Municipal Zero-Emission Vehicle Rebate Program application filing deadline is September 27, 2024

In April 2024, DEC announced the most recent round of DEC’s Municipal Zero-Emission Vehicle (ZEV) Rebate program, which makes a total of $750,000 available to municipalities for the purchase or lease of zero-emission light- and medium-duty fleet vehicles. These zero-emission vehicles will help New York State achieve the greenhouse gas emission reduction requirements of the State’s Climate Act.

DEC is accepting applications through September 27, 2024. Rebates are available to municipalities that purchase or lease, for a minimum of 36 months, an eligible vehicle placed into municipal service at a dealership in New York State between Sept. 30, 2022, and Sept. 27, 2024. Electric, plug-in hybrid, and hydrogen fuel cell vehicles are eligible for rebates.

More details on municipal ZEV rebates can be found in the request for applications posted on the DEC website. 

Applications are available through the New York Statewide Financial System Grants Management System.

Testing the constitutionality of legislative enactments

Plaintiffs commenced this action seeking a judgment declaring that the New York State Legislature violated Article XIX §1 of the New York State Constitution in adopting certain legislation because it advanced a proposed amendment to the Constitution before the Attorney General rendered an opinion in writing as to the effect of the proposed amendment upon other provisions of the Constitution and before the expiration of the 20-day period proscribed for the Attorney General to issue such an opinion.

Defendants Senate of the State of New York, et al, and Assembly of the State of New York, et al, collectively "Majority Defendants",  contended that Plaintiffs' action was properly a CPLR Article 78 proceeding and that the four-month statute of limitations applicable to such a proceeding has expired.

Plaintiffs cross-moved for summary judgment on its complaint and Supreme Court converted the Majority Defendants' motion to dismiss into one seeking summary judgment. Supreme Court granted the Majority Defendants' motion to the extent it sought summary judgment dismissing the complaint against certain named respondents but otherwise denied the Majority Defendants' motion. Supreme Court, then granted Plaintiffs' cross-motion and issued a declaration in their favor.

Majority Defendants appealed Supreme Court's judgment "to the extent that it denied the Majority Defendants' motion and granted the Plaintiffs' cross-motion". The Appellate Division reversed Supreme Court's judgment "insofar as appealed from".

The Appellate Division, citing New York City Health and Hosps. Corp. v McBarnette, 84 NY2d 194, explained that in the event a proceeding or action against a state entity "has been commenced in the form of a declaratory judgment action, for which no specific Statute of Limitations is prescribed, it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought in order to resolve which Statute of Limitations is applicable". However, noted the Appellate Division, "[I]f the claim could have been made in a form other than an action for a declaratory judgment and the limitations period for an action in that form has already expired, the time for asserting the claim cannot be extended through the simple expedient of denominating the action one for declaratory relief", citing  Matter of Foley v Masiello, 38 AD3d 1201.

The Appellate Division opined that it is well settled that "proceeding under article 78 is not the proper vehicle to test the constitutionality of legislative enactments" in contrast to a judicial challenge directed at the procedures followed by the legislature rather than the substance of the enactment, which "... is maintainable in an article 78 proceeding," citing Matter of Save the Pine Bush v City of Albany, 70 NY2d 193.

While Plaintiffs characterize the complaint "as a challenge to the constitutionality of [Majority Defendants'] actions," the Appellate Division said "[it] actually alleges an erroneous application of a constitutional provision relating to the procedure by which" the proposed amendment was advanced, and therefore it would have been proper to "proceed[ ] by way of a CPLR article 78 proceeding".  Accordingly, said the Appellate Division, the "sole cause of action here is subject to the four-month statute of limitations and is time-barred."

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

 

State and New York City audits of departments and agencies issued

On September 15, 2024, New York State Comptroller Thomas P. DiNapoli announced the following audits of departments and agencies of State and New York City were issued.

        Click on the text highlighted in color to access the audit report posted on the Internet. 

Office of Temporary and Disability Assistance – Controls Over the Empire State Supportive Housing Initiative (2022-S-34)  The Empire State Supportive Housing Initiative’s (ESSHI) goal is to develop 20,000 units of supportive housing over the 15-year period ending in 2031. The Office of Mental Health serves as the lead procurement agency for ESSHI, which provides up to $25,000 annually per individual or unit toward supportive housing for vulnerable populations experiencing homelessness. Auditors found significant deficiencies in OTDA’s oversight of the ESSHI program, including insufficient monitoring of contract requirements, inadequate conditions at some housing units, and inadequate case management for support services.

New York City Civilian Complaint Review Board – Complaint Processing (Follow-Up) (2024-F-8)  The New York City Civilian Complaint Review Board (CCRB) receives, investigates, prosecutes, mediates, hears, makes findings, and recommends action on civilian complaints filed against members of the New York City Police Department. A prior audit, issued in October 2022, found that CCRB did not complete investigations in a timely manner and did not have performance measures in place to effectively monitor lengthy investigations, weaknesses that could jeopardize CCRB’s ability to hold officers accountable for misconduct. CCRB made some progress in addressing the issues identified in the initial audit report, partially implementing two of the four recommendations and not implementing two.  

State Education Department (Preschool Special Education Audit Initiative) – Small Wonder Preschool, Inc. – Compliance With the Reimbursable Cost Manual (2023-S-36)  Small Wonder Preschool, Inc. (Small Wonder), a not-for-profit special education provider in New York City, is approved by the State Education Department (SED) to provide education services to children with disabilities who are between the ages of 3 and 5. For the three fiscal years ended June 30, 2021, Small Wonder reported approximately $5.9 million in reimbursable costs for the SED preschool cost-based program. Auditors identified $264,701 in reported costs that did not comply with requirements.

Office of Children and Family Services – Oversight of Child Protective Services (Follow-Up) (2024-F-6) The Office of Children and Family Services (OCFS) is responsible for overseeing the locally administered child welfare system, including 58 local departments of social services (LDSSs). To improve practices within LDSSs, OCFS implemented a Program Quality Improvement (PQI) process in January 2020. A prior audit, issued in January 2023, found that OCFS could make improvements to child fatality and PQI reviews. OCFS made some progress in addressing the problems identified in the initial audit, fully implementing one of the three recommendations and partially implementing the other two.

Office of General Services – Monitoring of Construction Management (Follow-Up) (2023-F-44) GS) operates the Design & Construction Group, which provides State agency clients a full range of architectural, engineering, contracting, and construction management services. If OGS determines that a construction management consultant is needed, it solicits bids through a Request for Proposals (RFP), and for each proposal, completes a Cost and a Technical Review, including an assessment of the bidder and minority-and-women-owned business enterprise (MWBE), small business, and subcontracting goals. A prior audit, issued in December 2021, found that several areas of OGS monitoring of construction management contracts needed improvement. Auditors found $207,316 paid to a State-certified women-owned business enterprise should not have been claimed as credits toward the MWBE goals and one construction management consultant’s bid proposal, for a contract valued at approximately $1.8 million, did not meet the criteria outlined in the RFP, yet this was not reflected in OGS’ evaluation and scoring. OGS officials made significant progress in addressing the issues identified in the initial audit report, implementing three of the four recommendations and partially implementing the final one. 

Department of Health – Management of Indoor Air Quality for Individuals With Asthma (Follow-Up) (2024-F-4) Asthma is a significant public health problem in the United States. Reducing asthma triggers is one objective of the Department of Health’s (DOH) Healthy Neighborhoods Program, designed to provide environmental health services to targeted high-risk neighborhoods. The program contracts with Local Health Departments (LHDs) to perform in-home visits and assessments to raise awareness of and help families manage asthma in order to reduce hospitalizations. A prior audit, issued in August 2022, found that DOH needed to improve its oversight and monitoring of LHDs to ensure that individuals identified with asthma in targeted areas continued to receive appropriate assistance. DOH officials made some progress in addressing the problems identified in the initial audit report, partially implementing four of the initial report’s six recommendations and not implementing two.

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New York State's Workers Compensation Board to initiate "Case Indexing" on September 26, 2024

To promote efficient resolution of workers’ compensation claims, the New York State Workers’ Compensation Board will begin indexing every complete case on Sept. 26, 2024, for cases assembled on or after this date. Relevant Internet links to information concerning "Case Indexing" are highlighted in color below.

For information on the announcement, see Subject Number 046-1704.

As a result, the majority of claims assembled that contain a medical report of treatment and either an Employee Claim (Form C-3) or First Report of Injury (FROI) will be indexed by the Board. The only exceptions will be:

• Claims already controverted (by the filing of a FROI-04 or SROI-04) at the time they became eligible for indexing.
• Claims already accepted without liability (under the provisions of WCL-§21-a) at the time they became eligible for indexing.
• Claims without any lost time from work, that have been identified as “Medical Only” claims, where the Agreement to Compensate Code (ATC) has been left blank. Currently, a payer filing a FROI in a medical-only claim is required to include an ATC code of L-With Liability unless the claim is controverted. As part of this initiative, beginning Sept. 26, 2024, payers filing an initial FROI in a medical-only case will not be required to select an ATC code and may leave it blank.
• Note: If a medical-only claim becomes lost time, it will be indexed. Payers must update their filings if the worker starts losing time related to the previously medical-only claim, including making a decision on accepting liability.

All other standards regarding the provision of notice and the first payment of benefits by payers remain in place.

Therefore, within 25 days of the date when the Board indexes a claim, the payer should:

• Accept liability for the claim, or
• Controvert the claim, or
• Provide notice that it is initiating payment of lost wage benefits or prescribed medicine without accepting liability for the claim under the provisions of WCL §21-a.

Denials of indexed claims must be filed with the Board within 25 days of the indexing date or defenses listed in Workers’ Compensation Law Section 25(2)(b)) may be barred. The Board provided advance notice of this on Dec. 15, 2023, to allow stakeholders sufficient time to facilitate compliance.

Questions? Click HERE to E-mail the Office of General Counsel.

A New York state or municipal public employee's vested right to administrative due process in a disciplinary action may survive the individual's retirement

A complaint was filed against two tenured employees in the Classified Service employed by the New York City Fire Department [Department] with the New York City's Department Equal Employment Opportunity [EEO], alleging that two individuals employed by the Department had engaged in unlawful retaliatory conduct against another of the Department's employee because that other employee's spouse had filed a charge of unlawful discrimination with the United States Equal Employment Opportunity Commission. Following an investigation, EEO had issued determinations finding that there was sufficient credible evidence that the employees named in the complaint had engaged in unlawful retaliatory conduct and referring the matter to the Department's Bureau of Investigations and Trials. These determinations were placed in the files of the EEO Office.

Local 621, S.E.I.U. [SEIU] commenced this hybrid CPLR Article 78 proceeding seeking [1] review of the Department's determinations and [2] an action to recover damages alleging the Department had denied its two members administrative due process "because they were not afforded hearings prior to [these] determinations being placed in the files". The Department, pursuant to CPLR §3211(a), moved to dismiss the "second amended petition/complaint".

Supreme Court granted the Department's motion, denied the second amended petition/complaint, and dismissed the proceeding/action. SEIU appealed the Supreme Court's ruling.

Citing Matter of Taylor v Justice Ctr. for the Protection of People with Special Needs, 182 AD3d 815 and Matter of Ortiz v Simmons, 67 AD3d 1208, the Appellate Division, noting that one of SEIU's members involved in the instant litigation had retired from the Fire Department, explained "so much of the second amended petition/complaint as was asserted by him is not academic, as the determination that there was sufficient credible evidence that he had engaged in retaliatory conduct still remains, and its existence may affect him, such as in his attempt to secure future employment."

Observing that Civil Service Law §75 typically provides that permanent civil service employees may not be subjected to a disciplinary penalty without a hearing and afforded other due process safeguards, the Appellate Division noted that "Disciplinary penalties include a reprimand." 

Here, opined the Appellate Division, by failing to hold a hearing, the Department failed to provide the SEIU's members in this action the procedural protections set out in §75 of the Civil Service Law. The court then ruled that Supreme Court should not have denied the relevant branch of the SEIU's motion and granted that relevant part of SEIU's second amended petition, annulling EEO's the determinations and directed that the relevant EEO determinations "be expunged from the Department's files".

The Appellate Division, however, also ruled that "Supreme Court properly granted those branches of the [Department's] motion which were pursuant to CPLR 3211(a) to dismiss the causes of action to recover damages for unlawful retaliation in violation of NYSHRL and NYCHRL, as the second amended petition/complaint failed to sufficiently allege potentially actionable retaliatory conduct."

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