Does the State’s Son of Sam Law allow recovery from any and all of a convicted person’s assets, including his or her NYSERS retirement allowance?

Does the State’s Son of Sam Law allow recovery from any and all of a convicted person’s assets, including his or her NYSERS retirement allowance? 

New York State Off. of Victim Servs. v Raucci, 2012 NY Slip Op 04440 [97 AD3d 235], Appellate Division, Third Department, Motion before the Court of Appeals for Leave to Appeal Granted, Slip Opinion No: 2012 NY Slip Op 84607

The Court of Appeals will consider the appeal of Steven C. Raucci and his spouse, Shelley Raucci, a nonparty-appellant from an Appellate Division ruling that held that the Son of Sam Law, which does not expressly exempt pension funds from its reach, trumps §110 of the Retirement and Social Security Law. §110 exempts the pension funds from garnishment or any other legal process.

Steven C. Raucci was sentenced to a lengthy prison term upon his conviction of numerous crimes related to his employment with a school district. After receiving notice from two victims of these crimes of their intent to commence civil actions against Raucci for money damages, the New York State Office of Victim Services commenced this proceeding on their behalf pursuant to the Son of Sam Law (see Executive Law §632-a).

Victim Services contended that Raucci’s pension checks from the New York State and Local Employees' Retirement System are delivered to his wife, Shelley Raucci, who holds a power of attorney that enables her to cash such monthly pension checks, thereby giving her control over the funds and threatening their disbursement in a manner that would render ineffectual any civil judgments obtained by the crime victims.

The Appellate Division noting that in 1991 the Legislature, subject to certain limitations,  "expand[ed] the [Son of Sam] [L]aw to cover money and property that a convicted criminal receives from any source," concluded that the statute, as amended, permits crime victims to commence an action “within three years of the discovery of any profits from a crime or funds of a convicted person."

In the words of the Appellate Division, “Apart from [certain] exceptions, however, the amendments to the Son of Sam Law were intended to ensure that convicted criminals are ‘held accountable to their victims financially, regardless of their source of wealth’" Thus, said the court, it its view both the unambiguous statutory language of the Son of Sam Law and the legislative history of the 2001 amendments support Victim Services’ argument that Raucci's pension funds are not exempt from the statute's reach.

The New York Law School Law Review has published an article by Jessica Yager, Esq. that addresses various aspects of the Sun of Sam Law titled Investigating New York’s 2001 Son Of Sam Law: Problems with the Recent Extension of Tort Liability for People Convicted Of Crimes,  [Vol. 48, 2004, Pages 433-488]  Ms. Yager’s Law Review article is posted on the Internet at: http://www.nyls.edu/user_files/1/3/4/17/49/Vol48no3p433-488.pdf

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 ending December 28, 2012 [Click on the caption to access the full report]

New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued:

SUNY at New Paltz Selected Employee Travel Expenses (2012-S-140)

Auditors examined the travel expenses for one college employee whose travel charges totaled $269,627. They found that the selected employee was responsible for arranging travel for other college staff members, charging these travel expenses to her travel card. Auditors reviewed a sample of charges to this employee’s travel card and found the expenses were documented and adhered to state travel rules and regulations. 


Department of Economic Development Quality of Internal Control Certification (2012-S-48)

In 1987, the Legislature passed the New York State Governmental Accountability, Audit and Internal Control Act requiring state agencies and public authorities to each institute a comprehensive system of internal controls over their operations. Each covered State agency and public authority is required to certify compliance with act by April 30 of each year. DED's Internal Control Certification was submitted timely. 

However, auditors identified several areas where the quality of the certification could be improved. In three instances, DED's certification did not provide the required level of detail to explain the actual steps taken to implement certain provisions, including describing its internal control testing and monitoring processes and the results of its reviews of high risk activities. Although DED certified full compliance with all provisions of the act, its internal audit function has not had an external quality control assessment completed as required by professional auditing standards. 


Office of General Services Disposal of Electronic Devices (2012-S-4) 

The New York State Office of Cyber Security requires all state entities to establish formal processes to address the risk that information may be improperly disclosed. Information can be compromised through careless disposal of electronic equipment. OGS' surplus unit disposes of such equipment for many State agencies. 

The Surplus Unit does not accept any responsibility for clearing the data from these devices. However, OGS' Information Resource Management (IRM) bureau provides IT support for some state agencies. In these cases, IRM is responsible for removing information from the devices prior to making them available to the surplus unit. 

At the time of the audit, the surplus unit had 429 electronic devices in its possession for disposal and IRM was responsible for removing information from 25 of the devices on hand. Of these, three did not have information completely removed. One of the three devices still had sensitive information on a hard drive, including multiple social security numbers, medical records and confidential human resource information. 


New York State Health Insurance Program -Department of Civil Service Empire BlueCross BlueShield Selected Payments for Special Items for the Period April 1 Through June 30, 2011 (2011-S-42) 

Empire processes claims for hospital services in accordance to agreements they negotiate with member hospitals. Payments for hospital services are generally based on standard fee schedules. However, hospitals may be entitled to additional payments for special items that are not covered by the standard fee schedules. 

Many of Empire's agreements with member hospitals limit charges for special items, while agreements with other hospitals do not have such limitations. Auditors found Empire did not have adequate controls to ensure special items were paid according to contract limitations. 

As a result, Empire made a net overpayment of $119,141 on 33 claims. Empire made an excessive payment to a hospital that did not have formal contract provisions limiting reimbursements for special items. On one claim we reviewed, Empire paid about $52,755 (or 444 percent) more than the costs of the three special items in question.

Pension Fund permitted to credit report of the scene were the alleged accident occurred made at the time of the event over a description of the scene made two years later

Pension Fund permitted to credit report of the scene were the alleged accident occurred made at the time of the event over a description of the scene made two years later
Lang v Kelly, 2012 NY Slip Op 08788, Appellate Division, First Department

 
Board of Trustees of Police Pension Fund of Police Dept. of City of New York, by a tie vote, rejected Jean Lang’s application for accidental disability retirement benefits.

Supreme Court dismissed Lang’s Article 78 petition challenging the rejection of her application and the Appellate Division affirmed the lower court’s ruling. The Appellate Division held that Lang “failed to demonstrate as a matter of law that her injury was the result of an accident, i.e., a sudden, unexpected, out of the ordinary event, rather than a misstep during the routine performance of her job.”

According to the decision, Lang was injured when she tripped over computer wires extending across the threshold of the doorway between two rooms. In a statement made contemporaneously with the accident, Lang indicated that the wires were "exposed."

Two years later, however, Lang submitted a statement indicating that the wires had initially been secured to the floor with duct tape and that the tape was removed on the day she fell.

The Appellate Division held that the Pension Fund was entitled to credit Lang's contemporaneous account and reject her more recent statement that the condition of the wires changed on the day of the accident, explaining that the Fund “reasonably inferred that, since the wires had been in place for several months before [Lang’s] fall, she must have been aware of them and routinely stepped over them.

Another case illustrating the importance of a comprehensive physical description of the scene where the event occurred in the initial accident report is Slagle v McCall, 293 AD2d 923.

John K. Slagle, a firefighter, was injured while responding to a fire. According to the decision, the incident report and application for accidental disability retirement filed by Slagle both indicated that as he stepped over a downed chain link fence his boot caught on the fallen fence, causing him to fall.

Slagle, however, testified at his disability hearing before the Retirement System that he was unaware of the fallen fence because it was hidden in tall grass and weeds. Significantly, said the court, no mention of "tall grass and weeds" was noted in either Slagle's incident report or his application for accidental disability retirement benefits.

Slagle argued that his encounter with the fence and his subsequent fall constituted an accident since it was "sudden and unexpected." The Comptroller, however, concluded that Slagle's injury was the result of a misstep as he attempted to step over the fallen fence and that, therefore, he did not sustain an accident within the meaning of the Retirement and Social Security Law. The Appellate Division sustained the Comptroller's determination.

The court said that assuming that Slagle's testimony that he was unaware of the fence was sufficient to demonstrate an accident, "neither the accident report filed by [Slagle] shortly after the injury nor his application for benefits contained any reference to tall grass, weeds or the hidden nature of the fallen fence."

The court found that incident report and disability retirement application form submitted by Slagle provided the substantial evidence necessary to support the Comptroller's finding that "Slagle's fall was caused by his misstep or miscalculation in attempting to step over the fallen fence while engaged in the performance of his ordinary employment duties."

Thus, said the court, "there is no basis to disturb the Comptroller's conclusion that [Slagle] did not sustain an accident."

Clearly including references to "tall grass and weeds" hiding the downed fence might not have guaranteed approval of Slagle's application for accidental disability retirement benefits. However, the information he initially supplied in the incident report and in his application for benefits, despite his somewhat different testimony at the hearing, proved sufficient to allow the Comptroller to base his decision solely on the information contained in the incident report and Slagle's disability retirement application form.

The Lang decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08788.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Contempt proceeding used to enforce a court order directing reinstatement

Contempt proceeding used to enforce a court order directing reinstatement
Angel Nunez v City of New York, 43 AD3d 808

Angel Nunez obtained a court order directing his reinstatement to his former position, or a comparable position, with the New York City Department of Sanitation, together with back pay and benefits [City of New York v New York State Div. of Human Rights, 229 AD2d 307, leave to appeal denied, 89 NY2d 801]. Sanitation, however, neither reinstated Nunez to his former position nor to an equivalent position.

Nunez then petitioned the court to compel his reinstatement. Supreme Court dismissed his petition to have the Department to reinstate him, ruling that he delayed too long in bringing his action and thus Nunez was guilty of laches 

The Appellate Division reverse the lower court’s ruling, noting that although Nunez, an attorney, had waited 15 months before bringing the matter to the attention of the court rather than seeking earlier judicial intervention, both he and the Department had contributed to the delay.

The Appellate Division said that Nunez’s recourse was to bring a contempt proceeding when the Department failed to comply with the order of the court. It said that it “was futile to insist that [Nunez] bring a new complaint with the Division of Human Rights before seeking enforcement.” It then converted Nunez’s action into a “contempt proceeding” and remanded the case to Supreme Court for a hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2007/2007_07072.htm

Arbitrator’s ruling employee worked “out-of-title” does not violate public policy

Arbitrator’s ruling employee worked “out-of-title” does not violate public policy
County of Westchester v Edward Doyle, Jr., 43 AD3d 1055

Westchester County filed a CPLR Article 75 petition in an effort to vacate an arbitration award holding that one of employees had been working “out-of-title” on the grounds that the award constituted a “violation of public policy.” The Appellate Division disagreed, ruling that “public policy was not violated here merely because the determination that the respondent William Leverance was working out-of-title was made by an arbitrator.”

Another issue involved in this action: what is the date from which interest on the addition compensation due the employee is payable?

The Appellate Division said, and the employee conceded, interest was to be paid from the date of the arbitration award, rather than from the date from which the employee was entitled to compensation for his performing out-of-title work.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2007/2007_06874.htm