Responding to an application for records pursuant to New York State's Freedom of Information law

In its decision in a case involving a demand for "agency records" pursuant to New York State's "Freedom of Information Law" [FOIL, (New York State's Public Officers Law Article 6)], the Appellate Division said that:

1. "When faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search*; and 

2. Public Officers Law §89(3) "does not specify the manner in which an agency must certify that documents cannot be located; and

3. "Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required."

In a proceeding initiated pursuant to CPLR Article 78 to compel disclosure of certain records pursuant to FOIL, Petitioner in the instant matter appealed  a Supreme Court decision, that, in effect, dismissed Plaintiff's complaint. The Appellate Division affirmed the Supreme Court's ruling, with costs.

Petitioner had submitted a request pursuant FOIL seeking "[a]ll communications" during a specific time period between "the Rockland County Clerk's [O]ffice" and several specified entities or offices "regarding issuance of pistol permits and the removal of license restrictions." 

Initially the County denied the FOIL request on the ground that "responsive inter-agency and intra-agency records that are exempt from production have been withheld". Petitioner's appealed. Subsequently the County denied the Petitioner's appeal on different grounds, advising him that no records responsive to his request were found after performing "a new diligent search of emails and hard-copy documents using the search terms 'issuance of pistol permit' and 'removal of license restrictions and issuance of pistol permit'" and interviewing the Rockland County Clerk [County Clerk].

In October 2022, Petitioner commenced the instant proceeding pursuant to CPLR Article 78 against the County to compel disclosure of the records requested by Petitioner pursuant to FOIL. Supreme Court determined that a "hearing [was] required regarding the diligence of the [County's] search" and the County conducted a new search using "36 terms that were supplied by" the [Petitioner], "which yielded documents that the County maintained were protected by the inter-agency exemption".

At the subsequent hearing, which was limited to the issue of whether there had been a diligent search, the evidence at the hearing revealed that the Rockland County Clerk's Office's Records Access Officer and the County Clerk had "confirmed that no paper records responsive to the FOIL request existed and that a search of the County Clerk's emails had been performed at the request of one of the attorneys who testified at the hearing".

Supreme Court reviewed the documents produced and determined that "all of these documents were exempt from disclosure under FOIL". Petitioner appealed, contending that the County failed to perform a diligent search but did not challenge the Supreme Court's determination that the documents disclosed to the court and reviewed by the court were exempt from disclosure.

The Appellate Division opined that "contrary to the [Petitioner's] contention, the County demonstrated that it had satisfied its obligations under FOIL by presenting testimony at the hearing that all potentially responsive documents had been disclosed and that the County had conducted a diligent search for all responsive documents.

Further, observed the Appellate Division, "As the [Petitioner] did not substantially prevail, he was not entitled to an award of attorneys' fees", citing Public Officers Law §89[4][c][i and Matter of Breighner v Suffolk County, 237 AD3d at 930).

* See Matter of Breighner v Suffolk County, 237 AD3d 928, [internal quotation marks omitted]; Public Officers Law §89[3][a]; and Matter of Rattley v New York City Police Dept., 96 NY2d 873 at 875). 

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

No appeal lies from a court order denying a motion to "reargue"

In this action to recover damages for alleged unlawful employment discrimination on the basis of gender and national origin in violation of the New York City Human Rights Law, the Plaintiff appealed:

(1) An order of the Supreme Court dated February 7, 2024, which granted Defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint; and 

(2) An order of the same court dated July 29, 2024, which denied that branch of the Plaintiff's motion for leave to reargue his opposition to the Defendants' prior motion pursuant to CPLR 3211(a) to dismiss the complaint.* 

The Appellate Division:

1. Dismissed the Plaintiff's appeal from so much of the order dated July 29, 2024, as denied that branch of the Plaintiff's motion for leave to reargue, explaining that no appeal lies from an order denying re-argument;  

2. Affirmed the Supreme Court's order dated February 7, 2024; and

3. Awarded one bill of costs to the Defendants.

Plaintiff had commenced this action against two employees of the Department of Education of the City of New York [DOE] in their individual and official capacities in June 2023, seeking to recover damages for employment discrimination alleging violations of the United States and New York State Constitutions, the New York City Human Rights Law, the Administrative Code of the City of New York, and 42 USC §§1981, 1983, and 1985. Plaintiff had alleged that he was discriminated against by the Defendants during his employment with the DOE based on his "gender as male, and national origin as someone born in Haiti."

Pursuant to CPLR 3211(a), Defendants had moved  to dismiss the complaint on the ground, among others, that the causes of action asserted against them by the Plaintiff in their official capacities was barred by the doctrine of res judicata. 

The Defendants argued that in November 2022, Plaintiff had commenced a substantially similar action asserting causes of action identical to those asserted in the instant action against the Defendants' employer, DOE, as well as against the Board of Education of the City School District of the City of New York. Supreme Court had granted DOE's motion in the prior action to dismiss the complaint on the basis of the Plaintiff's default and directed dismissal of the complaint. 

The Appellate Division, noting that "Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding". The Court noted that "the fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims", citing Bayer v City of New York, 115 AD3d 897.

Concluding that Supreme Court had properly granted those branches of the Defendants' motion to dismiss the causes of action insofar as asserted against them in their official capacities, the Appellate Division opined that those causes of action are barred by the doctrine of res judicata as the Defendants "in their official capacities were in privity with their employer [DOE], and the default judgment in the prior action was a final judgment on the merits."

In the words of the Appellate Division:

1. "Supreme Court properly, in effect, denied that branch of the Plaintiff's motion which was to vacate the February 2024 order; and

2. "Supreme Court also properly, in effect, denied that branch of the Plaintiff's motion which was for leave to amend the complaint, as there was no complaint before the court to amend at the time the [Plaintiff] moved for such relief."

* Plaintiff's motions pursuant to CPLR 2221(a) and 5015(a)(1) sought to vacate the order dated February 7, 2024, and pursuant to CPLR 3025(b) for leave to replead or amend the complaint.

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

New York State Comptroller Thomas P. DiNapoli says better Federal coordination needed to avoid making duplicate Social Security Premium Payments

An audit released on September 9, 2025, by New York State Comptroller Thomas P. DiNapoli found multiple issues with how the state identified out-of-state Medicaid members, and found close to $1.2 billion in managed care premiums that were paid for members who may have resided outside of New York. Auditors found that the state Department of Health (DOH) did not properly check to confirm that Medicaid members were New York residents and waited too long to recoup improper payments.

“Medicaid is a vital program and the single biggest expense in the state budget. We cannot afford any wasteful spending,” DiNapoli said. “If a person is enrolled in more than one state at the same time, both states may end up paying premiums to his or her managed care plans. Responsibility for preventing enrollment in more than one state lies at both the federal and state levels, and stronger coordination is needed to reduce improper payments, protect the program’s integrity, and ensure New York is only paying Medicaid costs for its residents.”

Medicaid members are enrolled through the New York State of Health (NYSOH) or through local departments of social services (Local Districts). Most of the state’s Medicaid members are enrolled in managed care plans, which are responsible for ensuring members have access to a range of health care services and reimbursing providers for those services. In exchange, DOH pays the plans a monthly premium for each enrolled member. Generally speaking, if a member who is enrolled in a managed care plan no longer resides in New York, they should be disenrolled from their plan and the plan must return premiums paid for periods when the member was not a resident. The audit examined the period from July 2017 through October 2024.

The audit found that DOH did not start submitting NYSOH’s member data for matching in the federal Public Assistance Reporting Information System (PARIS), which matches enrollment data of public assistance programs like Medicaid across all 50 states, until May 2017, nearly three years after NYSOH started. DOH did not start reviews of the NYSOH PARIS match results until two years later, in October 2019. The audit identified $1.5 billion in premium payments that were made from 2017 to 2019 for unreviewed NYSOH members.

Auditors identified an additional $1.2 billion in managed care premiums paid for members that potentially resided outside New York as follows:

• $509 million in premiums paid for 155,181 members who may have resided outside of New York according to data sources other than PARIS, such as the U.S. Postal Service’s National Change of Address (NCOA) information. For example, a member appeared on a May 2020 NCOA report with a forwarding address in Florida. The individual had no Medicaid services in NY since February 2020, but Medicaid made 45 monthly premium payments totaling $100,859 from June 2020 through February 2024. The member was still active and enrolled in managed care as of the end of the audit.
• $375 million in premiums paid for NYSOH-enrolled members who were identified on a PARIS match but were not reviewed by DOH to confirm residency because of flaws in NYSOH’s processing that caused the omissions.
• $299 million in premiums paid for members whose eligibility was ended due to PARIS matches but the improper premiums were not recovered ($234 million), or the member’s eligibility was flagged to be closed but was not officially ended and premiums continued to be paid ($65 million).

Even when DOH and Local Districts closed the eligibility of members identified by the PARIS match, DOH and the Office of the Medicaid Inspector General (OMIG) did not always take sufficient steps to recover premium payments for the time when the members resided outside the state. OMIG officials indicated they may have lost the opportunity to recover up to $11.4 million of the improper premiums DiNapoli’s office identified due to regulatory look-back provisions. DiNapoli encouraged OMIG to expedite a review of the audit findings to recover improper premium payments made on behalf of people living out-of-state where appropriate.

While all states, the District of Columbia, and Puerto Rico participate in the federal PARIS match, not all of them participate every quarter, which can impact the effectiveness of the identification of out-of-state members.

DiNapoli recommended DOH:

• Verify the residency of members identified by a PARIS match who were not reviewed, as well as members identified as potentially residing outside of the state by other data sources, and recover improper premium payments where appropriate.
• Review the $299 million in premium payments for members whose eligibility was closed or not properly closed, and recover the payments where appropriate.
• Enhance processes to identify members living outside of the state and recover improper premium payments.

In their response, DOH officials generally concurred with the audit recommendations and indicated that it was already taking steps to address them. DOH agreed to explore the use of other data sources, including NCOA, to identify out-of-state members and engage with the federal government about incorporating data that helps establish residency into the PARIS matching process at the federal level.

Click on the text shown below to access the Audit posted on the Internet:

Medicaid Program: Improper Premium Payments Made on Behalf of Managed Care Members Residing Outside the State

Downtown Revitalization Initiative and the NY Forward Program Webinar Reminder

Governor Hochul recently announced the ninth round of the Downtown Revitalization Initiative [DRI], along with the fourth round of NY Forward (NYF), a program targeted at revitalizing smaller and rural communities.

This year, DRI will invest $100 million in 10 new communities, bringing the total amount of funding allocated for all rounds of DRI and NYF to $1.4 billion.

On September 10, 2025, the Office of Planning, Development & Community Infrastructure will host an informational webinar interested. Learn how to apply for funding to catalyze economic growth, enhance quality of life, and strengthen local downtowns! 

How To Apply" Webinar 🗓️

Date of the Webinar: Wednesday, September 10th

Register for Webinar

Petitioners' CPLR Article 78 found untimely as Petitioners failed to bring this proceeding within four-month statute of limitations

In this proceeding pursuant to CPLR Article 78 seeking a court order to annul a determination of a Board of Education and two resolutions of the Board the Petitioners appealed a New York State Supreme Court order and judgment which dismissed such efforts by the Petitioners'.

The Appellate Division affirmed the Supreme Courts rulings with costs.

Petitioners had alleged that the Board of Education had violated the State Environmental Quality Review Act [SEQRA] and challenged the two resolutions of the Board.

Addressing the Supreme Court's rulings with respect to the Board's resolutions, the Appellate Division explained that "[u]nless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact."

Further, citing Matter of Velardi-Ward v New York State Dept. of Envtl. Conservation, 227 AD3d 1090, the Appellate Division noted "Such determination is final and binding when the decisionmaker arrives at a definitive position on the issue that inflicts an actual, concrete injury". 

The Appellate Division noted that the instant proceeding was untimely as Supreme Court had "properly determined that the Petitioners failed to bring this proceeding to challenge the SEQRA determination within the requisite four-month statute of limitations, and the Petitioners' remaining contention was "improperly raised for the first time on" appeal and, in any event, without merit". 

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