From the Blogs: The Art of Filing an Appeal

Addresses the critical components of a compelling appeal, from gathering evidence to structuring your arguments. "Tips and best practices to make your appeal stand out." 

Posted on the Internet by the Law Firm of Kevin P. Sheerin, Esq.

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School bus transportation contractor sues for payment for contract services the school district claimed were not required for a four month period

We Transport, Inc. [Plaintiff] commenced this action against the Westbury Union Free School District [Westbury] seeking to recover damages for an alleged breach of contract.

Plaintiff, a school bus transportation contractor for Westbury, alleged Westbury breached a contract between the parties by refusing to pay for transportation services that the Plaintiff alleged it stood ready to provide during the months of March, April, May, and June of the 2020 but which services were neither required by the school district nor provided to it by Plaintiff.

Westbury moved to dismiss the complaint. Supreme Court denied Westbury's motion and Westbury appealed the court's ruling.

Citing Shah v Exxis, Inc., 138 AD3d 970, the Appellate Division explained that "[on] a motion pursuant to CPLR §3211(a)(7) to dismiss [an action] for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory".

The Appellate Division then ruled that Supreme Court should have granted that branch of the Westbury's motion to dismiss the cause of action alleging breach of contract, noting that the essential elements of a breach of contract cause of action are: [1] the existence of a contract; [2] the plaintiff's performance under the contract; [3] the defendant's breach of that contract; and [4] resulting damages.

The Appellate Division opined that to state a cause of action to recover damages for a breach of contract, the plaintiff's allegations must identify the provision of the contract that it contends was breached.

Finding Plaintiff's complaint "failed to specify the provision of the parties' contract that was allegedly breached" and no provision was identified that would permit the Plaintiff to recover payment from Westbury in exchange for "being available to provide transportation services", the Appellate Division reversed the Supreme Court's order "insofar as appealed from" and granted Westbury's motion pursuant to CPLR §3211(a)(7) to dismiss Plaintiff's complaint.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

New York City's failure to pay for certain pre-shift and post-shift work it required certain of its employees to perform held a willful violation of the federal Fair Labor Standards Act

In Perry, et al, v The City of New York, et al, Docket No. 21-2095, decided August 25, 2023, the United States Court of Appeals for the Second Circuit, said:

"In this collective action, a group of 2,519 EMTs and paramedics allege that their employer, the City of New York, willfully violated the Fair Labor Standards Act by requiring them to perform work before and after their shifts without paying them for that work unless the plaintiffs specifically requested overtime compensation from the City.

"A jury agreed following a twelve-day trial, and the U.S. District Court for the Southern District of New York (Broderick, J.) entered a $17.78 million judgment against the City.

"The City now appeals, raising four arguments:

"(1) the jury’s liability verdict cannot stand because plaintiffs failed to request overtime pay for the work at issue;

"(2) the jury’s willfulness finding was not supported by the evidence;

"(3) due to an erroneous instruction, the jury failed to make a necessary factual finding regarding the calculation of damages; and

"(4) the district court incorrectly forbade the jury from considering whether one component of the plaintiffs’ post-shift work was de minimis and therefore non-compensable.

'The City accordingly asks that we reverse the jury’s verdict or remand for a new trial on damages."

The Second Circuit declined to do so and instead affirmed the district court's decision "in toto."

Click HERE to access the text of the Second Circuit's decision posted on the Internet.

 

 

Attorneys invited to consider a career in public service with the State of New York

The New York State Department of Civil Service invites attorneys to consider a career in public service with the State of New York.

For information about current employment opportunities click HERE.

Municipal and school audits released by the New York State Comptroller

On August 24, 2023, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

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

 

Town of Homer: Non-Payroll Disbursements (Cortland County)

The board and supervisor did not provide adequate oversight of non-payroll disbursements. As a result, the town made duplicate payments totaling $79,806, and has an increased risk that errors or irregularities could occur and remain undetected and uncorrected. Auditors found the board and supervisor did not, as required,  segregate duties or implement compensating controls relating to non-payroll disbursements; did not, as required, establish procedures to detect and prevent duplicate payments from occurring; or did not, as required, conduct or ensure an annual audit of the supervisor’s records and reports was performed.

 

Chatham Central School District – Financial Management (Columbia County)

The board and district officials did not properly manage fund balance and reserves. The board and district officials’ consistent practice of appropriating fund balance that is not needed and maintaining unreasonable reserve balances circumvents the statutory limit on surplus fund balance and lacks transparency. The district annually appropriated over $1.3 million of fund balance they did not need or use to finance operations; therefore, taxpayers were taxed more than necessary. The district, on average, annually over-estimated appropriations by $3.2 million (9.9%) and maintained four reserves totaling $6.6 million without demonstrating they were reasonably funded.

 

Blind Brook-Rye Union Free School District – Capital Project Change Orders (Westchester County)

The board and district officials did not ensure that all project change orders were submitted as required to the State Education Department (SED) for approval. As a result, officials created a risk that SED could reduce the district’s building aid reimbursement for all unapproved work. For the 151 change orders reviewed totaling about $3.8 million: 122 (81%) totaling approximately $2.7 million were not submitted to SED, as required. In addition, six change orders totaling $155,173 were approved by the commissioner for only $74,002 and the assistant superintendent was not aware that they were approved and had no explanation for the difference in the amount received.

 

Village of Port Dickinson – Capital Asset Accountability (Broome County)

Village officials did not properly record and account for all capital assets. As a result, the village has an increased risk its assets could be lost, stolen or misused without detection. The board did not adopt a written capital asset policy or conduct periodic inventories and officials did not maintain a complete and current capital asset list. Auditors were unable to definitively locate 32 of 35 assets reviewed to the village’s asset list because the asset, purchase invoice and asset list did not contain specific identifying information.

 

Village of East Syracuse – Board Oversight of Cash Receipts and Disbursements (Onondaga County)

The board did not adequately monitor cash receipts and disbursements. Due to the lack of oversight and compensating controls, there is an increased risk that errors and irregularities could occur and remain undetected and uncorrected. The treasurer performed nearly all aspects of the cash receipts and disbursements processes, and the board did not establish controls to help ensure cash was safeguarded. The board did not review, or designate anyone to review, bank statements and canceled check images, bank reconciliations and bank transfers, or compare receipts with deposits to help ensure cash was accounted for and records were accurate. The board also did not ensure village officials reviewed and certified all payroll payments to provide assurance employees received accurate pay. In addition, the treasurer paid 49 claims totaling $258,182 without the board’s audit and approval.

 

Ulster Board of Cooperative Educational Services: Network User Accounts (Ulster County)

Officials did not adequately manage and monitor network user accounts to help prevent unauthorized use, access, or loss. In addition to sensitive information technology control weaknesses that were communicated confidentially to officials, auditors found that officials did not disable 17 unneeded network user accounts or review and did not disable 76 potentially unneeded user accounts.

 

Town of Sempronius – Real Property Tax Exemptions Administration (Cayuga County)

The assessor did not properly administer all of the real property tax exemptions reviewed and did not ensure applicants provided documentation required to grant an exemption or maintain the documentation. Auditors reviewed 58 exemptions totaling $2.7 million and found that 32 exemptions (55%) totaling $1.4 million lacked one or more pieces of documentation needed to verify eligibility and the assessor’s exemption calculation. Because each exemption impacts the tax roll, a miscalculated or inappropriately granted exemption can cause inequity among taxpayers.

 

Hamlin Morton Walker Fire District – Financial Management (Monroe County)

The board and officials did not effectively manage fund balance. From 2020 through 2022, restricted fund balance declined by $676,641 (66%). As of Dec. 31, 2022, unrestricted fund balance was $34,092, which was less than 4% of the 2023 appropriations. The board underestimated expenditures by nearly $1.5 million (45%) and underestimated revenues by $215,772 (8%) for 2020 through 2022. The district also did not have a written multiyear financial plan or adequate capital plan, which inhibits the board and officials from effectively managing finances and addressing future operating and capital needs.