Submission of an incomplete record to the Appellate Division results in the court dismissing the appeal

In a proceeding pursuant to CPLR Article 78 to review a determination dated terminating the petitioner's [Member] membership in the respondent Fire Department [Department], the Member appealed from a judgment of the Supreme Court denying Member's Article 78 petition and dismissing the proceeding.

Member challengd the Supreme Court's decision but the Appellate Division dismissed Member's appeal to it, with costs.

Citing Klein v Richs Towing, 213 AD3d 920, the Appellate Division noted "CPLR 5526 requires that a record on appeal contain the papers and exhibits upon which the order appealed from was founded".

Here, said the Appellate Division, the record does not contain the member's underlying reply affirmation or the audio recording of the meeting at which her membership was terminated, both of which were considered by Supreme Court in rendering its determination with respect to Member's petition. 

Although Member's argument before the Appellate Division was that the Supreme Court should have annulled Department's termination of her membership, the Appellate Division opined that it is "the obligation of the appellant to assemble a proper record on appeal", explaining "the record is inadequate to allow it to render an informed decision" and thus Member's appeal must be dismissed.

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

Judicial review of arbitration awards

The Employer [Agency] suspended Petitioner [Employee] from his position without pay and charged him with three disciplinary charges alleging misconduct (Charge 1); sexual harassment in violation of the civilian manual and respondent's sexual harassment policy (Charge 2); and sexual harassment in violation of the state employee handbook (Charge 3). Employee grieved the charges and, after a hearing before an arbitrator, Employee was found guilty of charge 1 but Employee was found not guilty as to charges 2 and 3.

With respect to Charge 1, the arbitrator imposed a penalty of a six-month suspension without pay and, because Employee had already been suspended without pay in excess of "one month", the arbitrator ordered that Employee be reinstated to his position with back pay. 

Employee filed a CPLR §7510 petition seeking to confirm the arbitration award after Agency failed to reinstate him to the position. In response to Employee's petition, Agency sought to vacate the arbitration award with respect to Charges 2 and 3 and to impose a penalty of termination.

Supreme Court confirmed the award with respect to Charge 1 and vacated the award with respect to Charges 2 and 3 as irrational and against public policy. Supreme Court then found Employee guilty of Charges 2 and 3 and remitted the matter to a different arbitrator for the imposition of a new penalty. Employee appealed the Supreme Court's decision.

The Appellate Division observed:

1. "Judicial review of arbitral awards is extremely limited and, thus, arbitration awards may only be vacated in limited circumstances, including where the 'arbitrator . . . exceeded his [or her] power'"; and

2. "[A]rbitrators exceed their power within the meaning of the CPLR only when they issue an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power".

The Appellate Division opined that "An arbitrator that 'imposes requirements not supported by any reasonable construction of the [contract]' has, 'in effect, made a new contract for the parties' rendering the award subject to vacatur as irrational." 

Here, said the Appellate Division, when evaluating Charges 2 and 3, "the arbitrator was required to consider the definition of sexual harassment as provided in the civilian manual and in the employee handbook." In making the ultimate determination as to Counts 2 and 3, the Appellate Division said the arbitrator "disregarded the definition of sexual harassment as contained in the manual and the handbook and supplied additional requirements not contained in either".

Noting that courts can neither "substitute judicial opinion for the arbitrator's decision" nor "rule on either the merits of the underlying allegations or impose a remedy [that  it] feel is appropriate", the Appellate Division opined that "we must reverse those aspects of Supreme Court's order that did both".

Citing CPLR §7511 [d], the Appellate Division vacated "the portions of the award finding [Employee] not guilty of sexual harassment under [Charges] 2 and 3 and remit the matter to a new arbitrator for a new determination as to those charges and the imposition of an appropriate penalty". 

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

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A Reasonable Penalty Under The Circumstances - This e-book focuses on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York or a political subdivision of the state found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html.  

Municipal and School District audits released by the New York State Comptroller

On August 23, 2024, New York State Comptroller Thomas P. DiNapoli announced the following Municipal and School District audits were posted on the Internet.

Click on the text in COLOR to access the text of the audit.

Northeastern Clinton Central School District – Transportation State Aid (Clinton County)

District officials did not accurately apply for all applicable transportation aid. As a result, the district was at risk of losing aid totaling $391,494. However, once auditors informed officials of this risk, the school business manager promptly filed accurate aid applications with the State Education Department, and the aid was subsequently approved. Had officials established procedures to ensure transportation aid applications were accurately filed, the district’s aid may not have been delayed.

Northeastern Clinton Central School District – Foster Care Tuition Billing (Clinton County)

District officials did not properly bill tuition for nonresident foster care students enrolled at the district. As a result, as of June 30, 2023, officials had not billed $95,210 of the $129,538 in tuition to which it was entitled for the 2020-21 through 2022-23 school years and made tuition calculation errors totaling $3,036 in the amounts billed.

Campbell-Savona Central School District – Student State Aid (Steuben County)

District officials did not properly claim a total of $65,953 in potential state aid for special education and homeless students, including $29,939 of potential aid the district will not receive because officials did not file claims within the filing timeframes. Specifically, $57,176 in estimated state aid was not properly claimed by the district for some special education students and $8,777 in potential state aid was not properly claimed for some students classified as homeless.

Town of Summit – Town Clerk (Schoharie County)

Although fees were properly recorded, the town clerk did not always deposit or remit fees in a timely manner. Specifically, the clerk did not deposit 98% of the fees collected in accordance with state law which requires the clerk to deposit fees within three business days after total collections exceed $250. The clerk also did not perform monthly bank reconciliations or accountability analyses during the audit period.

Erie 2-Chautauqua-Cattaraugus Board of Cooperative Educational Services (BOCES) – Building Access Badge Accounts

BOCES officials did not properly manage and monitor badge accounts used to access BOCES buildings. Badges that remain active without a purpose can be lost, stolen or misused, potentially resulting in unauthorized building access. BOCES officials did not deactivate 48 badges that were no longer needed out of the 87 active non-employee individual badge accounts. They also created 25 duplicate accounts in the building access system and physical badges for current BOCES employees who already had badges. In addition, they did not deactivate and could not physically locate the badges for 15 of 25 shared accounts selected for testing. Lastly, an additional 48 shared accounts were discovered and deactivated because the badges were lost.

Town of Harpersfield – Claims Auditing (Delaware County)

The board did not properly audit claims to determine whether the claims represented actual and necessary expenditures and whether proposed payments were for valid purposes. Of the 428 claims totaling $478,628 that were paid during the audit period, auditors reviewed 124 claims totaling $400,604 and determined that the board did not properly audit individual claim packets and supporting documentation. Rather, the board reviewed only an abstract of unaudited claims each month and approved the abstracts for payment. Auditors found 30 claims totaling $69,281 were improperly paid before board approval and 22 claims were paid that included sales tax totaling $460.

Town of Otselic – Audit Follow Up (Chenango County)

Town officials have made almost no progress on implementing corrective action proposed in the original audit. Of the 11 audit recommendations, one was fully implemented, one recommendation was partially implemented, and nine recommendations were not implemented, including the recommendation that the board should require the supervisor to provide accurate monthly financial reports.

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Timely compliance with the notice requirements set out in CPLR §9802 critical to proceeding with a CPLR Article 78 action naming a village as a respondent

Upon the dissolution of the government of the Village of South Nyack, the Village police department was disbanded and its three remaining police officers were transferred to the police department of the Town of Orangetown pursuant to a written agreement. The agreement, signed by the three officers as well as representatives of the Village, the Town and the South Nyack Police Association, contained a provisions addressing the Village's officers' unused sick leave accruals. 

After their transfer to the Town police department, the three officers and the South Nyack Police Association [Plaintiffs] initiated a CPLR Article 78 naming the Village and the Village mayor and trustees as Respondents in an effort to compel the Village to compensate each officer for certain unused sick leave accruals. Respondents moved, among other things, to dismiss the proceeding or to dismiss the complaint insofar as asserted against the Village. 

The Supreme Court converted the proceeding into a plenary action and ultimately Supreme Court granted the Respondents' motion to dismiss the complaint insofar as the Village was named a party to the Article 78 action. Plaintiffs appealed the Supreme Court's decision.

The Appellate Division held that Supreme Court properly directed dismissal of the complaint insofar as asserted against the Village for failure to comply with the notice of claim requirements of CPLR §9802, citing Nioras v Village of Rye Brook, 74 AD3d 1036,  The Appellate Division's decision notes that §9802 provides that "no action shall be maintained against the village upon or arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued".

The Appellate Division said that the Plaintiffs failed to file a claim with the Village clerk and that a letter from Plaintiffs' attorney to the mayor of the Village, "did not constitute a claim".The Appellate Division also noted that although Plaintiffs' attorney's letter was dated prior to the dissolution of the Village, it was not filed with the Village clerk or verified "by the claimants ..., did not identify the claimants, and did not refer to a contract claim."

In the words of the Appellate Division, "[Supreme Court] properly granted that branch of the [Respondents'] motion which was to dismiss the complaint insofar as asserted against the Village for failure to comply with notice of claim requirements pursuant to CPLR 9802."

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

New York State and New York City audits posted on the Internet on August 22, 2024

On August 22, 2024, New York State Comptroller Thomas P. DiNapoli announced the following New York State and New York City audits were issued.

Click on the text in BLUE to access the text of the audit.

Department of Agriculture and Markets – Protection of Managed Pollinators (Honey Bees) (Follow-Up) (2023-F-43)
Honey bees are essential to the agricultural industry for the pollination services they provide. The State developed the New York State Pollinator Protection Plan in 2016 to address the high loss of pollinators in the State. A prior audit, issued in January 2023, found that the Department of Agriculture and Markets (Ag&Mkts) could strengthen its actions to combat disease and parasitic organisms within colonies by including additional tests for certain diseases and could improve its efforts to ensure honey bees entering the State are healthy and free from disease. Additionally, Ag&Mkts did not have support or reasonable assurance that it had identified the full population of active apiaries in the State, which is necessary for thorough monitoring and inspection purposes. Ag&Mkts made progress in addressing the issues identified in the initial audit report, implementing both recommendations.

Office of Temporary and Disability Assistance – Reimbursement of Homeless Shelter Providers – Rescue Mission Alliance of Syracuse (Follow-Up) (2024-F-2)
The Onondaga County Department of Social Services contracted with the not-for-profit Rescue Mission Alliance of Syracuse (Rescue Mission) to provide homeless services. The Office of Temporary and Disability Assistance (OTDA) is responsible for reviewing each shelter’s operating budget, working with the local departments of social services (Local Districts) to ensure that all required documents have been included, and assessing budgeted operating costs to verify that they are reasonable and necessary. A prior audit, issued in October 2022, found that, outside of OTDA’s oversight processes for the review and approval of shelter budgets, OTDA had not taken any action thereafter to ensure that shelters’ actual costs claimed for reimbursement complied with the approved budget, State laws and regulations, or OTDA’s own policies. OTDA made some progress addressing the issues from the original report, recovering an overpayment and establishing a system of monitoring controls over Local Districts. Of the initial report’s four recommendations, two were implemented, one was partially implemented, and one was not implemented.

Department of Corrections and Community Supervision – Oversight of Transportation Services and Expenses (Follow-Up) (2023-F-37)
Many of the Department of Corrections and Community Supervision’s (DOCCS) employees operate its vehicles in its day-to-day operations. Five of its 44 correctional facilities, as well as its Central Office and seven regional offices that provide support services for enrollees, exclusively use a centralized procurement contract (Contract) for fleet management and repair services. A prior audit, issued in June 2022, found DOCCS performed limited to no central monitoring of payments made through its Contractor and did not monitor in-house maintenance expenses, instead relying on each facility or office for accurate reporting. DOCCS officials made some progress in addressing the issues identified in the initial report, taking steps to implement procedures to monitor the Contractor’s performance and implementing a process to ensure maintenance costs are reasonable and comply with requirements. Of the initial report’s seven recommendations, two have been implemented, four have been partially implemented, and one has not been implemented.

New York City Department of Finance – Citywide Payment Services and Standards – Controls Over Payments (2022-N-2)
The New York City Department of Finance (DOF) Citywide Payments Services and Standards unit administers a centralized payment repository for accepting payments made to City agencies (System) intended to allow agencies to focus on their core business while helping them save time and money. Auditors found that DOF could improve controls and monitoring for its System to ensure payments are promptly reconciled. Further, they found that DOF does not attempt to determine whether the System promotes time and cost savings for agencies despite these savings being a stated goal of the System.

Office of Temporary and Disability Assistance – Reimbursement of Homeless Shelter Providers – Westhab Inc.’s Coachman Family Center (Follow-Up) (2024-F-1)
The Westchester County Department of Social Services contracted with the not-for-profit Westhab Inc. (Westhab) to operate Coachman Family Center as a certified shelter for families with children. The Office of Temporary and Disability Assistance (OTDA) is responsible for reviewing each shelter’s operating budget, working with the local departments of social services (Local Districts) to ensure that all required documents have been included, and assessing budgeted operating costs to verify that they are reasonable and necessary. A prior audit, issued in March 2022, found that OTDA was not adequately monitoring and properly approving reimbursements for Westhab’s homeless shelter program, nor had OTDA established an effective budget review process for shelter budgets. OTDA officials made some progress in addressing the issues identified during the initial audit, recovering overstated depreciation and establishing a system of monitoring controls to improve oversight of Local Districts’ reimbursement to providers. Of the initial report’s six audit recommendations, two were implemented, one was partially implemented, and three were not implemented.

New York State Health Insurance Program – Anthem Blue Cross – Coordination of Benefits With Medicare (2023-S-3)
The Empire Plan is the primary health benefits plan for the New York State Health Insurance Program, administered by the Department of Civil Service (Civil Service). Civil Service contracts with Anthem Blue Cross (Anthem) to administer the Hospital Program of the Empire Plan, and many enrollees and their dependents have other insurance coverage in addition to the Empire Plan such as Medicare. Coordination of benefits is a process health insurance companies use for paying health care claims when people are covered by more than one insurance plan. For the audit period, auditors found Anthem improperly paid 241 claims totaling $5,259,416 because proper coordination of benefits did not occur. Anthem’s eligibility system was not always updated promptly with members’ Medicare-related information, and weaknesses in Anthem’s and Civil Service’s reconciliation of member enrollment data prevented opportunities for recovery.

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