Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 9, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 9, 2015

Click on text highlighted in color to access the full report

Delaware Co. – Vehicle Usage and Disposal

County officials did not perform cost-benefit analyses to support the after-hours locations of vehicles. None of the six departments reviewed adequately monitored vehicle usage.

http://www.osc.state.ny.us/localgov/audits/counties/2015/delawareco.pdf

Fulton County IDA-PILOT Agreements
Seven of the eight payment in lieu of taxes (PILOT) agreements that were active during the audit period did not have a recapture clause to recover benefits from the businesses if they did not meet their projected goals.

http://www.osc.state.ny.us/localgov/audits/ida/2015/fultonco.pdf

Village of Medina – Ambulance Service Billings
The village board did not adequately monitor ambulance billings and amounts collected. Additionally, the village did not send invoices to the three towns for unpaid ambulance bills and administrative billing fees. As a result, the village is owed more than $1 million for ambulance services.

http://www.osc.state.ny.us/localgov/audits/villages/2015/medina.pdf

Village of Nissequogue – Information Technology operations
Village officials have not designated an IT administrator who is independent of the financial recordkeeping. In addition, the board has not developed written policies and procedures, including those for acceptable computer use, password security, data backups and disaster recovery.

http://www.osc.state.ny.us/localgov/audits/villages/2015/nissequogue.pdf

City of Poughkeepsie – Audit Follow-up
Of the seven previous audit recommendations, three recommendations were fully implemented and three recommendations were partially implemented. One recommendation was not implemented. For example, the city has taken steps to reduce the deficit in the general fund and developed a comprehensive plan to reduce outstanding debt.

http://www.osc.state.ny.us/localgov/audits/cities/2015/poughkeepsiefollowup.pdf

Sir William Johnson VFC - Controls over financial activities
Neither the former nor the acting treasurer maintained accurate, complete and up-to-date accounting records. Additionally, neither treasurer consistently performed monthly bank reconciliations or provided the board with monthly and annual financial reports.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/sirwilliamjohnson.pdf

Former Member of the State Assembly pleas guilty of State and Federal charges
State Comptroller Thomas P. DiNapoli, United States Attorney Richard S. Hartunian, New York State Attorney General Eric T. Schneiderman, and Andrew W. Vale, Special Agent in Charge of the Albany Division of the Federal Bureau of Investigation, announced that former Member of the State Assembly William Scarborough, age 69, of Queens, New York, has agreed to enter guilty pleas on federal and state public charges stemming from public corruption investigations.

http://www.osc.state.ny.us/press/releases/may15/050715.htm?utm_source=weeklynews20150510&utm_medium=email&utm_campaign=050715release

College Savings Sweepstakes announced
New York State Comptroller Thomas P. DiNapoli announced a $500 sweepstakes to help a lucky New Yorker plan ahead for college. Winnings from the sweepstakes will be put in a new or existing 529 College Savings Program Direct Plan account. The New York 529 College Savings Program, an investment tool designed to help families save for college, is overseen by DiNapoli’s office in partnership with the Higher Education Services Corp.

http://www.osc.state.ny.us/press/releases/may15/050515a.htm?utm_source=weeklynews20150510&utm_medium=email&utm_campaign=050515arelease

Woman indicted for alleged stealing pension benefits payable to her deceased mother
New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one count indictment charging Linda Miller, 57, a resident of Englewood, N.J., with grand larceny in the second degree, a class C felony, in Albany County Court. Miller is alleged to have stolen over $162,000 in pension benefits from the New York State and Local Employees Retirement System, payable to her deceased mother, Josephine Miller.

http://www.osc.state.ny.us/press/releases/may15/050415.htm?utm_source=weeklynews20150510&utm_medium=email&utm_campaign=050415release

New Jersey resident alleged to have stolen pension benefits payable to his deceased godfather

New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one count indictment before the Honorable Peter Lynch charging Terence Fitzpatrick, 43, a resident of Monmouth County, New Jersey, with the crime of Grand Larceny in the Second Degree, a class C felony, in Albany County Court. Fitzpatrick is alleged to have stolen over $78,000 in pension benefits from the New York State and Local Employees Retirement System, payable to his deceased godfather, Thomas Sullivan.

http://www.osc.state.ny.us/press/releases/may15/050415a.htm?utm_source=weeklynews20150510&utm_medium=email&utm_campaign=050415arelease

Former Town HighwaySuperintendent found guilty of having stolen $65,000 from the Town
Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced that Roger Burlew, the former Highway Superintendent for the town of Erin who stole $65,000 from the town, has been sentenced to serve six months in jail and five years of probation. As part of Burlew’s sentence, he must also pay full restitution to the town of Erin. In the event that Burlew fails to pay restitution, he faces up to fifteen years in state prison.

http://www.osc.state.ny.us/press/releases/may15/050515.htm?utm_source=weeklynews20150510&utm_medium=email&utm_campaign=050515release

Legislative spending for travel and per diems to reported quarterly
State Comptroller Thomas P. DiNapoli announced that his office will report on legislative spending for travel and per diems on a quarterly basis. DiNapoli also announced his office approved 2,178 contracts valued at $2.9 billion and approved more than 2.8 million payments worth more than $19.7 billion in March. His office also rejected 230 contracts and related transactions valued at $364.5 million and nearly 5,000 payments valued at more than $12.3 million due to fraud, waste or other improprieties.

http://www.osc.state.ny.us/press/releases/may15/050515b.htm?utm_source=weeklynews20150510&utm_medium=email&utm_campaign=050515brelease

Computerized monitoring system records deemed substantial evidence of guilt in a disciplinary proceeding

Computerized monitoring system records deemed substantial evidence of guilt in a disciplinary proceeding

2015 NY Slip Op 03919, Appellate Division, First Department

An employee [Petitioner] was found guilty of the disciplinary charges filed against him alleging that he failed to follow standard that resulted in an injury to an individual using an “out of service” building elevator. Both elevators in the building were “in inspection mode and not in service when the injury occurred”

The penalty imposed: termination of the Petitioner from his position.

Petitioner filed an Article 78 action challenging the appointing authority’s decision and the penalty imposed. The Appellate Division, citing Pell v Board of Educ. of Union Free School Dist. No. 1, 34 NY2d 222, sustained the appointing authority’s decision.

The court explained that substantial evidence in the record supported the appointing officer’s action. The evidence in the record included:

1. The applicable written standard safety measures to be undertaken during elevator repair and/or outages, i.e., the appropriate and necessary warning notice had not been posted by Petitioner

2. Evidence that both elevators being out of service at the same time warranted the standard safety measures of posting out-of-service notices at the elevator banks and securing the elevators so that the public could not use them;

3. Evidence that Petitioner failed to follow these standard procedures;

4. A computerized elevator monitoring system printout and testimony interpreting the data; and

5. Recorded 911 calls.

The Appellate Division explained that notwithstanding Petitioner's arguments to the contrary, the hearing record contained substantial evidence supporting the appointing authority’s decision finding Petitioner [1] guilty of the charges filed against him and [2] the penalty imposed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03919.htm

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Applying the doctrine of estoppel against a governmental entity

Applying the doctrine of estoppel against a governmental entity

2015 NY Slip Op 02551, Appellate Division, Third Department

In Owens v McGuire, 121 AD2d 292, the Appellate Division said that the doctrine of estoppel can only be applied “against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained.”

In 2004 representatives of the New York State and Local Retirement System [System] told an individual [Member] that he was eligible to receive member service credit in the System for his employment with the Legal Aid Society of Westchester County from 1973 to 1975.

In January 2011, Member filed an application for a retirement allowance. However the System then determined that the Legal Aid Society was not a participating employer in the Retirement System and thus Member was not entitled to member service credit for the period during which he served with the Legal Aid Society. Member, seeking a reversal of the System’s determination, requested, and was given a hearing

In the course of the hearing a number of Retirement System employees testified that the Legal Aid Society was not a participating employer and the Hearing Officer denied Member's application for member service credit for the period during which he was employed by the Legal Aid Society. The Comptroller adopted the hearing officer’s ruling and Member appealed.

The Appellate Division sustained the Comptroller’s decision, explaining that a “petitioner has the burden of proof to establish his [or her] entitlement to retirement [member] service credit.” Here, noted the court, Member had testified that he had no evidence that the Legal Aid Society was ever a participating employer in the Retirement System.

Accordingly, said the court, inasmuch as the record reflects that Member was not employed by a participating employer during the period in question, the Comptroller’s denial of the retirement service credit was supported by substantial evidence.

Member had also contended that the System was estopped from denying the retirement member service credit based on the earlier misinformation provided to him by employees of the Retirement System. The court disagreed and rejected this branch of Member’s appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02551.htm

The absence of the individual who rated the employee unsatisfactory from the administrative hearing may be cured by the testimony of a superior who also observed and rated the employee’s performance

The absence of the individual who rated the employee unsatisfactory from the administrative hearing may be cured by the testimony of a superior who also observed and rated the employee’s performance

2015 NY Slip Op 03787, Appellate Division, First Department

Supreme Court denied a teacher’s [Teacher] petition seeking to annul the appointing authority’s sustaining unsatisfactory rating given Teacher for the school year in question.

Teacher appealed but the Appellate Division affirmed the lower court’s determination.

Teacher had contended that the appointing authority had “violated Department of Education Bylaw §4.3.3,” alleging that the assistant principal responsible for three of the four unsatisfactory observation reports was not present at the administrative hearing at which Teacher had challenged the performance rating he had received.

The Appellate Division first addressed a procedural issue – was Teacher’s complaint with respect to the absence of the assistance principal from the hearing ripe for the court’s review. It decided that Teacher’s claim regarding the absence of the assistant principal “was unpreserved” as Teacher did not raise this issue before the agency, citing Seitelman v Lavine, 36 NY2d 165 and thus could not be considered in this appeal.

Not withstanding the rejection of Teacher’s challenge on procedural grounds, the court said that regardless of the failure of Teacher to preserve the matter for the purpose of appeal, the record showed that the appointing authority’s determination had a rational basis as it was supported by the testimony of the school principal, who conducted a formal observation of Teacher’s performance and reached the same conclusions as the assistant principal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03787.htm

An employee injured on the job may sue for injuries he or she subsequently suffered while being transported to a hospital for treatment for his or her job related injuries

An employee injured on the job may sue for injuries he or she subsequently suffered while being  transported to a hospital for treatment for his or her job related injuries

2015 NY Slip Op 03506, Appellate Division, Second Department

A correction officer [Officer] sustained an injury in the course of his employment at a New York City corrections facility.  While Officer was being transported in a New York City Fire Department ambulance to a local hospital, the ambulance was involved in a motor vehicle accident. 

Officer applied for workers' compensation benefits for the injuries he sustained in the prison. In addition, Officer filed a lawsuit against, among others, the City of New York, the New York City Fire Department and the ambulance driver [Defendants] seeking damages for the injuries he allegedly sustained as a result of the motor vehicle accident that  occurred while he was being transported to the hospital.

Supreme Court denied Defendants’ motions to {1] amend its answer “to add an affirmative defense based on the exclusivity of the Workers' Compensation Law,” and [2] for summary judgment “dismissing the complaint insofar as asserted against them.” 

Defendants appealed but the Appellate Division sustained the Supreme Court’s ruling.

While "In general, workers compensation benefits are the exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment," the Appellate Division said that even if a plaintiff received workers' compensation benefits, he or she is not precluded from commencing a separate action based on subsequent negligent conduct to recover damages for injuries causally related to the initial on-the-job injury, "but which did not arise out of or in the course of the plaintiff's employment.”

The Appellate Division found that such was the case in this action, explaining that notwithstanding Officer’s filing a claim for workers' compensation benefits for the injuries he sustained “on the job,” he was not precluded from commencing a separate action to recover for damages he allegedly suffered that were “caused by separate injuries that occurred outside the scope of his employment” – i.e., in the course of his being transported to a hospital by ambulance. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03506.htm