Employee terminated for having submitted a false application for a mortgage

Employee terminated for having submitted a false application for a mortgage
Kim v Kelly, 2013 NY Slip Op 01905, Appellate Division, First Department

The Appellate Division affirmed the termination of a New York City police officer by the Police Commissioner after the officer was found to have submitted a false mortgage application.

Finding that there was substantial evidence showing that the officer had “falsely listed a company that [the officer] did not work for as his sole source of income, and falsely listed a New Jersey address as his primary residence,” the court said there was no basis to disturb the credibility determinations of the Hearing Officer.

As to the penalty imposed, dismissal from his position, the court, citing Kelly v Safir, 96 NY2d, 32, said that termination did not shock its sense of fairness as the Commissioner "is accountable to the public for the integrity of the Department."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01905.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of March 18-24, 2013 [Click on the caption to access the full report]

DiNapoli: PepsiCo to Disclose Lobbying and Trade Association Ties

PepsiCo, a global food and beverage company with annual revenues of $60 billion, has agreed to fully disclose all of its direct lobbying and contributions made to trade associations as well as funds paid to grassroots lobbying and tax-exempt organizations that write and endorse model legislation, according to New York State Comptroller Thomas P. DiNapoli. In response to the agreement, DiNapoli withdrew a shareholder resolution calling for disclosure of shareholder money spent on lobbying and other political spending.

SEC Action Puts Caterpillar Resolution on Sudan up for Shareholder Vote

The New York State Common Retirement Fund’s shareholder resolution calling upon Caterpillar Inc. to take steps to ensure that the company’s foreign subsidiaries are not doing business with the government of Sudan will go before shareholders on June 12, New York State Comptroller Thomas P. DiNapoli announced Thursday. Caterpillar had attempted to block the resolution from appearing on its shareholder proxy statement to be voted upon at its annual meeting by petitioningthe Securities and Exchange Commission to allow its exclusion from the meeting agenda.

DiNapoli: Tax Collections Declined in February; Budget Must Reflect Realistic Revenue Expectations

Total tax collections trailed the latest projections in the amended Executive Budget Financial Plan released last month, according to the February cash reportreleased Wednesday by State Comptroller Thomas P. DiNapoli. Tax collections through February totaled $59.9 billion, 2.6 percent higher than the same period a year ago although collections in the month of February were 5.6 percent lower than collections for the same period last year.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of

the Town of Deerfield;

the Town of Newstead; and,

the Town of Stratford.

A party is permitted to introduce updated records as evidence upon the resumption of an administrative hearing if an opportunity to respond to such records is provided

A party is permitted to introduce updated records as evidence upon the resumption of an administrative hearing if an opportunity to respond to such records is provided

Coleman v Rhea, 2013 NY Slip Op 01783, Appellate Division, First Department

In resolving this Article 78 petition one of the issues considered by the Appellate Division was whether there was “substantial evidence” to support an administrative determination made after a hearing.

The petitioner, Wanda Coleman, claimed that her right to due process was violated when the hearing officer permitted the New York City Housing Authority [NYCHA] to submit an updated ledger into evidence when an administrative hearing was resumed.

The Appellate Division disagreed, explaining that Coleman was free to testify regarding the updated ledger and the hearing officer kept the hearing record open post-hearing to give Coleman a full opportunity to respond to the updated information.

Indeed, said the court, Coleman had availed herself of this opportunity by submitting documentary evidence. Further, the court ruled that the hearing officer had not violated NYCHA's relevant internal administrative procedures in so doing.

A second issue concerned a procedural matter.

The Appellate Division noted that Supreme Court had denied Coleman’s Article 78 petition seeking to annul NYCHA’s administrative determination. The Appellate Division, however, “unanimously reversed” Supreme Court’s ruling on the law and treated the petition as one transferred to it for a de novo review.

Coleman’s petition, said the court, raised an issue of substantial evidence, and thus, the proceeding should have been transferred to this Court pursuant to CPLR §7804(g). Accordingly, the Appellate Division considered the substantial evidence issue de novo and decided all issues presented as if the proceeding had been properly transferred to it by Supreme Court in the first instance.

The Appellate Division then confirmed NYCHA’s administrative determination as supported by substantial evidence and denied Coleman’s petition, dismissing the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01783.htm