Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
Click HERE to view the proposed Congressional
Map introduced in the form of a bill by Deputy Majority Leader Michael Gianaris
(D) in the New York State Senate and Assemblyman Kenneth Zebrowski (D) in the New York State Assembly posted on the Internet.
Citing Matter of Koratzanis v U.S. Concrete, Inc., 209 AD3d 1075, the Appellate Division noted "Workers' Compensation Law §114-a (1) provides, in relevant part, that a claimant who, for the purpose of obtaining workers' compensation benefits or influencing any determination relative thereto, knowingly makes a false statement or representation as to a material fact shall be disqualified from receiving any compensation directly attributable to such false statement or representation. Further, noted the court, "Whether a claimant has violated the statute lies within the province of the Board," which is the sole arbiter of witness credibility, and its decision will not be disturbed if supported by substantial evidence.
In the instant matter, although Claimant told the examining physician that he retired in 2014, Claimant testified that he has continued to work in a family flooring business and that he had another job conducting movie audits. Although Claimant testified that he does not have full range of motion with his left knee, which he stated does not bend regularly, surveillance videos did not confirm any physical limitations.
While Claimant testified that he gave his
best efforts during an independent medical examination and that he has
"good days and bad days," Claimant's testimony regarding whether he
was truthful about his physical condition presented "a credibility issue
for the Board to resolve." In the words of the Appellate Division,
"[Claimant] was also required throughout the underlying proceedings to
provide truthful and accurate information regarding his work activities and
side jobs."
The court then found that substantial evidence supported the Board's determination that "[Claimant] violated Workers' Compensation Law §114-a" as well as Claimant's material omissions supported the Board's imposing "a mandatory penalty."
The Appellate Division also sustained the Board's disqualification of Claimant from receiving future wage replacement benefits, noting "the Board is vested with the authority — as an exercise of its discretion — to disqualify a claimant from receiving any future benefits" in addition to imposing the mandatory penalty, i.e., rescinding the workers' compensation benefits already paid a claimant.
The court opined "The imposition of such discretionary penalty typically is reserved for situations where the underlying deception has been deemed egregious or severe, or there was a lack of mitigating circumstances", citing Matter of Koratzanis v U.S. Concrete, Inc., 209 AD3d at 1077.
Pointing out that "Judicial review of the penalty imposed is limited to whether the penalty constitutes an abuse of discretion as a matter of law and, as such, a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law".
In this instance the Appellate Division found "the record supports the Board's finding that [Applicant's] misrepresentations were egregious and severe enough to warrant disqualification" and that the court could not conclude that the penalty imposed by the Board was disproportionate to Claimant's material misrepresentations.
Click HERE to access the Appellate Division's decision posted on the Internet.
On February 26, 2024, New York State Comptroller Thomas DiNapoli and Manhattan District Attorney Alvin L. Bragg Jr. announced the guilty plea of Cindy Tappe for orchestrating an approximately $3.5 million 6-year fraud relating to two New York University [NYU] programs. Tappe used her position as the Director of Finance and Administration for NYU’s Metropolitan Center for Research on Equity and Transformation of Schools [the “Metro Center”] to divert approximately $3.5 million intended for minority and women owned businesses. She ultimately routed $3.3 million to bank accounts held by two shell companies Tappe created, using some of the funds for NYU payments and employee reimbursements, but keeping more than $660,000 to pay for personal expenses, including renovations to her home in Connecticut and an $80,000 swimming pool.
Tappe pleaded guilty to one count of Grand Larceny in the Second Degree. Under the terms of the plea, Tappe will be sentenced to five years’ probation, sign a written waiver of right to appeal, and provide full restitution in the amount of $663,209.07 in advance of sentencing. She will be sentenced on April 16, 2024.
“Cindy Tappe shamelessly used her high-ranking position at NYU to steal more than $660,000 in state funds,” New York State Comptroller Thomas P. DiNapoli said. “Her actions cheated MWBEs out of critical funding opportunities and deprived student programs of key resources meant to aid children with special needs and young English Language learners. I thank District Attorney Bragg for his partnership in uncovering her wrongdoing and for holding her accountable.”
“Cindy Tappe took advantage of her position as the NYU Director of Finance and Administration by diverting funds that were intended to benefit students for her own personal gain. Her fraudulent actions not only threatened to affect the quality of education for students with disabilities and multilingual students, but denied our city’s minority and women owned business enterprises a chance to fairly compete for funding,” said District Attorney Bragg. “In Manhattan, we will continue to root out fraud committed at the expense of our students and businesses. I thank the New York State Comptroller’s Office for its partnership in this investigation.”
According to court documents, statements made on the record in court, and as admitted in the defendant’s guilty plea, between 2011 and 2018, the New York State Education Department awarded NYU $23 million for the Metro Center to administer two New York State programs:
1. The Regional Bilingual Education Resource Network (“RBE-RN”), which helps school districts improve results for English language learners, and
2. The Technical Assistance Center on Disproportionality (“TAC-D”), which addresses disproportionality in special education.
The RBE-RN and TAC-D agreements required that a certain percentage of subcontractors on grant-related projects be awarded to certified minority and women owned business enterprises (“MWBE”), in accordance with state law.
Between February 2012 and December 2018, Tappe was the Director of Finance and Administration for Metro Center. Tappe arranged for three certified MWBE subcontractors to receive the overwhelming majority of MWBE payments. In total, NYU paid the three companies approximately $3.527 million to provide services related to the grants. To justify the payments, the companies submitted fictitious invoices drafted by Tappe and pasted on their letterhead.
None of the companies performed work on the contracts. Instead, they functioned as pass-throughs, taking between 3% and 6% of the invoice amounts as “overhead,” and sending the remainder of $3.352 million to two fictitious shell companies created by Tappe: High Galaxy Inc. [High Galaxy], and PCM Group Inc.[PCM].
A portion of the funds were then used to pay legitimate grant-related expenses, and to reimburse NYU employees for expenses incurred or services rendered without any NYU oversight.
Moreover, Tappe used the High Galaxy and PCM accounts to steal at least $660,000, by using that money to pay her personal expenses. She used the accounts to pay for home renovations – including a new $80,000 swimming pool – and her ordinary living expenses.
In September 2018, an NYU program director confronted Tappe about the payments being made to the MWBE subcontractors. In response, she emailed the head of the RBE-RN and TAC-D programs explaining the role those companies played – without mentioning High Galaxy, PCM, or her relationship with the MWBE subcontractors. Instead, she falsely stated that NYU had “developed good working relationships with these companies,” and that she had “found no other companies that offer the same suite of services for price.”
Soon thereafter, NYU reported the theft to the New York State Department of Education, which relayed the allegations to the Comptroller’s Office. After conducting an investigation, the Comptroller’s Division of Investigations referred the case to the Manhattan D.A.’s Office for prosecution.
Assistant D.A.s Adam Maltz and Jaime Hickey-Mendoza are handling the prosecution of this case under the supervision of Assistant D.A.s Michael Ohm (Deputy Chief of the Rackets Bureau), Judy Salwen (Principal Deputy Chief of the Rackets Bureau), and Jodie Kane (Chief of the Rackets Bureau and Acting Chief of the Investigation Division). Former Assistant D.A. Gilda Mariani, Trial Preparation Assistant Shriya Shinde, and Rackets Investigator David Caban assisted with the investigation.
Comptroller DiNapoli’s Division of Investigations conducted the investigation for the Office for the State Comptroller.
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In this action to recover damages for an alleged breach of contract, inter alia,* the defendant, [University], appealed from an order of the Supreme Court denying University's CPLR §7503 motion to compel arbitration of the issue in contention and to stay the breach of contract action.
University had employed Plaintiff as a full-time faculty member. It subsequently sent Plaintiff a letter offering him an "administrative appointment," during which time Plaintiff was to be "on a leave of absence from (his) tenured faculty position" with "the right to return to (his) faculty position." University terminated Plaintiff from his administrative position but did not reinstate him in his "tenured faculty position".
Plaintiff then commenced the instant action, alleging, inter alia, that University breached the terms of the "offer letter" by refusing to reinstate him as a faculty member. University, pursuant to CPLR 7503, then moved to compel that the matter then pending before Supreme Court be submitted arbitration and to stay the instant action. University contended that its collective bargaining agreement [CBA] with the union representing the University's "regular full-time faculty members" required Plaintiff's issue be submitted to arbitration. Supreme Court disagreed and denied University's motion, whereupon University appealed.
Citing Lundgren v Kaufman Astoria Studios, 261 AD2d 513, the Appellate Division noted that "Generally, where a collective bargaining agreement containing a grievance and arbitration procedure ... a covered employee may not sue his or her employer directly for breach of the agreement, but must proceed through the union in accordance with the contract."
Here, however, the Appellate Division opined that "University failed to submit evidence that at the time [Plaintiff's] employment was terminated [Plaintiff] was a covered employee under the CBA", noting the CBA excluded administrators from being within the ambit of the otherwise relevant provisions of the CBA.
In the words of the Appellate Division, "contrary to the University's contention, the grievance provisions of the CBA, which exclude "substantive matters of appointment, reappointment, promotion, and assignment," do not evince a clear, explicit, and unequivocal agreement to arbitrate all disputes requiring the interpretation of the terms of the CBA." Thus, opined the Appellate Division, "Supreme Court properly denied the University's motion to compel arbitration and to stay the action", citing Wolf v Hollis Operating Co., LLC, 211 AD3d at 771.
* Latin: "Among other things".
Click HERE to access the Appellate Division's decision posted on the Internet.
NYPPL e-books
concerning laws, rules, regulations, policies, provisions in collective
bargaining agreements and court and administrative decisions addressing the
employment of individuals in the public service of New York State and its political subdivisions
published by BookLocker, Inc.
The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State and its political subdivisions set out in an e-book. For more information and access to a free excerpt from this e-book, click here: http://booklocker.com/books/5215.html
A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html
The Layoff,
Preferred List and Reinstatement Manual - an e-book reviewing the relevant New York State laws, rules and regulations,
and selected court and administrative decisions. For more information and
access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/5216.html
Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html
N.B. 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.