by the plaintiff in opposition to such a motion may be considered to remedy defects in the complaint" (NFA Group v Lotus Research, Inc., 180 AD3d 1060, 1061).

Here, contrary to the City's contention, the plaintiff was not required to allege that she exhausted her administrative remedies under the applicable collective bargaining agreement prior to seeking relief pursuant to Civil Service Law § 75-b. "An employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies" (Shortt v City of New York, 173 AD3d 925, 926; see Flynn v New York State Dept. of Corr. & Community Supervision, 201 AD3d 885, 886). However, "[t]here is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the [collective bargaining agreement]" (Shortt v City of New York, 173 AD3d at 927; see Flynn v New York State Dept. of Corr. & Community Supervision, 201 AD3d at 886). Here, the plaintiff is not alleging that the City violated a provision of the applicable collective bargaining agreement, but rather that the City took an adverse personnel action against her in retaliation for a disclosure protected under Civil Service Law § 75-b(2)(a) (see Flynn v New York State Dept. of Corr. & Community Supervision, 201 AD3d at 886).

Further, accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the complaint, together with the plaintiff's affidavit and evidence submitted in opposition to the motion, adequately stated a cause of action alleging a violation of Civil Service Law § 75-b. Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the second cause of action as alleged, in effect, a violation of Civil Service Law § 75-b insofar as asserted against the City.

However, accepting as true the facts alleged in the complaint, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), the complaint, even as amplified by the plaintiff's submissions in opposition to the motion, failed to state causes of action to recover damages for employment discrimination, unlawful retaliation, or hostile work environment (see Ayers v Bloomberg, L.P., 203 AD3d 872; Polite v Marquis Marriot Hotel, 195 AD3d 965, 967).

The plaintiff's remaining contention is without merit.

Accordingly, the Supreme Court properly granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the third through eighth causes of action insofar as asserted against the City.

IANNACCI, J.P., WOOTEN, WARHIT and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

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

Click on text highlighted in color to access the full audit.

City of Middletown – Payroll and Leave Benefits (Orange County)

City officials did not accurately pay employees’ salaries, wages and benefits or properly accrue leave benefits. Auditors reviewed payments and benefits totaling $1.9 million and found exceptions totaling $292,205, including $191,253 in potential overpayments. As a result, the city paid employees for time they did not work or accrue. Two sewer treatment plant employees received $91,492 for time they may not have worked because they were working at another municipality. City officials made $99,761 in vacation buyout payments that were not in accordance with city collective bargaining agreements.

Town of Philipstown – Financial Management (Putnam County)

The board did not properly manage the town’s financial operations and used the town’s general fund to pay for the Garrison Landing Water District’s (GLWD’s) operation and maintenance costs. During the audit period, the town’s residents paid $2.4 million of the GLWD’s costs that only benefited taxpayers within the water district and resulted in the decline of the general fund balance from $1 million to $53,137. Specifically, the board did not appropriately budget for GLWD operations. Although the town had a GLWD water fund and budgeted approximately $20,000 for debt service in it, the board did not budget for GLWD appropriations in the general fund each year, where annual GLWD expenditures were funded and increased from $85,436 to $975,475 over the six-year audit period. The board did not adopt a transparent budget that clearly communicates the costs associated with GLWD operations or the associated funding sources to taxpayers. The board also did not adopt a comprehensive written multi-year financial plan to help guide the budget development process or establish funds to help finance future expenditures.

Town of Pleasant Valley – Financial Management (Dutchess County)

The board did not develop realistic budgets or properly manage reserves. As a result, the town had significant recurring operating surpluses and may have levied more taxes than necessary. From fiscal years 2019 through 2023, revenues were underestimated and expenditures were overestimated in the general and highway funds, generating operating surpluses totaling $5.1 million and $1.2 million, respectively. The board appropriated fund balance to offset annual deficits that was not needed to fund operations, including $439,870 in the general fund for the audit period and $603,395 in four of the five years reviewed for the highway fund. The board also accumulated surpluses resulting in unrestricted fund balances totaling $4.5 million and $2.4 million in the general and highway funds, respectively, as of Dec. 31, 2023. Because the board did not adopt a fund balance policy and lacked a plan on how the funds will be used, there was no rationale for accumulating significant fund balances.

Village of Leicester – Financial Management (Livingston County)

The board did not effectively manage the village’s fund balance or adopt realistic budgets.

Officials maintained unrestricted fund balance in the general and water funds totaling $729,709 and $152,143, respectively, at the end of the 2023-24 fiscal year, which was sufficient to fund the upcoming fiscal year’s budget appropriations for the general fund by nearly four times and for the water fund by more than half. The board also did not adopt a written fund balance policy or develop and adopt comprehensive written multi-year financial or capital plans that would have assisted the board and officials in developing and adopting realistic budgets and planning for the village’s financial future.

Caledonia Volunteer Fire Department, Inc. – Board Oversight (Livingston County)

The board did not provide adequate oversight of financial operations. In addition, the previous audit report, released March 2014, had similar findings and recommendations concerning the board’s lack of oversight. Because the board did not implement adequate corrective action to address these findings, the same deficiencies exist. The board did not ensure that the financial review committee conducted an annual review of the treasurer’s financial records or that all 325 claims paid between Jan. 1, 2023 and May 31, 2024, totaling $174,302, were reviewed, approved and properly supported. The board also did not ensure the treasurer maintained accurate and complete financial records or provided the board with adequate financial reports, bank statements, canceled check images and bank reconciliations to monitor operations. The board also did not ensure that officials safeguarded and properly supported hall rental and fundraising revenues. From Jan. 1, 2023 through May 31, 2024, deposits, including those for hall rentals and fundraising, totaled $211,917.

Employer failed to establish prima facie entitlement to summary judgment dismissing the complaint by failing to show it lacked constructive notice of the allegedly defective condition

Plaintiff, a teacher, alleged that she fell when she leaned on a defective desk as she was grading papers in a classroom. 

Supreme Court granted the Employer's motion for summary judgment dismissing Plaintiff's cause of action. The Appellate Division, however, unanimously reversed the Supreme Court's ruling "on the law", and reinstated Plaintiff's complaint. 

Although the Employer sustained its burden of establishing that it neither created nor had actual notice of the alleged defective desk, the Appellate Division held that Employer failed to establish prima facie entitlement to summary judgment dismissing the Plaintiff's complaint.

The Appellate Division explained that Employer did not show that the alleged defective condition did not exist when the area was last inspected prior to Plaintiff's fall. 

The Appellate Division's decision is set out below.

Mamah v New York City Dept. of Educ.

2025 NY Slip Op 02877

Decided on May 13, 2025

Appellate Division, First Department

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

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

Decided and Entered: May 13, 2025
Before: Moulton, J.P., Kapnick, Scarpulla, Rodriguez, Higgitt, JJ.

Index No. 28148/19|Appeal No. 4355|Case No. 2024-02688|

[*1]Ramah Mamah, Plaintiff-Appellant,

v

The New York City Department of Education et al., Defendants-Respondents.

Godosky & Gentile, P.C., New York (Robert E. Godosky of counsel), for appellant.

Muriel Goode-Trufant, Corporation Counsel, New York (Karin Wolfe of counsel), for respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered April 9, 2024, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated.

Plaintiff, a teacher at a school in the Bronx, alleges that she fell when she leaned on a defective desk as she was grading papers in the back of a classroom. Defendants sustained their burden of establishing that they neither created nor had actual notice of the alleged defect by submitting the testimony of the school's custodian engineer stating that there had been no prior complaints or injuries related to the desk, and that there was no repair record of any desk because the school discarded broken desks and chairs. Plaintiff also testified that she was not aware of the defective desk leg until after her accident, and that none of the students who used the desk ever reported any defect to her (see Velocci v Stop & Shop, 188 AD3d 436, 439 [1st Dept 2020]).

Nevertheless, defendants failed to establish prima facie entitlement to summary judgment dismissing the complaint, as they did not sustain their burden of demonstrating that they lacked constructive notice of the allegedly defective condition. Although defendants relied on a daily logbook recording the custodian engineer's daily routine for the building, the logbook was not sufficient to show that defendants inspected the classrooms to ensure that they were free from defects (see Dan v City of New York, 227 AD3d 495, 496 [1st Dept 2024]). Furthermore, the custodian engineer testified at his deposition that although he inspected the classrooms every morning, he did so only to make sure that the heat was on. This testimony is insufficient to demonstrate defendants' lack of constructive notice, as it fails to show that the alleged condition did not exist when the area was last inspected before plaintiff fell (see Bonilla v 191 Realty Assoc., L.P., 125 AD3d 470, 470 [1st Dept 2015]).

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

ENTERED: May 13, 2025

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