Court review of an interim order of an arbitrator

Court review of an interim order of an arbitrator

Kramer v Geldwert, 2014 NY Slip Op 08732, Appellate Division, First Department

Supreme Court denied the petitioner’s motion for discovery in aid of arbitration and dismissed the matter. The Appellate Division unanimously affirmed the lower court’s ruling.

The Appellate Division explained that although in exceptional circumstances, pre-hearing discovery pursuant to CPLR 3102(c) may be ordered after the demand for arbitration has been made, a court may not review the interim orders of an arbitrator.

Thus, concluded the Appellate Division, judicial review of procedural rulings made in the arbitration giving rise to this arbitration administered by the American Arbitration Association is barred’

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08732.htm

Audit reports of public entities posted on the Internet by New York State's Comptroller Thomas P. DiNapoli on December 23, 2014

Audit reports of public entities posted on the Internet by New York State's Comptroller Thomas P. DiNapoli on December 23, 2014

Click on text highlighted in color  to access the full report

Town of Broome – Purchasing and Justice Court (Schoharie County)
The board did not ensure purchases were made at the lowest cost, in compliance with the town’s procurement policy, and used for proper Town purposes. The board also did not provide oversight to ensure the town justice recorded, deposited and disbursed all court money accurately and timely.

Candor Fire District – Controls Over Financial Activities (Tioga County)
The board did not ensure that the monthly budget-to-actual reports provided by the treasurer were complete and that miscellaneous revenues collected were recorded and deposited. In addition, the board attempted to segregate cash receipt duties by having the treasurer open the mail and forward all money received to a board member for deposit. However, there was no audit trail beginning with the initial point of cash collection to show the amounts the treasurer actually received.

County of Clinton Industrial Development Agency – Project Monitoring (2014M-205)
The board did not design and implement an adequate system to monitor IDA approved projects. For example, IDA officials did not have a system in place to track the amounts directly billed and collected by taxing jurisdictions for payments in lieu of taxes. The IDA also did not have an effective process in place to monitor and evaluate agreed-upon job expectations, which may have helped avoid a shortfall of 100 jobs for eight of the 10 projects reviewed.

Dutchess County – Court and Trust (2014M-293)
The records maintained by the surrogate’s court were generally up-to-date and complete. However, the condition of all court and trust funds were not reported to the Office of State Comptroller as required. Reports on the condition of court and trust funds was correct, however they did not include detailed descriptions of the projects closed during the 2013 fiscal year.

Genesee County – Court and Trust (2014M-322)
The records maintained by the surrogate’s court were generally up-to-date and complete. However, the clerk does not make an entry into the court and trust fund register of the money ordered to be paid.

Georgetown Fire District – Board Oversight (Madison County)
Board members did not ensure that complete and accurate accounting records were maintained, bank reconciliations were performed, annual financial reports were prepared and filed in a timely manner, and that the treasurer’s records were annually audited. Furthermore, because the records were in such poor condition, the board was precluded from fully understanding the district’s financial condition.

Greene County – Court and Trust (2014M-294)
The records maintained by the surrogate’s court and county clerk were generally up-to-date and complete. However, auditors identified $66,637 in funds that have not been turned over to the Office of State Comptroller as abandoned property, even though the funds have been in the custody of the treasurer for more than three years.

Hewlett Bay Fire District – Professional Services and Information Technology (Nassau County)
The board did not develop adequate procedures that required the solicitation of competition for the procurement of professional services. As a result, officials did not solicit competitive proposals for eight of the nine professionals who provided services totaling $150,800 during the audit period. In addition, the board has not adopted a comprehensive IT policy.

Long Lake Fire District No. 1 – Controls Over Financial Activities (Hamilton County)
The treasurer maintained adequate records of the district’s financial activity and provided detailed monthly and quarterly reports to the board. However, the treasurer has not filed an annual financial report with the Office of State Comptroller since August 2011.

Town of Milford – Justice Court Operations (Otsego County)
Although all three town justices deposited and disbursed court money properly during the audit period, they did not always ensure it was completely collected or accurately recorded and reported. Of 78 cases reviewed, auditors found various deficiencies among 39 cases.

New Woodstock Fire District – Controls Over Financial Activities (Madison County)
The secretary-treasurer maintained adequate financial records and the board generally provided adequate oversight of district financial activities. However, the district has not filed its annual financial report with the Office of State Comptroller for the last four years.

Town of Pierrepont – Fiscal Stress (St. Lawrence County)
The board adopted budgets that relied too heavily on appropriated fund balance as a financing source. Furthermore, the board did not require the bookkeeper to submit estimates of year-end fund balance and did not adopt a policy to determine the amount of unrestricted, unappropriated fund balance to maintain. This has led to significant reductions in the town’s fund balances from the beginning of 2011 to the end of 2013. In addition, the board has not developed a multiyear financial and capital plan to address the town’s long-term priorities.

City and Town of Poughkeepsie Joint Water Project – Board Oversight (Dutchess County)
The board does not ensure the joint water project is operated in accordance with the intermunicipal cooperation agreements. The board does not require the city to make its quarterly estimated payments for operating costs.

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Police agency's records concerning breath alcohol measurement instruments may be obtained pursuant to a Freedom of Information Law request

Police agency's records concerning breath alcohol measurement instruments may be obtained pursuant to a Freedom of Information Law request

Law Offs. of Adam D. Perlmutter, P.C. v New York City Police Dept., 2014 NY Slip Op 08722, Appellate Division, First Department

The Law Offices of Adam D. Perlmutter, P.C., [Perlmutter] filed a Freedom of Information Law [FOIL] request seeking “all calibration and maintenance records for all Intoxilyzer machines owned or maintained by New York City Police Department [NYPD] since January 2008”.The Intoxilyzer is a breath alcohol measurement instruments manufactured by CMI, Inc.

In response to NYPD denial of Perlmutter’s FOIL demand, Perlmutter filed an Article 78 petition. Supreme Court seeking a court order annulling NYPD’s decision and an order directing the NYPD to disclose the records sought by Perlmutter.

Relying on provisions set out in Public Officers Law §87, NYPD had contended that the records "are compiled for law enforcement purposes and . . . , if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings," as such records are often requested in “Driving While Intoxicated” [DWI] cases involving Intoxilyzer test results and that thousands of such cases are pending in New York City.

The Appellate Division affirmed the lower court's ruling and rejected NYPD’s claim that the records sought by Perlmutter were exempt from disclosure pursuant to FOIL.

The court noted NYPD’s FOIL arguments are not properly before it because the exemption to FOIL was not cited by NYPD at the administrative level. However, the Appellate Division continued, “Were we to review it, we would reject [NYPD's arguments] on the merits, since the statute cited by [NYPD] does not exempt the records from disclosure.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08722.htm

An employee's status as reported in the agency’s records control notwithstanding an error in correspondence concerning the employee’s employment status

An employee's status as reported in the agency’s records control notwithstanding an error in correspondence concerning the employee’s employment status

2014 NY Slip Op 08718, Appellate Division, First Department

An individual [Officer] initiated the grievance process set out in collective bargaining agreement challenging the Metropolitan Transportation Authority Police Department’s director of labor relations' action that “purportedly terminated [Officer’s] employment as a police officer”  with Authority’s Police Department. 

When his grievance was denied, Officer demanded that his grievance be submitted to arbitration. However, before the arbitration commenced, Officer filed an Article 78 petition in Supreme Court, New York County, seeking to vacate his “purported termination” from his position.

Supreme Court denied Officer’s petition and dismissed the proceeding on the ground that Officer failed to exhaust his administrative remedies. The Appellate Division sustained the Supreme Court’s ruling.

The Appellate Division explained that the relevant collective bargaining agreement had a "Waiver of Trial Agreement" (Waiver Agreement) incorporated into the collective bargaining agreement's binding arbitration procedure as the means of determining, "in future cases of misconduct," whether Officer had committed a "serious violation" of Authority Police Department’s rules. The Police Department later determined that subsequent to the parties entering into the Waiver Agreement Officer had committed a serious violation.

The Appellate Division said that Officer failed to establish that he was actually terminated before arbitration in violation of the Waiver Agreement.

To the extent a mistake was made when a personnel order, dated August 21, 2012, was issued to all department members stating that Officer had been terminated, the mistake was corrected by the issuing of a revised order, dated April 12, 2013, to all department members stating that Officer was suspended without pay rather than terminated. 

Further, said the Appellate Division, the Department's records demonstrate that effective August 20, 2012 Officer was placed on an unpaid leave of absence.

Similarly, in the event an employee status as reflected in the agency’s records is inconsistent with records of the relevant civil service commission, the commission’s records control absent a finding that the commission’s records are in error.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08718.htm

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