Rebutting a statutory presumption

Petitioner, a retired firefighter, filed an application for accidental disability retirement benefits, alleging that he was permanently incapacitated from the performance of his duties as a result of his inhalation of toxins present on the fire apparatus that he serviced and cleaned after the equipment had returned from Ground Zero after "9/11".

Conceding Petitioner was permanently incapacitated from the performance of his duties as a firefighter, the New York State and Local Retirement System [NYSERS] denied Petitioner's application for accidental disability retirement benefits because it had determined that his disability was not related to any of the conditions set out in Retirement and Social Security Law §363-d.

A Hearing Officer subsequently found that NYSERS had “successfully rebutted the statutory presumption set forth in Retirement and Social Security Law §363-d, which finding was sustained by the State Comptroller. Petitioner appealed the Comptroller’s decision contending that the Comptroller had erred in concluding that Petitioner’s conceded incapacitation was not attributable to his diagnosed prostate cancer and, further, that the Retirement System failed to rebut the statutory presumption.

The Appellate Division disagree with Petitioner's contentions, noting that substantial evidence supported the Hearing Officer's and NYSERS’ findings that Petitioner's retirement “was not in fact occasioned by any of the conditions listed in Retirement and Social Security Law §363-d.”

Further, opined the court, “Substantial evidence also supports the alternative ground for the denial of [Petitioner’s accidental disability] application — namely, that the medical report submitted by the Retirement System's expert was sufficient to rebut the statutory presumption.”

Citing Matter of Hannon v DiNapoli, 226 AD3d 1122, the Appellate Division pointed out that the Comptroller “is vested with the authority to resolve conflicting medical evidence . . . and to credit one expert's opinion over another”. Again noting that the Comptroller’s decision “will be sustained if supported by substantial evidence", the Court said that it was satisfied that there was substantial evidence sufficient to rebut the statutory presumption, thereby warranting the denial of Petitioner's application for accidental disability retirement benefits.

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

 

Audits of several State of New York departments issued

On April 15, 2025, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued.

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

Department of Health – Improper Medicaid Payments for Outpatient Services Billed as Inpatient Claims (Follow-Up) (2024-F-26)
A recipient’s status in a hospital—inpatient versus outpatient—affects Medicaid’s reimbursement for services provided, with outpatient services generally costing less. A prior audit, issued in August 2023, identified 34,264 fee-for-service inpatient claims, totaling $360.6 million, where hospitals reported Medicaid recipients were discharged within 24 hours of admission, indicating a high risk that a portion of these claims were improper if the services provided should have been billed as outpatient. From a judgmental sample of 190 claims, totaling $4,261,428, from six hospitals, auditors found 91 claims (48%), totaling $1,577,821, were billed improperly. Department of Health and Office of the Medicaid Inspector General officials made little progress in addressing the problems identified in the initial audit report, partially implementing three of five recommendations and not implementing two.

New York State Health Insurance Program: CVS Caremark – Accuracy of Empire Plan Commercial Rebate Revenue Remitted to the Department of Civil Service (2023-S-42)

The New York State Health Insurance Program (NYSHIP), administered by the Department of Civil Service (Civil Service), provides health insurance coverage to about 1.2 million active and retired State, participating local government, and school district employees, and their dependents. The Empire Plan is the primary health benefits plan for NYSHIP, covering over 1 million members. Since 2014, the Department of Civil Service has contracted with CVS Caremark to administer the prescription drug program. In accordance with the contracts, CVS Caremark was required to negotiate agreements with drug manufacturers for rebates, discounts, and other consideration (collectively referred to as “rebates”) and remit the rebate revenue to Civil Service. Based on judgmental samples of 10 manufacturers and 25 drugs, auditors identified $1,160,286 in rebates that is due to Civil Service from CVS Caremark.

State University of New York – Oversight of the Educational Opportunity Program (2024-S-2)
The State University of New York (SUNY) operates the Educational Opportunity Program (EOP), which provides access, support, and financial aid for disadvantaged students who show the potential to succeed despite poor academic preparation and limited financial resources. EOP includes a pre-freshman summer orientation program for incoming students and provides support and enrichment programs, including career advising, tutoring, and personal counseling, throughout students’ enrollment. During the Fall 2023 semester, EOP operated on 28 State-operated SUNY campuses and served 5,969 EOP participants. While SUNY is monitoring EOP, and campuses were generally using the funds for allowed purposes, auditors identified some unallowable or insufficiently supported transactions and lack of support that some counseling services to students were actually provided.

Department of Motor Vehicles – Assessable Expenses of Administering the Motor Vehicle Financial Security Act and the Motor Vehicle Safety Responsibility Act for the State Fiscal Year Ended March 31, 2024 (2024-M-2)
The Motor Vehicle Financial Security Act and the Motor Vehicle Safety Responsibility Act help ensure that the operators of motor vehicles driven in New York State possess adequate insurance coverage, or are financially secure, to compensate those persons they might injure or whose property they might damage as a result of an accident. The Department of Motor Vehicles is responsible for tracking the expenses of administering the acts and assessing these expenses on insurance carriers that issue policies or contracts of automotive bodily injury insurance. Auditors found that the expenses for administering the acts for the State Fiscal Year ended March 31, 2024 totaled $33.2 million.

City University of New York – Open Educational Resources (2023-N-4)
Open Educational Resources (OER) are any teaching, learning, and research materials that are in the public domain or are under copyright but have been released under an open license and are available to students at no or low cost. During the six City University of New York (CUNY) fiscal years ended June 30, 2023, CUNY received a total of $24 million in New York State funds to expand OER initiatives as part of an effort to create OER to reduce textbook costs. To maximize the effectiveness and transparency of CUNY’s OER program, improvements are needed in oversight and accountability. For example, auditors found CUNY did not track $17,674,400 of the $24 million in OER funds received from the State for the 2018–2023 CUNY fiscal years, providing no assurance the funds were used for course conversion and OER activities. CUNY also spent $238,094 in other than personal services expenses that were unsupported, not OER related, or questionable, and auditors found errors and omissions in CUNY’s OER reporting that could be misleading to students when registering for courses.

Suing a department of a town in New York State

In Michael H. Winter v Cornwall Police Department, 2025 New York Slip Opinion 02099, Plaintiff sued the Town of Cornwall's Police Department seeking damages Plaintiff claimed to have suffered resulting from the Police Department's alleged negligence. 

Supreme Court's granting the Town of Cornwall's motion made pursuant to CPLR 3211(a)(7) to dismiss Plaintiff's complaint "for failure to state a cause of action". Plaintiff appealed Supreme Court's ruling to the Appellate Division.

Citing Town Law §150[1] and Stevens v Town of E. Fishkill Police Dept., 198 AD3d 832, the Appellate Division rejected Plaintiff's appeal, holding that Supreme Court had properly granted the Town's motion to dismiss Plaintiff's complaint insofar as asserted against the Town's Police Department. The Court noted that a department of a town such as its police department does not have a legal identity separate and apart from the municipality and, as such, "cannot independently be sued."

In addition, the Appellate Division held Supreme Court "properly granted" that branch of the Town's motion to dismiss Plaintiff's cause of action alleging negligence insofar as asserted against the Town. 

In the words of the Appellate Division, "Contrary to the [Plaintiff's] contention, [Plaintiff] failed to allege that the Town voluntarily assumed a special duty to him beyond that owed to the general public, citing  Maldovan v County of Erie, 39 NY3d 166, and Ferreira v City of Binghamton, 38 NY3d 298.

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

Former Village Mayor found guilty of stealing village funds sentenced

On April 15, 2025, New York State Comptroller Thomas P. DiNapoli and State Police Superintendent Steven G. James announced that former Village of Candor Mayor Eric Halstead was sentenced to 60 days in jail for his theft of $23,000 in village funds*, an act sometimes referred to as "Jobbery".*

“Halstead was elected to serve his community but chose instead to steal from it,” DiNapoli said. “He now faces the consequences of his crime. Public corruption does lasting damage to people’s confidence in the institutions that exist to serve them. My thanks to Tioga County District Attorney Kirk Martin and State Police Superintendent Steven James for partnering with my office to ensure that justice was served in this case.”

State Police Superintendent James said, “The sentencing of Mr. Halstead demonstrates the vital collaborative work of our law enforcement partners focused on the same goal; holding those who break our laws accountable. The victims in this case are the people of New York who put their trust in the former village of Candor Mayor. I commend our State Police members, our partners at the Comptroller’s Office and Tioga County District Attorney’s Office for their commitment to investigating those who prey on the unsuspecting public for their own gain.”

Halstead’s crime was uncovered when unusual entries referring to ATM withdrawals and a “Mayor’s discretionary fund” were found in the village’s records. A subsequent investigation by DiNapoli’s office and law enforcement determined that Halstead stole $23,519 in village funds from February 2017 to May 2023. At random intervals he put money back into the village’s accounts totaling $19,302.

Halstead served as Candor’s mayor from 2012 until his resignation in July 2024. He pled guilty to Grand Larceny in the third degree in January 2025 and paid full restitution.

He was sentenced before Judge Adam R. Schumacher in Tioga County Court. As part of his sentence he is barred from running for public office ever again.

* Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain". 

###

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by emailing a complaint to investigations@osc.ny.gov or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Producing certain law enforcement officer investigatory and disciplinary records in response to a New York State Freedom of Information Law request

The Petitioners in this CPLR Article 78 action had requested the Suffolk County Police Department [SCPD] produce investigatory and disciplinary records relating to allegations of misconduct involving SCPD's sworn police officers.

SCPD granted so much of the Petitioners' FOIL request as involved disciplinary records related to allegations of police officer misconduct classified as "substantiated," with "authorized redactions" but denied so much of the Petitioners' FOIL request it deemed involved investigatory and disciplinary records related to allegations of police officer misconduct classified as unsubstantiated, unfounded, or exonerated. Petitioners appealed SCPD's withholding those records it deemed "unsubstantiated," "unfounded," or "exonerated" with respect to certain police officers on the ground that such records were exempt from disclosure pursuant to Public Officers Law §87(2)(b).  

Supreme Court directed SCPD to disclose unsubstantiated, unfounded, or exonerated allegations records of alleged police officer misconduct, subject to any authorized redactions or exemptions authorized by law. SCPD appealed the Supreme Court's ruling.

The Appellate Division, observing that "FOIL proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government", opined "[a]ll government records are presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2)".

Citing Matter of Gannett Co., Inc. v Town of Greenburgh Police Dept., 229 AD3d 789, the Appellate Division opined "Contrary to [SCPD's] contention", the withheld records of unsubstantiated, unfounded, or exonerated allegations of police officer misconduct "were not categorically exempt from disclosure". 

In the words of the Appellate Division: "Disclosure of the withheld records of unsubstantiated, unfounded, or exonerated allegations of police officer misconduct was therefore required unless those records '[fell] squarely within the ambit of one of [the] statutory exemptions [set out in Public Officers Law §87(2)]'".

Although SCPD had relied on the privacy exemption set out in Public Officers Law §87(2)(b) in denying the production of certain records, the Appellate Division explained that the privacy exemption "authorizes an agency to deny access to records or portions of such records that 'if disclosed would constitute an unwarranted invasion of personal privacy'" and that FOIL directs "disclosure shall not be construed to constitute an unwarranted invasion of personal privacy' when, among other possibilities, identifying details are deleted".

Further, opined the Appellate Division, "Consistent with the policy of broad public access, the exemptions are to be narrowly construed, and the burden rests on the agency to demonstrate that the requested material qualifies for exemption" and to "meet its burden, the party seeking exemption must present specific, persuasive evidence that the materials falls within the exemption".

As SCPD had withheld the requested records containing "unsubstantiated, unfounded, or exonerated allegations of police officer misconduct in their entirety and did not articulate any particularized and specific justification for withholding any of those records," the Appellate Division concluded SCPD "did not meet [its] burden of establishing that the privacy exemption applied".

Accordingly, the Appellate Division affirmed the Supreme Court's ruling, holding that the lower court had properly directed SCPD to disclose records of unsubstantiated, unfounded, or exonerated allegations of police officer misconduct, "subject to any [FOIL] authorized redactions or exemptions".

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