Withdrawing an application for service retirement benefits requires the member to file a written request to do so with the retirement system prior to the effective date of his or her retirement

Withdrawing an application for service retirement benefits requires the member to file a written request to do so with the retirement system prior to the effective date of his or her retirement 

126 AD3d 1281

A member [Member] of the New York State & Local Employees' Retirement System [System]  filed an application for service retirement benefits. At a meeting with a System representative Member learned that a domestic relations order had been filed with the System that provided that his former wife was to receive a portion of his monthly retirement benefit. Member, believing that the terms of the order were inaccurate, told the System’s representative that he did not wish to retire until that matter could be resolved.

However it became apparent that Member’s retirement application was still being processed by the System and Member telephoned the System and again stated that he did not wish to retire. Ultimately Member was told by his employer that “he had retired.”

Member then submitted a written request to withdraw his retirement application but his request was denied by the System as untimely. Subsequently a Hearing Officer found that Member was not entitled to withdraw his retirement application as his written request was untimely, which finding the Comptroller adopted and denied Member’s request to withdraw his application for retirement.

The Appellate Division confirmed the Comptroller decision, explaining that the Comptroller "is vested with the exclusive authority to resolve applications for retirement benefits," and those determinations will be upheld if supported by substantial evidence in the record. The court noted that a Member’s application for service retirement could only be withdrawn "by filing a written request to withdraw [it] prior to the [Member's] effective date of retirement." As Member “admittedly failed” to submit a timely a written request to withdraw his application for retirement, the Appellate Division ruled that the Comptroller's determination denying his written request to withdraw as untimely was supported by substantial evidence.

The court also rejected Member’s argument that the Comptroller should be equitably estopped from denying his request to withdraw his retirement application.

According to the Appellate Division's decision, Member “did nothing until the day before his retirement became effective, when he called ‘someone’ at [the System] and reiterated that he wanted to withdraw his retirement application.” Although Member claimed that the “unnamed employee told him that an oral withdrawal would be sufficient,” which it was not, the Appellate Division said that "even if the advice given by [the System’s] administrative employees was erroneous, it would not give rise to an estoppel here."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02549.htm

A probationary teacher may be terminated from his or her position absent a showing that his or her dismissal was made in bad faith, in violation of law, or for a constitutionally impermissible purpose.

A probationary teacher may be terminated from his or her position absent a showing that his or her dismissal was made in bad faith, in violation of law, or for a constitutionally impermissible purpose

2015 NY Slip Op 03479, Appellate Division, First Department 

Supreme Court denied a probationary employee’s [Probationer] petition seeking to have the court annul the appointing authority’s decision to terminate Probationer’s services during her probationary period. The Appellate Division dismissed Probationer’s appeal of the Supreme Court’s ruling.

One of the arguments advanced by Probationer was that she had attained “tenure by estoppel” and thus was entitled to notice and hearing as a condition precedent to her dismissal from her position.

The Appellate Division held that Petitioner was not entitled to tenure by estoppel, explaining that Probationer, while serving an extension of her probationary appointment pursuant to an agreement providing for such an extension, had resigned from that position. The appointing authority subsequently reemployed Probationer as a teacher at a different school subject to a new three-year term of probation. This second probationary period was also extended pursuant to the terms of another agreement. The appointing authority then terminated Probationer’s employment before the expiration of this second extended term of probation.

Accordingly, said the court, Petitioner never taught beyond the expiration of the probationary terms of her employment with the school district, citing Juul v Board of Educ. of Hempstead School Dist. No. 1, Hempstead, 76 AD2d 837, aff’d 55 NY2d 648. The Appellate Division commented that Juul, a teacher, had agreed to forgo any claim to tenure in exchange for the extension of his probationary employment with the school district.

In contrast, the Appellate Division noted the decision in Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446. In Gould the teacher was found to have attained tenure by estoppel “where she obtained tenure in her first position and taught beyond the two-year period of her probation in her second position.”

Finding that the appointing authority had not breached the second agreement extending Petitioner's probation at the second school, the court held that in the absence of a showing of bad faith, a violation of law, or a constitutionally impermissible purpose on the part of the appointing authority, Probationer could terminated from her probationary employment “for any reason or no reason at all.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03479.htm

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Employer has the burden of proving an individual cannot perform the essential functions of the position regardless of any reasonable accommodation provided

Employer has the burden of proving an individual cannot perform the essential functions of the position regardless of any reasonable accommodation provided

2015 NY Slip Op 03465, Appellate Division, First Department

Supreme Court granted the New York City’s Department of Sanitation’s [DOS] motion to dismiss the Article 78 petition filed by an applicant [Applicant] for employment with DOS alleging “disability-based” unlawful discrimination “for failure to state a cause of action.”

Applicant appealed and the Appellate Division unanimously reversed the lower court’s ruling.

Applicant claimed that DOS refused to hire him, notwithstanding he otherwise proved qualified for employment as a sanitation worker based solely on his having a psoriasis condition on his hands. This said the court “makes out causes of action for disability-based discrimination under the New York State and New York City Human Rights Laws.”

The State Human Rights Law required Applicant to plead that he could perform the essential functions of the job if he were afforded reasonable accommodation. Here, said the Appellate Division, Applicant’s complaint alleged that gloves would have constituted a sufficient accommodation to enable him to perform the work satisfied this requirement.

The court then explained that whether DOS was justified in considering Applicant’s psoriasis disqualified him for the position “on the grounds that the condition would have prevented him from performing the essential functions of the position" and “no accommodation (including gloves) would have obviated the interference” cannot be determined from the face of the complaint and the documentary exhibits annexed to it.

Although DOS had submitted evidence in support of its motion tending to show that Applicant's condition rendered him incapable of performing the job of a sanitation worker, its motion was not one seeking summary judgment and thus Supreme Court should have denied its motion to dismiss Applicant’s petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03465.htm

An employee, as an active participant in a work-related tragedy rather than as a bystander, is eligible for workers’ compensation benefits

An employee, as an active participant in a work-related tragedy rather than as a bystander, is eligible for workers’ compensation benefits

126 AD3d 1250

In this Workers’ Compensation case an employee [Claimant] alleged that she had  sustained a compensable work-related mental injuries after she responded to the suicide of a patient.

A Workers' Compensation Law Judge found Claimant had disabling depression, anxiety and posttraumatic stress disorder stemming from that incident. The Workers' Compensation Board affirmed, and the self-insured employer and its third-party administrator [Employer] controverted the Board’s decision and appealed.

The Appellate Division affirmed the Board’s ruling, explaining that psychological injuries caused by witnessing the aftermath of a suicide have been held to be compensable where "the claimant was an active participant in the tragedy," as opposed to a bystander, citing Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505.

Here, said the court, a patient leapt from a window at the facility where Claimant worked.   Claimant was one of the first workers to reach the scene and, despite her lack of medical training, was directed by her supervisor to retrieve an oxygen tank for the patient.

In the words of the Appellate Divisions: “Claimant did so, but began to feel anxious and hyperventilate and ‘lost it’ altogether after she was ordered by facility officials not to speak to investigators about her prior interactions with the patient.”

This, said the court, constituted substantial evidence for the Board's finding that Claimant was indeed an active participant in the events surrounding the suicide and that the Board was free to, and did, “credit medical evidence indicating that [Claimant} developed disabling depression, anxiety and posttraumatic stress disorder as a result of the incident.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02533.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 25, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 25, 2015

Click on text highlighted in color to access the full report

New York State Comptroller Thomas P. DiNapoli announced office released audits of State Department and Agencies have been issued:

Department of Motor Vehicles

Posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093015/15s7.pdf

Department of Transportation

Posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093015/14s52.pdf

and the

Workers’ Compensation Board

Posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093015/14s43.pdf

New York State Comptroller Thomas P. DiNapoli  announced his office completed audits of the

Town of Champion Great Bend Fire District – Controls Over Financial Operations (Jefferson County)
The district has not submitted the required annual financial reports to the Office of State Comptroller for the 2011 through 2013 fiscal years. The district did not submit its tax levy limit calculations for 2015 or the three prior years. Auditors calculated the levy limit for 2015 and found the district’s proposed 2015 tax levy exceeded the statutory limit by $4,394 and the board did not pass a resolution to override the limit.

Chenango County – Departmental Cash Receipts (2015M-21)
County officials have ensured cash receipts are properly collected, recorded and deposited. Department officials have implemented effective controls including issuing duplicate receipts, segregating key financial duties, performing monthly reconciliations and cross-checking their records with the monthly treasurer’s report.

Jefferson County Soil and Water Conservation District – Internal Controls Over Selected Financial Operations (2014M-171)

The board was not provided with the necessary financial reports and information to properly oversee operating and grant activities or to develop realistic or structurally balanced budgets. As a result, the district borrowed $669,000 from grant funds to help pay operating costs.

Village of Woodsburgh – Claims Processing and Information Technology (Nassau County)
The board did not perform an effective claims audit to ensure transactions were properly authorized and approved or claims were for proper village purposes. The board also did not adopt a comprehensive IT policy or establish procedures addressing crucial aspects of IT security.


New York State Comptroller Thomas P. DiNapoli today announced his office completed audits of the

Campbell-Savona Central School District – Budget Review (Steuben County)
The significant revenue and expenditure projections in the tentative budget are reasonable. The district consistently appropriates fund balance that is not needed to fund operations. Two of the district’s reserves totaling $1.14 million appear to be overfunded. The district’s tentative budget complies with the property tax levy limit.

Cortland City School District – Budget Review (Cortland County)
The district has overestimated appropriations for payroll, health insurance, retirement, debt and utilities by $3.2 million. After the district’s planned use of $500,000 in fund balance, the remaining unassigned fund balance is only $200,000, or 0.4 percent, of the ensuing year’s appropriations. The district’s preliminary budget complies with the tax levy limit.

Fort Edward Union Free School District – Financial Condition (Washington County)
Although the board adopted reasonable budgets that included realistic estimates based on historical or known trends, the district relied on the appropriation of fund balance to finance recurring expenditures and, as a result, the budgets were not structurally balanced. As of June 30, 2014, the district reported an unrestricted fund balance that totaled $35,463, or .33 percent, of the ensuing year’s budgeted appropriations. District officials have developed a multiyear financial plan to address current and long-term financial trends.
 
Glens Falls Common School District – Financial Condition (Warren County)
The board did not adopt structurally balanced budgets that funded recurring expenditures with recurring revenues for the general fund for 2012-13, 2013-14 or 2014-15 fiscal years. Furthermore, the district’s general fund operating cash balance decreased by approximately $370,000 in one year. As a result, the district had to issue a tax anticipation note to meet cash flow needs during the 2014-15 fiscal year.

West Seneca Central School District – Financial Condition (Erie County)
The district had no operating cash on hand and very little fund balance at the end of 2013-14 fiscal year. The district incurred significant operating deficits in fiscal years 2010-11 through 2012-13. In addition, the district issues short-term debt to provide temporary cash flow and has improperly used a total of $7.5 million in reserve fund cash to help with cash flow in fiscal years 2012-13 and 2013-14.



Audit finds an additional $150,000 was stolen by an official of the Town of Beekman

Former Beekman Comptroller Frederick D. Knapp Jr. pleaded guilty to grand larceny in the second degree last Friday in Dutchess County Court after an audit and investigation by State Comptroller Thomas P. DiNapoli uncovered a second theft of $150,000 in town funds, following an earlier admission by Knapp of stealing $390,000 while in office.

Posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/towns/2015/beekman.pdf

Fiscal Stress Scores for 17 cities released 
State Comptroller Thomas P. DiNapoli issued fiscal stress scores  for the 17 cities in New York that have fiscal years ending between March 31 and July 31.

Posted on the Internet at:: http://www.osc.state.ny.us/localgov/fiscalmonitoring/villagescities_stressed2014.htm

To search for a specific local government’s fiscal stress scores, visit:
http://wwe1.osc.state.ny.us/localgov/fiscalmonitoring/fsms.cfm
 

For an overview of Comptroller DiNapoli’s Fiscal Monitoring System, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

Audits find more than $500 Million in Medicare waste

State Comptroller Thomas P. DiNapoli’s audits identified a total of $513 million in improper Medicaid payments and untapped revenue opportunities over a four-year period, according to a report released Wednesday. Auditors identified another $361 million in questionable transactions that will require further review and actions to prevent overpayments or recover costs.

Posted on the Internet at: http://www.osc.state.ny.us/audits/15d1.pdf