New York City Emergency Executive Order 240 issued September 14, 2021

Emergency Executive Order 240 issued in response to Hurricane Ida

Download Emergency Executive Order 240

Employee serving a disciplinary probation period challenging his dismissal is required to show that his termination from employment was made in bad faith

Supreme Court rejected the CPLR Article 78 petition filed by a former New York City police officer [Plaintiff] seeking to annul the New York Police Department's [NYPD] decision to terminate his employment while he was serving "on dismissal probation." Plaintiff contended that the termination of his employment as a police officer was made in bad faith in an effort "to frustrate his application for Accidental Disability Retirement [ADR] benefits".*

Plaintiff appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

Plaintiff, said the court, "failed to demonstrate that [NYPD] dismissed him in bad faith," noting that Plaintiff's dismissal was recommended after ADR benefits had been denied him. 

Further, opined the court, any delays in Plaintiff's dismissal were explained by the investigation undertaken by NYPD, which took months to complete.

*  Section 13-173.1 of the Administrative Code of the City of New York requires an employee subject to its provisions to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.

Click HERE to access the Appellate Division's decision.

Using a public office or position of trust for personal gain or advantage

In a press release dated September 10, 2021 captioned Corrupt Orange County IDA officials ordered to repay over $1 million, New York State Comptroller Thomas P. DiNapoli and Orange County District Attorney David M. Hoovler announced that three former officials of the Orange County Industrial Development Agency [IDA], who pleaded guilty in June to corruption charges, including hiding self-dealing and concealing conflicts of interest, were to pay more than $1 million in restitution.  Orange County Court Judge Robert Prisco presided over the sentencing.

Vincent Cozzolino was sentenced to five years probation and on September 10, 2021 paid $1 million in restitution for his conviction of Corrupting the Government in the third degree, a class D felony. Also on September 10, 2021, Laurie Villasuso paid $175,000 in restitution based on her conviction of Corrupting the Government in the fourth degree, a class E felony.

Edward Diana was sentenced upon his conviction of two counts of Offering a False Instrument for Filing in the second degree and one count of Engaging Prohibited Conflict of Interest, both class A misdemeanors. On September 10, 2021, the former county executive paid full restitution in the amount of $90,000.

Comptroller DiNapoli and D.A. Hoovler also released a report detailing the defendants’ crimes and how the systemic failures and neglect of duty by the IDA board and its officials enabled their scheme. 

Click HEREto access this 91 page publication.

The practice of using a public office or position of trust for personal gain or advantage is sometimes referred to as "Jobbery."

The press release reported:

 1. The investigation revealed that former IDA Managing Director Cozzolino entered into a series of contracts (funneled through his company, Galileo Technology Group) with the IDA with vague and seemingly overlapping responsibilities affording him complete control of the Accelerator Program;

2. To further cement his power and despite blatant conflicts of interest, former CEO Villasuso and former board member and Accelerator Committee Chair Diana, were “hired” by Cozzolino’s private company, which received millions in payment from the IDA. Villasuso and Diana were the two IDA officials primarily charged with overseeing the Accelerator program.  Diana admitted to receiving $90,000 in payments from Cozzolino’s firm for merely attending 20 meetings and “a couple” of phone calls;

3. The IDA’s board abdicated its fiduciary duty and acted as a mere rubber stamp for Cozzolino which he exploited for his personal gain and the enrichment of his co-conspirators; and 

4. The IDA board failed to review contracts, invoices or engage in any meaningful oversight which may have exposed the malfeasance. 

Comptroller DiNapoli and District Attorney Hoovler issued a number of recommendations in the report for the new board to implement and to ensure effective review and to promote enhanced IDA governance. 

This investigation was conducted in partnership between the Office of the State Comptroller’s Division of Investigations, the Orange County District Attorney’s Office and the Town of New Windsor Police Department.

Information concerning New York State's Productivity Enhancement Program for 2021 is now available

On Friday, September 10, 2021, Jessica Rowe, Director of Staffing Services, New York State Department of Civil Service, distributed §26.3 of New York State's Attendance and Leave Policy Bulletin 2021--02 addressing the Productivity Enhancement Program [PEP] for 2021. 

PEP permits eligible employees of the State as the employer in the Executive Branch of government represented by the Public Employees Federation [PEF] to exchange previously accrued annual leave [vacation] and, or, personal leave credits in return for a credit to be applied toward their employee share of New York State Health Insurance Plan [NYSHIP] premiums. For 2021, the prorated PEP credit will be credited among the State paydays that fall between September 29, 2021 and December 22, 2021. 

Internet links to the Program Description and the Enrollment Form for the 2021 PEP Program are provided below.

N.B. The enrollment period for 2021 will be open from Monday, September 13, 2021 through Friday, October 1, 2021.

Ms. Rowe said:

"The starting and ending dates of the PEP Program for 2021 are detailed in the Program Description.  The enrollment period for 2021 will be open from Monday, September 13, 2021 through Friday, October 1, 2021.

"Implementation of the program will require action on the part of agency personnel officers, agency timekeepers, and agency health benefits administrators (HBAs).  Specifically, agency personnel officers will be responsible for (1) providing interested employees with program descriptions and enrollment forms; (2) verifying employee eligibility to participate; and (3) notifying timekeepers and health benefits administrators of participant enrollments and separations from service.  Agency timekeepers will be responsible for adjusting the vacation and/or personal leave balances of participants upon enrollment. 

"HBAs are responsible for processing the Health Insurance Premium Contribution Credit (HIPCC) for PEP enrollees.  The Employee Benefits Division will be issuing a separate document with specific instructions for HBAs.  Questions regarding health insurance transactions should be directed to your agency’s processor in the Employee Benefits Division by calling the HBA Help Line at (518) 474-2780."

Below are the Internet links to the Program Description and the Enrollment Form for the 2021 PEP Program:

PEP Program Description

Enrollment Form

Address questions regarding employee eligibility and leave transactions to the Attendance and Leave Unit of the Department of Civil Service at (518) 457-2295.

 

An individual whose Freedom of Information request for public records was denied exhausts administrative remdies by sending a timely objection to the denial to the chief executive or his designee

 

In this CPLR Article 78 proceeding to compel a public entity to comply with petitioners' [Plaintiff's] requests pursuant to the Freedom of Information Law [FOIL] (Public Officers Law Article 6), the custodian of the records [Custodian] appealed Supreme Court's judgment that determined that Plaintiffs had "substantially prevailed in the proceeding" and awarded Plaintiffs attorney fees and costs. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The court said it concluded that Plaintiff had properly brought this proceeding after the Custodian [1] failed to meet its anticipated date for producing documents in response to one of petitioners' FOIL requests and [2] ignored petitioners' additional FOIL requests.

The Appellate Division then rejected the Custodian's claim that the Plaintiffs failed to exhaust their administrative remedies prior to commencing their Article 78 action, explaining that §89[4][a] of the  Public Officers Law provides that "any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body." In the instant matter, said the court, Plaintiffs had exhausted their administrative remedies by sending timely letters to the Custodian objecting to its denial of their requests and asking the Custodian to consider their letter "appeals pursuant to Public Officers Law §89(4)(a)."

As to the Custodian's objection to Supreme Court's awarding Plaintiffs attorney's fees, arguing that "they did not 'substantially' prevail within the meaning of FOIL's fee-shifting provision," the Appellate Division opined that Plaintiffs "received a complete response to their requests only after commencing the instant proceeding," and saw no reason "to disturb Supreme Court's award of attorney's fees and costs."

Click HERE to access the Appellate Division's decision.

Federal, State and Municipal officials take action addressing the impact of the remnants of Hurricane Ida imperiling of health and safety of those living in New York City and adjacent areas

On September 9, 2021, Governor Kathy Hochuland the Federal Emergency Management Agency announced the openings of several Disaster Recovery Centersthat will provide information, assistance and help for New Yorkers who were impacted by the storms and flooding caused by the remnants of Hurricane Ida while New York City Mayor Mayor Bill de Blasio issued Emergency Executive Order 346 addressing unsafe conditions imperiling health and safety.

 

Recovery specialists from FEMA and the U.S. Small Business Administration will be available to answer questions and provide information on the types of federal help available to homeowners, renters and business owners as a result of the major disaster declarations stemming from the hurricane. The Boroughs of the Bronx, Queens, Kings, Richmond and Westchester County were designated for Individual Assistance under the major disaster declaration for the Remnants of Hurricane Ida.

Mayor de Blasio's Emergency Executive Order is set out below:

WHEREAS, the public safety was imperiled by a flash flood emergency caused by the remnants of Hurricane Ida that flooded roads, impacted mass transit, stranded motorists, and caused widespread damage to residential and commercial buildings throughout the City, causing unsafe conditions in those buildings and imperiling health and safety;

WHEREAS, the state of emergency to address the remnants of Hurricane Ida, declared in Emergency Executive Order No. 230, and extended most recently by Emergency Executive Order No. 234, remains in effect; and

WHEREAS, additional reasons for requiring the measures continued in this Order are set forth in Emergency Executive Order No. 235;

NOW THEREFORE, by the power vested in me as Mayor of the City of New York pursuant to law, including Executive Law § 24, I hereby order:

Section 1.  I hereby direct that sections 1, 2, 3, 4 of Emergency Executive Order No. 235, dated September 7, 2021, are extended for five (5) days.

§ 2.  The City Cleanup Corps and relevant agencies shall work to clear debris in affected areas on both public and private property.

§ 3.  I hereby direct, in accordance with section 25 of the Executive Law, New York Civil Service Law 61(2) and Rules of the Personnel Rules and Regulations of the City of New York 5.1.1, that the City Cleanup Corps and staff from any agency, as designated by their Agency Head, shall assist the Commissioner of New York City Emergency Management to carry out the directives set forth in this Order.  The Commissioner of New York City Emergency Management is further directed to take all necessary steps required to carry out the directives set forth in the Order.

§ 4.  This Emergency Executive Order shall take effect immediately and shall remain in effect for five (5) days unless it is terminated or modified at an earlier date.

Bill de Blasio
Mayor Bill de Blasio

Governor Hochul announces new appointments

On September 9, 2021, New York State Governor Kathy Hochul announced following new appointments to her administration.

 

Jeff Lewis has been appointed Chief of Staff to the Governor. Prior to joining the Governor's Office, Mr. Lewis served in the Office of then-Lieutenant Governor Hochul for more than six years, first as Director of External Affairs and then as Chief of Staff. Mr. Lewis has also served as Finance Director at Recchia for Congress (NY-11) and in staff roles on the Democratic Congressional Campaign Committee and in the U.S. House of Representatives, where he worked for then-Representative Hochul (NY-26). His political career began with an internship in the Office of then-Erie County Clerk Hochul. He holds a Bachelor's degree in politics from New York University.

 

Linda Sun has been appointedDeputy Chief of Staff. Ms. Sun previously served as Deputy Superintendent for Intergovernmental Affairs and Chief Diversity Officer at the NYSDepartment of Financial Services. She has also served as Deputy Chief Diversity Officer and Director of Asian American Affairs for the NYS Executive Chamber, Director of External Affairs for Global NY at Empire State Development and Chief of Staff toNYS AssemblymemberGrace Meng. Ms. Sun is the highest appointed Asian American in the administration and a first generation immigrant. She holds a Master's degree from Teachers College at Columbia University and a B.A. from Barnard College at Columbia University.

 

Melissa Bochenski has been appointed as Deputy Chief of Staff. She previously served as then-Lieutenant Governor Hochul's Deputy Chief of Staff. Prior to joining New York State, she worked as a Strategic Relations Analyst at Mand T Bank. From 2011-2013, she served as an Executive Assistant and Office Manager to then-Representative Hochul (NY-26). Ms. Bochenski holds a Bachelor's degree in political science from Canisius College.

 

Julissa Gutierrez was appointed in early 2020 as Chief Diversity Officer for the State of New Yorkand will continue to serve in this role under the Hochul administration. As Chief Diversity Officer, Ms. Gutierrez supports the Governor's programs and initiatives to increase diversity within the State's workforce and has already increased civic, economic and social empowerment in a variety of communities. In May 2021, Ms. Gutierrez was recognized by City and  State New York where she was named #1 on their first MWBEPower 50 List. Ms. Gutierrez previously served as Deputy Director of Constituency Affairs in the Governor's office, in a number of roles at the National Association of Latino Elected and Appointed Officials Educational Fund and as Special Assistant to the Commissioner at the New York City Department of Youth and Community Development. Ms. Gutierrez is a Board Member of the New Immigrants Community Empowerment, a Trustee for the Queens Public Library and a Board Member of the Queens Public Library Foundation. She holds a Master's degree in Social Service Administration from the University of Chicago and a B.A. in International Relations with a Minor in Women's Studies from the University of Delaware.

 

Shirley Paul, Esq. has been appointed Senior Advisor to the Governor. Prior to joining the Governor's office, she served as Assistant Director for Legislative Affairs at SUNY Systems Administration. Ms. Paul has worked in state government in various roles, including working with then-Lieutenant Governor Hochul as Senior Advisor and Counsel and as a Law Clerk in the NYS Court System. Ms. Paul started her career in public service in then Senator Joseph R. Biden's office. She is a member of several civic associations and professional organizations and was featured by City and State in their 2019 Class of Albany 40 Under 40 as a rising star in state government. Ms. Paul is a first generation Brooklynite of Haitian decent. She holds a Bachelor's degree in Political Science from Delaware State University, a Master's degree in Urban Planning and Administration from Brooklyn College and a Juris Doctorate from New York Law School.

 

Sinéad Doherty has been appointedDeputy Secretary for Executive Operations.Prior to joining the Governor's office, she served as Director of Operations for the California based children's non-profit, Good Tidings Foundation. Ms. Doherty worked on the Biden for America presidential campaign, supporting surrogate scheduling and advance in Iowa, after serving as the National Trips Director for the Amy For America campaign. She previously worked for then-Lieutenant Governor Hochul as Director of Operations, served as Confidential Assistant to then US Department of Health and  Human Services Secretary Sylvia Mathews Burwell, and was Deputy Director of Advance for then House Democratic Leader Nancy Pelosi. She holds a bachelor's degree in international relations from Boston University. 

 

Padma Seemangalhas been appointed Deputy Secretary for Policy Operations. Ms.Seemangal previously served as Director of Communications and Public Affairs at Global Strategy Group and as a Senior Advisor for then-Lieutenant Governor Hochul through the Empire State Fellows Program. She also served as Program and Communications Manager for Women Creating Change and Acting Executive Director of the Indo-Caribbean Alliance, Inc. She has served as a policy consultant for the Public Advocate for the City of New York and a team consultant for New York City Council Member Ritchie Torres and the New York City Department of Cultural Affairs. She holds a B.A. in English Literature Studies and Government from St. Lawrence University and a Master's degree in Urban Policy Analysis and Management from The Milano School for International Affairs at the New School.

 

Hazel Crampton-Hays has been appointed Press Secretary. Ms. Crampton-Hays most recently served as Press Secretary to New York City Comptroller Scott Stringer. Previously, she served in the Governor's Press Office, including as First Deputy Press Secretary. She holds a Bachelor's degree in Politics and Religion from Oberlin College.

 

Jelanie DeShong has been appointed Assistant Secretary for Intergovernmental Affairs. Mr. DeShong most recently served as Director of Government Relations for State University of New York Downstate Health Sciences University and previously as Director of Community Engagement for then-Lieutenant Governor Hochul. Mr. DeShong has spent almost a decade in senior roles at the state and local levels of government. Mr. DeShong is a first-generation Brooklynite of Grenadian heritage. He is a product of the City's public school system. Mr. DeShong is an active member of his community and lives in Flatbush, Brooklyn where he grew up.

 

Devan Cayea has been appointed Director of Strategic Planning and Scheduling. Prior to joining the administration, Mr. Cayea recently served on the transition team and in the office of Senator Alex Padilla (D-CA), is a former senior advisor and Director of National Strategic Planning for the Amy for America presidential campaign, and was the Director of Operations in Senator Klobuchar's Capitol Hill office. He also served on the Biden for America presidential campaign, coordinating national travel for Second Gentleman Doug Emhoff during the 2020 cycle. Mr. Cayea began his career as the Deputy Director of Scheduling and Advance for House Democratic Leader Nancy Pelosi (D-CA). Mr. Cayea holds a Bachelor's degree from American University.

 

Fohat Aird-Bombohas been appointedDirector of Advance. Mr. Aird-Bombopreviouslyserved in the Office of then-Lieutenant Governor Hochul where he was the Director of Advance and Special Events. Mr.Aird-Bomboworked on the 2020 presidential campaign for Mike Bloomberg as the New York Regional Operations Director. His previous positions also included serving as Senior Advance Lead for the Speakers of the New York City Council, Melissa Mark-Viveritoand Corey Johnson.Prior to that, he spent time working in the New York Public Schoolsystem as the Director of Operations. Mr. Aird-Bombo, who was born in the Bronx and raised in Brooklynreturned to the Bronx in 2018 to purchase his first home with his husband, Andy.

Administrative disciplinary proceedings via electronic means proposed by the NYS Liquor Authority

In an effort to modernize "outdated administrative disciplinary procedures" the New York State Liquor Authority has proposed amending 9 NYCRR §§54.1, 54.2, 54.3, 54.6 and 80.6 to provide for the service of pleadings via electronic means [see New York State Register I.D. No. LQR-36-21-00002-P] pursuant to Alcoholic Beverage Control Law §119, subdivisions (2) and (3) and §§201 and 203 of the State Administrative Procedure Act. 

Text of the proposed rule and any required statements and analyses may be obtained from Paul Karamanol, Esq., Senior Attorney, State Liquor Authority, 80 South Swan St., Suite 900, Albany, NY 12210, (518) 486-6743.

Data, views or arguments may be submitted Mr. Karamanol and public comment will be received until five days after the last scheduled public hearing.

Matters of public concern alleged to be defamatory uttered by a public official are entitled to a qualified privilege of immunity from liability if they involve the discharge of a public duty

In deciding this action brought by an individual [Plaintiff] alleging he had been defamed by a public officer, the Appellate Division observed that the elements of a cause of action to recover damages for defamation are the making of [1] a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace; [2] published without privilege or authorization to a third party; [3]  amounting to fault as judged by, at a minimum, a negligence standard; and [4] either causing special harm or constituting "defamation per se".*

However, as the Court of Appeals said in Stega v New York Downtown Hosp., 31 NY3d 661, an allegedly defamatory "statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned." Further, a plaintiff may defeat the claimed qualified privilege by showing either common-law malice - "spite or ill will", or may show actual malice, - "knowledge of the falsehood of the statement or a reckless disregard for the truth."

The Plaintiff in this action sought to recover damages for alleged defamatory statements about the Plaintiff by a county executive officer [Respondent] to the media and in a written press release, which Plaintiff claimed, among other things, had injured Plaintiff's reputation.

Respondent moved for summary judgment dismissing the complaint contending that the allegedly defamatory statements were subject to a qualified privilege. Supreme Court agreed and granted Respondent's. Plaintiff appealed but the Appellate Division sustained the lower court's ruling.

The court explained that Respondent had established that his statements "constitute a matter of public concern and are thus entitled to a qualified privilege of immunity from liability" and that Plaintiff "failed to raise a triable issue that the statements were motivated by either common-law or actual malice."

Accordingly, said the Appellate Division, "Supreme Court properly granted the [Respondent's] motion for summary judgment dismissing the complaint."

* The defamation per sein New York are statements which: charge the plaintiff with a serious crime; state false facts that tend to injure the plaintiff in his or her business trade or profession; allege that the plaintiff has a loathsome disease; or impute that the plaintiff is unchaste.

Click HERE to access the Appellate Division decision.

 

An injury suffered by a firefighter that was incurred in the course of a training exercise held a risk inherent in the performance firefighter duties

The basic rule in resolving the denial of an application for accidental disability retirement is that [1] the applicant has the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law and [2] the retirement systems denial of such benefits will be sustained if supported by substantial evidence.

Citing Matter of Kenny v DiNapoli, 11 NY3d 873, the Appellate Division observed that "[f]or purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and "an injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental."

As the injured firefighter bringing this action [Petitioner] was granted performance of duty disability retirement benefits, the Appellate Division opined that the sole issue "to be resolved at the administrative hearing" that resulted in the denial of Petitioner's application for accidental disability retirement benefits was whether incident underlying Petitioner's application constituted an accident.

Petitioner testified that, on the day in question, he and two other firefighters were engaged in a routine training exercise involving the simulated rescue of an injured firefighter. Petitioner, with the assistance of his fellow firefighter, began to lift the victim from the floor and as he did so, "the other firefighter apparently lost his grip, causing [Petitioner] to 'jerk forward' under the weight of the victim and his gear (approximately 285 pounds), which, in turn, caused injury to [Petitioner's" back."

There was no dispute that Petitioner was injured during a training exercise that, in turn, simulated a task that was part and parcel of his routine employment duties. The Appellate Division opined that while Petitioner asserted that the precipitating event, i.e., his fellow firefighter losing his grip on the victim, was unforeseeable, the fact "[t]hat a fellow employee might for some reason be unable to fully hold up his [or her] side of the load is by no means unexpected. It is, rather, an integral risk of lifting and carrying heavy objects" or, in this case, another firefighter.

Under the circumstances, the court concluded that substantial evidence supports "the [Retirement System's] finding that Petitioner was injured during the course of a routine training exercise and as the result of the ordinary risks arising therefrom," and confirmed the Retirement System's determination.

Click HERE to access the Appellate Division's decision.

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Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE. 

New York State's Mass Vaccination Sites are now open to eligible for walk-in vaccination on a first-come, first-serve basis

 All New York State mass vaccination sites are now open to eligible New Yorkers for walk-in vaccination on a first-come, first-serve basis. People who would prefer to schedule an appointment at a state-run mass vaccination site can do so on the Am I Eligible App or by calling 1-833-NYS-4-VAX. People may also contact their local health department, pharmacy, doctor or hospital to schedule appointments where vaccines are available, or visit vaccines.gov to find information on vaccine appointments near them.

On September 2, 2021, 33,410 New Yorkers received their first vaccine dose, and 28,127 completed their vaccine series.

The COVID-19 Vaccine Tracker Dashboard is available to update New Yorkers on the distribution of the COVID-19 vaccine. 

The New York State Department of Health requires vaccinating facilities to report all COVID-19 vaccine administration data within 24 hours; the vaccine administration data on the dashboard is updated daily to reflect the most up-to-date metrics in the state's vaccination effort. New York State Department of Health-reported data from NYSIIS and CIR differs slightly from federally-reported data, which is inclusive of federally-administered doses and other minor differences.

Failure to exhaust administrative remedies fatal to employee's efforts for judicial review an alleged unfair practice charge filed with the Public Employment Relations Board

A school secretary [Plaintiff] formerly employed by the New York City Department of Education [DOE] told her union she had  been subjected to alleged harassment by her DOE supervisors. The union informed Plaintiff that it would not file a "special complaint" with DOE on her behalf. Plaintiff then filed an improper practice charge with the Public Employment Relations Board [PERB] contending that the union had violated of its duty of fair representation within the meaning of Civil Service Law §209-a by failing to file the "special complaint" with DOE.

A PERB administrative law judge held a hearing and subsequently dismissed Plaintiff's improper practice charge. Plaintiff next initiated a CPLR Article 78 action naming DOE and PERB as respondents. Supreme Court granted the Respondents' separate motions to dismiss Plaintiff's petition "for failure to exhaust her administrative remedies", and dismissed Plaintiff's Article 78 petition. Plaintiff appealed the Supreme Court's rulings.

Generally, a party who objects to the determination of an administrative agency is required to exhaust all available administrative remedies before seeking judicial review. As was noted by the Appellate Division in Amorosano-LePore v Grant, 56 AD3d 663, "... there are some exceptions to the rule requiring the exhaustion of administrative remedies, such as demonstrating that efforts to avail oneself of the available administrative procedures such as those that are set out in a statute or a collective bargaining agreement would be futile and thus excuse such failure to exhaust those remedies." The Amorosano-LePore court then opined that Amorosano-LePore failed to prove that efforts to exhaust her administrative remedies would have been "an exercise in futility."

In Plaintiff's case the Appellate Division said that administrative review of the ALJ's decision dismissing the charge of improper practice by PERB was available.*  Citing Jardim v New York StatePub. Empl. Relations Bd., 265 AD2d 329, the Appellate Division sustained the Supreme Court's rulings, explaining that Plaintiff, having failed to seek a review of the ALJ's decision by PERB, had failed to exhaust her administrative remedies.

The Appellate Division held that the Supreme Court had properly granted the  separate motions submitted by DOE and PERB to dismiss Plaintiff's petition insofar as asserted against each of them for failure to exhaust her administrative remedy by failing to appeal the ALJ's ruling to PERB and dismissed Plaintiff's appeal "with one bill of costs."

* See 4 NYCRR 213.2, 213.10.

Click HEREto access the Appellate Division's decision in instant case.