Selected links to items concerning government operations posted on the Internet during the week ending June 14, 2024

 

AccuWeather Data Used to Measure Children’s Health Risks Researchers from Children’s Hospital Los Angeles and USC are working with AccuWeather experts to use environmental data to look for breakthroughs in diseases like stroke, heart disease, lung cancer and asthma. READ MORE

 

AI-Generated Candidate Files to Run for Office in Wyoming An AI-generated candidate has filed to run for Cheyenne mayor, and county officials are investigating whether VIC, an acronym for Virtual Integrated Citizen, can appear on the ballot. READ MORE

 

Arizona AG Investigates Governor After ‘Pay to Play’ Accusation Attorney General Kris Mayes has opened an investigation regarding the payment Gov. Katie Hobbs received from a residential homes company after the state increased funding for the organization. READ MORE

 

Arizona Lawmakers Bypass Hobbs’ Vetoes, Send Measures to Ballot One resolution would eliminate most judicial re-elections, essentially giving judges lifetime appointments. READ MORE

 

Best Practices For Strengthening Mobility and Connectivity With a Public-private Approach For agencies focused on service delivery, getting the right connectivity approach in place is essential to meet current and future demands of public service. LEARN MORE [CONTENT PROVIDED BY T-MOBILE FOR GOVERNMENT®]

 

Broward County Enlists Drones to Help Keep Mosquitoes at Bay The Florida county has begun using a drone to spray hard-to-reach areas to control mosquito populations more efficiently. Already in 2024, there have been seven cases of locally- acquired dengue virus. READ MORE

 

California Bill Would Fund Sober Housing, Suggesting New Approach  Proposed legislation would allow for up to one-quarter of the state’s spending on homeless housing, assistance and prevention programs to go toward sober living environments. The bill would reverse a 2016 funding ban. READ MORE 

 

Can L.A. Be Doing More for the Kids Living on Skid Row? More than 200 children live on Skid Row, a majority of which stay in the only homeless shelter in the neighborhood that allows families. Advocates are urging the city to do more to help. READ MORE

 

Cruise AVs Hit the Road in Houston With Drivers, at First After previously resuming operations in Dallas, the company’s autonomous cars will resume operations in Houston this week. Plans are to shift to autonomous driving with a driver present sometime in coming weeks. READ MORE

 

Cybersecurity, Deepfakes and the Human Risk of AI Fraud AI-generated cyber attacks and deepfakes mean new risks and new ways to fight them. "Human risk management" is a term to describe how organizations train their staff to detect these evolving threats. READ MORE

 

Detroit Autonomous Delivery Pilot Will Begin With Food Waste The Autonomous Robotic Pickup Platform, a project launching next week in Detroit’s Transportation Innovation Zone, will start by testing small sidewalk delivery bots to collect food waste for compost. READ MORE

 

Do Political Infighting and Misleading Mailers Impact Voters? Friction within the South Carolina Republican Party has led to hordes of aggressive and accusatory campaign materials being sent out to voters. Candidates will now see if their tactics pay off as residents go to the polls for the June 11 primary. READ MORE

Employees Want AI at Work - Are You Ready? AI not only helps employees to work faster, but also to work smarter. How can you use AI to empower your workforce? READ THE 2024 WORK TREND INDEX ANNUAL REPORT [CONTENT PROVIDED BY MICROSOFT]

 

Enhance Public Sector Services with Generative AI Discover how AI can enhance productivity and accelerate discovery in your public sector organization in this hour-long module. START THE LEARNING PATH  [CONTENT PROVIDED BY MICROSOFT]

 

Findlay, Ohio, Schools Adopt ‘Time Gap’ System for Emergencies Findlay Schools are equipped with a biometric system that sounds alarms and notifies the appropriate people of an incident and the location of where a disturbance is happening, saving critical time. READ MORE

 

Florida Will Finally Clean Up Its Hazardous Waste Dump With $62M Plan The Petroleum Products Corporation Superfund site in Pembroke Park acted as a dumping ground for an oil-processing and refining facility from 1957 to 1971. Now it’s one of the nation’s worst hazardous waste dumps. READ MORE

 

Hawaii Bill Would Have CIO Report to State Comptroller Legislation awaiting Gov. Josh Green’s signature would have the state chief information officer no longer report directly to the governor. Critics say this could diminish the role and have a chilling effect on innovation. READ MORE

 

How Email Scammers Hit Arlington, Mass., Covered Their Tracks Cyber criminals diverted four monthly payments meant for a vendor involved with rebuilding the town’s high school, and they carefully managed compromised employee email accounts to hide the fraud. READ MORE

 

How Oklahoma Is Training Its Workforce to Leverage AI The state, working with Google, has launched a course providing foundational AI skills training to residents. The offering, open to 10,000 people at a time, is designed to create an agile workforce. READ MORE

 

How the National Guard prepares for 'Zero-Coverage' Emergencies This white paper explains how the National Guard has incorporated advanced networking and communications tools to prepare military organizations for 'zero-coverage' emergencies. DOWNLOAD

 

Hurricanes Don’t Stop at the Coast Storms that have devastated mountain communities and other inland regions are a reminder to prepare. New development in areas that were once thought unlikely to flood may be more susceptible as the climate heats up. READ MORE

 

Infrastructure Requires Money. Tolls Are the Way. Two of the best alternatives for user-paid infrastructure are toll roads and variable-fee express lanes. States with fast-growing populations are embracing toll projects because they can't wait for federal funding, and private capital is eager to invest. READ MORE

 

Investigation Underway After Cleveland ‘Cyber Incident’ City Hall and the Ohio city’s offices at Erieview Tower were closed for a second day on Tuesday, but officials have released few details on what may have occurred. The incident came to light via normal operations of city IT, a spokeswoman said. READ MORE

 

Keep Your First Responders In-The Know: Tools for Dependable Communication The more first responders know about a situation, the better decisions they can make. This paper from Verizon offers practical guidance on the latest strategies and tools for keeping first responders connected. DOWNLOAD

 

Local Government Guide to Managing Grants This guide takes a deep dive into six significant barriers to successful grant management in local governments. It outlines best practices to address each and features insightful resources to help you implement solutions. DOWNLOAD

 

Maine Will Achieve Carbon Neutrality Before 2045 Goal The state Department of Environmental Protection announced that it is 91 percent of the way toward meeting its carbon neutrality target by 2045. But the state still has a way to go before reaching its other climate goals. READ MORE

Making the Most of AI: How Agencies Can Get Their Data Ready As government agencies consider the potential of new AI technology across the enterprise, they keep coming up against the same question: How do they prepare the data needed to deploy these solutions successfully? READ MORE

 

Minnesota’s Amber Alerts Have Near Perfect Record of Finding Children The state’s system for finding missing children was implemented in 2002. Since then, Minnesota has helped to recover all but one of the 46 children for which the state has sent out alerts, usually on the same day. READ MORE

 

N.Y. Congestion Pricing Reversal Hits Transit in the Wallet As ridership continues to lag amid a stubbornly slow recovery from the COVID-19 pandemic, cities experiment with free rides and micromobility to prove public transit’s worth in worsening financial conditions. READ MORE

 

New Digital and IoT Solutions Are Transforming How Cities Connect and Adapt To navigate the complex web of government operations and unlock city-wide IoT benefits, departments and agencies need the right mix of coverage and capability. LEARN MORE [CONTENT PROVIDED BY T-MOBILE FOR GOVERNMENT® ]

 

New York State Governor's Hochul's Reversal on Congestion Pricing Draws Blowback Gov. Kathy Hochul’s decision to pull the plug on a congestion pricing plan for New York City was seen as a move calculated for advantage in the November elections, but it hasn't made her many new friends. READ MORE

 

Nonprofit Offers Free Cybersecurity Consulting to Public Sector The Center for Internet Security’s Cybersecurity Advisory Services Program is aimed at helping strengthen organizations that are involved in elections, health care, education and utilities. READ MORE

 

North Carolina Driver’s License Production Backlog Eases The issue required residents to wait as long as eight weeks for their licenses to arrive in the mail. That lag has been halved and is expected to disappear entirely by month’s end. The precise cause remains unclear. READ MORE

 

One State Is Putting a Single Person in Charge of Its Growth Strategy Michigan’s first-in-the-nation chief growth officer is working to refresh the state’s brand with help from partners whose survival depends on attracting more workers. READ MORE

 

Opinion: Teach Human Intelligence Before Artificial Intelligence Before students use AI tools to complete their work, they should first develop their own HI (human intelligence) and understand the purpose of education and the importance of ethical behavior and personal integrity. READ MORE

 

Popular Wildfire App Highlights the Radio Encryption Dilemma Watch Duty, a wildfire-tracking app manned by volunteers monitoring fire scanners, provides emergency information to the public. As the app expands, so does debate about fire department scanner traffic encryption. READ MORE

 

RapidSOS and Google Rolling Out RCS Tools for 911 Calls Thanks to Apple, rich communication services are in the news, and now a new partnership could help spread those tools deeper into the public safety space. RapidSOS is coming off a major funding round. READ MORE

 

San Diego Is Home to Nation’s Most Polluted Beach The Surfrider Foundation found that of the nation’s 10 most polluted beaches, three are in California. San Diego’s Imperial Beach held the top spot, with every water sample failing the state’s health standards. READ MORE

Security Operations Center: The Key to Growing Your Agency's Cyber Maturity Over 3,000 U.S. government organizations cite top cybersecurity concerns. Learn how a managed SOC can help. DOWNLOAD

 

Set Targets, Determine KPIs, and Share Progress If you’re working on–and struggling with–setting your organization’s wildly important goals, you’re not alone. Goal setting can be hard. How do you ensure goals are motivating and not overwhelming? Download our eBook to learn best practices for setting goals that motivate teams and leave an impact. DOWNLOAD eBOOK [CONTENT PROVIDED BY OPENGOV]

 

Skills-Based Hiring Is Hot, but Dropping Degree Requirements Is Just the First Step Governments and private employers are beginning to reap the benefits of this move, but sweeping changes in state and federal policy and adoption of new technologies are needed to make good on its promise. READ MORE

 

Social Security Can’t Be Fixed? State Policymakers Might Know Better. Since the Great Recession, states have moved to reform their public pension plans, making tough choices and frequently doing so with bipartisan support. Federal lawmakers should keep these lessons in mind. READ MORE

 

Solar Impact: Harness the Sun to Power Your Mission Onsite solar panel installations by local governments can cut costs, enhance sustainability, and tap into federal funds. LEARN MORE NOW [CONTENT PROVIDED BY SCHNEIDER ELECTRIC]

 

Some Lawmakers Seek to Address Existential Threats of AI A handful of lawmakers say they plan to press the issue of the threat to humans posed by generative artificial intelligence after a recent bipartisan Senate report largely sidestepped the matter. READ MORE

 

Spring into Action when Disaster Strikes This eBook details the latest technology updates and trends in advancing first responder communications. DOWNLOAD

 

State Government Guide to Managing Grants To ensure your state is best managing grant dollars received and allocated, check out this guide for some best practices that address the most common challenges states face. DOWNLOAD

 

States Should Think Beyond Mobile Drivers' Licenses Other forms of digital ID will also be important for serving constituents online and preventing fraud. READ MORE

 

Strengthening Digital Identity and Preventing Fraud Research shows people prefer online state agency interactions but fear identity fraud. This paper offers strategies to simplify digital identity verification. DOWNLOAD

 

The Evolving Cyber Landscape: Insights from 2024 Reports Over the past month, the Verizon Data Breach Investigation Report and the Watchguard Technologies Internet Security Report were released. Here are some highlights. READ MORE 

 

The Rise of Hybrid Work in Government Government agencies rely on technology for their mission in a hybrid world, requiring solutions for remote work flexibility. DOWNLOAD

 

The State of Digital Identity in 2024 State agencies must accurately verify digital identities. This study explores their approaches to identity verification and fraud prevention. DOWNLOAD

 

Three Steps for Getting Started with AI Chatbots Many agencies use chatbots, but fewer leverage AI's full potential. This paper details three steps for kickstarting an AI chatbot program. DOWNLOAD

Verizon Frontline. Built to support mission response. The advanced network and technology for first responders. LEARN MORE [CONTENT PROVIDED BY VERIZON]

 

Weatherbeaten Maine Seeks More Resilient Infrastructure A new commission appointed by Maine Gov. Janet Mills will explore ways to make state infrastructure more resilient to climate change. READ MORE

 

What Successful City Parks Can Do They not only provide access to green space but make diverse communities feel safe and welcome, as a popular park in St. Paul, Minn., demonstrates. READ MORE

 

Which Cities Would Benefit Most from Converting Offices Into Housing? Local governments want to see empty and underused offices converted to housing, but that’s often difficult. An examination of office and housing markets reveals the specific cities where this approach is most promising. READ MORE

 

Why 1,000 Homicides in St. Louis Remain Unsolved This multipart investigation by St. Louis Public Radio, APM Reports and The Marshall Project explores how police in St. Louis — one of America’s deadliest cities — have struggled to solve killings, leaving thousands of family members without answers. READ MORE

 

Why Is It So Hard to Run Chicago? Mayor Brandon Johnson has struggled to accomplish big things, and his predecessor had an even harder time. History suggests some building blocks of mayoral success. READ MORE

 

Will Apple’s New OpenAI Deal Be a Game-Changer? The company unveiled a suite of new artificial intelligence capabilities in its newest operating system, including connecting its interactive voice feature Siri with OpenAI's ChatGPT.  READ MORE 

New York State local government and school district audits posted on the Internet

On June 14, 2024 New York State Comptroller Thomas P. DiNapoli announced the following local government and school district audits were issued.

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

Gates Fire District – Board Oversight of Long-Term Planning (Monroe County)  The board and district officials did not properly plan for the district’s long-term financial and capital needs which inhibited the board and officials from effectively managing finances and addressing future operating and capital needs. Their efforts were hindered by inaccurate and inadequate financial records, reports and unrealistic budgeting. As a result, the board was not transparent with taxpayers and fund balance declined despite the board increasing the tax levy more than $7.5 million (80%) for 2020 through 2024.

Town of Poestenkill – Credit Card Purchases (Rensselaer County) The board did not ensure all credit card purchases were adequately supported, for legitimate purposes and approved before payment. As a result, the town paid $1,322 for inappropriate personal purchases including household and personal care items, video streaming services and clothes that were made by the former assistant using town resources. The assistant was arrested in March 2023 and pleaded guilty to a Class A misdemeanor for petit larceny in February 2024. She paid $2,640 in restitution, which included additional amounts uncovered during the investigation.

Red Hook Central School District – Inventories (Dutchess  County)  District officials did not adequately monitor and safeguard fuel and E-ZPass tags. As a result, officials cannot accurately account for fuel purchases and usage, or determine whether unauthorized E-ZPass charges occurred.

Charter School of Educational Excellence – Information Technology (IT) (Westchester County) The board and officials did not adequately secure student data to help protect it from unauthorized access or develop an IT contingency plan. As a result, there was an increased risk of unauthorized access to student personal, private and sensitive information and personally identifiable information. In addition, the school could suffer a serious interruption to operations since its ability to communicate during a disruption or disaster could affect the timely processing of its business functions.

Chautauqua Lake Central School District – Procurement (Chautauqua County) District officials did not procure fuel in compliance with the district’s policies. District officials did not seek competition for fuel purchases made from a single vendor totaling approximately $166,000, or adequately review purchases made to ensure charges were appropriate, resulting in approximately $2,200 in overpayments.

Harborfields Central School District – Information Technology Asset Management (Suffolk County) District officials did not ensure that IT assets were appropriately tracked, inventoried and safeguarded. Complete, accurate and up-to-date inventory records help district officials ensure that IT assets are properly insured, tracked through their life cycle and replaced as necessary. As a result, district officials cannot assure taxpayers that the $3.9 million invested in IT assets has been appropriately safeguarded.

###

Plaintiff cited several nonexistent cases in his initial memorandum of law using "legal software applications" that "deploy artificial intelligence" and the Appellate Division cautioned Plaintiff that his pro se status does not excuse his failure to check the legal citations that he offers to a court

  

Dowlah v Professional Staff Congress

2024 NY Slip Op 02980

Decided on May 30, 2024

Appellate Division, First Department

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

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

Decided and Entered: May 30, 2024
Before: Moulton, J.P., Scarpulla, Shulman, Higgitt, O'Neill Levy, JJ.

Index No. 151561/22 Appeal No. 2412 Case No. 2023-06121

[*1]Caf Dowlah, Plaintiff-Appellant,

v

Professional Staff Congress (PSC-CUNY), et al., Defendants-Respondents.

        Caf Dowlah, appellant pro se.

Levy Ratner, P.C., New York (Patricia McConnell of counsel), for Professional Staff Congress/City University of New York and Peter Zwiebach, respondents.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Richard W. Boone, Jr. of counsel), for Hanan Kolko, respondent.

Order, Supreme Court, New York County (Eric Schumacher, J.), entered October 25, 2023, which granted defendants' motions to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously affirmed, without costs.

Plaintiff's legal malpractice claim against his union-appointed attorney who represented him in arbitration is preempted by Federal labor law, as "attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services performed constitute part of the collective bargaining process" (Mamorella v Derkasch, 276 AD2d 152, 155 [4th Dept 2000]).

Plaintiff's claims against his union, Professional Staff Congress (PSC-CUNY), and its legal director, arising from their selection of an allegedly biased arbitrator are barred by res judicata and collateral estoppel based on this Court's resolution of that issue in plaintiff's prior appeals (see Matter of Dowlah v City Univ. of N.Y., 189 AD3d 533, 534 [1st Dept 2020]; Dowlah v American Arbitration Assn., 221 AD3d 426, 426 [1st Dept 2023]). Plaintiff's instant claims are based on the same transaction as in both earlier actions, and therefore they are barred even though they are based upon different legal theories (Dowlah, 221 AD3d at 427). "That plaintiff has pleaded different causes of action and included new parties is of no moment" since "plaintiff, the party against whom preclusion is sought, was a party in the earlier action[s]" (id.).

To the extent plaintiff's claim against PSC-CUNY arises from its appointment of plaintiff's allegedly negligent attorney and thus raises a distinct issue, his allegations constitute a claim that he was improperly represented by his union, which is untimely under CPLR 217(2)(a)'s four-month limitations period (see Roman v City Empls. Union Local 237, 300 AD2d 142, 142 [1st Dept 2002], lv denied 100 NY2d 501 [2003]).

Res judicata also bars plaintiff from relitigating his prior appeals, and his arguments for recusal of Justices who participated in those appeals are entirely unsupported by evidence.

Plaintiff cites several nonexistent cases in his initial memorandum of law. In his reply brief he acknowledges that these citations were the result of research using "legal software applications" that deploy artificial intelligence. Plaintiff avers that he has an LLM (among other advanced degrees) but not much "legal expertise" and he apologizes for the fictitious precedents. We caution plaintiff that his pro se status does not excuse his failure to check the legal citations that he offers to a court.

We have considered plaintiff's remaining arguments and find them unavailing.

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

ENTERED: May 30, 2024

Where there is a conflict in the testimony offered in the course of a disciplinary hearing and either of two inferences may be drawn, the duty of choosing between the inferences is the agency's, and the courts may not reject the agency's choice

 

Matter of Henn v Sewell

2024 NY Slip Op 02984

Decided on May 30, 2024

Appellate Division, First Department

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

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

Decided and Entered: May 30, 2024
Before: Moulton, J.P., Scarpulla, Shulman, Higgitt, O'Neill Levy, JJ.

Index No. 152739/23 Appeal No. 2401 Case No. 2023-05125

[*1]In the Matter of Brian Henn, Petitioner,

v

Keechant L. Sewell etc., et al., Respondents.

Worth, London & Martinez, LLP, New York (Stuart Gold of counsel), for petitioner.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Geoffrey E. Curfman of counsel), for respondents.

        Determination of respondent Police Commissioner, dated November 29, 2022, which, to the extent appealed from as limited by the briefs, found petitioner guilty of two charges of inappropriate statements and one charge of inaccurate statements during an investigation, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order, Supreme Court, New York County [Kathleen Waterman-Marshall, J.], entered October 5, 2023), dismissed, without costs.

The determination is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-180 [1978]). The New York City Police Department (NYPD) carefully weighed the evidence before it, discussing in detail the strengths and weaknesses of the testimonial and documentary evidence. Based on this analysis, the NYPD determined that petitioner had made inappropriate statements motivated by ethnicity and perceived religious affiliation. The Commissioner also had a rational basis for finding that petitioner provided an inaccurate statement during the investigation regarding his inability to recall sending offensive images by text to another officer, given the memorable nature of the images and that petitioner testified that he did not send the images to anyone else. Moreover, petitioner later testified at the hearing that he did recall sending the images to the officer. "[W]here there is a conflict in the testimony and either of two inferences may be drawn, the duty of choosing between the inferences is the agency's, and the courts may not reject the agency's choice" (Matter of Fields v New York State Off. of Children & Family Servs., 198 AD3d 454, 455 [1st Dept 2021]).

We have considered petitioner's remaining arguments and find them unavailing.

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

ENTERED: May 30, 2024

 

Paid Parental Leave for PBANYS – Agency Police Services Unit (APSU) Employees

The New York State Department of Civil Service has posted its Policy Bulletin 2024-04, Paid Parental Leave for PBANYS – Agency Police Services Unit (APSU) Employees, on the Internet.

The text of Policy Bulletin 2024-04 is posted on the Internet at: https://www.cs.ny.gov/attendance_leave/PolBull24-04.cfm 

A printable version of Policy Bulletin 2024-04 in PDF format is posted on the Internet at: https://www.cs.ny.gov/attendance_leave/PB2024-04Combined.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

 

A criminal "acquittal" is not proof of innocence of misconduct and does not preclude a proceeding in a civil forum such as an administrative disciplinary proceeding

 

Matter of Joseph v Sewell

2024 NY Slip Op 02985

Decided on May 30, 2024

Appellate Division, First Department

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

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

Decided and Entered: May 30, 2024
Before: Kern, J.P., Singh, González, Pitt-Burke, Rosado, JJ.

Index No. 159873/22 Appeal No. 1987 & M-2024-01240 Case No. 2023-05198

[*1]In the Matter of Jose J. Joseph, Petitioner,

v

Keechant L. Sewell etc., et al., Respondents.

       The Sanders Firm, P.C., New York (Eric Sanders of counsel), for petitioner.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Karin Wolfe of counsel), for respondents.

Determination of respondent Police Department of the City of New York (NYPD), dated July 20, 2022, which found petitioner guilty of engaging in an off-duty physical altercation and failing to remain on the scene, and terminated petitioner's employment, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Judy H. Kim, J.], entered on or about April 19, 2023), dismissed, without costs.

Substantial evidence supports the NYPD's determination that petitioner engaged in a physical altercation with his then intimate partner, Annette (this Court adopts the agency's use of a pseudonym to protect Annette's privacy). Annette testified that petitioner "slapped" her in the face, "choked" her with his hands, and put her in a "headlock," causing her to lose consciousness until petitioner roused her by striking her abdomen and asking whether she was dead. Annette's testimony was corroborated by her consistent statements to NYPD officers who responded to her 911 call, photographs showing marks on her neck and lacerations to her face and lip, which petitioner acknowledged were not there earlier in the evening, and medical records documenting her abrasions and complaints of pain. Petitioner did not dispute that he did not remain on the scene after the incident. The Hearing Officer expressly credited Annette's testimony about the assault and found petitioner's denials "contrived, self-serving, and incredible," determinations which this Court may not displace (see Matter of Amann v New York City Loft Bd., 262 AD2d 234, 234 [1st Dept 1999]).

Petitioner's acquittal of criminal charges arising from the assault does not undermine the NYPD's determination that his conduct warranted professional discipline. The NYPD can impose discipline for a broad range of "conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer," even if that conduct is not criminal (Administrative Code of City of NY § 14-115[a]). A criminal "acquittal is not proof of innocence of misconduct, and does not preclude a . . . proceeding in a civil forum," such as an administrative disciplinary proceeding, "where the standard of proof is lower" (Matter of Strier, 190 AD2d 140, 143 [1st Dept 1993], lv denied 82 NY2d 663 [1993]).

The NYPD did not abuse its discretion in terminating petitioner's employment. Given the severity of petitioner's assault on Annette, which caused her to lose consciousness, as well as his prior disciplinary record, the penalty of dismissal does not shock the conscience (see Matter of Astacio v Bratton, 146 AD3d 613, 614 [1st Dept 2017]; Matter of Guzman v Bratton, 161 AD3d 591, 593 [1st Dept 2018]).

M-2024-01240 — Matter of Joseph v Sewell, et al.

Motion to seal certain exhibits, granted.

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

ENTERED[*2]: May 30, 2024

The New York State Department of Civil Service has published Advisory Memorandum 24-04, FY ‘24-’25 Payroll Certification Schedule

Advisory Memorandum 24-04, the State's Payroll Certification Schedule for fiscal year ‘24-’25 is now available on the Internet for downloading.

The text of Advisory Memorandum 24-04 will be found posted on the Internet at:
https://www.cs.ny.gov/ssd/Manuals/SPMM/2800AutoPositPersnl/Advisory%20Memo%2024-04.htm

To print Advisory Memorandum 24-04, a version in PDF format is available on the Internet at https://www.cs.ny.gov/ssd/pdf/AM2024-04.pdf.

To view previous Advisory Memoranda issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/Manuals/SPMM/

Plaintiff's claim that the termination her employment violated Labor Law §201-d(2)(c), which bars an employer from discharging an employee because of the employee's legal recreational activities outside work hours, rejected

  

Sander v Westchester Reform Temple

2024 NY Slip Op 03064

Decided on June 5, 2024

Appellate Division, Second Department

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

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

Decided on June 5, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
CHERYL E. CHAMBERS
DEBORAH A. DOWLING
HELEN VOUTSINAS, JJ.

2022-05342
(Index No. 55745/22)

[*1]Jessie Sander, appellant,

v

Westchester Reform Temple, et al., respondents.

Profeta & Eisenstein (Herbst Law PLLC, New York, NY [Robert L. Herbst and Benjamin J. Ashmore, Sr.], of counsel), for appellant.

Yankwitt LLP, White Plains, NY (Michael H. Reed and Russell M. Yankwitt of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful termination of employment, the plaintiff appeals from an order of the Supreme Court, Westchester County (Damaris E. Torrent, J.), dated June 13, 2022. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff alleges that she was terminated from her employment as an instructor at the defendant Westchester Reform Temple (hereinafter WRT) after the director of WRT learned that the plaintiff had co-authored a blog post that was published on her public website which expressed anti-Zionist views and was critical of Israel. The plaintiff commenced this action, alleging that the termination of her employment violated Labor Law § 201-d(2)(c), which bars an employer from discharging an employee because of the employee's legal recreational activities outside work hours. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. The Supreme Court granted the motion. The plaintiff appeals.

The Supreme Court properly granted dismissal of the complaint pursuant to CPLR 3211(a)(7). "On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference" (Angeli v Barket, 211 AD3d 896, 897; see Leon v Martinez, 84 NY2d 83, 87). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Rabos v R & R Bagels & Bakery, Inc., 100 AD3d 849, 851-852; see Nassau Operating Co., LLC v DeSimone, 206 AD3d 920, 926).

Even assuming, without deciding, that blogging is a protected recreational activity under Labor Law § 201-d, the complaint alleges that the plaintiff was discharged, not for the activity [*2]of blogging, but for the content of the blog post. Thus, we agree with the Supreme Court that the plaintiff was not discharged due to a protected recreational activity within the scope of Labor Law § 201-d(2)(c) (see id.; Bilquin v Roman Catholic Church, Diocese of Rockville Ctr., 286 AD2d 409). Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

In light of the foregoing, we do not reach the parties' remaining contentions.

CONNOLLY, J.P., CHAMBERS, DOWLING and VOUTSINAS, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

The Appellate Division, Third Department notes that "the scope of this Court's review of a condemnor's EDPL 204 determination is limited to whether (1) the proceeding was constitutionally sound; (2) the condemnor had the requisite authority; (3) its determination complied with SEQRA and EDPL Article 2; and (4) the acquisition will serve a public use"

  

Matter of Hart v Town of Guilderland Indus. Dev. Agency

2024 NY Slip Op 03118

Decided on June 6, 2024

Appellate Division, Third Department

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

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

Decided and Entered:June 6, 2024

CV-23-1696

[*1]In the Matter of Thomas Hart et al., Petitioners,

v

Town of Guilderland Industrial Development Agency et al., Respondents.

Calendar Date:April 22, 2024
Before:Garry, P.J., Clark, Ceresia, Fisher and Powers, JJ.

James Bacon, New Paltz, for petitioners.

Hodgson Russ LLP, Albany (Charles W. Malcomb of counsel), for Town of Guilderland Industrial Development Agency, respondent.

James P. Melita, Town Attorney, Guilderland, for Town of Guilderland, respondent.

Phillips Lytle LLP, Buffalo (Ryan A. Lema of counsel), for Crossgates Releaseco, LLC and others, respondents.

Garry, P.J.

Proceeding initiated in this Court pursuant to EDPL 207 to review a determination of respondent Town of Guilderland Industrial Development Agency condemning five discontinued public roads and certain deed restrictions held by petitioner 1667 Western Avenue, LLC.

The underlying facts of this case are more fully set forth in this Court's prior decisions in two related matters, in which this Court twice approved of the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]) review of the same project at issue in this proceeding, conducted by the Town of Guilderland Planning Board (see Matter of Save the Pine Bush, Inc. v Town of Guilderland, 205 AD3d 1120, 1126-1127 [3d Dept 2022]; Matter of Hart v Town of Guilderland, 196 AD3d 900, 913-914 [3d Dept 2021]). Pertinent here, in 2018, the Town Board of respondent Town of Guilderland established a Transit Oriented Development District to "incentivize development." The transit district encompasses Crossgates Mall — located in the Town of Guilderland, Albany County — allowing for "regional shopping, entertainment, and employment centers," and prohibiting single-family dwellings. In establishing the district, it was intended that a portion thereof would be occupied by Costco Wholesale Corporation (hereinafter Costco), which property would include an 18-pump fueling station. In apparent furtherance of this plan, in August 2022 and February 2023, public roads near the project area were discontinued pursuant to Highway Law § 207.

In March 2023, respondent Crossgates Releaseco, LLC (hereinafter Crossgates) submitted an application to respondent Town of Guilderland Industrial Development Agency (hereinafter the IDA) requesting that the IDA use its power of eminent domain to acquire portions of these five discontinued public roads in the Town of Guilderland, and to condemn certain deed restrictions which purported to restrict commercial development at the project site. Petitioners Thomas Hart and Lisa Hart are Guilderland residents and own a home "approximately 245 feet" from the proposed project site. Petitioner 1667 Western Avenue, LLC (hereinafter 1667) owns property located at 1667 Western Avenue and a gasoline distributor operates a gas station on 1667's property; the deed to 1667's property includes provisions — referred to as deed restrictions — limiting commercial development on the proposed project site.

A public hearing was held. Petitioners argued at this hearing that the project did not serve a public purpose. Thereafter, the IDA issued a determination authorizing the use of eminent domain as to the subject discontinued roads and deed restrictions, finding that neither served a public use and that the acquisition of and extinguishment of interest in same would "maximize the public uses, benefits, and purposes associated with the [p]roject." In rendering its determination, the IDA incorporated the Planning Board's environmental impact statement completed in connection with the aforementioned [*2]SEQRA review and "conducted an extensive discussion of the SEQRA Record . . . and the general effect of the [p]roject in its entirety on the environment and residents of the locality." Petitioners commenced this proceeding in this Court pursuant to EDPL 207 seeking to annul the IDA's determination on the basis that the condemnation was in violation of the EDPL and SEQRA. Respondents answered.

Initially, pursuant to EDPL 207 (A), only those "aggrieved by the condemnor's determination and findings" have standing to seek judicial review thereof. A condemnee is defined under the EDPL as "the holder of any right, title, interest, lien, charge or encumbrance in real property subject to an acquisition or proposed acquisition" (EDPL 103 [C]). Petitioners have not demonstrated their status as condemnees for purposes of challenging the IDA's condemnation of the subject roads, which are owned by the Town and were previously discontinued pursuant to Highway Law § 207 (compare Matter of Sierra Club v Village of Painted Post, 26 NY3d 301, 310 [2015]; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297, 305 [2009]). "Thus all that petitioners are entitled to under [the] EDPL is a properly conducted hearing held on proper notice" (Matter of East Thirteenth St. Community Assn. v New York State Urban Dev. Corp., 84 NY2d 287, 295 [1994]). Given that such hearing was held, they do not have EDPL standing as to that issue (see id.; Matter of McCarthy v Town of Smithtown, 19 AD3d 695, 696 [2d Dept 2005]; Matter of Hugh Gassner Fire Co. v South Spring Val. Fire Dist., 294 AD2d 502, 502 [2d Dept 2002]).^[FN1] As to the IDA's condemnation of the deed restrictions, however, although the Harts were unable to demonstrate their status as condemnees in this regard, 1667 may seek review of that part of the IDA's determination given its undisputed status as an owner of property subject to said restrictions (see Matter of Faith Temple Church v Town of Brighton, 17 AD3d 1072, 1072-1073 [4th Dept 2005]; compare Matter of Allied Healthcare Prods., Inc. v Stuyvesant Falls Hydro Corp., 30 AD3d 647, 648 [3d Dept 2006]).

Turning to the arguments remaining before us, "[t]he scope of this Court's review of a condemnor's EDPL 204 determination is limited to whether (1) the proceeding was constitutionally sound; (2) the condemnor* had the requisite authority; (3) its determination complied with SEQRA and EDPL article 2; and (4) the acquisition will serve a public use" (Matter of Hudson Val. Hous. Dev. Fund Co., Inc. v County of Ulster, 183 AD3d 974, 975 [3d Dept 2020] [internal quotation marks and citation omitted], lv denied 37 NY3d 901 [2021]; see EDPL 207 [C] [1]-[4]). "The party challenging the condemnation bears the burden of establishing that the determination was without foundation and baseless, or that it was violative of the applicable statutory criteria" (Matter of PSC, LLC v City of Albany Indus. Dev. Agency, 200 AD3d 1282, 1284 [3d Dept 2021] [internal [*3]quotation marks, brackets, ellipsis and citations omitted], lv denied 38 NY3d 909 [2022]).

Here, 1667 contends that the IDA failed to comply with the requirements of the EDPL in condemning the deed restrictions on the basis that the determination does not serve a legitimate public purpose. "The principal purpose of article 2 of the EDPL is to ensure that a condemnor does not acquire property without having made a reasoned determination that the condemnation will serve a valid public purpose" (Matter of National Fuel Gas Supply Corp. v Schueckler, 35 NY3d 297, 303 [2020] [internal quotation marks, ellipsis, brackets, emphasis and citation omitted]). What constitutes a public purpose is defined broadly and "encompasses any use which contributes to the health, safety, general welfare, convenience or prosperity of the community" (Matter of 225 Front St., Ltd. v City of Binghamton, 61 AD3d 1155, 1157 [3d Dept 2009] [internal quotation marks and citations omitted]; accord Matter of Johnson v Town of Caroga, 162 AD3d 1353, 1355 [3d Dept 2018]; see Matter of Court St. Dev. Project, LLC v Utica Urban Renewal Agency, 188 AD3d 1601, 1602-1603 [4th Dept 2020]), and "[a]reas of economic underdevelopment and stagnation may be considered blighted so as to support the taking of vacant and underutilized properties located therein" (Matter of Court St. Dev. Project, LLC v Utica Urban Renewal Agency, 188 AD3d at 1602).

Upon our review, we are constrained to find that the condemnation of the deed restrictions was for a valid public purpose. The record demonstrates that the single-family homes on the affected properties were vacant and in a state of deterioration and that public roads in the project area had been discontinued. Moreover, as a result of the Town's comprehensive plan which established the transit district in 2018 and encouraged redevelopment in the area, the single-family homes became nonconforming. As such, the IDA had support for its determination that the residential deed restrictions were "no longer consistent with the use and character of the area." It does bear noting that, as petitioners assert, the record reflects that the neighborhood was both occupied and well cared for as recently as 2011. The properties were thereafter acquired by Crossgates and neglected. Although petitioners further assert that Crossgates should have been subjected to penalties for this apparently deliberate neglect, no such actions appear to have been sought or undertaken — and at this juncture, there is no remedy to be imposed; even assuming that there was a deliberate and intentional disregard of the properties, this does not bar the application, based upon the current conditions.

Contrary to 1667's contentions, we do not find that merely because the condemnation of the deed restrictions directly benefits private businesses that the project is not of public benefit (see Matter of 225 Front St., Ltd. v City of Binghamton, 61 AD3d at 1157). The design of the project bolsters [*4]the Town's greater plan to incentivize local economic development in this region. We accept the well-settled law that economic development may support a finding that a taking serves a valid public purpose (see generally Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511, 524 [2009]; Yonkers Community Dev. Agency v Morris, 37 NY2d 478, 481 [1975]). The record here supports the IDA's finding that the project would bring visitors to the region, create jobs and increase tax revenue. Accordingly, we discern no error in the IDA's determination that a public purpose is served by the condemnation of the deed restrictions (see Matter of PSC, LLC v City of Albany Indus. Dev. Agency, 200 AD3d at 1286-1287; Matter of United Ref. Co. of Pa. v Town of Amherst, 173 AD3d 1810, 1811 [4th Dept 2019], lv denied 34 NY3d 913 [2020]; Matter of City of New York v Yonkers Indus. Dev. Agency, 170 AD3d 1003, 1004 [2d Dept 2019]; see also Matter of Kaur v New York State Urban Dev. Corp., 15 NY3d 235, 259 [2010], cert denied 562 US 1108 [2010]; compare Matter of Gabe Realty Corp. v City of White Plains Urban Renewal Agency, 195 AD3d 1020, 1022 [2d Dept 2021]).

Finally, 1667 argues that the IDA failed to comply with SEQRA when it relied upon the Planning Board's final environmental impact statement in rendering its determination, as plans to condemn the deed restrictions were not disclosed until after that SEQRA review had concluded. Initially, we reject the IDA's contention that such claim is barred by the doctrines of res judicata or collateral estoppel given our decisions in two prior related appeals (Matter of Save the Pine Bush, Inc. v Town of Guilderland, 205 AD3d 1120; Matter of Hart v Town of Guilderland, 196 AD3d 900), as the IDA was not a party thereto and there is no indication that it was in privity with one, nor was the challenged determination the subject of those proceedings (see Whitney Lane Holdings, LLC v Don Realty, LLC, 130 AD3d 1218, 1220 [3d Dept 2015]). Nevertheless, 1667's claim is without merit. "[A]ll involved agencies must rely upon the [final environmental impact statement] as the basis for their review of the environmental impacts that they are required to consider in connection with subsequent permit applications" (Matter of Guido v Town of Ulster Town Bd., 74 AD3d 1536, 1537 [3d Dept 2010]; see Troy Sand & Gravel Co., Inc. v Town of Nassau, 125 AD3d 1170, 1173 [3d Dept 2015]; 6 NYCRR 617.6 [b] [3] [iii]). In its findings, the IDA incorporated the final environmental impact statement completed by the Planning Board, the lead agency (see 6 NYCRR 617.2 [v]; 617.6 [b] [3] [iii]), and conducted a discussion of the SEQRA record, including the final impact statement and the effect of the project upon the environment and residents based upon the application at issue here. Accordingly, the IDA satisfied the requirements of SEQRA in rendering its determination (see 6 NYCRR 617.11 [d]; Troy Sand & Gravel Co., Inc. v Town of Nassau, 125 AD3d [*5]at 1173; Matter of Guido v Town of Ulster Town Bd., 74 AD3d at 1537).

Petitioners' remaining contentions, to the extent not expressly addressed herein, are either not properly before us or found to be lacking in merit.

Clark, Ceresia, Fisher and Powers, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

*Editor's note: Condemnor: A government or private party with the power to acquire private property for public use. Collins English Dictionary. Copyright© HarperCollins Publishers.

F00tnotes

Footnote 1: As petitioners lack standing, the arguments asserted relative to the public trust doctrine are not reached; further, this issue is not properly before us as it was not raised in the petition (see Matter of Tadasky Corp. v Village of Ellenville, 45 AD3d 1131, 1132 [3d Dept 2007]).

 

As Plaintiff received inpatient and rehabilitative treatment for more than two months following an accident he was found to have a reasonable excuse for the delay in his motion to serve a late notice of claim

 

Matter of Talavera v New York City Tr. Auth.

2024 NY Slip Op 03098

Decided on June 06, 2024

Appellate Division, First Department

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

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

Decided and Entered: June 06, 2024
Before: Kern, J.P., Moulton, Friedman, González, Pitt-Burke, JJ.

Index No. 155051/23 Appeal No. 2443 Case No. 2024-00448

In the Matter of Angel Talavera, Petitioner-Respondent,

v

New York City Transit Authority et al., Respondents-Appellants.

Anna J. Ervolina, MTA Law Department, Brooklyn (Theresa A. Frame of counsel), for appellants.

Mischel & Horn, P.C., New York (Lauren E. Bryant of counsel), for respondent.

Order, Supreme Court, New York County (Denise M. Dominguez, J.), entered January 17, 2024, which, to the extent appealed from as limited by the briefs, granted petitioner's motion to serve a late notice of claim, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in granting petitioner leave to file a late notice of claim (General Municipal Law § 50-e[5]). Petitioner served respondents only two days after expiration of the 90-day time limit and made the application for leave to file a late of claim less than a week later. Not only was the delay minimal, but plaintiff received inpatient and rehabilitative treatment for more than two months following the accident, and therefore had a reasonable excuse for the delay (see Matter of Rijos v New York City Tr. Auth., AD3d , 2024 NY Slip Op 02510 [1st Dept 2024]; Matter of Mejia v New York City Tr. Auth., 224 AD3d 546, 546 [1st Dept 2024]). Moreover, neither party disputes that respondents were aware of the accident, which was witnessed by the train conductor and investigated by a New York City police officer in the transit branch. Thus, respondents had the opportunity to timely investigate the essential facts (id.).

We reject respondents' contention that the motion court should not have considered petitioner's medical records. The medical records, which petitioner submitted at the court's direction, constituted evidence to corroborate his application, not to improperly advance a new argument or theory of liability.

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

ENTERED: June 6, 2024