From the blogs

FEATURED STORY FOR JULY 6, 2022

The Supreme Court Case That Could ‘End American Democracy’
What seems like a narrow point of law could have profound consequences for American elections — including the race for the White House in 2024. Click below to access the article:

https://www.governing.com/next/the-supreme-court-case-that-could-end-american-democracy?utm_campaign=Newsletter%20-%20GOV%20-%20Daily&utm_medium=email&_hsmi=218684267&_hsenc=p2ANqtz-_3R_R-CH3s8_CRLuPL6hC9tEowFTXVLQkzu41rtGK8ZA1zYlu5ZFqR7xysGGMMxbhZuRA5p0BXu1LNmuKi_l55Cgw-bLNKUPc8RHEgWahZlnKtLGk&utm_content=218684267&utm_source=hs_email

 

Audits and reports issued by the New York State Comptroller during the week ending July 1, 2022

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending July 1, 2022:

Click on the text highlighted in colorto access the complete audit report.

Municipal Audits

 

Town of Carroll – Town Clerk (Chautauqua County) Auditors could not determine whether swim program fees totaling $21,843 were properly accounted for or remitted in a timely manner because the clerks did not maintain adequate accounting records. While the clerks generally recorded, deposited, and reported the fees, water rents and certain recreational fees, they did not always make remittances in a timely manner.

 

Coeymans Hollow Fire District – Board Oversight (Albany County)  The board ensured disbursements were supported and approved. However, the board did not ensure the service contract with the Coeymans Hollow Volunteer Fire Corporation was adequate in addressing what periodic financial reports the company had to provide the district. Annual Update Documents were not filed in a timely manner for fiscal years 2018 through 2020.

 

Kortright Rural Fire District – Financial Activities (Delaware County) The board did not adequately segregate the treasurer’s duties or implement mitigating controls. The board also did not properly monitor the treasurer’s financial activities or annually audit the treasurer’s records. Competition for heating oil was not sought and had officials worked with the New York State Office of General Services to use a state contract the district could have saved $2,805, or 21% of the district’s heating oil costs.

 

School District Audits

Cato-Meridian Central School District – Salaries, Wages and Leave Benefits (Cayuga County) District officials accurately paid salaries and wages but did not accurately pay unused leave benefits, and accrued leave records contained errors. As a result: $14.1 million of (97%) salary and wage payments were disbursed without authorization. For four of nine employees that had separation payments, unused leave was incorrectly calculated — resulting in over/underpayments of $7,430. Two administrators received leave valued at $18,042 without board approval. Fifteen employees (47%) had leave accrual errors totaling $13,529.

 

Ellenville Central School District – Network User Accounts (Ulster County)  District officials did not ensure network user accounts were adequately managed. Auditors found district officials should have disabled 550 network user accounts that were no longer needed. Of the 550 unneeded accounts, 462 were not used to log into the system in at least six months from the date of the test. District officials should have established written procedures for granting, changing, or disabling network user accounts.

 

Johnson City Central School District – Special Education Services and Medicaid Reimbursements (Broome County) Officials, faced with remote and hybrid learning challenges, did not always ensure students received services in accordance with their individualized education programs (IEPs) and did not ensure that all Medicaid-eligible claims were submitted and reimbursed. Of the 2,683 required sessions, therapists documented 605 as scheduled and missed, but did not document another 506 sessions. As a result, 41% of the required services may not have been received. Two of the 15 therapists did not schedule make-up sessions, and some therapists did not always document scheduled sessions, particularly when students were habitually absent. Therapists did not always document complete information for Medicaid-eligible services. As a result, the district did not realize revenue totaling up to $42,330.

 

Marion Central School District – Procurement (Wayne County)  Auditors examined purchases totaling $2.1 million and found more than $586,000 was not competitively procured. District officials could not support that they sought competition for purchases totaling $103,687 for goods and public works that were subject to competitive bidding, $104,430 for items below the competitive bidding requirements, but subject to alternative quote thresholds, and $377,979 paid to four professional service providers. The board and officials also did not develop adequate purchasing policies and procedures and, as a result, officials cannot assure taxpayers that purchases were made in the most prudent and economical manner.

 

Newark Valley Central School District – Procurement (Tioga County) District officials did not always seek competition for the purchase of goods and services not subject to competitive bidding. As a result, goods and services may not have been procured economically and in the best interest of taxpayers. Auditors reviewed 30 purchases totaling $200,012 and expenditures for five professional service vendors totaling $171,446. They found that officials did not seek competition for 13 purchases of goods and services totaling $44,401 or compare billed prices to the awarded contract prices, and overpaid for cleaning supplies by $1,532. As a result of this audit, officials obtained a credit for this amount from the vendor.

 

South Mountain Hickory Common School District – Financial Management (Broome County)  The trustee and treasurer did not demonstrate effective financial management. The trustee and treasurer developed and adopted unrealistic budgets. Had more reasonable budgets been developed, the trustee and treasurer could have used surplus fund balance to reduce the tax levy, rather than increasing the 2021-22 school year levy by approximately 37%, or $53,000. 

 

---

Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.
 

Should a petitioner fail to offer a reasonable excuse for his failure to timely serve the notice of claim on a public entity, "the absence of a reasonable excuse is not fatal to the petition where there was actual notice and absence of prejudice"

 

 

Matter of Gabriel v City of Long Beach

2022 NY Slip Op 04169

Decided on June 29, 2022

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 29, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
SHERI S. ROMAN
LINDA CHRISTOPHER
WILLIAM G. FORD, JJ.

2021-01852
(Index No. 613899/19)

[*1]In the Matter of Matthew Gabriel, appellant,

v

City of Long Beach, et al., respondents.

Camacho Mauro Mulholland, LLP, New York, NY (Anthony J. Buono of counsel), for appellant.

Vigorito, Barker, Patterson, Nichols & Porter, LLP, Valhalla, NY (Leilani J. Rodriguez of counsel), for respondents.

 

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered March 8, 2021. The order denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, that branch of the petition which was to deem a late notice of claim timely served nunc pro tunc is granted, and that branch of the petition which was for leave to serve a late notice of claim is denied as academic.

On June 30, 2019, employees of the City of Long Beach Fire Department (hereinafter the Fire Department) responded to a phone call from a bystander with regard to the petitioner herein, who apparently had just passed out inside of a gas station. The Fire Department employees treated the petitioner, allegedly causing him to go into anaphylactic shock, which in turn necessitated that he be placed in a medically induced coma from June 30, 2019, until July 7, 2019.

On October 3, 2019, the petitioner served a notice of claim upon the City of Long Beach and the Fire Department with regard to the subject incident. Thereafter, by notice of petition and petition filed October 4, 2019, the petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim or to deem the late notice of claim timely served nunc pro tunc. In orders dated February 27, 2020, and June 2, 2020, the Supreme Court denied the petition without prejudice to renew upon proper papers.

On June 9, 2020, the petitioner renewed his petition for leave to serve a late notice of claim or to deem the late notice of claim timely served nunc pro tunc. The respondents opposed the petition. In an order entered March 8, 2021, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.

In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court is required to consider all relevant facts and circumstances, including whether the public corporation acquired actual [*2]knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the claimant has a reasonable excuse for the failure to timely serve a notice of claim, and whether the delay would substantially prejudice the public corporation in maintaining its defense (see id.; Matter of Tejada v City of New York, 161 AD3d 876, 877; Matter of Davis v County of Westchester, 78 AD3d 698, 699). "While the presence or the absence of any one of the factors is not necessarily determinative, whether the public corporation had actual knowledge of the essential facts constituting the claim is of great importance" (Matter of Tejada v City of New York, 161 AD3d at 877 [citation omitted]; see Matter of Davis v County of Westchester, 78 AD3d at 699). Moreover, a petitioner's lack of a reasonable excuse for the failure to timely serve a notice of claim is not necessarily fatal when weighed against other relevant factors (see Matter of Tejada v City of New York, 161 AD3d at 877; Matter of Davis v County of Westchester, 78 AD3d at 699).

Here, the petitioner served the notice of claim upon the respondents five days after the 90-day period for service had expired and commenced the instant proceeding the next day. Under such circumstances, the respondents acquired actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the 90-day statutory period (see Matter of Regan v City of New York, 131 AD3d 1064, 1066; Matter of Gershanow v Town of Clarkstown, 88 AD3d 879, 880; Matter of Gelish v Dix Hills Water Dist., 58 AD3d 841, 842; cf. Matter of Bhargava v City of New York, 130 AD3d 819, 820-821; Matter of Sanchez v City of New York, 116 AD3d 703, 704). Since the respondents acquired timely knowledge of the essential facts constituting the petitioner's claim, the petitioner met his initial burden of showing a lack of prejudice (see Matter of Regan v City of New York, 131 AD3d at 1066; Jordan v City of New York, 41 AD3d 658, 660).

In opposition to the petitioner's initial showing, the respondents "failed to come forward with particularized evidence showing that the late notice had substantially prejudiced [their] ability to defend the claim on the merits" (Matter of Tejada v City of New York, 161 AD3d at 878). Rather, the respondents' counsel made only conclusory assertions that the petitioner's five-day delay in serving the notice of claim had hindered the respondents' ability to conduct a prompt and thorough investigation of the subject incident, which "were insufficient to rebut the petitioner's initial showing of lack of prejudice" (id.; see Matter of Newcomb v Middle County Cent. Sch. Dist., 28 NY3d 455, 467; see also Matter of Regan v City of New York, 131 AD3d at 1066; Jordan v City of New York, 41 AD3d at 660).

Although the petitioner failed to offer a reasonable excuse for his failure to timely serve the notice of claim, "the absence of a reasonable excuse is not fatal to the petition where there was actual notice and absence of prejudice" (Matter of Regan v City of New York, 131 AD3d at 1066; see Matter of Brownstein v Incorporated Vil. of Hempstead, 52 AD3d 507, 510; Gibbs v City of New York, 22 AD3d 717, 720; cf. Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d 790, 791-792; Matter of Bell v City of New York, 100 AD3d 990, 990-991).

Accordingly, the Supreme Court improvidently exercised its discretion in denying the petition.

CONNOLLY, J.P., ROMAN, CHRISTOPHER and FORD, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

As the employee bears the burden of proving the existence of a reasonable accommodation permitting the employee to perform the essential functions of the position, the employer engaging in an "interactive process" is not an issue where the evidence demonstrates that no reasonable accommodation is possible

Gibbons v State of New York

2022 NY Slip Op 04153

Decided on June 29, 2022

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 29, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
LINDA CHRISTOPHER
LARA J. GENOVESI
DEBORAH A. DOWLING, JJ.

2019-09593
(Index No. 601894/15)

[*1]Michael Gibbons, appellant,

v

State of New York, et al., respondents.

Daniel M. Bauso, Jamaica, NY, for appellant.

Letitia James, Attorney General, New York, NY (Steven C. Wu and Amit R. Vora of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for discrimination in employment on the basis of disability in violation of the New York State Human Rights Law, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Martha L. Luft, J.), entered May 24, 2019. The judgment, upon a jury verdict, is in favor of the defendants and against the plaintiff dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff began working for the defendant New York State Unified Court System Office of Court Administration (hereinafter OCA) as a court officer on April 16, 2001, and initially was assigned to Queens County Family Court. At the time, the plaintiff had already been diagnosed with Crohn's disease and primary sclerosing cholangitis, a related liver condition. In October 2009, the plaintiff was charged with pointing his gun at another officer, pursuant to which he entered into a stipulation providing that a formal letter of reprimand indicating he engaged in this conduct was to be placed in his file. He was subsequently transferred to Kings County Family Court.

The plaintiff's medical condition allegedly worsened following the incident, and in July 2012, the plaintiff moved his residence from Queens County to Suffolk County, which lengthened his commute. The plaintiff claimed he made several requests to his supervisors, which they deny receiving, as well as to the OCA, to be transferred to a court closer to where he lived to shorten his commute, but was never transferred. Eventually, the plaintiff's condition worsened to the point that he could no longer perform his job. The plaintiff applied for sick leave bank benefits on September 24, 2014, which were granted based on his obtaining disability retirement and social security disability.

In February 2015, the plaintiff commenced this action against the defendants to recover damages for discrimination on the basis of disability in employment in violation of the New York State Human Rights Law (Executive Law § 290 et seq.) (hereinafter the State HRL). The action proceeded to a jury trial. Following the trial, the jury returned a verdict finding that the plaintiff demonstrated that he had a disability and that he requested an accommodation to move to another court, but that his accommodation request was not reasonable. Judgment was entered upon [*2]the verdict, and the plaintiff appeals.

The plaintiff contends that the Supreme Court erred in failing to give the jury additional instructions concerning the defendants' obligation to engage in a good faith interactive process to determine whether a reasonable accommodation could be provided. Contrary to the plaintiff's contention, the court properly charged the jury on the essential elements of a claim of discrimination based on disability under the State HRL (see Executive Law § 296[3][a]). A good faith interactive process is not an independent element of the disability discrimination analysis under the State HRL, and an employer may not be held liable based solely on its failure to engage in an interactive process with an employee (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 838; Hayes v Estee Lauder Cos., Inc., 34 AD3d 735, 737). "At a trial on a State HRL claim, the plaintiff employee still bears the burden of proving the existence of a reasonable accommodation that would have enabled the employee to perform the essential functions of his or her position" (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d at 838). Here, whether the defendants engaged in an interactive process was not an issue, as the evidence demonstrated that no reasonable accommodation was possible (see generally Whitney v Bronx-Lebanon Hosp. Ctr., 150 AD3d 587, 588; Pimentel v Citibank, N.A., 29 AD3d 141, 147-148; McBride v BIC Consumer Products Mfg. Co., Inc., 583 F3d 92, 100 [2d Cir]; Soto-Ocasio v Federal Exp. Corp., 150 F3d 14, 19 [1st Cir]). Based on the record, the jury fairly determined that the OCA could not have reasonably accommodated the plaintiff's request for a transfer.

Since the charge given by the Supreme Court adequately conveyed the "sum and substance of the applicable law," there is no basis for reversal (Hayes v Estee Lauder Cos., Inc., 34 AD3d at 737 [internal quotation marks omitted]).

CONNOLLY, J.P., CHRISTOPHER, GENOVESI and DOWLING, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court