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Sep 8, 2025

Audits of State Departments and Agencies and press releases reporting Jobbery by certain public employees

New York State Comptroller Thomas P. DiNapoli announced that the audits of State departments and agencies listed below were issued issued on September 5, 2025.

Click on the text highlighted in COLOR to access these audits posted on the Internet


Metropolitan Transportation Authority: Long Island Rail Road – Non-Revenue Service Vehicles and On-Rail Equipment (Follow-Up) (2024-F-17)

The Metropolitan Transportation Authority’s (MTA) Long Island Rail Road (LIRR) Engineering Department is responsible for the overall administration of fleet vehicles—cars, SUVs, trailers, trucks, and vans—as well as the maintenance of 396 pieces of on-rail equipment. A prior audit, issued in May 2023, found Engineering did not have written policies or procedures for keeping its vehicle fleet inventory or performing vehicle maintenance, did not always complete preventive maintenance or the required New York State inspections, and did not do a complete analysis of the cost to lease or purchase the vehicles, finding one vehicle cost $81,000 more over the 58 months it was leased than it would have cost to purchase. The MTA made some progress in addressing the problems identified in the initial audit report. Of the initial report’s 13 audit recommendations, three were implemented, four were partially implemented, and six were not implemented.


Metropolitan Transportation Authority – Transformation of the MTA (2022-S-5)

In April 2019, the New York State Legislature enacted changes in the Public Authorities Law requiring the Metropolitan Transportation Authority (MTA) and its affiliated entities to develop and complete a personnel and reorganization plan no later than June 30, 2019. The legislation expected to transform the organization through elimination of redundancies, streamlining processes, and greater collaboration to improve customer service, achieve greater efficiency, and realize cost savings. Auditors found the MTA did not have a working plan for Transformation that identified the tasks to be completed and included specific dates and cost savings. Full Transformation and delivery of the goals the Transformation Plan promised—improved customer service, process efficiencies, and cost reductions—were not supported by the work completed or based on documentation provided by the six departments reviewed.


Department of Corrections and Community Supervision – Controls Over Tablet and Kiosk Usage by Incarcerated Individuals (Follow-Up) (2024-F-28)

To serve the needs of the incarcerated individuals in its custody, the Department of Corrections and Community Supervision (DOCCS) contracted with Securus and its subsidiary JPay Inc. (Provider) to provide access to tablets and kiosks at no cost to incarcerated individuals, which they can use to access DOCCS-approved educational material, purchase DOCCS-approved media, and communicate with family and friends using a fee-based secure messaging system. A prior audit, issued in May 2023, found that DOCCS did not know how many individuals had opted in/out of the tablet program, did not internally monitor the numbers of active tablets at its facilities, did not verify the identity of community members corresponding with incarcerated individuals through secure messaging, did not adequately capture all the risks to incarcerated individuals and others through its secure message content screening process, did not adequately oversee the security and configurations of certain assets, and did not ensure systems were maintained at vendor-supported levels required to preserve the accuracy and integrity of DOCCS information. DOCCS asserted that it was not responsible for the tablet program, which it described as a relationship between the Provider and incarcerated individuals. DOCCS officials made some progress in addressing the problems identified in the initial audit report. Of the report’s seven audit recommendations, one was implemented, three were partially implemented, and three were not implemented.


CVS Health – Accuracy of Empire Plan Medicare Rx Drug Rebate Revenue Remitted to the Department of Civil Service (Follow-Up) (2024-F-24)

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). Individuals who are dual enrolled in the Empire Plan and Medicare have their prescription drug coverage under Empire Plan Medicare Rx. CVS Caremark, which contracted with Civil Service to administer the prescription drug program, is required to negotiate agreements with drug manufacturers for rebates, discounts, and other consideration and remit the rebate revenue to Civil Service. A prior audit, issued in June 2023, identified $10,723,916 in rebates due to Civil Service from CVS Caremark. CVS Caremark made some progress in addressing the issues identified in the initial audit, recovering and remitting $419,233 in rebates to Civil Service. Of the initial report’s two audit recommendations, one was partially implemented and one was not implemented.


Department of Health – Reducing Medicaid Costs for Recipients Who Are Eligible for Medicare (Follow-Up) (2025-F-8)

Individuals who are eligible or appear eligible for Medicare are required to apply for Medicare as a condition of receiving Medicaid. When Medicaid recipients are also enrolled in Medicare, Medicare becomes the primary payer and Medicaid the secondary, which allows for a significant cost avoidance for the Medicaid program. A prior audit, issued in September 2023, found, from July 2016 through June 2021, 13,318 Medicaid recipients who appeared eligible for Medicare based on age were not enrolled in Medicare. Medicaid could have potentially saved $294.4 million on behalf of these recipients for claims that could have been covered by Medicare as the primary payer. At the time of follow-up, auditors found Department of Health officials made little progress in addressing the problems identified in the initial audit report, and additional actions are needed. Of the initial report’s three audit recommendations, one was implemented, one was partially implemented, and one was not implemented.


State Education Department (Preschool Special Education Audit Initiative): UCPA of Cayuga County d.b.a. E. John Gavras Center – Compliance With the Reimbursable Cost Manual (2024-S-10)

UCPA of Cayuga County d.b.a. E. John Gavras Center (Gavras Center), a not-for-profit special education provider located in Auburn, is authorized by the State Education Department (SED) to provide Preschool Integrated Special Class (over 2.5 hours per day) and Preschool Integrated Special Class (2.5 hours per day) education services to children with disabilities who are between the ages of 3 and 5 years. For the three fiscal years ended June 30, 2021, the Gavras Center reported approximately $4.3 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $625,534 in reported costs that did not comply with requirements.


State Education Department (Preschool Special Education Audit Initiative): The Arc Franklin-Hamilton d.b.a The Adirondack Arc – Compliance With the Reimbursable Cost Manual (2024-S-32)

The Arc Franklin-Hamilton d.b.a. The Adirondack Arc (Adirondack), a not-for-profit special education provider located in Tupper Lake, is authorized by the State Education Department (SED) to provide Preschool Special Class (over 2.5 hours per day) education services to children with disabilities between the ages of 3 and 5 years. For the three fiscal years ended June 30, 2021, Adirondack reported approximately $3.9 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $76,812 in reported costs that did not comply with requirements.


Erie County Medical Center Corporation – Security Over Critical Systems (2023-S-48)

Erie County Medical Center Corporation (ECMCC) is a leading health care provider and academic medical center in Western New York. ECMCC’s IT Security Architecture emphasizes key principles such as the least privilege, data classification, and separation of duties. Auditors identified areas where ECMCC could improve certain security controls to minimize risks associated with unauthorized access to its systems and data. Due to the confidential nature of the audit findings, auditors communicated the details of these findings with eight recommendations in a separate, confidential report to ECMCC officials for their review and comment. ECMCC officials generally agreed with the findings and recommendations and, in several instances, indicated they were planning actions to address them.


On September 5, 2025, State Comptroller DiNapoli also reported on two cases involving "jobbery" by public employees.

As noted in previous NYPPL reports of misconduct involving a public employee stealing public funds, such breaches of the public trust are frequently referred to as "jobbery." Merriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain". 

The two most recent cases of jobbery reported by the Comptroller are set out below:

1. State Comptroller Thomas P. DiNapoli, Wayne County District Attorney Christine Callanan and New York State Police Superintendent Steven G. James announced that William Storrs, the former chief and treasurer of the Marbletown Volunteer Fire Department, was sentenced to four months of weekends in the Wayne County Jail and five years of probation for stealing more than $101,000 from the department. He was also ordered to pay a total of $101,394.50 in restitution.

“William Storrs abused the trust of the community he was sworn to serve and protect by stealing over $100,000 in fire department funds for his own profit,” DiNapoli said. “Thanks to our partnership with the New York State Police and District Attorney Callanan, he has been held accountable for his crimes and the money he stole will be recovered.”

Callanan said, “Public funds exist to serve the community, not to line the pockets of those in power. Mr. Storrs’ theft was a serious breach of duty, but today he has been held to account and ordered to repay every dollar he stole. Let this outcome serve as a warning: anyone who abuses their position for personal gain will face consequences, and the resources they took will be restored to the people they belong to.”

James said, “Fire chiefs take an oath to place the well-being of others above themselves, and as such, are held to a high standard. Mr. Storrs had no regard for the department or community and knowingly took advantage of a position he was entrusted in and promised to uphold. I thank our State Police members and partners at the Comptroller’s Office and Wayne County District Attorney’s Office for their diligent work on this case.”

DiNapoli’s office and the New York State Police launched a joint investigation into the Marbletown Fire Department in 2024, looking into allegations of theft. They found Storrs used his position as treasurer and then later as chief to steal $101,000 over four years. From January 2020 to July 2024, he made numerous personal purchases with the fire department’s debit cards and made direct payments from the department’s bank accounts to his personal accounts. He also made payments to his wife’s credit card and purchased items from various retailers.

The theft was discovered when a member of the fire department attempted to make a purchase with the department’s debit card and it was declined due to lack of funds. Fire department officials then reported the unauthorized activity to the State Police who partnered with DiNapoli’s office. In July 2024, Storrs was replaced as chief and suspended from the fire department.

Storrs was sentenced before Judge Richard M. Healy in Wayne County Court.


2. State Comptroller Thomas P. DiNapoli, Wayne County District Attorney Christine Callanan and New York State Police Superintendent Steven G. James announced that William Storrs, the former chief and treasurer of the Marbletown Volunteer Fire Department, was sentenced to four months of weekends in the Wayne County Jail and five years of probation for stealing more than $101,000 from the department. He was also ordered to pay a total of $101,394.50 in restitution.

“William Storrs abused the trust of the community he was sworn to serve and protect by stealing over $100,000 in fire department funds for his own profit,” DiNapoli said. “Thanks to our partnership with the New York State Police and District Attorney Callanan, he has been held accountable for his crimes and the money he stole will be recovered.”

Callanan said, “Public funds exist to serve the community, not to line the pockets of those in power. Mr. Storrs’ theft was a serious breach of duty, but today he has been held to account and ordered to repay every dollar he stole. Let this outcome serve as a warning: anyone who abuses their position for personal gain will face consequences, and the resources they took will be restored to the people they belong to.”

James said, “Fire chiefs take an oath to place the well-being of others above themselves, and as such, are held to a high standard. Mr. Storrs had no regard for the department or community and knowingly took advantage of a position he was entrusted in and promised to uphold. I thank our State Police members and partners at the Comptroller’s Office and Wayne County District Attorney’s Office for their diligent work on this case.”

DiNapoli’s office and the New York State Police launched a joint investigation into the Marbletown Fire Department in 2024, looking into allegations of theft. They found Storrs used his position as treasurer and then later as chief to steal $101,000 over four years. From January 2020 to July 2024, he made numerous personal purchases with the fire department’s debit cards and made direct payments from the department’s bank accounts to his personal accounts. He also made payments to his wife’s credit card and purchased items from various retailers.

The theft was discovered when a member of the fire department attempted to make a purchase with the department’s debit card and it was declined due to lack of funds. Fire department officials then reported the unauthorized activity to the State Police who partnered with DiNapoli’s office. In July 2024, Storrs was replaced as chief and suspended from the fire department.

Storrs was sentenced before Judge Richard M. Healy in Wayne County Court.

###

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.


Sep 7, 2025

Selected items posted on blogs during the week ending September 5, 2025

Elevating Constituent Services with Connected Experiences Agencies' communications tools are often disjointed, contributing to fragmented services rather than providing a seamless, unified platform that improves the constituent experience. Governments can modernize their communications infrastructure to unify these tools and create connected experiences, which lead to more convenient and personalized services for residents. DOWNLOAD


Understanding How K-12 Schools Use GenAI Learn how K-12 districts are already using GenAI, how schools evaluate GenAI solutions and how to measure the success of GenAI implementation. Download the report

The Workforce Tools Delivering ROI in State and Local Government Explore how public sector leaders are adopting AI, automation, and safety technologies to solve today’s workforce challenges. This new research highlights what’s working, what workers want, and where public agencies are seeing real ROI across operations, training, and service delivery. DOWNLOAD

AI in Government Finance: Seizing the Opportunity Modern finance software programs incorporate Generative AI and agentic AI to boost efficiency, improve service and manage complexity. This paper explains key differences between these technologies and why they become uniquely powerful when combined. DOWNLOAD

Community Colleges Aim to Shorten the Path to Skilled Jobs Federal funding and streamlined community college curriculum could make it easier to get on track for steady, well-paid employment. READ MORE

Preparing Utilities & Local Governments for a Paperless World The paperless future is here. Is your utility or local government ready? From rising postage costs to time-consuming manual processes, the shift to digital billing and payments is no longer optional — it’s essential. This resource explores how utilities can embrace a paperless future to cut costs, improve operational efficiencies, and meet modern demands. DOWNLOAD

A Smarter Approach to Seamless, Secure Access to Public Services Learn how public agencies are making digital services easier to access, more secure, and more inclusive through smarter identity management. This guide explores the real-world impact of modern Customer Identity and Access Management (CIAM) solutions, including reduced abandonment rates, stronger compliance, and better service access for all users—regardless of device, location, or digital literacy. DOWNLOAD

Find out how Georgetown, Texas -- an expanding suburb of Austin -- replaced a patchwork of aging financial and human resources software with a modern cloud-based ERP suite. The city's chief financial officer recounts the city's implementation journey, describes benefits from the new platform and offers best practices for other jurisdictions. DOWNLOAD

Eliminate Workflow Bottlenecks with Smart Integration  Integration platform-as-a-service (iPaaS) lets agencies integrate systems and automate workflows using drag-and-drop tools. This guide explains how iPaaS accelerates digital transformation to improve government efficiency and service delivery. DOWNLOAD

 


Sep 6, 2025

Notice of Emergency Rule Making issued by the New York State Commission on Ethics and Lobbying in Government


New York State Commission on Ethics and Lobbying in Government indicated that:

1.  "This emergency rule is necessary for the general welfare to fully effectuate the provisions of Executive Law § 94(8)(a) and (b), which direct the Commission on Ethics and Lobbying in Government to 'develop and administer' an ambitious statewide ethics training program. The statutes also permit the Commission to grant an application for an extension or waiver modifying the ethics training mandate 'for good cause shown.' 

2. "The statute provides no procedure or standard of review for such applications. The Commission has heard from many State agencies that, due to their particular circumstances, they have challenges with ensuring that their employees attend the required the ethics training, often due to issues related to access to technology or scheduling. The Commission believes that a significant number of employees, or agencies on behalf of some or all of their employees, will wish to seek an extension or waiver modifying the statewide ethics training requirements for them. The statewide ethics training program is a continuing, yearly obligation, and it is essential that some form of ethics training be delivered to all those who are required to receive it. Delay in effectuating this Rule will result in some employees, or agencies, falling behind in their ethics training schedule. 

3. "This emergency rule is intended to be effective until the Notice of Proposed Rulemaking, which accompanies this Emergency Adoption, is permanently adopted. The simultaneous Notice of Proposed Rulemaking will afford the regulated community the timely opportunity to seek extensions or waivers modifying the ethics training requirement before falling behind in their ethics training obligation. 

4. "This notice is intended to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. ELG-22-25-00019-EP, Issue of June 4, 2025. The emergency rule will expire October 16, 2025. 

5. "Statewide Elected Officials, members of the legislature and employees of the legislature, and state officers and employees as defined in Public Officers Law § § 73, 73-a, and 74, and political party chairs as defined in Public Officers Law § 73, are required to complete the live in-person or live-online Comprehensive Ethics Training Course within ninety days of commencing state employment and every two years thereafter, and are required to complete the online Refresher Ethics Training Course in each intervening year. 

6. "The Proposed Rule does not impose new programs, services, duties or responsibilities upon any county, city, town, village, school district, fire district or other special district." 

Text of rule and any required statements and analyses may be obtained from: Michael Sande, Commission on Ethics and Lobbying in Government, 540 Broadway, Albany, NY 11207, (518) 408-3976, email: michael.sande@ethics.ny.gov 


Sep 5, 2025

The failure to join a necessary party in a CPLR Article 78 action is fatal to proceeding and may be raised at any point during the litigation


In a proceeding brought pursuant to CPLR Article 78, the Petitioners asked Supreme Court to grant the Petitioners' motion to void a resolution adopted by a Village Board providing for the appointment of certain personnel to the Village's Fire Department.

The Village filed an answer with objections in point of law (see CPLR 7804[f]), including that the petitioners failed to name necessary parties, among other objections.

The Appellate Division noted that:

1. "Necessary parties are defined as '[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action'"; and 

2. The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal".

The Appellate Division then reversed the Supreme Court's ruling insofar as appealed from "on the law, without costs or disbursements" and remanded the matter to the Supreme Court "for further proceedings" consistent the Appellate Division's decision, which decision is set out below:


Matter of Riverside Hose Co., Inc. v Village of Tarrytown Vil. Bd.
2025 NY Slip Op 04793
Decided on August 27, 2025
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 August 27, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
JANICE A. TAYLOR
LOURDES M. VENTURA, JJ.

2021-01588 (Index No. 56647/20)

In the Matter of Riverside Hose Company, Inc., et al., petitioners-respondents,

v

Village of Tarrytown Village Board, et al., respondents-appellants, et al., respondents.

Silverberg Zalantis LLC, Tarrytown, NY (Katherine Zalantis and Christie Tomm Addona of counsel), for respondents-appellants.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to annul so much of a resolution of the Village of Tarrytown Village Board dated May 8, 2020, as appointed Richard Tucci as second assistant chief engineer for the Village of Tarrytown Fire Department, the Village of Tarrytown Village Board, Drew Fixell, Thomas Butler, Karen Brown, Robert Hoyt, Rebecca McGovern, Douglas Zollo, and Paul J. Rinaldi appeal from a judgment of the Supreme Court, Westchester County (Anne E. Minihan, J.), dated December 15, 2020. The judgment, insofar as appealed from, granted that branch of the petition which was to annul so much of the resolution of the Village of Tarrytown Village Board dated May 8, 2020, as appointed Richard Tucci as second assistant chief engineer for the Village of Tarrytown Fire Department.

ORDERED that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.

The Board of Fire Wardens of the Village of Tarrytown Fire Department (hereinafter the Board of Fire Wardens), a fire department council as defined in Village Law § 10-1014, is charged with various responsibilities relating to the management of the Village of Tarrytown Fire Department (hereinafter the Fire Department) (see Village Law §§ 10-1000, 10-1010, and 10-1014). The Fire Department is comprised of six fire companies, including the petitioners, Riverside Hose Company, Inc. and Phenix Hose Company, Inc. Pursuant to Village Law § 10-1010 and the Fire Department's constitution, each of the six companies was required to hold its own annual meeting on April 7, 2020, inter alia, to elect delegates to the Fire Department's general convention, known as the "Chief's Convention." The delegates were required to hold the Chief's Convention two days later to nominate a person for each of the offices of chief engineer, first assistant chief engineer, and second assistant chief engineer, as per Village Law § 10-1012(1) and the Fire Department's bylaws. However, on April 6, 2020, the respondent Village of Tarrytown Village Board (hereinafter the Village Board) passed a resolution authorizing the Fire Department and the Board of Fire Wardens, in effect, to postpone the required meetings for 30 days in light of the COVID-19 pandemic. After each of the six companies of the Fire Department issued correspondence indicating that they had elected their respective delegates, the Chief's Convention was held on May 7, 2020. As relevant here, a majority of the 18 delegates at the Chief's Convention—three from each company—voted in favor of the candidates nominated for chief engineer and first assistant chief engineer, but not for [*2]second assistant chief engineer. The sole candidate for that office, Richard Tucci, received nine votes in support of and nine votes against his nomination. The petitioners' delegates were six of the nine delegates who voted against Tucci's nomination. Nonetheless, in a resolution dated May 8, 2020, the Village Board, among other things, appointed Tucci as second assistant chief engineer of the Fire Department. In reaching this determination, the Village Board concluded that the delegates at the Chief's Convention sent by at least one of the petitioners, if not both, were not qualified to serve, thereby nullifying at least three of the votes against Tucci, and that a majority of the accepted votes were therefore in favor of his nomination.

In June 2020, the petitioners commenced this proceeding pursuant to CPLR article 78 against, among others, the Village Board, the respondent Drew Fixell, the Village's Mayor, the respondent Thomas Butler, the Village's Deputy Mayor, and the respondents Karen Brown, Robert Hoyt, Rebecca McGovern, Douglas Zollo, and Paul J. Rinaldi, Trustees of the Village Board (hereinafter collectively the respondents). In the petition, the petitioners sought, inter alia, to annul so much of the resolution of the Village Board dated May 8, 2020, as appointed Tucci as second assistant chief engineer of the Fire Department. The respondents filed an answer with objections in point of law (see CPLR 7804[f]), including that the petitioners failed to name necessary parties, among other objections. In a judgment dated December 15, 2020, the Supreme Court, among other things, granted that branch of the petition which was to annul so much of the Village Board's resolution dated May 8, 2020, as appointed Tucci as second assistant chief engineer for the Fire Department. This appeal ensued.

"The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal" (Matter of Hofstra Univ. v Nassau County Planning Commn., 231 AD3d 1025, 1028 [internal quotation marks omitted]). "Necessary parties are defined as '[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action'" (City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475, quoting CPLR 1001[a]; see Matter of Cuomo v East Williston Union Free School Dist., 227 AD3d 897, 900). "The rule serves judicial economy by preventing a multiplicity of suits. It also insures fairness to third parties who ought not to be prejudiced or embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard" (City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d at 475 [internal quotation marks omitted]). "Dismissal of an action or proceeding for nonjoinder of a necessary party is only a last resort" (Matter of Hofstra Univ. v Nassau County Planning Commn., 231 AD3d at 1028 [alteration and internal quotation marks omitted]). Therefore, "[w]hen a necessary party has not been made a party and is 'subject to the jurisdiction' of the court, the proper remedy is not dismissal of the complaint or the petition, but rather for the court to direct that the necessary party be summoned" (Matter of Supinsky v Town of Huntington, 234 AD3d 855, 857, quoting CPLR 1001[b]; see Matter of Mulford Bay, LLC v Rocco, 186 AD3d 1520, 1520-1521).

Here, the Supreme Court improperly rejected the respondents' contention that the petitioners failed to join necessary parties. The petitioners sought to annul so much of the Village Board's resolution dated May 8, 2020, as appointed Tucci to his position, and the court granted that request. Since Tucci was a person "who might be"—and in fact was—"inequitably affected by a judgment" in this proceeding (CPLR 1001[a]), he was a necessary party (see Matter of Lodge v D'Aliso, 2 AD3d 525, 526; Sarva v Tura Assoc., 204 AD2d 422, 423; Matter of Mount Pleasant Cottage School Union Free School Dist. v Sobol, 163 AD2d 715, 716, affd 78 NY2d 935). Similarly, as the petitioners sought relief that could result in a change to the leadership of the Fire Department, the Board of Fire Wardens was also a necessary party (see Matter of Hofstra Univ. v Nassau County Planning Commn., 231 AD3d at 1028; Sacasa v David Trust 197 AD3d 750, 752-753; Ji Juan Lin v Bo Jin Zhu, 191 AD3d 652, 653).

However, contrary to the respondents' contention, dismissal of this proceeding is not the appropriate remedy for nonjoinder of Tucci and the Board of Fire Wardens (see Matter of Hofstra Univ. v Nassau County Planning Commn., 231 AD3d at 1028; Ji Juan Lin v Bo Jin Zhu, 191 AD3d at 653). Instead, "[u]nder these circumstances, the appropriate procedure is for the Supreme Court to determine whether [those parties] can be summoned and, if joinder cannot be effectuated, [*3]to determine whether the proceeding[ ] may nevertheless proceed in [their] absence, upon consideration of the factors set forth in CPLR 1001(b)" (Matter of Cuomo v East Williston Union Free School Dist., 227 AD3d at 900; see U.S. Bank Trust N.A. v Germoso, 216 AD3d 1046, 1048).

In light of our determination, it was premature for the Supreme Court to decide that branch of the petition which was to annul so much of the Village Board's resolution dated May 8, 2020, as appointed Tucci as second assistant chief engineer for the Fire Department on the merits. Accordingly, we reverse the judgment insofar as appealed from and remit the matter to the Supreme Court, Westchester County, for a determination as to whether Tucci and the Board of Fire Wardens can be summoned and, if joinder cannot be effectuated, to determine whether the proceeding may nevertheless proceed in those parties' absence, upon consideration of the factors set forth in CPLR 1001(b), and we express no views on the respondents' remaining contentions (see Sacasa v David Trust, 197 AD3d at 753).

BARROS, J.P., BRATHWAITE NELSON, TAYLOR and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court


Sep 4, 2025

In an ongoing arbitral proceeding a procedural issue is entrusted to the arbitrator or arbitral body – not the court – for resolution within that proceeding

.

When Petitioners-Appellees [Petitioners] were hired as employees of Twitter, Inc.,  now known as X Corp. and owned by Respondent-Appellant X Holdings Corp. [hereinafter Respondent and together referred to as “Twitter” in the instant action], Petitioners signed “Dispute Resolution Agreements” [DRAs] committing themselves to resolving any employment-related disputes with Twitter in binding individual arbitration. After Petitioners were fired by Twitter, they brought various employment-related claims to the Judicial Arbitration and Mediation Services [JAMS], the arbitral body identified in their DRAs, pursuant to the then-current JAMS Rules.

Twitter had argued that the DRAs provided for a pro-rata split, while JAMS, pointing to its own rules and policies, incorporated by reference into the DRAs,  contended that Twitter was committed to paying all but the case initiation fees as a precondition to JAMS’s administering the arbitration. 

Relying on a clause in the arbitration agreement that provided that “any disputes [over arbitration fees would] be resolved by the Arbitrator” – and not JAMS – Twitter refused to pay. As the result of JAMS refusing to appoint any arbitrators without the fees, "the proceedings ground to a halt". At the request of the parties, JAMS stayed the proceedings pending resolution of the fee issue. 

Rather than fronting the fees themselves or asking JAMS to terminate the arbitral proceedings and pursuing other remedies, Petitioners sued to compel arbitration under 9 U.S.C. §4, arguing that, by refusing to pay the fees allocated to it by JAMS, Twitter was “refusing to arbitrate” in accordance with the terms of the DRAs.

For the reasons explained in the United States Court of Appeals, Second Circuit's  opinion [see the link to the Circuit Court's opinion provided below], the Circuit Court opined that whether a party has failed to pay the arbitration fees necessary in an ongoing arbitral proceeding "is a procedural issue entrusted to the arbitrator or arbitral body – not the court – for resolution within that proceeding". 

Thus, the Circuit Court held that once the parties are before their chosen arbitral body, failure or refusal to pay fees alone is not a “failure, neglect, or refusal . . . to arbitrate” and a "federal district court is empowered to address the matter under 9 U.S.C. §4". 

Accordingly, the Circuit Court of Appeals reversed the judgment of the district court "to the contrary" and remanded the matter to the district court.  

Click HERE to access the Second Circuit's decision posted on the Internet.


Editor in Chief Harvey Randall served as Director of Personnel, SUNY Central Administration, Director of Research , Governor's Office of Employee Relations and Principal Attorney, Counsel's Office, New York State Department of Civil Service. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.

CAUTION

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