Defendants' subpoenas served on former school district employees in order to depose them quashed

Supreme Court granted the cross-motions of the City of New York and the New York City Department of Education [City] to quash subpoenas issued by the New York City School Construction Authority and Admiral Construction LLC [Defendants] in an effort to depose two former employees of City subpoenaed by Defendants for deposition.*

Defendants appealed the Supreme Court's action but the Appellate Division unanimously affirmed the Supreme Court's decision, without costs, observing that Supreme Court had "providently exercised its discretion" in granting City's cross-motion to quash the subpoenas. 

City, opined the Court, had demonstrated the futility of uncovering anything legitimate via depositions of the subpoenaed former school principals as to the "individual plaintiff's claims of an injurious trip and fall on the scaffold in a fenced-off, locked area that was restricted to construction workers".  

In addition, the Appellate Division noted that "[there] was no evidence the former principals had personal knowledge of the circumstances of the individual plaintiff's fall or of the alleged tripping hazards on the scaffold". In the words of the Appellate Division: "Defendants failed to demonstrate that the deposition testimony of the principals was material and necessary to assist in addressing the premises liability issues".

* The Appellate Division noted that Defendants' subpoenas to compel the deposition testimony of two former New York City Department of Education employees were properly served as Defendants' subpoenas were addressed to them individually, as nonparties, and afforded them proper notice of the claims at issue.

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

Disqualification for appointment to the position of police officer based on the result of a psychological evaluation challenged by the candidate for the appointment

The jurisdiction's personnel agency [Respondent] found a candidate [Plaintiff] for appointment to the position of police officer was not qualified for appointment to the position based on the result of a psychological evaluation. In the course of the application review process, Plaintiff disclosed that he had, once, patronized a prostitute. The Plaintiff also disclosed that event during an interview with an investigator.

Petitioner then underwent a psychological evaluation. The evaluator concluded that there was no evidence of any psychological impairment, but that Plaintiff was not recommended for employment as a police officer with the jurisdiction. 

Respondent ultimately found that the Plaintiff was not qualified for appointment to the position of police officer and Plaintiff administratively appealed that decision. In the course of the administrative appeal, Plaintiff submitted the results of two independent psychological evaluations and numerous letters of support. He also appeared for psychological evaluation appeal interview before a panel provided by the Respondent. 

After reviewing the materials from the initial evaluation, the panel indicated it doubted whether there was sufficient evidence to support Plaintiff's disqualification but said it found no significant basis to overturn the original disqualification. The panel's report emphasized Plaintiff's failure to admit to the prostitution incident until asked a direct question during the appeal interview.

Plaintiff commenced the instant Supreme Court CPLR Article 78 proceeding seeking review the Respondent's determination. Respondent moved to dismiss Plaintiff's petition. The Supreme Court denied the Respondent's motion and transferred the proceeding to Appellate Division, finding that Plaintiff's petition raised a substantial evidence issue.

The Appellate Division, noting that Supreme Court erred in transferring the proceeding to it as the challenged determination was not made after a quasi-judicial hearing and did not raise a substantial evidence issue, said that as it had the full record before it would decide the matter on the merits in the interest of judicial economy. 

The Appellate Division granted Plaintiff's petition, with costs, annulled the Respondent's decision, reinstated Petitioner as a candidate for appointment to the position of police officer with the jurisdiction, and noted that Respondent could have the Plaintiff submit to a new psychological evaluation.

Local government and school audits posted on the Internet

On June 30, 2025 New York State Comptroller Thomas P. DiNapoli  announced the following local government and school audits have been posted on the Internet. 

Click on the text highlighted in color to access these audits

Livonia Central School District – Conflict of Interest (Livingston County)

A board member, who resigned on May 31, 2022, had prohibited interests in district contracts pursuant to New York State General Municipal Law. The board member’s physical therapy company entered into six contracts with the district while he was a board member that resulted in payments totaling $724,869 from Aug. 5, 2017 through Dec. 19, 2022. In addition, the former superintendent’s outside employment created an appearance of impropriety. The former superintendent resigned on July 15, 2022. The former superintendent informed district administrators and staff of products and services provided by vendors that were recruited by, and partnered with, a company he partially owned. District officials contracted with 18 of these vendors, for a total cost of $656,579, of which $146,825 related to unnecessary or unused services. The district lacked a formal procedure for identifying and reporting potential conflicts of interest until June 2021. As a result, district officials were not familiar with requirements of New York State General Municipal Law as they relate to conflicts of interest. District officials did not fully understand the steps necessary to disclose a conflict and what constituted a prohibited conflict of interest. Had such procedures been in place, the conflicts of interest may have been avoided.

Churchville-Chili Central School District – Procurement (Monroe County)

District officials did not ensure goods and services related to capital improvement projects’ (CIP) contracts were competitively procured in accordance with the district’s procurement policies or the law. As a result, officials cannot assure taxpayers the 12 CIP contracts entered – valued at approximately $36.6 million – were procured in the most prudent and economical manner and without favoritism. Specifically, officials responsible for purchasing did not advertise in the district’s official newspaper, as required by law, for nine CIP contracts totaling $32.6 million. Officials also did not demonstrate that prior to awarding three contracts, totaling approximately $4 million, through a group purchasing agency, they had reviewed the contracts to ensure the district was permitted to award the contracts pursuant to the “piggybacking” exception set forth in the law. Officials also did not competitively bid for moving and storage services totaling $35,535.

Moravia Central School District – Lead Testing and Reporting (Cayuga County)

District officials did not properly identify, report or implement needed remediation to reduce lead exposure in all potable water outlets as required by state law and Department of Health regulations. Auditors determined 98 of the 303 (32%) water outlets were not sampled or properly exempted by district officials during Cycle Two. This occurred because district officials did not have a sampling plan to identify all water outlets for sampling or exemption. District officials also did not have a remedial action plan that detailed which water outlets they exempted from sampling and how they would be secured against use, and what remedial actions were planned or enacted. Because there is no information on the lead levels of the 98 water outlets not sampled for testing, auditors were unable to determine whether officials identified and remediated all water outlets that would have required it.

North Amityville Fire Company, Inc. – Audit Follow-Up (Suffolk County)

The purpose of the review was to assess the North Amityville Fire Company’s progress, as of June 2024, in implementing our recommendations in an audit report released in April 2023. The audit determined that the board did not ensure that all cash disbursements were for appropriate company purposes or supported. The audit included 10 recommendations to help officials ensure cash disbursements are appropriate and supported. It appears that company officials have made significant progress in ensuring cash disbursements are supported and for company business activities. However, company officials can take further actions to strengthen the controls over the company’s disbursements processes. Of the 10 audit recommendations, four recommendations were fully implemented, and six recommendations were not implemented.

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Appellate Division denies defendant's efforts to dismiss plaintiff's cause of action alleging legal malpractice

Plaintiff's attorneys [Defendants] in this action appeal a Supreme Court order denying Defendants motion for summary judgment dismissing Plaintiff's cause of action alleging legal malpractice.

Plaintiff had brought the instant action after her Federal Employers' Liability Act, 45 USC §51 et seq., [FELA] lawsuit against the Metropolitan Transportation Authority [MTA] was dismissed, with prejudice. Plaintiff alleged that the dismissal of her MTA litigation with prejudice was the result of her Defendants "failure to prosecute" her lawsuit. 

Defendants argued that in light of the denial of Plaintiff's application for accidental disability retirement benefits and the dismissal of the Plaintiff's proceeding pursuant to CPLR Article 78 to review the denial of said application, the Plaintiff was collaterally estopped from claiming that she suffered a work-related injury. Thus, Defendant contended, Plaintiff could not establish that she would have prevailed in the FELA action but for the Defendants' "alleged negligent failure to prosecute that action". 

The Appellate Division affirmed the Supreme Court's ruling explaining:

1. "A plaintiff in an action alleging legal malpractice must prove the defendant attorney's failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages;

2. "To establish proximate causation, the plaintiff must show that [he or] she would have prevailed in the underlying action ... but for the defendant attorney's negligence; and

3. "A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages."

The Appellate Division held that "Contrary to the [Defendants'] contention, they failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice based upon the doctrine of collateral estoppel". 

The Court noted that "The doctrine of collateral estoppel, a narrower species of res judicata, 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 or those in privity." Further, said the Appellate Division, the doctrine applies "only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the ... party to be bound had a full and fair opportunity to litigate the issue in the earlier action'".

The Appellate Division ruled that, contrary to the Defendants' contention, the  Defendants failed to demonstrate an identity of issues between the FELA action and the determination of either the Plaintiff's application for accidental disability retirement benefits or the CPLR Article 78 proceeding. 

In the words of the Appellate Division, "the FELA action involved the issue of whether the MTA's alleged negligence played any part in producing the injuries for which the [Plaintiff] sought damages, that issue was not litigated and necessarily decided against the [Plaintiff] either in the context of her application for accidental disability retirement benefits or in the CPLR article 78 proceeding ... [thus] the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice based upon the doctrine of collateral estoppel".

The Appellate Division further observed that Defendants "also failed to establish, prima facie, that the MTA neither created nor had actual or constructive notice of the alleged dangerous conditions at issue in the FELA action .... Thus, the [Defendants] failed to demonstrate, prima facie, that the [Plaintiff] would not have prevailed in the FELA action but for their alleged failure to prosecute that action". 

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

 

Selected items posted on the Internet during the week ending June 28, 2025:

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