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 June 8, 2013 [Click on text highlighted in bold to access the full report]


DiNapoli Issues Report On Public—Private Partnerships

New York State Comptroller Thomas P. DiNapoli called for strong oversight provisions if New York broadens the authority of the state to enter into public—private partnership (P3) projects or goes forward with private financing of public projects. DiNapoli’s recommendations follow the release of a reportWednesday examining the benefits and problems that have plagued P3 projects elsewhere in the country.

DiNapoli To Audit Superstorm Sandy Payments By State Agencies

State Comptroller Thomas P. DiNapoli will examine payments made by the state in response to Superstorm Sandy to make sure state agencies received goods and services at the appropriate price.

DiNapoli: Elmira Showing Signs of Progress

The city of Elmira’s finances have improved in recent years due to higher rates of revenue growth and a concerted effort to control spending, according to a fiscal profile report issued last week by State Comptroller Thomas P. DiNapoli. The city, however, remains challenged by unemployment and poverty.

DiNapoli: Mayor’s FY 2014 City Budget is Balanced, but Substantial Risks Remain

New York City Mayor Michael Bloomberg’s proposed budget for the upcoming fiscal year is balanced, but challenges remain including the unknown cost of potential labor agreements and the likelihood of realizing anticipated revenue from the sale of new taxi medallions, according to an analysisof the city’s four—year financial plan released Wednesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Niagara Falls Hampered by Budget Deficits

The city of Niagara Falls has a growing disparity between its revenues and expenditures, forcing city officials to use nearly $22 million of its rainy day funds for operating costs from 2009 through 2013, according to an auditissued Tuesday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

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

the Allegany County Industrial Development Agency;

the City of Middletown;

the Village of Mount Morris;

the Village of Rockville Centre; and,

the Yaphank Fire District.

Comptroller DiNapoli Releases School Audits

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

the Bolton Central School District;

the Maine–Endwell Central School District;

the Plattsburgh City School District; and,

the Warwick Valley Central School District.

An individual seeking workers’ compensation benefits must show that any subsequent reduction in his or her earnings was related to his or her compensable injuries

An individual seeking workers’ compensation benefits must show that any subsequent reduction in his or her earnings was related to his or her compensable injuries

2013 NY Slip Op 03537, Appellate Division, Third Department

A school principal suffered work-related injuries to his ankle, knee and back. The principal filed a claim for workers' compensation benefits [the school district was self-insured] which was not controverted, but he did not begin to receive any such benefits as the school district continued to pay him his salary.

Some time later the principal received a letter from the school district notifying him that he had been denied tenure and he then submitted a letter of resignation, effective the last day of the school year. The principal never returned to work but subsequently secured a teaching position in Florida at a substantially reduced salary effective at the beginning the new school year.

The principal sought workers' compensation benefits as of the effective date of his resignation.  A Workers' Compensation Law Judge ruled that the principal “was entitled to lost earnings and reduced earnings payments" commencing June 30.

The Workers' Compensation Board, however, modified that determination, concluding that principal had “ceased working for reasons unrelated to his disability and failed to demonstrate that his reduction in earnings was causally related to his compensable injuries and, thus, he was not entitled to awards subsequent to June 30.”

The Appellate Division affirmed the Board’s ruling, explaining that when employment is lost due to factors other than a compensable injury, the claimant bears the burden of establishing that his or her disability contributed to any subsequent reduction in earnings.

In this case, said the court, substantial evidence supports the Board's threshold determination that the principal 's employment ended for reasons unrelated to his disability as he had testified that upon receiving the letter advising that he had been denied tenure, he resigned his position to avoid having the inevitable termination on his employment record. As his resignation letter gave no indication that his resignation was in any way related to his disabilities, it became the principal’s burden to demonstrate that any subsequent reduction in his earnings was due, at least in part, to his disability. This, said the court, he failed to show.

Another factor: the principal had also testified that during his job search subsequent to resignation he applied and interviewed for a school principal position that was no different than the job he performed for the school district nor did he inform that prospective employer — or any other potential employer during the course of his search — about any restrictions due to his disability. In addition, said the court, the principal indicated that it was rather difficult to secure a position in education in New York, which ultimately led him to accept a teaching position in Florida, where it was easier to obtain employment.

In the words of the Appellate Division: “Thus, claimant's own testimony established that his reduction in earnings was not caused, even in part, by his disability, but rather by other economic factors; thus, we decline to disturb the Board's decision.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03537.htm

Android apps for attorneys

Android apps for attorneys

Nicole Black, an attorney based in Rochester, New York, has posted an article on her LawBlog, Sui Generis, that focuses on the latest Android apps for attorneys. To access the item, click on:

http://nylawblog.typepad.com/suigeneris/daily_recordlegal_currents_column/index.html

Ms. Black is also the author of a number of books including Cloud Computing for Lawyers and has co-authored Social Media for Lawyers with Carolyn Elefant, Esq.

The shifting burdens of going forward in actions involving alleged unlawful discrimination

The shifting burdens of going forward in actions involving alleged unlawful discrimination

2013 NY Slip Op 03617, Appellate Division, First Department

A complainant alleging unlawful discrimination must set out a prima facie case of such discrimination, shifting the burden of going forward to the employer to demonstrate a nondiscriminatory reason for its action. If the employer can successfully demonstrate a nondiscriminatory reason for its decision, the burden shifts back to the complainant to show that the reasons given by the employer were pretextual in an effort to excuse its unlawful action.

In other words, once a prima facie case of alleged unlawful discrimination is rebutted by the employer with “legitimate, independent and nondiscriminatory reasons” for its decision, the burden of going forward shifts to the aggrieved individual to demonstrate that the explanation offered by the employer was mere subterfuge for its unlawful discriminatory actions. 

This decision addressing charges of alleged unlawful discrimination and charges of alleged unlawful retaliation illustrate the “shifting of the burden of going forward.”

According to the decision, the plaintiff had presented a prima facie case of “age-based discrimination” for his failure to be selected for employment as a teacher by the New York City Department of Education for its New York City Teaching Fellows program.

However, the Appellate Division dismissed his petition explaining that the Department of Education met its burden of proffering legitimate, nondiscriminatory reasons for failing to hire the plaintiff in it’s Teaching Fellows program by showing that the plaintiff had made “stereotyping statement” that parents in a particular ethnic group are more successful in communicating the importance of education to their children, resulting in superior academic performance in the course of his being interviewed to the position.

That done, the court said that the plaintiff had failed to show that Department's proffered reasons were pretexts for unlawful discrimination.

With respect to the plaintiff’s allegations of retaliation, the Appellate Division said that while he again had made out a prima facie case of retaliation, the Department had met its burden of proffering legitimate, nondiscriminatory reasons for declining to accept plaintiff into its SMART teaching certification program, including reciting the plaintiff's “expressed intention to focus his teaching energies on students ‘willing and interested’ in learning.”

Again, said the court, the plaintiff failed to show that Department's reasons were pretextual in an effort to justify its acts of unlawful discrimination.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_03617.htm

Ratification of the proposed contract for staff in the professional service of the State University of New York represented by United University Professions announced

Ratification of the proposed contract for staff in the professional service of the State University of New York represented by United University Professions announced

On June 4, 2013, Governor Andrew M. Cuomo and United University Professions (UUP) President Frederick Kowal announced the ratification of a collective bargaining agreement between the state and the union representing more than 35,000 SUNY employees in the professional service of the State University of New York.*

UUP members had been without a contract since 2011. The agreement won the approval of 77 percent of UUP members who cast ballots.

According to the State Budget Office, the agreement will save approximately $87 million in wages through a Deficit Reduction Program over the contract period. All changes to health benefits will save $99 million over the contract period.

Contract highlights:

· Zero percent General Salary Increases for the three years 2011-2013, and 2% General Salary Increase increases in 2014 and 2015.

· Deficit Reduction Program involving nine days.

· A two percentage point increase in the employee's health insurance premium contribution for employees earning less than $40,137, making the employee contribution 12% for individual coverage and 27% for dependent coverage.

· A six percentage point increase in the employee's health insurance premium contribution for employees earning $40,137 and above, making the employee contribution 16% for individual coverage and 31% for dependent coverage.

· Benefit design changes for use of out of network services in the Empire Plan, including deductible and coinsurance increases for out of network medical benefits.

· A health plan opt-out provision so employees can opt-out through a spouse/partner to a non-State health plan.

· Payments of $500, $500, and $250 to be awarded to employees by the Chancellor. UUP members receive no "step" increases or longevity payments but campus presidents may also make performance incentive lump sum payments of 0.5% annually (1% at end of the contract term).

* See Subdivision three of Section three hundred fifty-five-a of  the Education Law.