The finding of an unwarranted invasion of privacy an exception to disclosure of medical records pursuant to New York State's Freedom of Information Law

In this appeal the Appellate Division held that Supreme Court had properly determined that an exception to New York State's Freedom of Information Law [FOIL] disclosure requirements for "an unwarranted invasion of privacy", applied to the medical records of Petitioner's murder victim, citing Public Officers Law §87[2][b] and Newton v District Attorney of Bronx County, 186 AD2d 57,

In addition, the Appellate Division held that "Autopsy records concerning the Petitioner's victim were also exempt from disclosure," citing Public Officers Law §87[2][a]; the New York City Charter §557[g]; and Mitchell v Borakove, 225 AD2d 435, [appeal dismissed 88 NY2d 919.

Addressing the Respondent's denial of access to graphic photographs of the victim of the murder pursuant to Public Officers Law §87(2)(b), the Appellate Division opined that Petitioner "failed to articulate any public interest in disclosure of these photographs which would require the court to balance the public's interest in disclosure against the victim and her family's privacy rights", citing Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, and Matter of Edwards v New York State Police, 44 AD3d 1216.

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

Retired county police officer alleged to have taken unlawful pension benefits from the New York State and Local Retirement System

On February 7, 2023, New York State Comptroller Thomas P. DiNapoli and Ulster County District Attorney David J. Clegg announced the indictment* of a former Ulster County BOCES criminal justice instructor, a retired Westchester County Police Officer. The retired police officer allegedly stole over $163,000 from the New York State and Local Retirement System (NYSLRS) by taking unlawful pension payments and forging a required certificate purportedly issued by the State Education Department (SED).

“The defendant allegedly submitted forged documents to scam the New York state retirement system,” DiNapoli said. “He will now face the consequences of his actions. Safeguarding the New York State and Local Retirement System and maintaining its integrity are priorities for my office. I thank District Attorney Clegg, the State Education Department and the State Police for their partnership in holding accountable those who think they can swindle the pension system.”

After retiring from the Westchester Police Department in 2005, Anthony Sciacca was hired as an instructor at Ulster County BOCES teaching criminal justice and earning a salary of over $70,000. As a retiree under the age of 65 at the time, without a waiver, Sciacca was not allowed to earn more than $30,000 annually in other New York State public employment while continuing to receive his full NYSLRS pension benefit.**

The joint investigation revealed that while Sciacca had a lawful waiver from Sept.1, 2005 through June 30, 2011, he did not have a lawful waiver for the next eight years. However, he continued to earn his Ulster County BOCES public salary in excess of $70,000 on top of receiving his monthly NYSLRS pension payments.

When the NYSLRS discovered that Sciacca’s income was over the limit and that it had no waivers on file, Sciacca’s pension was suspended, and he was asked to provide copies of any waivers he had been granted. In response to NYSLRS’ inquiry, Sciacca allegedly supplied the retirement system with falsified documents. These documents stated that his waivers had been approved.

The investigation revealed that these documents were fraudulent, and that no such waivers had been obtained. Through his scheme, Sciacca was able to collect over $163,000 in NYSLRS pension payments to which he was not entitled.

DiNapoli’s investigation was spurred by SED’s examination of Sciacca’s credentials. During this review, SED also discovered that Sciacca had allegedly forged a document to show that he had received a “Security Operations, Professional Certificate,” which was a requirement of his continued BOCES employment. 

Sciacca was arraigned in Ulster County Criminal Court before Judge Bryan E. Rounds on Feb. 6, 2023, and is due back in court on Feb. 22, 2023. He was charged with Scheme to Defraud, Grand Larceny, Defrauding the Government, four counts of Forgery, two counts of Offering a False Instrument for Filing, two counts of Falsifying a Business Record and Retirement Fraud. Ulster County Assistant District Attorney Felicia S. Raphael, chief of the Financial & Cyber Crimes Bureau, is prosecuting the case.

The charges add to those first brought against him when he was arrested on July 14, 2022, which then included Grand Larceny, three counts of Forgery, three counts of Filing a False Instrument, three counts of Falsifying Business Records and one count of retirement fraud.

* The charges filed in this case are merely accusations and the defendant is presumed innocent unless and until proven guilty in a court of law.

** See, generally, Article 7 of the Retirement and Social Security Law, which addresses the reemployment of retired public employees of the State of New York in the public service in the State of New York.

###

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.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Employer's motion to confirm an arbitration award granted

The Appellate Division affirmed Supreme Court's denial of the Respondent union's cross motion to vacate the arbitration award, explaining courts lacks the authority, to "examine the merits of an arbitration award and substitute its judgment for that of the arbitrator [, even if] it believes its interpretation would be the better one"*, citing Matter of United Fedn. of Teachers, Local 2, AFT, AFL—CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72.

Noting the ruling in Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, [cert.  dismissed 548 US 940], the Appellate Division said "It is well settled that judicial review of arbitration awards is extremely limited", although "CPLR 7511(b)(1)(iii) permits vacatur of an award where ... the arbitrator exceeds his or her power."

The Appellate Division then observed that the arbitrator exceeds his or her power where his or her award "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Barone v Haskins, 193 AD3d 1388, appeal dismissed 37 NY3d 1032, lv denied 37 NY3d 919 [see Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332].

The Appellate Division opined that in the instant matter "the arbitrator merely interpreted and applied the provisions of the relevant collective bargaining agreement (CBA), as she had the authority to do," citing Lackawanna Professional Fire Fighters Assn., Local 3166, IAFF, AFL-CIO, 156 AD3d at 1408, and that the court was "powerless to set aside that interpretation even if we disagree with it...."

* The Appellate Division indicated that the plain language of the Collective Bargaining Agreement [CBA] supported the arbitrator's interpretation of the CBA.

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