New York State Courts hold Plaintiff's complaints barred by collateral estoppel having earlier commenced similar actions in federal court alleging violations of various federal, New York State, and New York City statutes

In the words of the New York State Court of Appeals, "Plaintiff was subjected to offensive and demeaning conduct by her colleagues and sued them and her employer in federal court alleging violations of various federal, New York State, and New York City statutes, and intentional infliction of emotional distress. 

"The parties engaged in the full discovery process, including depositions and document production, and defendants moved for summary judgment. 

"A federal judge made detailed factual findings and applied those findings to defendants' federal claims, ultimately granting defendants' summary judgment motions, and the United States Court of Appeals for the Second Circuit affirmed. 

"Plaintiff brought a nearly identical suit in Supreme Court, raising claims over which the federal district court declined to exercise supplemental jurisdiction.

"Supreme Court dismissed plaintiff's complaint as barred by collateral estoppel and for failing to state a claim, the Appellate Division agreed".

The Court of Appeals affirmed the lower courts' rulings, Justice Rivera dissenting.

Click HERE to access the Court of Appeals' majority and the dissenting opinions in the State actions posted on the Internet.

OATH Administrative Law Judge recommends the dismissal of a deputy sheriff who stole evidence from a storage container

New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Michael D. Turilli recommended the termination of employment of a deputy sheriff [Deputy] he found had stolen contraband from an evidence storage container.

Judge Turilli determined that on two occasions Deputy was seen on a surveillance video tape exiting the evidence storage container with unidentified objects concealed under his clothing and taking the objects to his car. The ALJ rejected Deputy’s explanation that he had been carrying a mini-tablet and a phone rather than contraband, finding this testimony inconsistent with the video evidence in consideration of the shape of the objects and the manner in which Deputy was carrying them.

Further, the ALJ found that Deputy had made efforts to conceal the objects from video surveillance, which would have been unnecessary if he was removing work-related equipment and not contraband.

ALJ Turilli, however, recommended dismissal of specifications filed against Deputy for stealing or facilitating the theft of contraband on ten other occasions, ruling Employer failed to prove those charges by a preponderance of credible evidence.  

Recommending the Employer terminate Deputy's employment, the ALJ opined that Deputy’s lack of disciplinary history did not outweigh "the egregiousness of the misconduct and his demonstrated lack of integrity".

Click HERE to access Judge Turilli's findings and recommendation posted on the Internet.

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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.

 

New York State's Comptroller releases audits

On April 24, 2024 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 posted on the Internet.

 

Town of Lincoln – Disbursements (Madison County) 

The board and former supervisor did not ensure that disbursements were adequately supported and properly approved. The former supervisor received 13 check payments, totaling $5,142, that were not supported. Also, three of these payments totaling $2,605 were not audited and approved by the board. Claims totaling $109,158 were improperly paid prior to board audit, and claims totaling $533,518 were improperly audited and approved by the former supervisor rather than the board. In addition, 13 claims, totaling $23,116, did not contain sufficient supporting documentation. Lastly, the former bookkeepers did not maintain time records to support the hours for which they were paid, and one bookkeeper received $1,751 in additional pay with no evidence of approval.

 

Town of Lincoln – Town Clerk (Madison County)

 The former clerk did not properly account for, deposit, report or remit collections. As of April 13, 2022, the former clerk could not account for cash totaling $3,869. The former clerk also did not deposit $4,038 in cash collections recorded from Jan. 1, 2018 through April 13, 2022, or maintain complete records for all cash collected. Town officials found $622 in cash in her office with no supporting records showing the source of the funds. She also did not record 44 checks totaling $4,320 in the accounting system, and improperly voided other receipts totaling $769. These unrecorded receipts and voids enabled the former clerk to conceal cash collections that were recorded but not deposited. In addition, the board did not perform an annual audit of the former clerk’s records, as required. In July 2023, the former clerk was arrested on charges of petit larceny for stealing nearly $4,000 from the town. In February 2024, she pleaded guilty to the theft, paid restitution of $3,869 and received a one-year conditional discharge.

 

Raquette Lake Union Free School District – Business Office Operations (Hamilton County)

 The board and district officials did not provide effective oversight of the business office operations. Specifically, the board did not ensure the required 2021-22 annual financial report was filed or obtain adequate written agreements with a third party providing accounting and reporting services that specified the roles and responsibilities of the district and the third-party provider. The board also did not implement controls to safeguard the treasurer's signature on disbursement checks or monitor the third-party online access to the district’s bank accounts.

 

Village of Suffern – Budget Review (Rockland County)

Based on the results of the review, auditors found that the significant revenue and expenditure projections in the 2024-25 proposed budget are reasonable. They also found that the village’s tentative budget includes a tax levy of $12,533,658, which is within the limit established by law.

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An inference of animus found "sufficiently specific" to bar granting the Employer's motion to dismiss Plaintiffs' claims

The Appellate Division unanimously reversed a New York State Supreme Court's ruling granting the City of New York's motion to [1] dismiss racial discrimination claims alleged by Plaintiffs pursuant to the New York State and City Human Rights Laws and [2] the hostile work environment claim Plaintiffs alleged pursuant to the New York City Human Rights Law which the Plaintiffs had asserted against the City of New York and a named defendant.

Citing Harrington v City of New York, 157 AD3d 582 and Reichman v City of New York, 179 AD3d 1115, the Appellate Division opined that Plaintiffs' employment discrimination and hostile work environment claim alleged pursuant the New York City Human Rights Law were improperly dismissed by Supreme Court for failure to sufficiently allege discriminatory animus.

Noting "the comments of the now-dismissed defendants are not properly considered, and the sole remaining individual [named] defendant is not alleged to have made any even arguably discriminatory statements, [Plaintiffs] raised an inference of animus through their allegations of differential treatment of similarly situated white officers in terms of assignments, evaluations, and placement on performance monitoring".

In the words of the court, "Plaintiffs sufficiently alleged that the white officers were similarly situated." In addition, said the Appellate Division, "[the] allegations of differential treatment were also sufficiently specific and factual in nature."

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

 

Substantial evidence held to support finding the accused guilty of certain disciplinary charges filed against him

A New York City police officer [Petitioner] was found guilty of four of the five disciplinary charges filed against him by the New York City Police Department [Employer] which included allegations that Petitioner [1] "engaged in a physical altercation with his estranged wife; [2] "failed to request permission before leaving his residence while on sick report, and [3] "violated a protective order on multiple occasions." 

Terminated from his position, Petitioner appealed, claiming violations of his right to due process.

The Appellate Division held that Petitioner's claims were "unavailing", finding that Petitioner received advance notice of the charges, was provided a full evidentiary hearing, and he was represented by counsel at the hearing. 

The court said contrary to Petitioner's arguments, Employer appears "to have submitted the administrative record, including a certified transcript of the hearing," in its answer. Further, the Appellate Division opined, "Petitioner's contentions regarding his sealed arrest records are unavailing as the administrative decision reflects that the Hearing Officer based his conclusions on the witnesses' testimony and exhibits entered into evidence by stipulation of the parties".

The Appellate Division unanimously confirmed the Employer's terminating Petitioner from his position pointing out that substantial evidence supported the Employer finding that Petitioner was guilty of four of the five charges served upon him.

Noting that the Hearing Officer was entitled to credit the testimony of Petitioner's estranged wife that Petitioner "failed to identify himself as a uniformed member of the service during a ... domestic incident" over the Petitioner's testimony concerning the event as Petitioner's testimony was inconsistent with the responding police officer's body camera footage and the responding police officer's testimony that Petitioner did not so identify himself.

As to the penalty imposed, dismissal from his employment with the New York City police department, the Appellate Division opined that "the penalty of dismissal is not disproportionate to the seriousness of the multiple violations involved", citing Matter of Kelly v Safir, 96 NY2d 32.

Click HERE to access the opinion of the Appellate Division posted on the Internet.

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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