Recovering attorneys' fees and costs incurred in a New York State's Freedom of Information Law CPLR Article 78 action

A "substantially prevailing" party in a CPLR Article 78 involving New York State's Freedom of Information Law may claim "attorneys' fee and costs" where the information demanded was withheld by the custodian of the records and the party seeking the information was required to seek judicial assistance to obtain them.*

In this action the Appellate Division, citing Matter of Dioso Faustino Freedom of Info. Law Request v City of New York, 191 AD3d 504, ruled that where the custodian of the records [Custodian] had "no reasonable basis for denying access" to the records sought pursuant to FOIL, it was undisputed that Petitioner substantially prevailed" as Custodian, during the pendency of this proceeding, "disclosed the records sought in the FOIL request with limited redactions."

A "substantially prevailing" party in a CPLR Article 78 involving New York State's Freedom of Information Law [FOIL] may claim "attorneys' fee and costs" where the information demanded was withheld by the custodian of the records and the party seeking the information was required to seek judicial assistance to obtain the documents or records demanded.

Significantly, the court opined "the voluntariness of [the] disclosure is irrelevant to the issue of whether [Petitioner] substantially prevailed".

As Custodian had conceded the issue of whether it had a reasonable basis for denying access in a prior FOIL proceeding between the same parties before "this court", which was limited to one of the documents at issue here, a medical screening manual, the Appellate Division remanded the matter to Supreme Court for a determination of Petitioner's attorneys' fees and other litigation costs.

* Public Officers Law §89[4][c][ii].

Click HEREto access the decision of the Appellate Division posted on the Internet.

An administrative regulation, or an amendment to such regulation, will be sustained if not arbitrary or irrational

The Independent Insurance Agents and Brokers of New York, Inc., et al., [Petitioners], challenged the validity of the recently amended Insurance Regulation 187 (11 NYCRR 224), which provides protections to consumers engaging in life insurance and annuity transactions. 

The Court of Appeals held that "[b]ecause the Department of Financial Services [DFS] appropriately exercised its authority to create a carefully considered and clear regulation, it found no basis to invalidate the regulation." 

The court explained that: 

1. An administrative regulation will be upheld only if it has a rational basis, and is not unreasonable, arbitrary or capricious, citing New York StateAssn. of Counties v Axelrod, 78 NY2d at 166. 

2. "If a regulation is to be nullified, the challenger must establish that it is so lacking in reason for its promulgation that it is essentially arbitrary", citing Kuppersmith v Dowling, 93 NY2d 90.

3. "So long as the regulation is 'genuine[ly] reasonable and rational' it should be upheld—courts should not scrutinize the 'policy considerations underlying the' regulation”, citing New York StateAssn. of Counties v Axelrod, 78 NY2d 158.

The Court of Appeals then opined "The goal of the amendment is straightforward and supported by the administrative record, and the amendment is plainly tailored to achieve those objectives [and] DFS reasonably concluded that the 'best interest' framework was needed to protect consumers, and [Petitioners] cannot show that the amended regulation is 'essentially arbitrary'".

In the words of the court, "[e]ach of [Petitioners] arguments for invalidating the regulation is unavailing. Petitioners have fallen woefully short of their burden to sustain a facial due process challenge on vagueness grounds, and the extensive administrative record supporting the amended regulation refutes their alternative challenges."

Click on the URL shown below to access the text of the decision of the Court of Appeals.

 https://www.nycourts.gov/reporter/3dseries/2022/2022_05917.htm

 

Education Law §3012-c evaluation procedures apply only to classroom teachers and building principals

A New York City Department of Education [Employer] "per session football coach" [Coach] appealed the Employer's "unsatisfactory performance rating" for his services during the 2018 football season. 

Coach initiated a CPLR Article 78 action seeking a court order directing Employer to expunge the U-rating and reinstate "his ability to do per session [coaching] work  ...." contending that Employer "violated procedure by failing to conduct observations of his performance and provide him with notice of any of the misconduct."

The Appellate Division rejected Coach's argument, explaining that "the evaluation procedures set forth in Education Law §3012-c [Annual professional performance review of classroom teachers and building principals] expressly applies only to "classroom teachers and building principals and [Coach] has not demonstrated that they apply to per session coaches."

The Appellate Division then opined that the Employer's U-rating was not arbitrary and capricious and was supported by a rational basis by the evidence in the record. Such evidence said the court, indicated, among other things, Coach's "arrest for driving while intoxicated, continued alcohol usage on school premises, covering up of misconduct by a football player, and lack of leadership," which led to decline of the football program.

Click HEREto access the Appellate Division's decision in this action.

 

Determining "standing" to proceed with a CPLR Article 78 action

In 2018, Petitioner commenced a CPLR Article 78 proceeding to review a resolution of the Board of Trustees of the Village of Muttontown [Respondents] which provided that certain funds held in a fund for the acquisition of parkland were to be transferred into a general capital improvement fund. The petition also sought to annul Local Law No. 2-2018 of the Village of Muttontown to the extent that it provided for the indemnification of Village employees in the amount of any judgment obtained against them for punitive damages and for damages arising out of intentional wrongdoing or recklessness, based upon their acts as employees.

Petitioner asserted, inter alia,*that the resolution and the local law were passed in violation of various laws, including the State Environmental Quality Review Act (SEQRA).

Respondents moved to dismiss the proceeding, inter alia, on grounds of lack of standing. Petitioner opposed the motion, and cross-moved for leave to amend the petition and for leave to file a late notice of claim.

The Supreme Court granted the Respondents' motion, denied Petitioner's cross motion, denied the petition, and dismissed the proceeding. Petitioner appealed the court's rulings.

The Appellate Division sustained the Supreme Court's ruling, explaining that the Respondents' motions were "properly granted", explaining:

1. Generally, to establish standing to challenge governmental action, a petitioner must show that it would "suffer direct injury different from that suffered by the public at large, and that the injury asserted falls within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted" [See Matter of Riverhead PGC, LLC v Town of Riverhead, 73 AD3d 931].

In this instance, the Appellate Division opine Petitioner did not adequately demonstrate that she suffered "direct injury different from that suffered by the public at large" and thus "failed to establish standing to challenge the resolution and the local law pursuant to CPLR article 78.

The Appellate Division also concluded that Supreme Court also correctly determined that the petitioner lacked standing to assert SEQRA claims. "To establish standing under SEQRA", said the court, "a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA," citing Matter of Tuxedo Land Trust, Inc. v Town Bd. of Town of Tuxedo, 112 AD3d 726 and other decisions.

Further, noted the Appellate Division, "[t]o qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature.

Thus, Supreme Court had properly granted Respondents' CPLR 3211(a) motion to dismiss the petition, denied the Petitioner's cross motion for leave to amend the petition and for leave to file a late notice of claim, denied the petition, and dismissed the proceeding.

* Latin for "among other things."

Click HERE to access the Appellate Division's ruling in this case.

Failing to follow collective bargaining procedures fatal to application for benefits

Plaintiff, a police officer, was injured in the course of performing his duties as a police officer and was absent from work for a period of time. Plaintiff received benefits pursuant to General Municipal Law §207-c. Returning to work as a police officer in April 2013. In May 2015, Plaintiff applied for §207-c benefits for an absence from work related to injuries sustained in September 2011 and December 2012. Following the rejection of his May 2015 efforts to obtain such §207-c benefits, Plaintiff filed a petition pursuant to CPLR Article 78 seeking a court order directing his employer to provide such benefits.

Supreme Court denied Plaintiff's seeking such a court order and dismissed Plaintiff's  petition. The Appellate Division, however, reversed the Supreme Court's judgment, granted the petition to the extent of annulling the June 5, 2015 determination by the Supreme Court, and remitted the matter to the Supreme Court for the purpose of directing reconsideration of the Plaintiff's application for §207-c benefits after offering the Plaintiff "the opportunity to seek to excuse any technical violations of these procedures where the opportunity to provide such excuse was available pursuant to the terms of the collective bargaining agreement" [see Matter of LaPerche v City of Peekskill, 162 AD3d 665].

Upon remittal, in a determination dated February 4, 2019, a new Chief of Police determined that Plaintiff's failure to comply with the procedures set forth in the collective bargaining agreement should not be excused and again denied the Plaintiff's application for benefits pursuant to §207-c. On March 5, 2019, the Plaintiff's request for a hearing concerning the matter was denied and Plaintiff commenced the instant CPLR Article 78 to review the determination of the new Chief of Police dated February 4, 2019.

Supreme Court denied the petition and dismissed the proceeding, and the Plaintiff appealed that ruling.

Noting that procedures to be followed in connection with applying for General Municipal Law §207-c disability benefits were set out in the relevant collective bargaining agreement, the Appellate Division opined that the determination of the new Chief of Police denying the Plaintiff's application based on the unexcused procedural deficiencies in Plaintiff's application for such benefits was not arbitrary and capricious. Accordingly, the Appellate Division sustained Supreme Court's denied Plaintiff's petition and dismissal of the proceeding.

The Appellate Division explained that judicial review of an administrative determination "that is not made as a result of a hearing held pursuant to direction by law such as a determination denying an application for disability benefits pursuant to General Municipal Law §207-c" is limited to the question of whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

The Appellate Division opined that contrary to Plaintiff's contentions, "there is a rational basis in the record for the determination of the ... new Chief of Police that the proffered explanation for the [Plaintiff's] failure to follow the procedures set forth in the collective bargaining agreement relating to applications for benefits pursuant to General Municipal Law § 207-c was insufficient to excuse his noncompliance".

Accordingly, the Appellate Division concluded that "the determination denying the [Plaintiff's] application based on the unexcused procedural deficiencies in his application was not arbitrary and capricious", citing Matter of Laird v Village of Pelham Manor, 81 AD3d 828.

The Appellate Division said that Plaintiff's contention, in effect, that "the procedures set forth in the collective bargaining agreement relating to applications for benefits pursuant General Municipal Law §207-c are void and unenforceable as being contrary to public policy is without merit."

Click the URL set out below to access  the Appellate Division's ruling in this action

https://www.nycourts.gov/reporter/3dseries/2022/2022_06008.htm

 

Applying the McDonnell Douglas burden-shifting test in adjudicating a Title VII action

Petitioner in this action proceeding pro se, alleged that the Office of the New York State Comptroller [OSC] refused to hire Petitioner because of his race.  Federal District Court, adopting a magistrate judge’s Report and Recommendation, the District Court granted OSC's motion for summary judgment. Petitioner appealed the District Court's ruling.

In response to Appellant's appeal the Circuit Court of Appealsl, Second Circuit, [Second Circuit] said it reviews "a grant of summary judgment de novo," drawing all reasonable inferences and resolve all factual ambiguities in favor of the nonmoving party.  The nonmoving party, however, "may not rely on conclusory allegations or unsubstantiated speculation” in opposing summary judgment.

That said, the Second Circuit observed that the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) [Title VII] makes it unlawful for an employer “to fail or refuse to hire . . . any individual . . . because of such individual’s race.” Further, observed the Second Circuit, Title VII discrimination claims are analyzed using the familiar McDonnell Douglas burden-shifting test,* which has three prongs: (1) the plaintiff must first establish a prima facie case of discrimination; (2) the defendant must next proffer a legitimate, non-discriminatory reason for its actions; and (3) the plaintiff must then establish that the defendant’s proffered reason was a pretext for unlawful discrimination.

Noting that Plaintiff had "arguably forfeited appellate review of the issue of pretext for unlawful discrimination and the Second Circuit "could affirm on that basis alone", as OSC did not press Plaintiff's non-jurisdictional forfeiture in its brief, the Second Circuit exercised its discretion to reach the merits of Plaintiff's claims of unlawful discrimination “in the interests of justice”.

That said, the Second Circuit said it agreed with the District Court's ruling, explaining even assuming Plaintiff had established a prima facie case of discrimination—his burden under the first prong of the McDonnell Douglas test—he has not provided any evidence that OSC’s reasons for refusing to hire him were pretextual. OSC proffered three legitimate, non-discriminatory reasons for rejecting his application: (1) frequent job shifting, (2) résumé discrepancies, and (3) a poor writing sample. To establish these reasons as pretextual, Plaintiff would need to “point to evidence that reasonably supports a finding of prohibited discrimination.”

The Second Circuit also opined that Plaintiff "must produce evidence such that a rational finder of fact could conclude that the adverse action taken against [Plaintiff] was more likely than not a product of discriminatory animus.”

Concluding that Plaintiff failed to satisfy the third prong of the McDonnell Douglas test, and observing that OSC’s justification for its poor grade of Plaintiff's writing sample did not rely on anything that could suggest pretext but rather OSC’s interviewers specifically expressed concern over grammatical errors in the sample the Second Circuit said its judgment in favor of OSC appropriate as Plaintiff failed to met his burden under the third prong of the McDonnell Douglas test. 

* See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04.

Click HERE to access the Second Circuit's ruling.

 

The Internal Revenue Service [IRS] posts notice of importance to Tax Exempt and Government Entities

The United States Internal Revenue Service posted a notice on November 4, 2022 advising tax exempt and government entities that the Tax Exempt and Government Entities (TE/GE) Fiscal Year 2023 Program Letter (PDF) lists IRS priorities for this new fiscal year. 

IRS reported that it will also use its Compliance Program and Priorities webpage to provide information about additional priorities as they are launched. 

In addition IRS advised that its Fiscal Year 2023 compliance program and priorities align with the IRS Strategic Goals listed below:

• Enhance Taxpayer Service
• Strengthen Compliance Activities
• Workforce Development
• Transform Operations

IRS plans to release a summary of its Fiscal Year 2022 accomplishments during the first quarter Fiscal Year 2023. Interested parties may also view IRS' "annual program (or work plan) and accomplishment letters for previous years."

 

 

The modern equivalent of a Writ of Mandamus and a Writ of Prohibition preserved in New York State's CPLR

There are a number of ancient common law writs that have been preserved in New York State's Civil Practice Law and Rules. In this action brought pursuant to Article 78 of New York State's Civil Practice Law and Rules, the Appellate Division considered the equivalent of two such ancient writs being sought by the Petitioner, a Writ of Mandamus and a Writ of Prohibition.

With respect to the Writ of Mandamus the court said that "The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought", citing Matter of Legal Aid Society of Sullivan County v Scheinman, 53 NY2d 12.

Addressing the Petitioner's efforts to obtain a Writ of Prohibition, the Appellate Division noted that "Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court -- in cases where judicial authority is challenged -- acts or threatens to act either without jurisdiction or in excess of its authorized powers", citing Holtzman v Goldman, 71 NY2d 564.

As to the Petitioner's seeking either or both of these writs, the Appellate Division concluded that "The [Petitioner] has failed to demonstrate a clear legal right to the relief sought" Accordingly, the Appellate Division  dismissed the proceeding "on the merits." 

Other ancients writs that are from time to time sought in the course of litigation include the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of  “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. As noted earlier, New York State's Civil Practice Law and Rules sets out the modern equivalents of such surviving ancient writs. 

Click the URL below to access the Appellate Division's decision.

https://www.nycourts.gov/reporter/3dseries/2022/2022_06011.htm

 

Recently published New York State position classification standards

Click on the text in color to access that standard published by the New York State Department of Civil Service.

• Associate Director Biological Sciences, Drug Chemistry, Laboratory Quality Assurance, and Toxicology Services
• Immigrant Workers Specialist series
• Habilitation Specialist 1-2
• Security Hospital Treatment Assistant series
• Assistant Regional Director Environmental Conservation
• Retirement Program Administrator 1-4
• Audiologist and Speech Language Pathologist series
• Internal Investigator 1-2 OPWDD
• TRS Investment Officer series

To view all Classification Standards issued by the Department of Civil Service, visit:

https://www.cs.ny.gov/tsplan/tsp_search.cfm

 

Selected notices posted on the Internet by various departments and agencies of the State of New York during the week ending November 5, 2022

NEW YORK STATE DEPARTMENT OF CIVIL SERVICE ANNOUNCES PROFESSIONAL CAREER OPPORTUNITIES ONLINE EXAM IS NOW OPEN FOR REGISTRATION TO FILL HUNDREDS OF JOBS ACROSS STATE GOVERNMENT

 Applicants Can Apply for the PCO Online Exam From November 1 Through November 30; Online Exam Must be Completed by December 15

New PCO Virtual Career Fair Will be Held on November 9 to Highlight Jobs Available Across State Government – Register to Attend Here!

 

Computers Available for New Yorkers Who Need Them to Attend the Career Fair or Take the Online Exam at Designated Career Centers and Educational Opportunity Centers Across the State 

The New York State Department of Civil Service today announced that beginning today, individuals interested in a career in New York State public service can apply and complete the Professional Career Opportunities (PCO) exam, a civil service exam used to fill more than 150 professional entry-level titles across New York State agencies. This exam, which is being offered online for the first time, is the largest exam administered by the Department of Civil Service. Qualified candidates who have a Bachelor’s degree or will have a Bachelor’s degree by June 30, 2023, can apply for the exam online until 11:59 pm EST on Wednesday, November 30, 2022. All candidates who apply MUST complete the online examuntil 11:59 pm EST on Thursday, December 15, 2022.

 

“The Professional Career Opportunities Exam provides jobseekers, including soon-to-be college graduates, with the unique opportunity to gain access to a number of rewarding and meaningful careers with New York State,” said Department of Civil Service Commissioner Timothy R. Hogues. “The Department of Civil Service is pleased to be hosting this large exam online for the first time, making it easier than ever for all New Yorkers to take this exam from the comfort of their own homes or in centers located throughout the State for those who need access to computers. Working for New York State not only offers the chance to serve the greater public, but also provides the opportunity to work with dedicated public servants, in addition to the great health benefits and compensation packages. I encourage all interested candidates to apply for this exam and learn more about joining New York’s diverse and dedicated workforce.”

To be eligible to take the PCO exam, candidates must first meet the minimum qualifications for the exam, which requires a Bachelor’s degree by June 30, 2023. All applicants who meet the minimum qualifications must apply for the exam by November 30, 2022, then access the online exam and submit all examination materials by December 15, 2022. The online exam will require candidates to provide information about their training and experience with an online questionnaire that is completed and submitted by the candidate. Candidates should be prepared to provide detailed information on their education, work experience, dates of employment, and supervisor contact information to answer the questions completely.

To highlight the many career opportunities currently available across State government, all jobseekers are invited to attend the New York State PCO Jobs Virtual Career Fair being held on Wednesday, November 9 from 10:00am to 2:00pm. The job fair will feature a variety of State agencies with a special focus on the many job titles filled by the PCO exam. The career fair will also include informational sessions to help jobseekers begin their New York State careers with helpful information. To register and learn more, click here.

Candidates who need computer access to attend the virtual career fair or to access the online exam may visit a New York State Department of Labor Career Center and should first fill out this simple form to ensure computer availability. Candidates may also visit a SUNY Educational Opportunity Center for computer access.

New York State Department of Labor Commissioner Roberta Reardon said, “Governor Hochul continues to advance efforts to guide New Yorkers into family-sustaining careers that they will love. Civil Service exams open doors to so many amazing career possibilities. I encourage qualified New Yorkers to sign up today to begin their career journey in New York State service.”

SUNY Interim Chancellor Deborah F. Stanley said, “This exam is the next step for our SUNY graduates and soon-to-be graduating seniors to be eligible for hundreds of New York State jobs. For those interested in a career in public service, and the chance to help solve for the needs of our communities, this is the time to apply. Our thanks to our partners within the Department of Civil Service for making the exam more accessible than ever so that more New Yorkers can avail themselves of this opportunity.”

As part of the launch of the PCO exam, New York State has launched a statewide social media campaign, which will include videos and web content to help attract candidates to apply for the exam. Campaign content and additional information and resources to help candidates complete the exam is available at www.cs.ny.gov/pco.

The PCO exam is one civil service exam that is used by State agencies to fill more than 150 different entry-level professional job types across a wide range of discipline, including health and human services, environmental conservation, human resources, administrative analysis, and transportation.  The majority of positions filled through this exam require two-year traineeships during which individuals gain the necessary knowledge and experience to perform the full responsibilities of the position.

Governor Hochul’s ongoing, multi-pronged approach continues to help connect New Yorkers to new career opportunities statewide. Job seekers are encouraged to visit the New York State Job Bank, an online resource maintained by the New York State Department of Labor (NYSDOL) featuring 250,000 available positions across the state. NYSDOL also has several resources on its website to help job seekers with resumes, interview tips, training opportunities including apprenticeships, and much more.

To learn more about working for the State of New York and how to take the next step in pursuing a rewarding career in public service, please visit the Department of Civil Service website and follow the Department onFacebook, Twitter, andLinkedIn.

 

STATE COMPTROLLER DiNAPOLI ANNOUNCES NEW CYBERSECURITY TRAINING WEBINARS FOR LOCAL GOVERNMENTS

The Office of the State Comptroller has developed five new “10-minute Tech Talk” cybersecurity training webinars for local government officials with weekly releases planned throughout October in recognition of National Cybersecurity Awareness Month, State Comptroller Thomas P. DiNapoli announced. 

As threats and attacks from malicious actors continue to become more sophisticated and commonplace, the importance of training for the "people" part of a cyberdefense has grown even more critical.

The trainings were developed by DiNapoli’s Division of Local Government and School Accountability’s Applied Technology Unit. The theme for this year's campaign is "See Yourself in Cyber," highlighting the critical roles that all people play in cybersecurity.

The trainings include:

• Cybersecurity Foundations;
• Software Management;
• Multifactor Authentication;
• Passwords; and
• Phishing.

In addition to the new series, prior years’ Cybersecurity Awareness Month webinar series are also available on the Comptroller’s website, as are several other webinars and a wide variety of user-friendly publications designed to be further cybersecurity education.

DiNapoli's office will be surveying local governments in the weeks ahead on cybersecurity issues.

 

The Audits listed below were posted by the New York State Comptroller during the week ending November 5, 2022:

Click on the text below in "color" to access the audit.

New York City Department of Sanitation (DSNY) and New York City Mayor’s Office of Operations – Street and Sidewalk Cleanliness (Follow-Up) (2022-F-8)

The initial audit determined that weaknesses in key management controls, including communication, coordination, and record keeping, impair DSNY’s ability to address ongoing cleanliness problems on New York City streets and sidewalks efficiently and effectively. In addition, deficiencies in operations’ inspection process and rating calculations further undermine DSNY’s goal of clean streets and sidewalks. The audit made eight recommendations – four each to DSNY and Operations – to address the problems identified. The follow-up found that DSNY did not implement any of OSC’s four recommendations. Operations made progress, having implemented three recommendations and partially implemented one.

Office of Mental Health (OMH) – Reporting of Community-Based Services Under the Transformation Reinvestment Plan (2021-S-15)

OMH’s 2014 Transformation Reinvestment Plan entailed reducing capacity at its inpatient facilities and using the cost savings to enhance and expand services in lower-cost, more accessible community-based settings. OMH reported that, from 2014 through State fiscal year 2020-21, more than $82.5 million realized under the plan was allocated to community-based services (CBS), serving more than 111,000 individuals. This audit found that, while OMH provided adequate reporting on the funds reinvested in CBS under the plan, it can improve on the quality of its reporting. For example, the audit identified inconsistencies with how OMH collected data on “new individuals served,” which could impact the accuracy of the information included in these reports. Also, OMH’s reports do not clearly address its progress in the 11 areas of investments identified in the plan.

Office of Temporary and Disability Assistance – Reimbursement of Homeless Shelter Providers – Rescue Mission Alliance of Syracuse (2021-S-34)

The office’s annual budget for its network of 612 homeless shelters totals in the billions of dollars. Funding to shelters is administered through local departments of social services, which either operate the shelters directly or contract with providers to operate them. In 2020, under its contract with the Onondaga County Department of Social Services, the Rescue Mission Alliance of Syracuse (Rescue Mission) provided homeless services to nearly 1,100 adults and reported expenditures totaling $2.9 million. The audit found that, by design, the office does not monitor shelters’ costs claimed for reimbursement to ensure they comply with the approved budget or, for that matter, with state laws and regulations or Office policies. This responsibility instead falls to the local departments, yet the office does not provide them with the guidance needed for effective monitoring – creating significant risk of improper reimbursements, as evidenced by this audit, which identified $26,123 in costs claimed by Rescue Mission that were improperly reimbursed. The office needs to establish controls to adequately monitor and appropriately reimburse claims by Rescue Mission.

State Education Department (Preschool Special Education Audit Initiative) – Field of Dreams, Inc. – Compliance With the Reimbursable Cost Manual (2022-S-2)

Field of Dreams, a for-profit special education provider serving students from Orange and Ulster counties, is authorized by the State Education Department (SED) to provide Preschool Special Class (over 2.5 hours per day) and Preschool Integrated Special Class (over 2.5 hours per day) to children with disabilities who are between the ages of 3 and 5 years. For the three fiscal years ended June 30, 2019, Field of Dreams reported approximately $2.4 million in reimbursable costs to SED for these programs. Auditors identified $172,121 in costs that did not comply with SED’s requirements for reimbursement.

 

The Department of Civil Service has published the following Attendance and Leave Policy Bulletins:

• Policy Bulletin 2022-06, Attendance and Leave Items – 2021 – 2026-State-CSEA Negotiated Agreements for Employees in the Administrative Services Unit (ASU), Institutional Services Unit (ISU), Operational Services Unit (OSU) and the Division of Military and Naval Affairs (DMNA)

Text of Policy Bulletin 2022-06 will be found at:
https://www.cs.ny.gov/attendance_leave/PolBull22-06.cfm

If you prefer to print Policy Bulletin 2022-06, there is a PDF version posted at:
https://www.cs.ny.gov/attendance_leave/pb2022-06.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

 

New York State Continuing Legal Education Board

An additional CLE requirement for New York attorneys established

• Effective July 1, 2023, attorneys must complete 1 CLE credit hour in the new Cybersecurity, Privacy and Data Protection category of credit as part of an attorney's CLE requirement. The total number of CLE credits that to be completed in a reporting cycle has not been increases.
  
• Experienced attorneys (admitted to the New York Bar for more than two years):
• If you are due to re-register on or after July 1, 2023 (birthday is on or after July 1st), you must complete 1 CLE credit hour in Cybersecurity, Privacy and Data Protection as part of your biennial CLE requirement.
• If you are due to re-register in 2023 but your birthday is before July 1st, you need not comply with the new requirement in 2023, but must comply in future biennial periods.
• Example: If your birthday is on June 30th and you are due to re-register in 2023, then you do not need to comply with the new requirement in 2023, even if you file your registration form on or after July 1, 2023.
• If you are due to re-register in 2024, or later, you must comply with the new requirement.
• Newly admitted attorneys (admitted to the New York Bar for two years or less):
• If you were admitted to the NY Bar prior to July 1, 2023, you need not comply with the Cybersecurity, Privacy and Data Protection requirement in your newly admitted cycle, but must comply in future reporting cycles.
• Attorneys admitted to the NY Bar on or after July 1, 2023, must complete 1 CLE credit hour in Cybersecurity, Privacy and Data Protection as part of their newly admitted attorney CLE requirement.
• Earning Credit: You may start to earn CLE credit in this new category beginning on January 1, 2023.
• For More Information
• CLE website
• https://www.nycourts.gov/attorneys/cle
• Cybersecurity FAQs

Posted on the Internet by the New York State Continuing Legal Education Board.

 

Civics and Science: Contemporary Issues for Civil Democracy

Dr. Robert A. Michaels, NYPPL's Science Consultant, has published a new book focusing on contemporary issues of critical importance to American democracy.  

The book explores, in a strictly non-partisan manner, the nexus between civics and science, identifying contemporary issues of critical importance for American democracy. 

It promotes objective, clear thinking toward evidence-based decision making in a range of important issue areas.  Dr. Michaels is a politically unaffiliated observer of politics.  His analysis is rigorous, and his writing engaging and personal.

Available in a Kindle Edition [$4.99] and in a paperback hard copy format [$19.99].  For additional information about this work and to order your copy from Amazon, click HERE.

Resolving conflicting medial evidence presented by medical experts

A New York City firefighter [Plaintiff] challenged the Subchapter II Medical Board of the New York City Fire Department Pension Fund [Medical Board], after evaluating Plaintiff and reviewing his medical records, concluded that although the Plaintiff was disabled due to his right hip injury, this disabling condition was causally related to chronic degenerative joint disease, not a work-related injury. Accordingly, Plaintiff's application for accidental disability retirement benefits was denied and the Plaintiff was retired on "ordinary disability retirement benefits." 

Supreme Court denied Plaintiff's appeal of the Board's decision to provide him with "ordinary disability retirement benefits" based on court's finding that Medical Board's determination was supported by credible medical evidence* and, thus, was not arbitrary and capricious. Supreme Court dismissed Plaintiff's complaint, which judgment was subsequently affirmed by the Appellate Division. 

The Medical Board had reviewed a recent report submitted by the Plaintiff's surgeon in which the surgeon had opined that the Plaintiff had "post-traumatic unilateral right hip arthritis following an on-the-job injury." The Medical Board, however, ultimately disagreed with the surgeon, stating that the surgeon had not identified any basis for his description of the Petitioner's "arthrosis as 'post-traumatic,' and that there was no evidence that the petitioner had unilateral arthrosis...."

Citing Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Appellate Division explained that "A firefighter is entitled to accidental disability retirement [benefits] when a medical examination and investigation shows that he or she is 'physically or mentally incapacitated for the performance of city-service as a natural and proximate result of an accidental injury received in such city-service'".

Following a medical examination, the Medical Board first determines whether the firefighter is disabled for performance of duty and ought to be retired and if it so finds,  , it must then determine whether the disability is "a natural and proximate result of an accidental injury received in such city-service". The Medical Board than certifies its recommendation on this issue to the Board of Trustees, which is ultimately responsible for retiring the city service member and determining the issue of service-related causation.

In the event, as was here the case, a vote by the Board of Trustees on an application for ADR benefits results in a tie, the application is denied, and the firefighter is awarded ordinary disability retirement benefits as the Court of Appeal ruled in Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund.

In CPLR Article 78 proceeding challenging this result, "the reviewing court may not set aside the Board of Trustees' denial of accidental disability retirement resulting from such a tie vote unless it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident." Further, said the Appellate Division, under this standard, "as long as there was any credible evidence of lack of causation before the Board of Trustees, its determination must stand." 

* In Matter of Santoro v Board of Trustees of N.Y. City Fire Dept. Art.1-B Pension Fund, 217 AD2d 660, the Appellate Division noted that credible medical evidence "is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered". Credible evidence "must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion". In reviewing a determination by the Board of Trustees, "the courts cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board", [See Matter of Santoro v Board of Trustees of N.Y. City Fire Dept. Art.1-B Pension Fund, 217 AD2d 660]. The Appellate Division also opined that in the event there is "conflicting medical evidence and medical reports are presented to the Medical Board, it is solely within the province of the Medical Board to resolve such conflicts."

Click on the URL set out below to access the Appellate Division's decision in this case.

https://www.nycourts.gov/reporter/3dseries/2022/2022_06007.htm