Eleventh Amendment immunity "extends to state agencies and to state officers who act on behalf of the state"

The complaint [Plaintiff] sued the New York State Department of Labor [NYSDOL]  in federal district court alleging that an employee of NYSDOL unlawfully adjusted her unemployment benefits claim resulting in her having to repay the agency more than $9,000.

Noting that Plaintiff's complaint did not specify a cause of action or any statute pursuant to which she was suing, the United States Court of Appeals, Second Circuit, observed that the federal district court had, sua sponte,* dismissed Plaintiff's complaint as frivolous because NYSDOL was immune from suit under the Eleventh Amendment of the Constitution of the United States. In addition, the district court had denied Plaintiff's motion for leave to amend her complaint on the ground that it would be futile as NYSDOL was immune from lawsuit in federal courts.

Noting the Plaintiff had forfeited any challenge to the district court's rulings that NYSDOL was immune from suit and that amending her complaint would be futile by failing to address these determinations in her brief, the Circuit Court opined that were it to reach the merits of the district court's decision it would conclude that the district court did not err as district courts have the inherent power to sua sponte dismiss a complaint as frivolous, "even where, as here, the plaintiff has paid the filing fee."

Citing its decision in Livingston v. Adirondack Beverage Co., 141 F.3d 434, the Circuit Court of Appeals said that "A complaint is frivolous when "(1) the factual contentions are clearly baseless . . . ; or (2) the claim is based on an indisputably meritless legal theory." One example of a claim "based on an indisputably meritless legal theory" offered by the Circuit Court was an action brought against a "defendant [that is] immune from suit."

The Circuit Court said that the district court correctly held that NYSDOL is immune from suit under the Eleventh Amendment, which precludes suits against states and state agencies unless the state expressly waives its immunity or Congress abrogates that immunity and the Eleventh Amendment immunity "extends to state agencies and to state officers who act on behalf of the state."

As Congress has not abrogated New York's immunity against suit in this circumstance nor has New York waived its immunity from suit, the Circuit Court concluded that "the district court did not err in sua sponte dismissing [Plaintiff's] complaint as frivolous" as the NYSDOL is immune from suit brought in federal courts.

* Sua sponte [or suo motu] is an action taken by a court without formal prompting or motion by a party in the action.

The decision is posted on the Internet at: 

https://www.courtlistener.com/opinion/4764763/jordan-v-new-york-state-dept-of-labor/

New York-New Jersey Port Authority held subject to New York State's laws involving health and safety

The New York-New Jersey Port Authority's [Authority] appealed Supreme Court's rejection of its argument that, as a bistate entity created by a federally approved compact, it cannot be held liable under New York State's Whistleblower Laws, Labor Law §§215 and 740. 

Citing Agesen v Catherwood, 26 NY2d 521, the Appellate Division affirmed the Supreme Court's ruling that the Authority is "subject to New York's laws involving health and safety, insofar as its activities may externally affect the public."

The court explained that the "express purpose of Labor Law §740 is to protect public health and safety" and as it stated in Rosario v Port Auth. of N.Y. and N.J., 179 AD3d 516, "[t]he Compact Clause of the United Stated Constitution is not implicated by the application of such New York workplace safety statutes to [a] Port Authority work site located in New York."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03459.htm

New York State Comptroller issues audits of state departments and agencies

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending July 17, 20200. To access the full report click on the data highlighted in color.

Office of Parks, Recreation and Historic Preservation: Compliance with Navigation Law (2019-S-59) The office has developed and implemented controls to adequately monitor and enforce requirements for safety and quality of life on state waters in accordance with Navigation Law. However, auditors identified several aspects of the office’s oversight that could be strengthened to maximize the efficiency of state marine law enforcement resources and improve its ability to assess boating safety risks and mitigate them.

Department of Health (DOH): Medicaid Overpayments for Medicare Part B Services Billed Directly to eMedNY (Follow-Up) (2020-F-4) An audit issued in December 2018 identified up to $8.7 million in improper payments for Part B deductibles and coinsurance. Auditors determined many of the overpayments occurred because controls were not in place to prevent the payment of coinsurance for non-covered services as well as excessive annual deductibles. In a follow-up, auditors found DOH made some progress in addressing the problems identified in the initial audit. However, the Office of the Medicaid Inspector General only recovered about $325,000 of the overpayments identified.

Department of Health: Medicaid Program: Medicaid Overpayments for Medicare Advantage Plan Services (Follow-Up) (2020-F-2) An audit issued in December 2018 identified almost $12.8 million that was paid for services typically covered by recipients’ plans. Many overpayments occurred because adequate controls were not in place to detect the improper claims. In a follow-up, auditors found DOH made some progress in addressing the problems identified in the initial audit report; however, additional action is needed. In particular, the Office of the Medicaid Inspector General had yet to take action on approximately $11 million of the identified claims.

###

Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 170,000 contracts, billions in state payments and public authority data.

Appointments fill vacancies in Appellate Division of the Supreme Court, First Department of New York State

Governor Andrew M. Cuomo  announced four appointments to fill vacancies in the Appellate Division of the Supreme Court, in the First Department of New York State. The justices selected reflect the diversity, talent and experience present throughout New York's judicial system. "New York State's courts have enormous impact on the laws that shape citizens' day-to-day lives, and their judges should display strong commitments to justice and fairness," Governor Cuomo said. "I am proud to appoint four individuals whose exemplary service qualifies them to serve in the Appellate Division of New York's Supreme Court and wish them well in their work for New Yorkers in Manhattan and the Bronx."

Honorable Saliann Scarpulla

After graduating law school Justice Scarpulla clerked for the Hon. Alvin F. Klein in Supreme Court, New York County. When her clerkship concluded, Justice  Scarpulla  joined  Proskauer Rose Goetz & Mendelsohn as a litigation associate.  Justice Scarpulla later moved to the Federal Deposit Insurance Corporation as Senior Counsel.  From the FDIC Justice Scarpulla became Senior Vice President and Bank Counsel to Hudson United Bank. Justice Scarpulla returned to the New York State court system as Principal Court Attorney to the Hon. Eileen Bransten. She was then elected to the New York City Civil Courtin 2001, appointed to the New York State Supreme Court in 2009, and elected to the Supreme Court in 2012.  Since February 2014, Justice Scarpulla has been sitting in the Supreme Court, New York County Commercial Division.  In 2019 Justice Scarpulla was also appointed to handle all international commercial arbitration matters pending in the New York State Supreme Court. Justice Scarpulla is active in several New York City and statewide bar associations and is a Business Court Representative to the American Bar Association. Justice Scarpulla earned a J.D. from Brooklyn Law School, cum laude.

Honorable Manuel Jacobo Mendez Olivero

Justice Mendez has been a Justice of the Supreme Court, New York State, since his election in 2012 and has been since 2018 the coordinating judge of the New York City Asbestos Litigation (NYCAL).  Prior to his election, Justice Mendez was elected Judge of the Civil Court, New York County in 2003, and had served as a Judge in the Civil Courtfrom 2004 to January 2010.  He presided by Designation in Bronx Criminal Court from 2008 to January 2010, and as an Acting Justice of the Supreme Court, Bronx County from January 2010 to January 2011, and then New York County until his election to Supreme Court in 2012.  Before his election to the Civil Court, Justice Mendez was engaged in the private practice of law as a solo practitioner (Law Office of Manuel J. Mendez, P.C.), from 1999 through 2003, and as a partner in the firm of Kwasink & Mendez, P.C. from 1993 through 1998. He worked as a Senior Staff Attorney at the Legal Aid Society Criminal Defense Division in the Bronx from September 1990 to October 1993. Justice Mendez earned a J.D. from the Universidad Central Del Este School of law in the Dominican Republic.

Honorable Martin Shulman

Justice Shulman was first elected to the New York County Supreme Court in the First Judicial Department in 2005 with his term ending in 2019, and in 2019, was re-elected to the New York County Supreme Court for another 14-year term. At the First Judicial Department, he served as the Presiding Justice in the Appellate Term, a position Chief Administrative Judge Lawrence K. Marks appointed him to in 2018. Justice Shulman first became a Justice of the Appellate Term when Chief Administrative Judge Ann Pfau appointed him in 2009. From 1999 to 2004, he served as an Acting Justice after being appointed by then Chief Administrative Judge Jonathan Lippman. In addition to his time with the New York County Supreme Court, Justice Shulman was also a Judge at New York County's Civil Court from 1995 to 2014. Judge Lippman also appointed Justice Shulman as the Supervising Judge of the New York County Civil Court. Before becoming a Judge, Justice Shulman was an Associate, then Partner, at the real estate litigation firm of Shaw & Binder. Prior to Shaw & Binder, Justice Shulman held numerous positions at the New York State Division of Housing and Community Renewal (Formerly New York City Conciliation and Appeals Board), including Deputy Chief of the Administrative Review Bureau, a Supervising Attorney and a Staff Attorney from 1982 to 1987. He was also a Court Attorney for the Hon. Eugene L. Nardelli from 1981 to 1982. Justice Shulman earned a J.D. from Benjamin N. Cardozo School of Law.

Honorable Tanya R. Kennedy

Justice Kennedy has served as a Justice of the Supreme Court, New York County, since January 2016, after election in November 2015. She was elected to Civil Court in November 2005 and thereafter served in Criminal Court (January 2006-September 2008), Civil Court (September 2008-December 2009), Family Court (January 2010-December 2010), as Acting Supreme Court Justice (January 2011-December 2012) and as Supervising Judge of Civil Court (January 20l4-December 2015). As an Acting Supreme Court Justice, Justice Kennedy presided over an integrated guardianship and landlord-tenant calendar and conducted bench hearings on a daily basis from January 2012 to December 2013. Before her election to Civil Court, Justice Kennedy was principal law clerk to Hon. Barry A. Cozier both while he was an Associate Justice of the Appellate Division, Second Department (March 2001-December 2005) and while he was a Justice in the Commercial Division, New York County (May 1999-March 2001). Before her clerkship with Justice Cozier, Justice Kennedy served in the Office of the Corporation Counsel, New York City Law Department, as an Assistant Corporation Counsel in the Bronx Family Court Division (August 1992-August 1994) and in the Bronx Tort Division (August 1994-August 1997), where she was promoted to Assistant Deputy Chief. Justice Kennedy earned a J.D. from Benjamin N. Cardozo School of Law.

The Judicial Screening Committee for the First Department, Appellate Division reviewed the applications and conducted interviews of dozens of applicants. Only those applicants deemed "highly qualified" by the Committees were submitted to the Governor for his consideration. To be found "highly qualified," candidates must display integrity, independence, leadership, intellect, legal ability, judgment, temperament, and experience.

The Governor's Office will continue to review candidates that successfully advance through the screening process to fill vacancies in the Appellate Divisions of the Supreme Court.

Under the New York State Constitution and Judiciary Law, the Governor has the authority to appoint Justices to each Appellate Division from among those who have been elected as Justices of the Supreme Court. These appointments are not subject to Senate confirmation.

Guidelines adopted for reopening schools in New York state.

The New York State Department of Education [NYSED] has posted a summary of its guidelines for reopening schools in New York state on the Internet. NYSED's summary is set out below:

Health and Safety

Focused on preventive actions, schools and districts will be required to perform health checks and screenings, per DOH guidance, and recognize signs and symptoms of  illness in students and staff; develop plans to maximize social distancing; develop plans to manage and isolate ill persons until they can be sent home; instruct students and staff in proper hand and respiratory hygiene; require wearing appropriate face coverings; and develop cleaning and disinfection procedures for the school in accordance with CDC and DOH guidance.

Facilities

Schools and school districts should promote social distancing while maintaining existing safety requirements designed to protect students. To accomplish this, schools may expand their physical footprint or change the way they utilize space. Schools should also continue to meet or exceed ventilation requirements and may wish to consult with design professionals to increase ventilation and filtration.

Schools must continue to conduct mandatory fire and lockdown drills according to the existing stat­utory schedule. School leaders will need to plan for these drills to be conducted in a manner that maintains social distancing at exits and gathering points outside the building, while still preparing students to respond in emergencies.

Nutrition

Schools and school districts should include food service directors in reopening plan discussions so they are able to meet their requirements to provide all enrolled students with access to school meals each school day whether school is in-person or remote; address all applicable health and safety guidelines; ensure compliance with Child Nutrition Program requirements; and communicate with families through multiple means, in the languages spoken by those families.

Transportation

The school bus is an extension of the classroom and services should be provided to all students with consistency and equity. Each district will be required to: perform regular school bus disinfec­tion measures; train students and school bus staff regarding social distancing on the bus, at stops, and at unloading times; and train students and staff regarding the wearing of masks. Both students and drivers will wear masks and social distance on the bus. Districts will continue to provide trans­portation to homeless students, students in foster care, those who attend religious, independent or charter schools – and those with disabilities – just as they always have.

Social-Emotional Well-Being

As school and district personnel adapt to environments that result in substantially less time spent interacting in-person, ensuring intentional and meaningful inclusion of social emotional learning (SEL) across all aspects of operating strategies is critical to support the well-being and success of students, staff, and families. Along with physical health and well-being, schools and districts must also prioritize social emotional well-being – not at the expense of academics, but in order to create the mental, social, and emotional space for academic learning to occur.

School Schedules

Schools must create a comprehensive plan for a schedule that includes in-person instruction, re­mote instruction or a hybrid of both in-person and remote. All plans should be clearly communicat­ed, with as much advance notice as practicable, to students, families and staff.

To adhere to state and local health and safety guidelines and ensure social distancing practices, schools may consider various reopening plans and schedules that stagger or alternate their stu­dents’ return to campus. Schools should collaborate with district stakeholders when considering alternate schedules.

Budget and Fiscal

All schools and school districts must continue to meet existing state aid reporting requirements. Additionally, the content of data submissions, such as attendance data, will remain consistent with past practice, except where modified by law, regulation or executive order.

Attendance and Chronic Absenteeism

Schools must develop a mechanism to collect and report daily teacher student engagement or at­tendance. While this requirement is straightforward in an in-person setting, a procedure should be developed to make daily contact with students in remote or hybrid settings. Schools may consider for instance, assigning the homeroom teacher or advisory teacher to be the point of contact to touch base with a specific group of students daily.

Attendance data must be reported in the student infor­mation reporting system or SIRS. School policies and procedures must focus on the academic con­sequences of lost instructional time and address absences before students fall behind in school. It is critical for schools to use a variety of creative methods to reach out to students and their families who have not engaged in distance learning.

Technology and Connectivity

Adequate access to a computing device and high-speed broadband is essential for educational eq­uity. Schools and districts must determine the level of access all students and teachers have in their places of residence; to the extent practicable, address the need to provide devices and internet access to students and teachers who currently do not have sufficient access; and provide multiple ways for students to participate in learning and demonstrate their mastery of the learning standards in remote and hybrid instructional models.

Schools and districts should provide instruction on using technology and IT support for students, teachers and families and provide professional development for teachers and leaders on designing effective online/remote learning experiences.

Teaching and Learning

Mandatory teaching and learning requirements include providing clear opportunities for equitable instruction for all students; ensuring continuity of learning regardless of the instructional model used; providing standards-based instruction; ensuring substantive daily interaction between teach­ers and students; and clearly communicating information about instructional plans with parents and guardians.

To allow for schools and districts to adapt to complications caused by the pandemic, certain flexi­bilities will be authorized, including: flexible student/staff ratio in prekindergarten; extended time for prekindergarten and kindergarten screening to be completed; a waiver allowing districts to convert UPK seats from full-day to half-day (not applicable to Statewide Universal Full Day Pre-K pro­grams); flexibility with the 180 minutes per week Unit of Study requirement; flexibility in the delivery of physical education; allowance for a blend of hands-on and virtual science laboratory experienc­es; and when appropriate, districts and charters may utilize remote or virtual work-based learning experiences for CTE and CDOS programs.

Special Education

Schools and school districts are required to provide: a Free Appropriate Public Education consis­tent with the need to protect the health and safety of students with disabilities and those providing special education and services; meaningful parental engagement regarding the provision of ser­vices to their child; collaboration between the Committee on Preschool Special Education/Commit­tee on Special Education (CPSE/CSE) and program providers representing the variety of settings where students are served; access to the necessary instructional and technological supports to meet the unique needs of students; and documentation of programs, services and communications with parents.

Schools and school districts should consider in-person services a priority for high-needs students and preschool students with disabilities whenever possible and consider contingency plans devel­oped by the CPSE/CSE to address remote learning needs in the event of intermittent or extended school closures.

Bilingual Education and World Languages

Reopening plans must address the learning loss experienced by many English language learners (ELLs), in both their English language development and their mastery of content area knowledge. The Department has identified the following requirements and considerations that will allow schools to provide ELL services that address the impact of last year’s school closures and prepare them for potential challenges in the coming year. Schools and districts must:

• provide all communications to parents/guardians of ELLs in their preferred language and mode of communication to ensure that they have equitable access to critical information about their children’s education;
• ensure that all ELLs receive appropriate instruction that supports their college, career, and civic readiness, by providing them the required instructional Units of Study in their English as a New Language or Bilingual Education program based on their most recently measured English language proficiency level;
• conduct ELL identification for all students who enrolled during COVID-related school closures in 2019-20, during the summer of 2020, and during the first 20 days of the 2020-21 school year within 30 days of the start of the school year; and
• recognizing that all teachers are teachers of ELLs, provide professional learning opportunities related to the instruction and support of ELLs to all educators, as required by Part 154 of the Commissioner’s regulations.

Schools and districts should align their policies to the Blueprint for English language learner/Mul­tilingual learner (ELL/MLL) Success; adopt progress monitoring tools to measure ELL proficiency; provide social-emotional learning supports to ELLs in their home language; continue utilizing tech­nology in ELL instruction; support Students with Interrupted/Inconsistent Formal Education (SIFE) and other vulnerable populations; ensure the Emergent Multilingual Learners (EMLL) Profile sup­ports early learning; and support completion of the NYS Seal of Biliteracy.

Staffing and Human Resources

As schools and school districts create their plans for the 2020-21 school year, they must ensure that all teachers, school and district leaders and pupil personnel service professionals hold a valid and appro­priate certificate for their assignment; can continue to utilize incidental teaching when determining how to staff their classrooms; can employ substitute teachers to address staffing needs for the allowable amount of days given their qualifications and teaching assignment; should work with educator prepara­tion programs to identify appropriate ways in which student teachers can support classroom instruction; and should consider whether their currently approved APPR plans may need to be revised in order to be consistent with their plans for re-opening under an in-person, remote or hybrid instructional model.

The full text of the Education Department's guidelines for reopening schools in New York State is posted on the Internet at:

http://www.nysed.gov/common/nysed/files/programs/reopening-schools/nys-p12-school-reopening-guidance.pdf.