Selected Reports issued by the Office of the State Comptroller during the week ending February 20, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending February 20, 2016

Click on text highlighted in color to access the full report

Office of Temporary and Disability Assistance failed to adequately monitor shelters

A state agency’s failure to adequately monitor and inspect homeless shelters allowed violations and squalid living conditions to go unchecked, according to an audit released by New York State Comptroller Thomas P. DiNapoli. The audit found fire and safety hazards, rodent and vermin infestations, and mold conditions at shelters under the oversight of the state’s Office of Temporary and Disability Assistance (OTDA). DiNapoli commended the agency for agreeing to strengthen its inspections and monitoring of shelters. DiNapoli’s audit covered the period from April 1, 2013 to Aug. 5, 2015.

http://www.osc.state.ny.us/press/releases/feb16/021616.htm?utm_source=weeklynews20160221&utm_medium=email&utm_campaign=021616release

City of Troy Audit  - Financial Condition
The City of Troy’s financial condition deteriorated because of poor budgeting, the overuse of rainy day funds to finance day-to-day operations and insufficient funding for capital costs, according to an audit released by State Comptroller Thomas P. DiNapoli. DiNapoli applauded the city’s new mayor for agreeing to take immediate steps to remedy the multitude of problems identified in the audit.

http://www.osc.state.ny.us/localgov/audits/cities/2016/troy.pdf?utm_source=weeklynews20160221&utm_medium=email&utm_campaign=021716release

Municipal Audits issued

Albany Public Library – Leave accruals

Cambria Housing Authority – Financial Management

Oneida County Department of Social Services – Contract Management and Payments

School Audits issued

Arlington Central School District – Cooperative Services Computer Inventory

Brocton Central School District - Purchases

Mineola Union Free School District – Competitive Quotations

Penn Yan Central School District – Separation Payments

Social Security Administration’s disability determination not binding on a public retirement system of this State.

Social Security Administration’s disability determination not binding on a public retirement system of this State.

Fusco v Teachers' Retirement Sys. of the City of New York, 2016 NY Slip Op 00782, Appellate Division, First Department

Kimberly Fusco appealed the New York City Teachers’ Retirement System’s [System] denial of her application for accidental disability retirement benefits.., unanimously affirmed, without costs.

The Appellate Division sustained the System’s determination indicating that some creditable evidence supported its finding that:

1. Fusco was not disabled by back pain or leg pain allegedly resulting from a fall while she walked up the steps at school, while at work.

2. Fusco failed to show that any disability was the result of an accident as there a lack of evidence that her fall was caused by anything other than her own misstep while ascending the stairs to the school.

In addition, the court held that the Social Security Administration’s finding that Fusco was disabled, rendered after the System’s determination, “is not dispositive of the Medical Board's disability determination.” 

This is consistent with previous court decisions holding that an employer's Section 207-a or Section 207-c decisions are not binding on PFRS; PFRS' disability rulings are not binding on the employer's Section 207-a or Section 207-c rulings and that the Workers' Compensation Board's decisions are not binding on PFRS or vice versa. See, for example, Cook v City of Utica, 88 NY2d 833 and Bett v City of Lackawanna et al.,76 NY2d 900.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00782.htm

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The Disability Benefits E-book: - This 810 page e-book focuses on disability leaves and benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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Section 1983 complaint of civil rights violations dismissed for failure to state a cause of action

Section 1983 complaint of civil rights violations dismissed for failure to state a cause of action  
2016 NY Slip Op 00881, Appellate Division, First Department

In this action brought against the City of New York for alleged violations of the federal Civil Rights Act, 42 USC §1983, the Appellate Division found that the “complaint failed to state a cause of action … as [the] plaintiff alleged only a single instance of wrongful conduct by a municipal employee without authority to make decisions regarding official policy.”

The Appellate Division noted that “The conclusory allegation of wrongful hiring and training, standing alone, cannot support a §1983 claim.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00881.htm

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

Appeal of Martha Kavanaugh, Decisions of the Commissioner of Education, Decision No. 16,870

Martha Kavanaugh, a tenured teacher employed by the Hamburg Central School District, filed a petition asking the Commissioner of Education to rescind the Board of Education’s decision granting James Martinez tenure as an elementary school principal “pending an investigation by the State Education Department’s Office of School Personnel Review and Accountability and referral of the matter to law enforcement.”

Kavanaugh’s petition contained some 200 paragraphs setting out Martinez’s employment history in the district and alleged various acts of misconduct, harassment, intimidation, and impropriety by Martinezand others that Kavanaugh contended “raise questions as to his moral character.”

The Commissioner dismissed Kavanaugh’s appeal, noting two critical procedural difficulties barring consideration of her appeal.

First the Commissioner held that Kavanaugh lacked standing to challenge granting tenure to Martinez, explaining that an individual may not maintain an appeal pursuant to Education Law §310 unless he or she can show he or she is aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. In other words, “Only persons who are directly affected by the action being appealed have standing to bring an appeal.”

Rather than setting out any facts or evidence that her civil, personal or property rights were, or are, directly adversely affected by the School Board’s granting tenure to Martinez, the Commissioner said Kavanaugh's petition “expresses concern that others may be harmed by Martinez’s continued employment.”

In addition, the Commissioner found that Kavanaugh failed to name to a necessary partly, Martinez, as a respondent in her appeal.

It is well settled that “a party whose rights would be adversely affected by a determination of an appeal to the Commissioner in favor of a petitioner is a necessary party and must be joined as such.” Here, were Kavanaugh to prevail in the appeal, clearly Martinez’s rights could be adversely affected.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16870

Lawsuit brought seeking to remove an elected official from office leads to counter claims alleging slander, defamation, abuse of process and malicious prosecution

Lawsuit brought seeking to remove an elected official from office leads to counter claims alleging slander, defamation, abuse of process and malicious prosecution

Reszka v Collins, 2016 NY Slip Op 00807, Appellate Division, Fourth Department

Elizabeth Reszka initiated a lawsuit in which she sought a court order removing Councilman Joseph A. Collins from his position as a council member of the Town Board of the Town of Hamburg. While the matter was pending in the Appellate Division, Collins filed an amended answer in the original action and asserted two counterclaims. When the Appellate Division dismissed Reszka’s petition in the original proceeding, she asked Supreme Court to dismiss Collins' two counterclaims.

Collins' first counterclaim alleged Reszka held a press conference regarding the lawsuit, and further alleged that Reszka "made slanderous and defamatory and libelous statements intentionally, willfully and maliciously" attacking him in his individual and professional capacity. Collins’ second counterclaim alleged malicious prosecution and abuse of process. Supreme Court dismissed Reszka’s motion to have both counterclaims dismissed.

In response to Reszka’s appeal challenging Supreme Court’s denial of her motion to dismiss both counter claims, the Appellate Division, noting that although Civil Rights Law §74* provides that “statements made in the course of judicial proceedings are protected by absolute privilege provided that they are material and pertinent to the issue to be resolved in the proceeding, explained that a party cannot maliciously commence a judicial proceeding alleging false and defamatory charges and then circulate a press release based on the same charges and escape liability by invoking §74 of the Civil Rights Law.

The Appellate Division ruled that Collins’ first counterclaim “adequately states that [Reszka’s] action was without any basis in fact and was commenced solely to defame [Collins] as well as also alleging that Reszka acted with actual malice, a required element for a defamation claim brought by a public official. Under the circumstances the Appellate Division concluded that Supreme Court properly refused to dismiss Collins' first counterclaim.

As to Collins' second counterclaim alleging malicious prosecution, the Appellate Division said that where the underlying action is civil in nature, “the party alleging a claim for malicious prosecution must allege a special injury.” Finding that Collins "fail[ed] to plead that the civil proceeding involved wrongful interference with [his] person or property," the Appellate Division held that Supreme Court should have granted Reszka’s motion to dismiss Collins’ second counterclaim. The court observed that instead of alleging “a special injury,” Collins alleged damages amounting to "the physical, psychological or financial demands of defending a lawsuit," which claims are insufficient to constitute “a special injury for a claim of malicious prosecution.”

The court also ruled that to the extent Collins’ second counterclaim alleged abuse of process and not malicious prosecution, it must still be dismissed as well. "Insofar as the only process issued [here] was a summons necessary to initiate Reszka’s lawsuit."

Accordingly, said the court, “there was no unlawful interference with [Collins’] person or property because the institution of a civil action by summons and complaint is not legally considered process capable of being abused." Although Collins claimed that Reszka acted maliciously in bringing the action, the Appellate Division said that "[a] malicious motive alone . . . does not give rise to a cause of action for abuse of process."

* §74 of the Civil Rights Law, privileges in action for libel, provides “A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published. This section does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00807.htm