The substantial evidence standard is used in administrative disciplinary hearings

In this appeal challenging an adverse disciplinary decision following an administrative hearing on the various allegations of misconduct and insubordination filed against the Petitioner pursuant to Civil Service Law §75, the Appellate Division found that the misconduct findings by the hearing officer were supported by substantial evidence.

Citing Matter of Wales v City of Saratoga Springs, 200 AD3d 1262, the court explained that substantial evidence is "a minimal standard that requires less than [a] preponderance of the evidence and demands only the existence of a rational basis in the record as a whole to support the findings upon which the determination is based."

Addressing the penalty imposed on the Petitioner, termination, the Appellate Division, considering Petitioner's nearly a 30-year career with the employer and her "positive personnel record," concluded that imposing the penalty of termination was not '"so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness," citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Click HEREto access the text of the Appellate Division's decision.

 

Seeking video footage recorded by a police officer's body-worn camera and attorney fees and litigation costs pursuant to New York State's Freedom of Information Law

Underlying this CPLR Article 78 action was a Petitioner's  Freedom of Information Law [FOIL] request for certain video footage recorded by a police officer's Body-Worn Camera [BWC]. The police department [Department] responded by providing Petitioner access to a video consisting of fully blurred images with the audio removed. The Department advised Petitioner that if a less redacted copy was requested, "the cost would need to be estimated and such fees would need to be paid in advance to obtain the more precisely redacted video."

As relevant to the issues on appeal, the Appellate Division opined that FOIL provides that "the court must assess against the agency involved the requesting party's reasonable attorney's fees and other litigation costs when the requesting party 'has substantially prevailed and the court finds that the agency had no reasonable basis for denying access.'"

Although the Department did not dispute that Petitioner "substantially prevailed" when the Department disclosed the records Petitioner sought in the FOIL request, it contended that it had a reasonable basis for denying Petitioner's FOIL request pursuant to its  prepayment redaction policy.

The Appellate Division held that Petitioner "has been subjected to the very kinds of unreasonable delays and denials of access which the counsel fee provision [contained in FOIL] seeks to deter" and that Petitioner is entitled to "reasonable attorney's fees and other litigation costs."

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

[See also Matter of Maziarz v Western Regional Off-track Betting Corp., posted on the Internet HERE.]

Governor Hochul announces latest Monkeypox vaccine distribution following 2B allocation from the federal government

On July 19, 2022, Governor Kathy Hochul, along with the New York State Department of Health, announced the distribution of the JYNNEOS vaccine in New York, following an additional allocation of 8,822 doses to New York State from the federal government. New York City will receive its own allocation of 23,963 doses directly from the federal government. 

"New York continues to face a disproportionate number of monkeypox cases, Governor Hochul said. "I want to thank President Biden, Dr. Jha and other Administration officials for their partnership to secure additional vaccines for our state. While the national supply remains limited, we will continue our efforts to confront this outbreak with the urgency needed to ensure that New York receives its fair share of vaccines and protect our most vulnerable communities." 

  

In this phase of vaccine distribution ("2B"), NYSDOH has allocated 2,000 of its doses to New York City, given the high number of cases concentrated in the area. The rest of the State's allocation will be distributed to counties based on the number of monkeypox cases in their locality, proximity to New York City, and ability to reach vaccine-eligible New Yorkers. All doses in this allocation are recommended to be administered as a first dose of the two-dose vaccine series. While vaccine supply remains limited, more vaccine is expected in the coming weeks and months to ensure New Yorkers get both doses needed to be considered fully vaccinated. 

 

All New Yorkers Should Learn About Monkeypox to Protect Themselves and Prevent Spread; Visit health.ny.gov/monkeypox or Text "MONKEYPOX" to 81336 or "MONKEYPOXESP" for Alerts in Spanish 

 

State Health Commissioner Dr. Mary T. Bassett said, "We continue to work with our federal partners to advocate for the vaccine supply New York needs as we ensure New York's healthcare providers and local county health departments have the guidance, resources, and infrastructure they need. New Yorkers should stay informed about monkeypox, including symptoms - such as common rashes - how the virus spreads, and what to do following exposure. If you have a rash, learn about treatment on our website and contact a healthcare provider." 

  

NYSDOH is committed to an equitable distribution of vaccine, and as it has since Phase 1, eligibility remains focused on individuals with known or likely exposure in areas with the highest number of cases. In accordance with CDC guidance advising Post-Exposure Prophylaxis (PEP) for the current Monkeypox outbreak, those already exposed or likely to have been exposed are prioritized in the State allocation by county.

 

Eligibility includes the following New Yorkers:

• Individuals with recent exposure to monkeypox within the past 14 days. 
• Those at high risk of a recent exposure to monkeypox, including members of the gay, bisexual, transgender, and gender non-conforming community and other communities of men who have sex with men and who have engaged in intimate or skin-to-skin contact with others in the past 14 days areas where monkeypox is spreading. 
• Individuals who have had skin-to-skin contact with someone in a social network experiencing monkeypox activity, including men who have sex with men who meet partners through an online website, digital application ("app"), or social event, such as a bar or party. 

  

Of the 8,822 doses allocated to New York State from the federal government, 1,000 will be distributed to Nassau County, 1,800 to Suffolk County, 2,600 to Westchester County, 600 to Erie County, 600 to Monroe County, and 300 to Saratoga County - though 100 of Saratoga County's 300 doses will be taken from doses previously reserved by NYSDOH (from Phase "2A"). Albany County, which just announced its first case, will receive 40 doses and 2,000 doses will be allocated to New York City. 

  

In addition to vaccine distribution, NYSDOH has launched a comprehensive public education campaign to get monkeypox information directly to New Yorkers. This includes paid, digital advertising to reach men who have sex with men and the creation of a dedicated website with the latest information on monkeypox. The website has free, downloadable materials including a palm card, information card, handout, and posters available in both English and Spanish. Just last week, Governor Hochul and NYSDOH launched a new SMS text message effort to get New Yorkers information about monkeypox, including the ability to opt-in to location-based messages that may include the availability of vaccine and care in New Yorkers' areas. 

  

Anyone can get monkeypox, which is primarily spread through close, physical contact between people. Based on the current outbreak, certain populations are being affected more than others, including men who have sex with men. Information from previous outbreaks around the world indicate that elderly New Yorkers, those with weakened immune systems, pregnant people, and children under 8 years of age may be at heightened risk for severe outcomes. 

  

All New Yorkers can protect themselves and prevent the spread of monkeypox in their communities:  

• Ask sexual partners whether they have a rash or other symptoms consistent with monkeypox. 
• Avoid skin-to-skin contact with someone who has a rash or other monkeypox-related symptoms. 
• Contact a healthcare provider following exposure or symptoms, and check with your local county health department about vaccine eligibility. 
• New Yorkers who receive the JYNNEOS vaccine should receive both doses, given four-weeks apart, and stay vigilant until fully vaccinated, two weeks following the second dose. 
• If you or your healthcare provider suspect you may have monkeypox, isolate at home. If you can, stay in a separate area from other family members and pets. 
• Follow reputable sources of health information, including NYSDOH, CDC, and your local county health department. 

  

New Yorkers can sign-up for the text campaign by texting "MONKEYPOX" to 81336 or "MONKEYPOXESP" for texts in Spanish. New Yorkers will be able to provide their zip code to opt-in to location-based messaging, if they choose. 

  

For more information about monkeypox, including case counts by county, treatment, and care, visit health.ny.gov/monkeypox. 

  

New Yorkers can learn more about New York State's first vaccine allocation from the federal government here and the second allocation ("2A") here. 

 

Former town supervisor pleads guilty to wire fraud involving funds meant to help the town recover from Hurricane Irene

New York State Comptroller Thomas P. DiNapoli announced that Kory O’Hara, formerly the Town Supervisor of Prattsville, pled guilty today to wire fraud in connection with a grant extended to Prattsville in the wake of Hurricane Irene. 

The announcement was made by New York State Comptroller Thomas P. DiNapoli; United States Attorney Carla Freedman; Janeen DiGuiseppi, Special Agent in Charge of the Albany Field Office of the Federal Bureau of Investigation (FBI); John Pias, Special Agent in Charge of the Detroit Field Office, Department of Homeland Security, Office of Inspector (DHS-OIG); and Christina Scaringi, Special Agent in Charge, U.S. Department of Housing and Urban Development, Office of Inspector General, Northeast Region (HUD-OIG).

“Kory O’Hara violated the trust of his community and his duty as Town Supervisor by stealing funds that were meant to help the town recover from Hurricane Irene,” said State Comptroller DiNapoli. “Thanks to my partnership with United States Attorney Carla Freedman and federal law enforcement and agencies, O’Hara has now been held accountable for his fraudulent, selfish actions.”*

In August 2011, Hurricane Irene caused significant damage to the town of Prattsville, resulting in the issuance of millions of dollars in rehabilitation grants to Prattsville and its residents. As Town Supervisor, O’Hara entered into various grant agreements, including with the New York State Housing Trust Fund Corporation. 

In pleading guilty, O’Hara admitted that between 2013 and 2015, he obtained false invoices from a Prattsville-based modular home business, Moore’s Homes, purporting to reflect construction work performed on O’Hara’s automotive garage, O’Hara’s Service Station, which Moore’s Homes did not perform. O’Hara issued checks to Moore’s Homes reflecting payment on the invoices, but Moore’s Homes returned all of the money. 

O’Hara, who was Town Supervisor at the time, then submitted the false invoices and checks to Prattsville and the New York State Housing Trust Fund Corporation to fraudulently obtain $24,915 in grant proceeds under the New York Main Street Program. 

United States Attorney Freedman stated: “The New York Main Street Program was designed to make sure that grant money would be used to rebuild Prattsville in the wake of Hurricane Irene.  As Town Supervisor, O’Hara knew the rules, but chose not to follow them.  Instead, he took grant money fraudulently.  We will continue to hold public officials accountable who, through fraud, put their own interests above those of their constituents.”

O’Hara faces up to 20 years in prison; a term of post-imprisonment supervised release of up to three years; and a maximum fine of $250,000. He will also be required to pay $24,915 in restitution to the State of New York. 

O’Hara’s co-defendant, Stephen Baker, 71, of Prattsville, previously pled guilty in Prattsville town court to offering a false instrument for filing, a Class A misdemeanor, and the federal charges against him were dismissed. 

This case was investigated by the Office of the New York State Comptroller, Division of Investigation; FBI; DHS-OIG; and HUD-OIG, and is being prosecuted by Assistant U.S. Attorney Cyrus P.W. Rieck.

* Act of this nature are sometimes characterized as Jobbery, the improper use of public office or conduct of public business for private gain. Click HEREto access the Mirriam-Webster definition of Jobbery

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Tolling the Statute of Limitations in consideration of the impact of COVID-19

Barring any tolls or suspensions, a petitioner ordinarily would have had to file a timely cause of action subject to the relevant statute of limitations. In this action the Appellate Division considered the impact of COVID-19 pandemic on a statute of limitation.

Here the critical element was then-Governor Andrew M. Cuomo signing of Executive Order No. 202.8 in response to the public health crisis occasioned by the COVID-19 pandemic. As relevant in this action, that Executive Order "tolled" any "specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, . . . until April 19, 2020."

This tolling of the relevant statute of limitations was extended through several subsequent Executive Orders, the last of which remained in effect until November 3, 2020.

In this action Petitioner contended that the Executive Orders effectively extended the statute of limitations, as relevant here, "228 days (the amount of time the Executive Orders remained in effect) [which] should be added to the date on which the statute of limitations would have otherwise run for filing a timely petition. 

Citing Chavez v Occidental Chem. Corp., 35 NY3d 492, the Appellate Division, Third Department, said it was not persuaded by this argument, noting that, as explained by the Court of Appeals, "[a] toll does not extend the statute of limitations indefinitely but merely suspends the running of the applicable statute of limitations for a finite ... time period; ... the period of the toll is excluded from the calculation of the time in which the [petitioner] can commence an action [or proceeding]."

Referencing the Appellate Division, Second Department's decision in Brash v Richards 195 AD3d 582,  the Third Department noted that the Executive Order initially expressly used the word "toll" and, "although the . . . executive orders issued after [that one] did not use [that same word, they] all ... stated that the Governor 'hereby continue[s] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive,' made in the prior executive orders."

In this instance, said the court, Plaintiff filed his petition a week too late, rendering the proceeding time-barred, and affirmed the dismissal of the Plaintiff's petition.

Click HEREto access the text of the Appellate Division's decision.