Determining if a lump sum payment to a member of a New York State public retirement system is includable in calculating a member of the retirement system's final average salary

Petitioner was employed as a police officer for the Village pursuant to a series of collective bargaining agreements [CBA] and employment contracts negotiated by the Police Benevolent Association [PBA] from 1989 until his retirement on March 30, 2019, when he began to collect his pension.

In April 5, 2021, Petitioner received a final determination by New York State and Local Employees Retirement System advising him that three $25,000 lump sum payments (totaling $75,000) that he received on March 1 of each year from 2017 through 2019 were not includable in his final average salary for purposes of calculating his pension benefits.* 

This resulted in a recalculation of and reduction in Petitioner's pension benefits and a directive that the overpayments be recouped from his pension payments.

Following a hearing, a Hearing Officer agreed that the lump sum payments had been properly excluded from the calculation of Petitioner's final average salary. The Comptroller adopted the Hearing Officer's decision.

Petitioner then commenced this proceeding pursuant to CPLR Article 78 challenging the Comptroller's determination.

Citing Matter of Bohlen v DiNapoli, 34 NY3d 434, the Appellate Division explained the "Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld". Further, opined the Appellate Division, "where substantial evidence exists to support the [Comptroller's] determination, a court may not substitute its judgment for that of the agency, even if there is evidence supporting a contrary conclusion".

Petitioner bears the burden of establishing his entitlement to the inclusion of the lump sum payments in the calculation of his final average salary, said the Appellate Division, and this he failed to do. 

"Consistent with the provisions of the Retirement and Social Security Law, a member's retirement benefit is based upon his or her final average salary, i.e., 'the average salary earned by such ... member during any three consecutive years which provide the highest average salary' ".**

Noting that a court "need not defer to the Comptroller's interpretation of the statutory exclusion for lump sum 'credits for time not worked' [the court said it was] in agreement with the Comptroller's determination as applied to the facts of this matter."

*This Retirement System determination was based upon its finding that the lump sum payments made pursuant to an October 17, 2017 memorandum of agreement between the Village and the PBA was not for "time worked" and, as such, were not pensionable.

** Annual compensation is defined as "(t)he salary or wages annually earnable by a member" (see Retirement and Social Security Law §302(2)(a).

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

 

Selected links to items focusing on government operations posted on the Internet during the week ending November 17, 2023

AI-Powered Task Forces Tackle Online Child Exploitation AI is emerging as a critical tool to sort through record-breaking amounts of digital evidence in the fight against the online exploitation of children and teens. READ MORE

 

Axon Aims to Reduce Police Shooting Deaths Via New Database The company, known for Tasers and body cameras, says detailed analysis of officer-involved fatal shootings could lead to better training and non-lethal technology. The database goes into minute detail about fatalities. READ MORE

 

Bay Area Transportation Officials Weigh Freeway Tolling Plan The Metropolitan Transportation Commission in the Bay Area is holding public meetings for community feedback on a plan to add tolling to the region’s most-crowded freeways to generate new funding for transit and other projects. READ MORE

 

Breach Notification Delays Draw Criticism for Maine Agencies The breach that exposed the data of an estimated 1.3 million residents was discovered six months before notifications were sent out. Experts say the delay was necessary to investigate the incident. READ MORE

 

CivicPlus Will Sell Its Monsido Accessibility Platform Acquia, which helps businesses build digital tools, is buying the platform, which is meant to make online experiences better for people with disabilities. CivicPlus will still serve local clients interested in Monsido. READ MORE

 

Cyber Attack Downs Washington State’s Transportation Website A cybersecurity incident on Tuesday has made key parts, including real-time information, of the transportation department’s website inaccessible, causing major disruptions. While some services have been restored, maps and permits are still down. READ MORE

 

Cyber Insurance Roundup: What’s Happening Now? From the roller-coaster ride in rates to new generative AI uses to dramatic changes in underwriting rules, cyber insurance is evolving fast. Here are some of the latest trends. READ MORE

 

Disaster Zone Podcast: Gaming Cybersecurity Training A different approach to training teams on cybersecurity. READ MORE

 

Feds Issue Warning on Ransomware Group Targeting Public Sector The FBI and CISA, along with the MS-ISAC, issued a joint advisory explaining Rhysida ransomware actors’ known tactics, techniques and procedures and indicators of compromise — and ways to better defend. READ MORE

 

Five States Recognized for Evidence-Based Investments At a virtual event co-hosted by the National Governors Association and Results for America, the 2023 Invest in What Works State Standard of Excellence was released, highlighting best practices in state data use. READ MORE

 

Five Takeaways from the Fifth National Climate Assessment The massive, 2,000-page report is only issued every four to five years and outlines the major climate issues impacting regions and communities across the nation. Here are five main points of the assessment. READ MORE

 

Former Denver CIO David Edinger Tapped to Lead Colorado IT David Edinger, former CIO for the city and county of Denver, has been tapped to lead the Colorado Office of Information Technology; this comes after Denver named Suma Nallapati, former Colorado IT chief, as its CIO. READ MORE

 

Harris County, Texas, HHS Provider Hit With Ransomware Harris County officials are investigating the extent of a recent ransomware attack on the county's provider for mental health services. They noted that some employee files have become inaccessible because of encryption. READ MORE

 

Huber Heights, Ohio, Suffers Ransomware Attack on Systems A weekend morning ransomware attack on Huber Heights, Ohio, is affecting systems like finance, utilities and human resources. The city expects the disruption to last through the week. READ MORE

 

Iowa Cyber Hub Program Works to Reach the Community Members of the community are encouraged to join a new program about cybersecurity awareness, specifically those who may not be aware of their digital risks or what to do about them. READ MORE

 

Is AI better at predicting the weather than a supercomputer? READ MORE

 

MOVEit Hits Maine: More Than 1 Million People Affected The breach affected more than half of the data held by state’s Department of Health and Human Services, as well as data from other agencies. The incident affects 1.3 million people, in some cases exposing Social Security numbers. READ MORE

 

Nebraska CIO Talks Change Management, Consolidation and Cloud Nebraska CIO Ed Toner explained how the state’s ongoing cloud migration project is addressing agency change hesitancy, streamlining IT processes and securely centralizing data management. READ MORE

 

New Data Hub Helps Explain Diversity in the Latino Community Latinos accounted for more than half of U.S. population growth in the last two decades. Understanding of this community hasn’t kept pace, but a new resource from the Latino Policy and Politics Institute could help change that. READ MORE

 

North Carolina AccessDEQ Hub Streamlines Permitting Process The North Carolina Department of Environmental Quality recently integrated an online application feature into its comprehensive digital hub, consolidating records, data, mapping tools and permitting into one location. READ MORE

 

Pennsylvania Adds Cultural Resources to Digital Library The state of Pennsylvania has announced the addition of select resources to the electronic Power Library, providing constituents with tools to learn new languages, learn about their heritage and more. READ MORE

 

Police Tech Firm Utility Gains Majority Investment from GSV Greater Sum Ventures, whose history includes the gov tech company now called Catalis, aims to provide "end-to-end" tools for public safety professionals. The field is already crowded with Axon, Motorola and others. READ MORE

 

San Antonio to Spend $30.8M for Solar Panels at 42 Sites This spring the city will begin implementing solar panels on city-owned sites, either on rooftops, as parking canopies or as shade structures in parks in community centers. Currently just 10 city buildings have solar panels to generate electricity. READ MORE

 

States Begin to Address Media Literacy Through Legislation New Jersey becomes the latest state to sign a bill centering media literacy in schools, raising further awareness of the need for widespread media literacy policies. But more needs to be done, say experts. READ MORE

 

Texas School Choice Program Could Cost $2B Annually by 2028 The program also includes more funding for special education, teacher retention, per-student allotments and would revamp virtual education and public school accountability. But it would cost millions to implement. READ MORE

 

The Coming Fight Over Municipal Financial Data Rapidly developing AI-powered technology is making it easier to appropriate the public sector's financial information for proprietary uses. Businesses that slice and dice this data should be renters, not owners. READ MORE

 

The Flow of Feedback That Can Remake Public Procurement Massachusetts is showing the way by going to the end users of the products and services governments buy. It’s good for suppliers as well, and produces better results for everyone. READ MORE

 

Transit Needs to Diversify Funding to Face Fiscal Headwinds The fiscal challenges transit is facing are nothing new. To be financially resilient, transit agencies will need to rethink its funding options, and put more pressure on states to funnel federal cash. READ MORE

 

Water Utility Innovations Explored in NYC Environmental Tech Lab The Environmental Tech Lab in New York City selected eight companies to explore proofs of concept as part of its inaugural Operational Efficiency Challenge and Data Utilization Challenge. READ MORE

 

What Happened to Foot Traffic in Large U.S. Cities? Pedestrian activity declined in all of the top 100 metros in the United States between 2019 and 2022, driven in part by commuting and other mobility changes brought on by the COVID-19 pandemic. READ MORE

 

What’s New in Digital Equity: White House Launches National Spectrum Strategy Plus, support for continued ACP funding continues to grow; the FCC adopted final rules on digital discrimination; HUD has unveiled a streamlined enrollment process for the ACP; and more. READ MORE

 

What's the Future of Court Reporting? (Part 2) Electronic recordings and speech-to-text technologies must overcome more challenges before they can replace court reporters. Although, some critics say there's just no replacing humans in the role. READ MORE

 

Wisconsin’s Volunteer Cyber Team Explodes in Membership The volunteer group can assemble a response team seven minutes after a request for help — usually from a small city, county or school district. The number of participants has grown alongside the number of attacks. READ MORE

 

Municipal and School Audits released by New York State Comptroller Thomas P. DiNapoli

On November 17, 2023, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

Schenectady City School District – Math Workbook Inventory (Schenectady County)

District officials did not maintain adequate inventory records and ordered excessive quantities of workbooks. As a result, officials ordered 4,126 workbooks that cost $143,036, which were not needed. Officials did not maintain a comprehensive perpetual inventory of workbooks, nor did they perform annual inventory counts at year-end. As a result, officials were not aware of the large quantities of workbooks stored at the elementary schools. The district lacked an adequate inventory policy or written procedures on how workbooks should be accounted for and how the inventory should be monitored. Officials did not determine the district’s actual workbook need before workbooks were ordered.

 

Corning City School District – Claims Auditing (Steuben County)

The district’s claims auditor did not properly audit and approve all claims prior to payment. Auditors reviewed 100 claims totaling approximately $19.5 million and determined that: the claims auditor, who is an employee of the Greater Southern Tier Board of Cooperative Educational Services (GST BOCES), inappropriately audited 43 claims totaling approximately $16.1 million paid to GST BOCES. This compromised the claims auditor’s objectivity and independence. The school board should have audited these claims. The treasurer paid 18 claims for health insurance reimbursements and credit card purchases totaling approximately $1.7 million before they were properly audited. Auditors found 49 travel-related credit card charges totaling $28,555 did not include a pre-approval form or other supporting documentation.

 

Rockland County – Budget Review

State law authorizes the county to issue debt up to $96 million to liquidate the accumulated deficit in the county’s general fund as of Dec. 31, 2012. Additionally, the law requires the county to submit its proposed budget to the State Comptroller . The county legislature, no later than five days prior to the adoption of the budget, must review all recommendations made by the State Comptroller’s office, and adjust its proposed budget, consistent with any recommendations made. Auditors found that the significant revenue and expenditure projections in the 2024 proposed budget are reasonable. The county’s proposed budget includes a tax levy of $141,791,700.

 

Brentwood Union Free School District – Information Technology (IT) (Suffolk County)

The board and district officials did not adequately monitor nonstudent network user accounts, provide IT security awareness training as required by a board-adopted policy or implement an IT contingency plan. As a result, the district’s computerized data was not adequately safeguarded. In addition, the district has an increased risk that the network may be accessed by unauthorized individuals, data will be lost, and the district may not be able to recover from a network disruption or disaster. Officials also did not disable 486 of the 3,525 enabled nonstudent network user accounts auditors reviewed and determined were not needed or establish written procedures for granting, changing and disabling network user account access.

 

North Tonawanda City School District – Information Technology (Niagara County)

District officials properly managed user account permissions in its financial application but did not properly secure user account access to the network or manage user account permissions in the student information application. As a result, there is a significant risk that network resources and student information could be inappropriately altered, accessed or used. In addition to sensitive IT control weaknesses that were communicated confidentially to officials, auditors found district officials did not disable 246 unnecessary network user accounts or properly manage permissions for 517 user accounts in the student information application by ensuring accounts were locked or disabled when an employee separated from the district.

 

City of Lockport – Budget Review (Niagara County)

Auditors found that the significant revenue and expenditure projections in the proposed budget appear reasonable. However, auditors identified certain revenue and expenditure projections and other matters that should be reviewed. Officials significantly underestimated the amount of overtime incurred by the fire department in 2023, which will exceed the amount budgeted by approximately $440,000. The proposed 2024 budget includes overtime funding of $500,000 for the fire department, an increase of $250,000. If officials cannot reduce 2023 overtime expenditures, the 2024 budget appropriation for overtime will be insufficient.

 

Fine Fire District – Board Oversight (St. Lawrence County)

District officials did not adequately monitor financial activities or maintain appropriate records and reports. As a result, more taxes were levied than needed to fund operations each year and there was an increased risk for errors and irregularities. The board did not ensure that basic accounting records were maintained, that it received written financial reports to manage operations, or that the district’s required annual update documents were filed. The board also did not conduct an annual audit of the secretary-treasurer’s accounting records or hold required public hearings on the proposed 2022 and 2023 budgets or formally adopt the budgets, as required by state law. In addition, annual appropriations were overestimated by an average of $43,300, or 40%.

 

Bellmore-Merrick Central High School District – Payroll (Nassau County)

Auditors determined district officials accurately paid salaries and wages to 58 employees totaling $609,317 of the $127.3 million paid to 1,290 employees during the audit period. There were no recommendations as a result of this audit.

###

 

Individual injured in a "slip and fall" while engaged in a personal activity during her work shift found ineligible for accidental disability retirement benefits

An applicant for accidental disability retirement benefits injured while engaged in a personal activity determined not to have been engaged in performing the duties of the position. The police officer [Petitioner], had applied for accidental disability retirement benefits following her staining multiple injuries as the result of her "slip and fall" accident while exiting her patrol car "when she stopped for coffee". 

Petitioner's applications were denied by the retirement system and, following a hearing, a Hearing Officer upheld the denial of both her applications for benefits, finding that the injuries she suffered were not sustained while Petitioner was engaged in performing the duties of her employment. The State Comptroller adopted the Hearing Officer's findings and conclusions. Petitioner then initiated a CPLR Article 78 proceeding challenging the Comptroller's determination with respect to her applications for accidental disability retirement benefits.

The Appellate Division sustained the Comptroller's decision, holding:

1. The burden is on the applicant for accidental disability retirement benefits to demonstrate that his or her incapacitation was the natural and proximate result of an accident within the meaning of the Retirement and Social Security Law and sustained while in service;

2. The threshold issue of whether [a] petitioner was in service at the time that his [or her] injury occurred turns on whether he [or she] was performing job duties at the time of the injury*; and

3. The Comptroller "is vested with exclusive authority to determine all applications for retirement benefits, including the question of whether an accidental injury was sustained while in service," and, if supported by substantial evidence, the Comptroller's determination must be upheld.

The Appellate Division, noting that Petitioner testified that police officers routinely stopped for coffee and food during their shifts, said the record supports the finding that she was not directed or asked to do so by her supervisor or was a part of her job duties. As substantial evidence supported the Comptroller's determination that Petitioner was not injured while in service in that she was engaged in a personal activity at the time she suffered injury, the Comptroller's decision must be upheld.

Further, said the Court, "Petitioner's reliance on precedent under the Workers' Compensation Law is misplaced, as decisions decided thereunder are not binding on [State Comptroller]".

* See Matter of Verille v Gardner, 177 AD3d 1068

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

Daughter-in-law sentenced to over one year in federal prison and ordered to pay $459,000 in full restitution for stealing NYS Pension and Social Security payments

On November 15, 2023, New York State Comptroller, together with U.S. Attorney for the Northern District of Georgia Ryan K. Buchanan, and Inspector General for the Social Security Administration Gail S. Ennis, reported that a Georgia woman, Sandra Smith, was sentenced to over a year in federal prison and ordered to pay full restitution after Ms. Smith admitted she stole $459,050 in New York state pension and federal social security payments from her deceased mother-in-law’s bank account.

The State Comptroller said “The defendant callously exploited her mother-in-law’s death in an effort to defraud New York’s retirement system and the Social Security Administration". He thanked his investigative team, U.S. Attorney Buchanan, and the Social Security Administration Office of the Inspector General for their assistance in holding Smith accountable.

“Theft from government benefits programs is a common crime that regrettably often follows the death of a family member,” Buchanan said. “This defendant stole nearly half a million dollars from two separate government entities. Her sentence reflects the seriousness of her crimes and hopefully will help to deter others from engaging in similar conduct.”

“Ms. Smith knowingly concealed her mother-in-law’s death to steal over $450,000 in retirement benefits from the deceased’s bank account. Her selfish actions were criminal, and this sentence now holds her responsible for repayment of $194,351 in Social Security funds,” Ennis said. “I thank the New York State Comptroller’s Office for their work in this joint investigation and the U.S. Attorney’s Office and Special Assistant U.S. Attorney Diane Schulman for prosecuting this case.”

Smith’s mother-in-law, Minnie Smith, was a longtime Brooklyn resident who had worked for the State Insurance Fund from 1985 until her retirement in 2005. She subsequently moved to Georgia to be close to family but died on Sept. 14, 2006.

Minnie Smith’s family did not notify the New York state retirement system or the Social Security Administration (SSA) of her death. Instead, the retirement system received a change of address form purportedly signed and dated by the deceased.

At the time of Minnie Smith’s death in September 2006, Sandra Smith was her caretaker and handled her finances. As her caretaker, she had access to Minnie Smith’s bank account. After her mother-in-law died, Sandra Smith kept the bank account open while the retirement system and SSA continued to deposit funds into the account until early 2021 when Minnie Smith’s death was discovered.

A total of $264,699 in retirement system payments and $194,351 in Social Security payments were deposited into Minnie Smith’s bank account from September 2006 through April 2021.

Sandra Smith, of Morrow, Ga., accessed her deceased mother-in-law’s bank account online and then transferred the pension and social security funds into her personal bank accounts from which she either withdrew cash or further transferred the money to other bank accounts in her control.

Smith pleaded guilty to two federal counts of theft of government funds in July.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.ny.gov/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

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Intentional acts of sexual harassment are not within the scope of a public employee's official duties nor do they advance the public employer's interests

A correction officer [CO] was employed at a Department of Corrections and Community Supervision [DOCCS] Correctional Facility [Facility]. A co-worker [Teacher] at the Facility complained that she was subjected to unwelcome and increasingly disturbing romantic advances by CO. CO's unwelcome behavior continued after Teacher told CO that she was offended and wrote him a letter directing him "to stop bothering her". 

After it became apparent that DOCCS officials were not taking action to resolve Teacher's repeated complaints about CO's conduct, Teacher obtained an order of protection against CO. CO was later arrested for violating the order. 

The stress of CO's ongoing behavior caused Teacher to develop physical and mental problems and at her physician's direction she discontinued working at the Facility. Teacher never returned to work at the Facility, and was subsequently terminated by DOCCS.

Teacher then commenced an action in the US District Court against CO, the State of New York, DOCCS and two Facility officials she alleged had failed to address her complaints about CO's conduct. Teacher also alleged that she had been subjected to unlawful discrimination, a hostile work environment, sexual harassment and suffered retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 USC §1983 and Executive Law §296. 

A jury found CO liable and awarded Teacher compensatory and punitive damages. Ultimately Teacher obtained a judgment against CO in the amount of $2,880,000 in compensatory damages and $50,000 in punitive damages.

CO appealed the judgment but the US Court of Appeals for the Second Circuit affirmed. In so doing, the Second Circuit observed that the award of noneconomic and punitive damages against CO was supported by proof of his "egregious conduct, including sending [Teacher] threatening messages, making unwanted advances after she asked him to stop, filing a false complaint accusing her of an inappropriate relationship with an inmate, and violating an order of protection".

CO then requested that he be indemnified by the State for the judgment amount. Supreme Court granted the State Defendants' motion, which it deemed a motion for summary judgment, and dismissed CO's petition/complaint. CO appealed the Supreme Court's decision.

The Appellate Division affirmed the lower court's ruling, opining although "Public Officers Law §17(3)(a) provides that the State shall indemnify its employees for a judgment or settlement provided that the act or omission which was the subject of the judgment or settlement occurred while the employee was acting within the scope of his [or her] public employment or duties," that duty does not extend to cases in which "the injury or damage resulted from intentional wrongdoing on the part of the employee", citing Matter of Spitz v Coughlin, 128 AD2d 281, and Hubbard v New York State Off. of Mental Health, Cent. N.Y. Psychiatric Ctr., 192 AD3d 1586.

In the words of the court: "There is no doubt that "intentional acts of sexual harassment ... [are] not within the scope of [an individual's] employment and [do] not advance the [State's] interests", citing Town of Somers v Titan Indem. Co., 289 AD2d 563, at 564 and Grasso v Schenectady County Pub. Lib., 30 AD3d 814. To the minimal extent that [CO] attempts to claim that his behavior toward [Teacher] did not constitute intentional wrongdoing, the jury that found him liable for that behavior disagreed. The record therefore reflects that the jury necessarily determined that [CO's] wrongdoing was intentional, and he is now collaterally estopped from arguing otherwise. Thus, as the [State and the other named respondents] demonstrated that a rational basis existed for the determination that [CO] was not entitled to indemnification, and [CO] did not raise a material question of fact in response, Supreme Court properly granted summary judgment to the [State and the named Respondents]."

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

 

 

Plaintiff's claims of alleged misconduct by City University of New York personnel and other named defendants must be brought in the Court of Claims

Supreme Court granted the several defendants' motions to dismiss the Plaintiff complaint was unanimously affirmed Appellate Division, without costs.

Rejecting Plaintiff's assertion that Supreme Court had jurisdiction over Queensborough Community College, where Plaintiff was employed, because it is a community college rather than a senior college, the Appellate Division explained:

1. Supreme Court lacked subject matter jurisdiction over the claim against defendant City University of New York [CUNY] because any claims of misconduct by CUNY's counsel with respect to the selection of the arbitrator must be brought in the Court of Claims;

2. It must reject Plaintiff's assertion that Supreme Court has jurisdiction over Queensborough Community College, where Plaintiff was employed, because "The gravamen of [Plaintiff's] complaint is not that Queensborough terminated his employment, but that the Office of the General Counsel, a part of CUNY's central administration, wrongfully selected one of the named defendants as the arbitrator in the matter,* noting the Court of Claims has exclusive jurisdiction over tort claims based on conduct by a CUNY senior college [see Education Law §§6202[5] and 6224[4][b]; and

3. The Plaintiff's complaint is barred on the basis of res judicata and collateral estoppel as in earlier appeals Plaintiff sought to set aside the arbitration award and Plaintiff's current claims are based on the same transaction as in the earlier action, and are therefore barred even though they are based upon different theories.

Further, said the Appellate Division, dismissal of the complaint is warranted on other grounds, as well. The court opined that (a) the American Arbitration Association and the designated arbitrator "are protected by immunity, as their acts were performed in their arbitral capacity", citing Trojan v Cipolla & Co., 172 AD3d 569 and (b) Plaintiff "fails to plead, as is necessary to sustain a claim against an unincorporated association, that the entire membership authorized and later ratified its actions, noting the Court of Appeals ruling in Palladino v CNY Centro, Inc., 23 NY3d 140.**

* The Appellate Division noted that Education Law §6202[5] defines "senior college" to include "an administrative institution".

** The Appellate Division noted Supreme Court "also properly dismissed [Plaintiff's] aiding and abetting fraud causes of action as against both CUNY and PSC [Professional Staff Congress/CUN] because they were not pleaded with the requisite particularity", citing CPLR §3016[b].

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

 

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General security measures and providing adequate supervision critical considerations in an incident involving an alleged sexual assault of a student by another student

This action was brought by a high school student [Plaintiff]. Plaintiff alleged that she was sexually assaulted by another high school student while at the school. Plaintiff, suing individually and Plaintiff's mother and natural guardian, commenced this action against the "Board of Education, et al." [Defendants], to recover damages for personal injuries.

The Defendants moved for summary judgment dismissing Plaintiff's complaint. Supreme Court denied the Defendants' motion for summary judgment and Defendants appealed the court's decision. The Appellate Division affirmed Supreme Court's ruling "insofar as appealed from, with costs" indicating:

1. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact*;

2. "Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision ... The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians;

3. "In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated; and

4. "Actual or constructive notice to the school of prior similar conduct is generally required ... [and] an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act".

The Appellate Division, noting that Defendants "established that they lacked actual or constructive notice of the assailant's potential for causing harm; submitted evidence that [Plaintiff] and the assailant had no previous significant interaction; and that the assailant's disciplinary record did not include any sexually aggressive behavior", found Defendants "failed to establish as a matter of law that the general security measures at the school were sufficient under the circumstances and that the incident occurred in such a short span of time that it could not have been prevented by the most intense supervision."

The Appellate Division concluded that "under the circumstances", Supreme Court properly denied the Defendants' motion for summary judgment dismissing Plaintiff's complaint.

* A failure to make such prima facie showing requires the denial of the motion, regardless of the sufficiency of the opposing papers

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