Appealing a decision of the Workers' Compensation Board denying claimant's request to reopen or rehear a prior Board decision

The Appellate Division reversed a decision by the Workers' Compensation Board which denied the claimant's [Claimant] request to reopen or rehear a prior decision.

Whether to grant an application for reopening or rehearing in the interest of justice is a matter left to the Board's discretion and Appellate Division's review of that decision is limited to whether there was an abuse of that discretion by the Board. In this instance the court found that such discretion was abused by the Board.

The court explained, "Notably, while the Board is free to reject the opinion of an expert where it finds such to be unconvincing or incredible, it may not reject an uncontradicted opinion that is properly rendered." Because the only medical opinion before the Board clearly reflects that claimant suffered a 35% SLU of the left shoulder, the Appellate Division found that the Board's denial of the application to reopen the claim to modify the decision in the interest of justice was an abuse of discretion.

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

Former town tax collector pleads guilty to offering a false instrument for filing in connection with pension fraud scheme

On November 5, 2021, State Comptroller Thomas P. DiNapoli and Orange County District Attorney David M. Hoovler announced that the former Town of Bethel, Sullivan County, Tax Collector,  Debra Gabriel, pleaded guilty before Judge Peter Feinberg in the Town of Rockland Justice Court to Offering a False Instrument for Filing in the Second Degree, in connection with a scheme to defraud the New York State and Local Retirement System.  Gabriel, 62, had resigned her public office and retired in August 2020.

The case against Gabriel is being prosecuted by Orange County District Attorney David Hoovler, appointed to serve as Special Prosecutor and Orange County Assistants District Attorney Peter Fernandez, Matthew Healy and Pakiza Sajid.

At the time that she pleaded guilty, Gabriel admitted having submitted a false "Record of Activity" with the Town of Bethel for filing with the State Comptroller.  Records of Activity are documents in which certain appointed or elected officials must record a daily detail of their hours worked and duties and certify their accuracy. The information is used to calculate their service time for retirement benefits.

An investigation of Gabriel’s Records of Activity conducted by the New York State Comptroller’s Office and the New York State Police revealed that from April 1, 2009 to Aug.  31, 2019, she falsely claimed credit for full-time work for the Town of Bethel when her actual hours were far less. For example, in 2018 and 2019, she had a full-time job with a private healthcare company, while claiming to also have worked full-time as a Tax Collector for Bethel. Her false claims increased her service credit toward retirement by more than seven years, according to Comptroller DiNapoli.

Gabriel turned over a certified check in the amount of $6,377.46 to prosecutors from the Orange County District Attorney’s Office as restitution to the State of New York for the amount of pension benefits that she was overpaid.

“Ms. Gabriel, as tax collector, was responsible for overseeing the collection of revenue for the town while at the same time she regularly filed false statements with the New York State and Local Retirement System to commit fraud,” said Comptroller DiNapoli. “Now, thanks to my partnership with District Attorney Hoovler and the New York State Police, she has been convicted and repaid the money she stole.”

District Attorney Hoovler thanked the New York State Comptroller’s Office and New York State Police for their investigation and the arrest of the defendant.  

“I thank State Comptroller DiNapoli for all the work his office did in this investigation, as well as the New York State Police who aided in the investigation and arrested the defendant,” said District Attorney David M. Hoovler. “Thefts of public monies are always serious. One of the benefits of public service is the ability to obtain a pension. Those funds will simply not be available to those who earned them if fraudulent practices are tolerated.”

Audits and reports issued during the week ending November 5, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending November 5, 2021. 

Click on the text highlighted in color to access the complete audit report.

 

STATE DEPARTMENTS AND AGENCIES

New York State Health Insurance Program (NYSHIP): UnitedHealthcare: Improper Payments for Acupuncture and Acupuncture-Related Services (2020-S-7) NYSHIP, administered by the Department of Civil Service, provides health insurance coverage to over 1.2 million active and retired state, participating local government, and school district employees, and their dependents. The Empire Plan is the primary health benefits plan for NYSHIP. Civil Service contracts with UnitedHealthcare Insurance Company of New York (United) to administer the medical/surgical portion of the Empire Plan and process and pay claims submitted by health care providers. We identified $7,331,458 in actual and potential overpayments for services not supported by provider documentation and for duplicate payments during our audit period of the period from Jan. 1, 2015 through Dec. 31, 2019. 

 

Metropolitan Transportation Authority (MTA) - New York City Transit: Maintenance and Inspection of Event Recorder Units (ERUs) (Follow-Up) (2021-F-14) ERUs or “black boxes” are a valuable safety feature that allow for the monitoring of the train equipment and technical analysis of incidents/accidents based on data they record. An audit issued in July 2019, found the MTA was not in compliance with its ERU maintenance and inspection policy. For instance, train car inspections were not always done timely, and for 129 inspections, maintenance personnel did not provide evidence that they downloaded information from ERUs to ensure that they were functioning correctly, as required by work manuals. In a follow-up, auditors found that MTA officials have made progress in addressing the issues identified in the initial report. 

 

Metropolitan Transportation Authority (MTA) - Bridges and Tunnels: Efforts to Collect Tolls and Fees Using License Plate Images and Law Firms (Follow-Up) (2021-F-15) An audit issued in 2018 of the MTA’s collections during the pilot run of Cashless Tolling at the Henry Hudson Bridge found that the MTA did not maximize toll collection because license plate images could not always be processed, resulting in potential lost revenue of $2.4 million. Additionally, the authority’s contracted law firms were not effective in collecting outstanding receivables from persistent toll violators. In a follow-up, auditors determined that MTA officials made progress in addressing the issues identified in the initial report but noted that after the MTA’s system-wide roll out, both the dollars lost through leakage and the percentage of unbilled transactions increased. From September 2019 to June 2021, the MTA had more than six million unbilled tolls, with an estimated loss of $55.7 million.  

 

Multi-Agency: Compliance With Executive Order 95 - Achieving Transparency and Citizen Engagement Through Open Data (2021-D-1) Auditors conducted a series of reports to examine state agencies’ compliance with EO 95 to improve accountability and support continuous improvement of Open Data, increasing its benefits to the public and government entities. OSC audited Open Data compliance at the Department of State, Office of General Services, Olympic Regional Development Authority, Department of Environmental Conservation, and Office of Parks, Recreation and Historic Preservation. Compliance with EO 95 requirements varied across the five agencies audited. OSC determined that most agencies were not in full compliance with EO 95, and that data was not always reliable or easily usable, limiting its value. 

 

State Education Department (SED) (Preschool Special Education Audit Initiative): Omni Childhood Center, Inc. - Compliance With the Reimbursable Cost Manual (2021-S-66) Omni is a New York City-based proprietary organization authorized by SED to provide preschool Special Education Itinerant Teacher services to children with disabilities who are between the ages of 3 and 5 years. For the three fiscal years ended June 30, 2015, auditors identified $1,588,037 in reported costs that did not comply with state requirements for reimbursement. 

 

Division of State Police: Processing of Sexual Offense Evidence Collection Kits (Follow-Up) (2021-F-19)An audit issued in May 2020 found that from Nov. 28, 2017 to Oct. 31, 2019, state police processed 1,656 kits, but only 356 of them were completed within the time frames prescribed by law. Also, as of Oct. 31, 2019, state police had 1,916 unprocessed kits, and the required processing time frame had elapsed for 1,681 of them. During the audit, the division had taken steps to speed up kit processing; however, it was not able to meet the required time frames. In a follow-up, auditors found the division implemented the recommendation made in the initial report, resulting in significant progress in addressing the issues identified. 

 

Department of Taxation and Finance - Department of Administration and Collection of Real Estate Transfer Taxes (RETT) (Follow-Up) (2021-F-10) An audit issued in January 2019 found that the department had – with certain exceptions – adequate systems and practices in place that allowed it to effectively administer and collect RETT, however, nearly all counties submitted RETT information in hard copy form at the time of the audit, of which only a small portion was entered into an electronic system and capable of being analyzed. Auditors also identified certain RETT errors in one of the department’s internal systems. In a follow-up, auditors found the department has made significant progress in addressing the issues identified. 

 

Department of Taxation and Finance: Sales Tax Vendor Registration Practices (2020-S-40) The state share of sales and use tax collections is the second largest tax amount collected annually. Taxable online sales have been rising with an acceleration of such sales during the pandemic, with large retailers as well as online marketplaces reporting growth. Auditors examined whether the Department of Taxation and Finance has taken steps to ensure that persons who are required to register as sales tax vendors, including those with no physical presence in the state, have done so. Auditors identified vendors that were denied a certificate of authority (COA) to collect sales taxes, yet continued to operate and likely made taxable sales, as well as unregistered vendors that submitted sales tax returns showing taxable sales. For the two samples of 50 and 43 vendors tested in these areas, auditors identified 18 vendors that reported taxable sales, or were potentially making taxable sales, without a valid COA. These 18 vendors may have been subject to penalties totaling up to $180,000. These findings were attributable, in part, to the lack of information-sharing among the department’s divisions and the lack of relevant follow-up. 

 

Department of Transportation (DOT): Controls Over Vehicle Use and Transportation-Related Expenses (2019-S-37)DOT has not established adequate controls to effectively monitor and ensure accountability over maintenance expenses. DOT performs limited to no central monitoring of procurements made through the contractor and has not determined if the contractor is complying with contract terms, despite central office and regional office managers’ concerns. The department could also improve controls over recalls, warranties, and oversight of fuel and mileage usage. 

Only evidence admitted at the hearing may be considered by hearing officer, the appointing authority and the courts

A probation officer [Plaintiff] was involved in a domestic incident with his then-girlfriend at their shared residence. This resulted in Plaintiff's arrest. A year later Plaintiff pleaded guilty to a single violation of harassment in the second degree and he was  sentenced to a conditional discharge.

Two days after the incident, however, and one day after Plaintiff's arrest, the appointing authority [Respondent] initiated disciplinary proceeding against Plaintiff pursuant to Civil Service Law §75, alleging misconduct as evidenced by the Respondent's arrest.

A Hearing Officer issued a report finding Plaintiff guilty of all but one specification set out in one of the charges, and recommended the Respondent impose the penalty of termination. Respondent adopted the Hearing Officer's findings and terminated Plaintiff's employment.

Plaintiff then commenced a CPLR Article 78 proceeding, contending that the charges were facially insufficient, Respondent's determination was not supported by substantial evidence and the penalty of termination was shocking to one's sense of fairness.

Supreme Court found that the charges were facially sufficient and, concluding that the remaining arguments raised questions of substantial evidence, transferred the matter to Appellant Division pursuant to CPLR §7804 (g).

The Appellate Division remanded the matter to Supreme Court explaining:

1. The administrative body or officer whose decision is under review is required to file with Supreme Court "a certified transcript of the record of the proceedings under consideration," and that court "may order the body or officer to supply any defect or omission in the . . . transcript" (CPLR 7804 [e]).

2. Where, as here, the substantial evidence issue is raised, Supreme Court "shall first dispose of such other objections as could terminate the proceeding . . . without reaching the substantial evidence issue." (CPLR 7804 [g]).

3. When a CPLR Article 78 proceeding comes before the Appellate Division, it "shall dispose of all issues in the proceeding, or, if the papers are insufficient, it may remit the proceeding, citing CPLR §7804 [g]).

Here, Plaintiff's petition asserted that the Hearing Officer and Respondent improperly considered documents that were neither offered nor accepted as evidence at the hearing. Accordingly, said the court, Supreme Court should have addressed what evidence was properly in the record on review prior to transferring the substantial evidence issue to the Appellate Division.

The Appellate Division then withheld decision and remit the matter to Supreme Court "to settle the record by determining which documents were admitted in evidence before the Hearing Officer," as only evidence admitted at the hearing may be considered by hearing officer, the Respondent and the courts.

Click HERE to access the Appellate Division's opinion.

Failure to acquire the jurisdiction of the court fatal to petitioner's cause of action

The Pro Se Petitioner in this action to recover damages for alleged employment discrimination on the basis of race and national origin, served the respondents  [Defendants] by depositing the summons and complaint in a United States Postal Service mailbox.

Typically the court does not have personal jurisdiction over a defendant should a plaintiff fails to properly effect service of process on the defendant. In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void.

In this CPLR Article 78 action the Defendants, pursuant to CPLR §3211(a)(8), moved to dismiss the complaint for lack of personal jurisdiction. Supreme Court granted the Defendants' motion and Plaintiff appealed.

The Appellate Division affirmed Supreme Court's ruling, noting that by mailing the summons and complaint via regular mail the Plaintiff failed to properly effectuate service concluding that Supreme Court properly granted Defendants' motion to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction.

Click HEREto access the Appellate Division's ruling.