The party claiming insurance coverage bears the burden of proving entitlement

Here, the plaintiff failed to meet its prima facie burden of demonstrating as a matter of law that it was either an insured or additional insured under the policy. It is undisputed that the policy was issued to the Village and did not name the plaintiff as an insured or additional insured and that NYMIR's written consent to transfer the rights under the policy to the plaintiff was never obtained.

 

Town of Brookhaven v New York Mun. Ins. Reciprocal

2024 NY Slip Op 03450

Decided on June 20, 2024

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 20, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
CHERYL E. CHAMBERS
DEBORAH A. DOWLING
HELEN VOUTSINAS, JJ.

2022-09144
(Index No. 601165/21)

[*1]Town of Brookhaven, appellant,

v

New York Municipal Insurance Reciprocal, et al., respondents, et al., defendant.

Rubin Paterniti Gonzalez Rizzo Kaufman, LLP, Garden City, NY (Maria Massucci of counsel), for appellant.

Congdon, Flaherty, O'Callaghan, Travis & Fishlinger, Uniondale, NY (Kathleen D. Foley of counsel), for respondents.

DECISION & ORDER

In an action for a judgment declaring that the plaintiff is an insured under insurance policy number MPLVMAS001 issued by the defendant New York Municipal Insurance Reciprocal to the Incorporated Village of Mastic Beach and that the defendants New York Municipal Insurance Reciprocal and Wright Risk Management are obligated to defend and indemnify the plaintiff in underlying actions entitled Young v Town of Brookhaven, pending in the Supreme Court, Suffolk County, under Index Numbers 606461/18 and 623726/18, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Kathy G. Bergmann, J.), dated October 6, 2022. The order, in effect, denied the plaintiff's motion for summary judgment on the complaint, and granted the cross-motion of the defendants New York Municipal Insurance Reciprocal and Wright Risk Management for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment declaring that the plaintiff is not an insured under insurance policy number MPLVMAS001 issued by the defendant New York Municipal Insurance Reciprocal to the Incorporated Village of Mastic Beach and that the defendants New York Municipal Insurance Reciprocal and Wright Risk Management are not obligated to defend and indemnify the plaintiff in underlying actions entitled Young v Town of Brookhaven, pending in the Supreme Court, Suffolk County, under Index Numbers 606461/18 and 623726/18.

The plaintiff commenced this action for a judgment declaring that it is an insured under insurance policy number MPLVMAS001 issued by the defendant New York Municipal Insurance Reciprocal (hereinafter NYMIR) to the Incorporated Village of Mastic Beach and that NYMIR and the defendant Wright Risk Management (hereinafter WRM) are obligated to defend and indemnify the plaintiff in regard to personal injury claims originally made against the Village but subsequently asserted against the plaintiff due to the Village's dissolution in underlying actions entitled Young v Town of Brookhaven, pending in the Supreme Court, Suffolk County, under Index Numbers 606461/18 and 623726/18. The plaintiff asserted that pursuant to General Municipal Law § 790, upon the Village's dissolution, the plaintiff had assumed the Village's debts, liabilities, and obligations and that the plaintiff became entitled to various rights held by the Village, including [*2]entitlement to the insurance coverage provided by the policy issued by NYMIR to the Village. The plaintiff also maintained that the subject insurance rights were transferred to it pursuant to certain resolutions adopted by the plaintiff in connection with the Village's dissolution. However, the insurance policy included a provision requiring written permission from NYMIR to transfer any such rights under the policy. The plaintiff moved for summary judgment on the complaint. NYMIR and WRM (hereinafter together the moving defendants), NYMIR's contract manager that provided insurance services for NYMIR, cross-moved for summary judgment dismissing the complaint insofar as asserted against them. By order dated October 6, 2022, the Supreme Court, in effect, denied the plaintiff's motion, and granted the moving defendants' cross-motion. The plaintiff appeals.

"The party claiming insurance coverage bears the burden of proving entitlement" (New York State Thruway Auth. v Ketco, Inc., 119 AD3d 659, 661; see National Abatement Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 33 AD3d 570, 571). "However, a party is not entitled to coverage if it is not named as an insured or additional insured on the face of the policy as of the date of the accident for which coverage is sought" (New York State Thruway Auth. v Ketco, Inc., 119 AD3d at 661; see Essex Ins. Co. v Michael Cunningham Carpentry, 74 AD3d 733, 733). "[W]hether a third party is an additional insured under a policy is determined from the intention of the parties to the policy, as determined from the four corners of the policy itself" (Arch Specialty Ins. Co. v RLI Ins. Co., 209 AD3d 812, 814 [internal quotation marks omitted]; see Chipotle Mexican Grill, Inc. v RLI Ins. Co., 199 AD3d 979, 983). "'Where a third party seeks the benefit of coverage, the terms of the policy must clearly evince such intent'" (Arch Specialty Ins. Co. v RLI Ins. Co., 209 AD3d at 814, quoting Hargob Realty Assoc., Inc. v Fireman's Fund Ins. Co., 73 AD3d 856, 857).

Here, the plaintiff failed to meet its prima facie burden of demonstrating as a matter of law that it was either an insured or additional insured under the policy. It is undisputed that the policy was issued to the Village and did not name the plaintiff as an insured or additional insured and that NYMIR's written consent to transfer the rights under the policy to the plaintiff was never obtained. Further, contrary to the plaintiff's contentions, the plaintiff did not automatically obtain the rights under the policy pursuant to General Municipal Law § 790 or pursuant to certain Town of Brookhaven resolutions dated October 26, 2017. Accordingly, the plaintiff's motion was properly denied, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

The moving defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that NYMIR never consented to a transfer of rights under the policy from the Village to the plaintiff as required by the explicit terms of the policy (see Zuckerman v City of New York, 49 NY2d 557). Moreover, contrary to the plaintiff's contention, the rights under the policy did not automatically vest in the plaintiff by operation of law. The moving defendants also demonstrated, prima facie, that summary judgment dismissing the complaint insofar as asserted against WRM was proper because WRM was not an insurer under the policy and it did not issue the policy (see id.). In opposition to the moving defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact (see id.). Accordingly, the Supreme Court properly granted the moving defendants' cross-motion for summary judgment dismissing the complaint insofar as asserted against them.

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Suffolk County, for entry of a judgment declaring that the plaintiff is not an insured under insurance policy number MPLVMAS001 issued by NYMIR to the Village and that the moving defendants are not obligated to defend and indemnify the plaintiff in underlying actions entitled Young v Town of Brookhaven, pending in the Supreme Court, Suffolk County, under Index Numbers 606461/18 and 623726/18 (see Lanza v Wagner, 11 NY2d 317).

CONNOLLY, J.P., CHAMBERS, DOWLING and VOUTSINAS, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

 

New York State Comptroller DiNapoli releases recently completed audits of New York State Departments and agencies

On July 10, 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 both the summary and the complete audit report

Department of Health – Medicaid Program – Improper Payments for Brand Name Drugs (Follow-Up) (2024-F-9)  New York’s Medicaid program, administered by the Department of Health (DOH), covers medically necessary prescription and non-prescription drugs. State law directs pharmacies to substitute prescribed drugs with less expensive drugs containing the same active ingredients, dosage form and strength. A prior audit, issued in December 2022, found $1,102,823 in Medicaid overpayments for brand name prescription drugs where generic drugs were available. The follow-up found DOH officials instituted a system enhancement that identified certain drugs as generic, but that the system enhancement did not apply to all Food and Drug Administration-approved generics. Further, since the initial audit, Medicaid has paid an additional $6.3 million for drugs that appear to be generic drugs but were paid using brand name drug pricing methods, and the Office of the Medicaid Inspector General has made minimal progress in reviewing and recovering any improper payments identified in the initial report. Of the initial report’s three audit recommendations, two were not implemented and one was partially implemented.

Homes and Community Renewal – Division of Housing and Community Renewal – Physical and Financial Conditions at Selected Mitchell-Lama Developments Located Outside New York City – Sunnyside Manor: Unauthorized Bank Account (2024-S-12)  The Mitchell-Lama Housing program was created to provide affordable rental and cooperative housing to middle-income families. Pursuant to the New York Codes, Rules and Regulations, program developments must open a bank account to deposit all rent receipts and other miscellaneous operating income and use this account to disperse all expenses for operations. Auditors found that the Sunnyside Manor development’s Board of Directors (Board) held a checking account (with an average monthly balance of $14,007 for the 3 fiscal years ended March 31, 2022) separate from the development’s operating accounting that, according to the property manager, included deposits of community room rental income. In addition to these deposits, auditors identified transactions, totaling $51,048, paid from Sunnyside Manor’s operating account to the Board-held account. Bank statements for the Board-held account showed numerous questionable debit card transactions, including Amazon purchases (such as vitamins, a treadmill mat, a cooking apron, and toys) totaling $2,512 and restaurant payments totaling $1,723.

State Education Department (Preschool Special Education Audit Initiative) – UCP of Niagara County dba Empower – Compliance with the Reimbursable Cost Manual (2023-S-3)  United Cerebral Palsy Association (UCP) of Niagara County dba Empower (Empower), a not-for-profit special education provider located in Niagara Falls, is approved by the State Education Department (SED) to provide education services to children with disabilities up to age 5. For the 3 fiscal years ended June 30, 2020, Empower reported approximately $6.6 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $1,141,685 in reported costs that did not comply with requirements.

Department of Labor – Controls and Management of the Unemployment Insurance System (Follow-Up) (2023-F-41)  One of the Department of Labor’s (DOL) key tasks in assisting the unemployed is administering the State’s Unemployment Insurance (UI) program. A prior audit, issued in November 2022, found deficiencies with DOL’s oversight and management of its UI system. During the pandemic, faced with the high demand for UI benefits and the need to process claims quickly, DOL resorted to stop-gap measures to compensate for system limitations, which resulted in misclassification of claims as State instead of federal liabilities, overpayment of claims, and supplemental spending to maintain the outdated UI system infrastructure while a new system was in development. DOL officials made some progress addressing the issues identified in the initial audit report, including continuing the development of a replacement system and collecting and analyzing data to improve the balance between fraudulent identity protection and streamlining the process for those in need of UI benefits. Of the initial report’s six recommendations, two were implemented, three were partially implemented, and one was not implemented.

Department of Health – Medicaid Program – Managed Care Payments to Unenrolled Providers (2021-S-6)  Medicaid managed care organizations establish provider networks by contracting with physicians, hospitals, and other providers to provide medical care to their members. The 21st Century Cures Act and additional federal guidance mandated that managed care in-network providers enroll as participating providers in the state Medicaid program by January 1, 2018 (with the exception of certain provider types). Through the screening and provider enrollment process, the Department of Health (DOH) gains a level of assurance over a provider’s validity to provide Medicaid services. Auditors found DOH does not monitor encounter claims, which detail member health care services and payments to providers, to identify inappropriate managed care payments to providers who are not enrolled in Medicaid. This and other weaknesses led to over $1.5 billion in improper and questionable payments. 

###

 

Decisions of the Commissioner of Education, Decision No. 18,430

The Commissioner will only decide matters in actual controversy

Appeal of JONATHAN DAVIS from action of the Board of Education of the Board of Trustees of the Mount Vernon Public Library regarding his removal from office.[1]

Decision No. 18,430

(July 1, 2024)

Brill Legal Group, P.C., attorneys for respondent, Peter E. Brill, Esq., of counsel

ROSA., Commissioner. -- Petitioner appeals from the decision of the Board of Trustees of the Mount Vernon Public Library (“respondent”) to remove him from office.  The appeal must be dismissed as moot. 

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522). 

Petitioner’s request for interim relief was denied on March 11, 2024 and his term as a member of the Board of Trustees expired on June 30, 2024.  Accordingly, there is no further meaningful relief that can be granted, and the appeal must be dismissed (Appeal of Petrocelli, 62 Ed Dept Rep, Decision No. 18,223; Appeal of Ayala, 62 id., Decision No. 18,155).

THE APPEAL IS DISMISSED.

Rebutting the statutory presumption that a firefighter suffered a heart attack and was permanently incapacitated as the result of the performance of his duties

Petitioner, a firefighter, applied for performance of duty disability retirement benefits in June 2015 asserting that he was permanently incapacitated from the performance of his duties as the result of a heart condition. Although petitioner indeed was found to be permanently incapacitated, his application was denied upon the ground that his disability was not the natural and proximate result of an incident sustained in-service.

The sole contested issue is whether the Retirement System met its burden of rebutting the statutory presumption, "which, in turn, required the Retirement System to demonstrate — through expert medical proof — that petitioner's cardiac condition was caused by risk factors other than his employment". The Appellate Division concluded that "petitioner's application for performance of duty disability retirement benefits was properly denied" by the Retirement System.

 

 

Matter of Martino v DiNapoli

2024 NY Slip Op 03526

Decided on June 27, 2024

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:June 27, 2024

CV-23-0976

[*1]In the Matter of Joseph Martino, Petitioner,

v

Thomas P. DiNapoli, as State Comptroller, Respondent.

Calendar Date:May 31, 2024
Before:Egan Jr., J.P., Reynolds Fitzgerald, Ceresia, Fisher and Mackey, JJ.

Schwab & Gasparini, PLLC, White Plains (James A. Resila of counsel), for petitioner.

Letitia James, Attorney General, Albany (Sean P. Mix of counsel), for respondent.

Fisher, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for performance of duty disability retirement benefits.

Petitioner, a firefighter, applied for performance of duty disability retirement benefits in June 2015 asserting that he was permanently incapacitated from the performance of his duties as the result of a heart condition. Although petitioner indeed was found to be permanently incapacitated, his application was denied upon the ground that his disability was not the natural and proximate result of an incident sustained in service. Following a hearing and redetermination, including the review of voluminous medical records, the Hearing Officer upheld the denial, finding that petitioner's disability was not caused by the performance and discharge of his duties as a firefighter. Respondent adopted the Hearing Officer's findings of fact and conclusions of law, prompting petitioner to commence this CPLR article 78 proceeding to challenge respondent's determination.

The New York State and Local Employees' Retirement System concedes that petitioner is permanently incapacitated from the performance of his duties as a firefighter and, further, that the "heart presumption" set forth in Retirement and Social Security Law § 363-a (1) applies. As such, the sole contested issue is whether the Retirement System met its burden of rebutting the statutory presumption, "which, in turn, required the Retirement System to demonstrate — through expert medical proof — that petitioner's cardiac condition was caused by risk factors other than his employment" (Matter of O'Donoghue v DiNapoli, 221 AD3d 1229, 1230 [3d Dept 2023]; see Matter of Park v DiNapoli, 123 AD3d 1392, 1393 [3d Dept 2014]; Matter of Ferguson v DiNapoli, 114 AD3d 1015, 1015 [3d Dept 2014], lv denied 23 NY3d 901 [2014]; Matter of Walters v DiNapoli, 82 AD3d 1487, 1487-1488 [3d Dept 2011]). Upon our review of the record, we are satisfied that the statutory presumption was rebutted.

With respect to the May 2015 incident, petitioner testified that he arrived at the firehouse for his scheduled shift and, after "go[ing] over the rig and mak[ing] sure everything is where it's supposed to be," he went upstairs to complete his paperwork. Although he initially "was feeling okay," he "started getting a burning sensation in [his] chest" and began "sweating a little bit." A call then came in for "a pan and meat" in an apartment building — meaning that someone had burned their dinner and filled the building with smoke — and petitioner donned his turn-out gear (weighing approximately 70 pounds) and responded to the call. On the way to the call, petitioner testified, the sweating and burning sensation "had subsided," but it returned after exiting the building. During the call, petitioner carried a positive pressure fan up two flights of stairs to help ventilate the structure[*2]. When petitioner returned to the ladder truck, his symptoms became "more intense and [his] arm started hurting." Upon returning to the firehouse, petitioner "started feeling worse and worse," prompting his colleagues to call for an ambulance. Subsequent testing revealed that petitioner had suffered a heart attack.

Although petitioner attributes his heart attack to the rigors of firefighting, the record reflects that petitioner has "a markedly positive family history" for coronary artery disease. Notably, petitioner's father had a heart attack in his early 40s, and petitioner has "multiple first-degree relatives with premature cardiovascular disease." As to petitioner's admitted history of cigarette smoking, petitioner testified that he smoked 10 or 12 cigarettes a day for one year and quit smoking altogether in 2007, but petitioner's medical records indicate that he smoked at least a pack of cigarettes a day for multiple years and suggest that he did not quit smoking until 2015. Prior to his disabling heart attack in May 2015, petitioner experienced "some chest discomfort" while drinking a protein shake in January 2015, prompting an evaluation at a local emergency department. Although the evaluation was "negative" and petitioner was discharged, he experienced two subsequent episodes of "chest burning after exercise," underwent a nuclear stress test, which reportedly showed "a fix basal inferior wall defect without ischemia," and was placed on blood pressure medications.

After examining petitioner in 2017 and reviewing various medical records, including the statement of disability completed by petitioner's cardiologist, the Retirement System's expert concluded that petitioner was permanently disabled from his duties as a firefighter "due to his coronary artery disease and prior [myocardial infarction]," both of which were "related to [petitioner's] cigarette smoking and markedly positive family history for early [coronary artery disease]." Although petitioner faults the Retirement System's expert for failing to expressly exclude his employment as a causative factor (see e.g. Matter of Walsh v DiNapoli, 83 AD3d 1278, 1279 [3d Dept 2011]; Matter of Bryant v Hevesi, 41 AD3d 930, 932 [3d Dept 2007]), petitioner's argument on this point overlooks the fact that his own cardiologist concluded that petitioner's disabling heart condition did not arise out of his employment. Pointedly, in response to a question on the physician's statement of disability asking whether the subject condition was due to an injury or illness arising out of petitioner's employment, petitioner's cardiologist answered, "[n]o." Taken together, the medical proof is "sufficient to exclude petitioner's employment as a causative factor in the development of his disabling coronary artery disease and, as such, the statutory presumption was effectively rebutted" (Matter of O'Donoghue v DiNapoli, 221 AD3d at 1231; see e.g. Matter of Ashley v DiNapoli, 97 AD3d 1057, 1058 [3d Dept 2012]; Matter [*3]of Baron v New York State Comptroller, 84 AD3d 1678, 1679 [3d Dept 2011]; Matter of Walters v DiNapoli, 82 AD3d at 1488; Matter of Marinelli v DiNapoli, 82 AD3d 1347, 1348 [3d Dept 2011]; Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296 [3d Dept 2010]). Accordingly, petitioner's application for performance of duty disability retirement benefits was properly denied.

Egan Jr., J.P., Reynolds Fitzgerald, Ceresia and Mackey, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

 

 

Labor Law §565 (2) (e) excludes from employment services rendered for a governmental entity by a person in a major nontenured policymaking or advisory position

An Assistant Counsel and Legislative Coordinator in the Executive Chamber served in a nontenured position from December 2019 until August 2021. The Department of Labor denied claimant's subsequent application for unemployment insurance benefits upon the ground that claimant was employed in a major nontenured policymaking or advisory position with a governmental agency and, therefore, his employment was excluded from covered employment pursuant to Labor Law §565(2)(e). Claimant appealed the Labor Department's rejection of his application.

The Appellate Division, however, dismissed claimant's appeal, opining "There is no dispute that claimant held a nontenured position in the Executive Chamber, and the record as a whole provides a rational basis for the Board's finding that claimant served in a major policymaking or advisory role."

 

Matter of Herskowitz (Commissioner of Labor)

2024 NY Slip Op 03527

Decided on June 27, 2024

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:June 27, 2024

CV-23-1035

[*1]In the Matter of the Claim of Craig Herskowitz, Appellant. Commissioner of Labor, Respondent.

Calendar Date:May 28, 2024
Before:Garry, P.J., Egan Jr., Lynch, Fisher and Powers, JJ.

Craig Herskowitz, New York City, appellant pro se.

Letitia James, Attorney General, New York City (Dennis A. Rambaud of counsel), for respondent.

Fisher, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 7, 2022, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was employed in a major nontenured policymaking or advisory position within the meaning of Labor Law § 565 (2) (e).

At all times relevant, claimant was one of approximately 10 individuals employed as an Assistant Counsel and Legislative Coordinator in the Executive Chamber. He was appointed to this nontenured position by the Counsel to the Governor in December 2019 and served in that capacity until August 2021. The Department of Labor denied claimant's subsequent application for unemployment insurance benefits upon the ground that claimant was employed in a major nontenured policymaking or advisory position with a governmental agency and, therefore, his employment was excluded from covered employment pursuant to Labor Law § 565 (2) (e). Following a hearing, an Administrative Law Judge sustained the initial determination. Upon administrative review, the Unemployment Insurance Appeal Board affirmed, prompting this appeal.

We affirm. Initially, any argument regarding the admission into evidence of Hearing Exhibits 6 and 7 is unpreserved for our review as claimant raised no objection in this regard at the administrative hearing (see e.g. Matter of Lamo [Commissioner of Labor], 205 AD3d 1297, 1298 [3d Dept 2022]; Matter of DeCarlo [Commissioner of Labor], 6 AD3d 1003, 1003 [3d Dept 2004]). Turning to the merits, "[f]or purposes of determining a claimant's eligibility for unemployment insurance benefits, Labor Law § 565 (2) (e) excludes from employment services rendered for a governmental entity by a person in a major nontenured policymaking or advisory position" (Matter of Birnbaum [Commissioner of Labor], 122 AD3d 1039, 1040 [3d Dept 2014] [internal quotation marks and ellipsis omitted]; see Matter of Briggs [Commissioner of Labor], 90 AD3d 1349, 1350 [3d Dept 2011]). Whether this exclusion applies "presents a mixed question of law and fact, [and] the Board's determination must be upheld if it has a rational basis" (Matter of Franconeri [New York City Dept. of Personnel-Hudacs], 190 AD2d 970, 971 [3d Dept 1993]; see Matter of Birnbaum [Commissioner of Labor], 122 AD3d at 1040; Matter of Le Porte [New York City Dept. of Personnel-Hartnett], 142 AD2d 866, 866 [3d Dept 1988], lv denied 73 NY2d 705 [1989]). In this regard, whether a claimant's recommendations or advice is heeded — or the fact that his or her decisions are subject to approval by a higher authority — is irrelevant (see Matter of Newell [County of Nassau-Commissioner of Labor], 9 AD3d 559, 560 [3d Dept 2004], lv denied 3 NY3d 610 [2004]). Finally, "it is within the exclusive province of the Board to evaluate evidence and the inferences to be drawn therefrom, and the Board is the final arbiter of witness credibility" (Matter of Fraternal Order of Eagles [Commissioner of Labor], 209 AD3d 1067, 1068 [3d Dept 2022[*2]] [internal quotation marks and citations omitted]; see Matter of Kramer [RTTemps, LLC-Commissioner of Labor], 202 AD3d 1230, 1231-1232 [3d Dept 2022]).

There is no dispute that claimant held a nontenured position in the Executive Chamber, and the record as a whole provides a rational basis for the Board's finding that claimant served in a major policymaking or advisory role (see Matter of Birnbaum [Commissioner of Labor], 122 AD3d at 1040-1041; Matter of Townes [Commissioner of Labor], 114 AD3d 989, 990-991 [3d Dept 2014]; Matter of Richman [Commissioner of Labor], 254 AD2d 673, 673-674 [3d Dept 1998]). The testimony offered by the Executive Chamber's then-Chief Administrative Officer and the information contained in Hearing Exhibit 1, which outlined claimant's job duties and was received into evidence without objection, established that claimant served as the "chief legal advisor" on issues affecting the three state agencies contained within his designated portfolio. In that capacity, claimant, among other things, "approved the development of the legislative agenda of each agency" and "was the only attorney advising the [Counsel] on major matters," including litigation strategies, involving those agencies. Notably, claimant conceded that he advised the Counsel regarding legal issues involving the relevant state agencies, negotiated with the Legislature with respect to the "content, breadth, and scope of proposed legislation" and would "fill in" for the Counsel in meetings related thereto. Although claimant denied that he played a major policymaking or advisory role in the Executive Chamber, insisting that he was more akin to a "mid-level employee," any conflict in the hearing testimony presented a credibility issue for the Board to resolve (see Matter of Lamo [Commissioner of Labor], 205 AD3d at 1298; Matter of Richman [Commissioner of Labor], 254 AD2d at 674), and — as noted previously — the fact that claimant's decisions were subject to review and/or approval by the Counsel or the relevant deputies is not determinative (see Matter of Newell [County of Nassau-Commissioner of Labor], 9 AD3d at 560). Accordingly, claimant's application for unemployment insurance benefits was properly denied (see Matter of Franconeri [New York City Dept. of Personnel-Hudacs], 190 AD2d at 971-972). Claimant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

Garry, P.J., Egan Jr., Lynch and Powers, JJ., concur.

ORDERED that the decision is affirmed, without costs.