ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

September 22, 2021

Fraudulent letter scheme impersonating New York State's Secretary of State reported

On September 21, 2021, the New York State Department of State and the Division of Consumer Protection issued a press release warning of a fraudulent letter scheme claiming the recipient is entitled to receive a large payment being held by the Department of State to settle debts relating to the sale of timeshares.

The scheme, which uses a forged signature of New York Secretary of State Rossana Rosado and the New York State seal, has been referred to the New York State Attorney General for investigation. Anyone who has received this or a similar letter is asked to contact the New York State Attorney General’s Real Estate Enforcement Unit, New York State Office of the Attorney General, 28 Liberty Street, New York, NY 10005.

To help protect against these types of scams, the Division of Consumer Protection  recommends the following:

1. Exercise caution with all communications you receive, including those that appear to be from a trusted entity.

2. Inspect the sender’s information to confirm the message was generated from a legitimate source – be suspicious if the reply to address is different from the sending address.

3. Independently verify the entity’s contact information through an online search engine.

4. Consider calling the sender at a known good number, not listed within the communication, to confirm they sent the communication.

For more consumer protection information, call the Division of Consumer ProtectionHelpline at 800-697-1220, Monday through Friday, 8:30am-4:30pm or visit the Division of Consumer Protection website at https://dos.ny.gov/consumer-protection

The Division can also be reached via Twitter at @NYSConsumer or Facebook at www.facebook.com/nysconsumer

 

September 21, 2021

Applying the Doctrine of Judicial Estoppel

In its decision in 12 New St., LLC v National Wine & Spirits, Inc., 196 3d 883, the Appellate Division, Third Department, said its "longstanding doctrine of judicial estoppel has been succinctly stated as follows: 

Where a party assumes a position in one legal [action or] proceeding and succeeds in maintaining that position, that party may not subsequently assume a contrary position in a second [action or] proceeding because its interests have changed. 

In order for the doctrine of judicial estoppel to apply, there must be a showing that the party taking the inconsistent position had benefited from the determination in the prior action or proceeding based upon the position it advanced there and "For the doctrine to apply, there must be a final determination endorsing the party's inconsistent position in the prior proceeding."

Click HERE to access the Appellate Division's decision in 12 New Street, LLC.

Also, click HERE  to access Matter of Roberts v New York City Office of Collective Bargaining, 2010 NY Slip Op 32953(U), [Not selected for publication in the Official Reports].

September 20, 2021

ABOUT A TEACHER

ABOUT A TEACHER is an intimate film, filmed by some of the educator's former students, candidly takes the viewer through the personal journey of a new New York City inner-city public high school film teacher. 

Inspired by the filmmaker’s real-life experiences as an inner-city high school film teacher, Hanan (played by Dov Tiefenbach) enters the profession oblivious to the actual demands of teaching, and unaware of his own shortcomings and biases. 

Click HERE for more information about this realistic film.

September 18, 2021

Audits and reports issued during the week ending September 18, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 18, 2021

Office of Alcoholism and Substance Abuse Services: Oversight of Contract Expenditures of Palladia Inc. (2020-S-5) In 2014, OASAS entered into a five-year $45.6 million contract with Palladia, under which Palladia would provide drug and addiction treatment services. Auditors found OASAS is not effectively monitoring the expenses reported by Palladia to ensure that reimbursed claims are allowable, supported and program related. For the three fiscal years ended June 30, 2018, auditors identified $2,508,682 in costs that did not comply with the requirements for reimbursement. 

Office of Children and Family Services (OCFS): Oversight of Direct Placement of Children (Follow-Up) (2021-F-6) An audit issued in March 2020 found that OCFS did not maintain adequate oversight of direct placement to ensure that Local Departments of Social Service (Local Districts) comply with applicable laws and regulations and that children are placed in safe environments. OCFS also had not developed the same type of centralized standards, policies, or procedures for Local Districts to follow in supervising all direct placement cases as it has for similar child welfare services, such as foster care. In a follow-up, auditors determined OCFS officials have made limited progress in addressing the issues identified in the initial report. 

Office of General Services (OGS): Compliance with Executive Order 95 (Open Data) (Follow-Up) (2021-F-12) An audit released in April 2020 found OGS had taken steps to meet the requirements of EO 95; however, certain aspects of the order were not fully addressed. OGS did not identify the total population of publishable state data that it maintains. Therefore, there was limited assurance OGS provided a complete catalogue of its publishable state data or accompanying schedules for making that data public, as required. In a follow-up, auditors found OGS made limited progress in addressing the problems identified in the initial audit report. 

Department of Health (DOH): Improper Fee-for-Service (FFS) Payments for Services Covered by Managed Long-Term Care (MLTC) Plans (Follow-Up) (2021-F-4) An audit issued in January 2020 identified $16.4 million in improper Medicaid FFS payments for MLTC covered services. Of these overpayments, $15.6 million was paid because DOH did not configure eMedNY payment system edits and MLTC benefit packages correctly, so eMedNY did not identify certain services as the responsibility of the MLTC plan. The remaining $877,000 was improperly paid because, at the time eMedNY adjudicated the claim, the recipient was not enrolled in MLTC, but was retroactively enrolled at a later date. In a follow-up, auditors found DOH made some progress in addressing the problems identified in the initial audit report; however, further actions are still needed.  

Homes and Community Renewal - Division of Housing and Community Renewal: Controls Over Federally Funded Programs and Maximization of Federal Funding (2020-S-48)Generally, the division has established controls to ensure the Weatherization Assistance Program meets federal reimbursement documentation requirements and that the division receives federal reimbursements on time and in a manner that recovers all funds. However, the division lost $120,475 in federal funding during the audit period because it was not expended by program deadlines, primarily due to a decrease in production caused by the COVID-19 pandemic. As of Dec. 31, 2020, the division had until March 31, 2022 to obligate and expend $10,925,486 or it will be returned to the U.S. Department of Energy. 

Public Service Commission (PSC): Enforcement of Commission Orders and Other Agreements (Follow-Up) (2021-F-5) An audit issued in March 2020 found PSC’s Department of Public Service does not always adequately monitor compliance with order conditions – and in some cases even lacks the equipment necessary to do so. Orders are, at times, ambiguous and lack time frames for completion, interim performance measures, and consequences for non-compliance, making enforcement difficult and inconsistent. In a follow-up, auditors found department officials made significant progress in addressing the issues identified in the initial audit report. 

Department of State: Compliance with Executive Order 95 (Open Data) (Follow-Up) (2021-F-11) An audit released in April 2020 found the department had generally complied with the requirements of EO 95, incorporating compliance with EO 95 into its core business functions and continued to identify new data sets to add to Open Data. However, the department did not identify the total population of publishable State data that it maintains. Additionally, the audit found some problems with the usability of some of the department’s data sets on Open Data. In a follow-up, auditors determined the department has made progress in addressing the problems identified in the initial audit report. 

Department of Taxation and Finance: Efforts to Collect Delinquent Taxes (2019-S-61) For a significant number of the delinquent tax assessments reviewed, auditors were unable to determine, based on documentation, that the department took adequate collection actions prior to completing or closing cases for one of the five collection steps tested: using applicable search tools to identify taxpayer resources that might be pursued to satisfy the debt. Auditors recommended the department improve documentation for each relevant assessment to affirm which actions are applicable and which actions staff take in their collection activities; and take steps to ensure compliance with policies and procedures that address abatement decisions, and, when needed, document the rationale for decisions.

September 17, 2021

Judicial review of decisions involving the placement of a position in the classified service in the exempt class or the noncompitive class

The New York State Department of Financial Services [DFS] asked the Civil Service Commission [Commission] to jurisdictionally classify the titles of Director, Financial Services Programs 1 and 2, positions in the noncompetitive class with a "policy-influencing" designation pursuant to §42[2-a] of the Civil Service Law.*

DFS also sought to have certain vacant noncompetitive investigative positions given "title changes" to the titles of Investigator 1 and Assistant Chief Investigator [Investigator Positions] and, further, jurisdictionally reclassified as positions in the exempt class.

The Public Employees Federation, AFL-CIO [PEF] objected to these title and jurisdictional classification changes** but the Commission ultimately approved the changes as requested by DFS. PEF then initiated a CPLR Article 78 proceeding seeking a court review of the Commission's determination contending that its determinations were "arbitrary and capricious and contrary to law." Supreme Court dismissed PEF's application, ruling that the Commission's determinations were rational. PEF appealed the court's decision.

The Appellate Division, noting that to prevail PEF bore the burden of demonstrating that the Commission "erred in its job classification determinations," said that decisions of the Commission are "subject to limited judicial review and will not be disturbed absent a showing that [they were] wholly arbitrary or without a rational basis", citing Cove v Sise, 71 NY2d 910.

Explaining that it is "well-settled [s]tate policy that appointments and promotions within the civil service system must be merit-based and, when 'practicable,' determined by competitive examination," as mandated by Article V §6 of the State Constitution, opined that "[t]he constitutional dictate does not create an absolute bar to civil service appointments and promotions without competitive examinations."

Citing a number of decisions by New York State courts, the Appellate Division noted the Commission may place a title in the noncompetitive class based on its finding that "it is impracticable to determine merit and fitness for the berth by competitive examination." Focusing on the DFS' requests with respect to the director titles, the court opined that the fact that "the director positions have some overlapping responsibilities with other competitively-tested positions does not preclude a finding that competitive examination is impracticable" for the DFS positions in issue.

As to the investigator positions in issue, the Appellate Division observed that the Commission's determination to place the investigator positions in the exempt jurisdictional class also had a rational basis, explaining that a position may be jurisdictionally classified as exempt based on findings as to "the confidential nature of the position, the performance of duties which require the exercise of authority or discretion at a high level or the need for the appointee to have some expertise or personal qualities which cannot be measured by a competitive examination."

* Subdivision 2-a provides as follows: "The state or municipal civil service commission by appropriate amendments to its rules shall designate among positions in the non-competitive class in its jurisdiction those positions which are confidential or require the performance of functions influencing policy."

** All positions in the classified service are automatically in the competitive class unless placed in a different jurisdictional classification by the responsible civil service commission or personnel officer or by statute.

Click HERE to access the full text of the Appellate Division's decision.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com