Employer's failure to review the record of the disciplinary hearing and the recommendation of the hearing office held fatal omissions

In this Civil Service Law  §75 disciplinary action the employer did not review the hearing record nor did the employer review the recommendation of the hearing officer and issued a determination terminating the employee without having the availability of the Hearing Officer's complete report and findings.

The employee [Petitioner] challenge to employer's determination contending that the employer failed to conduct a proper review of the evidence and the Hearing Officer's factual findings inasmuch as it did not receive the hearing transcript until after their decision had already been issued. 

In the words of the Appellate Division, following a disciplinary hearing held pursuant to Civil Service Law §75 (2), a hearing officer "shall make a record of such hearing which shall, with his [or her] recommendations, be referred to such officer or body [having the power to remove the employee] for review and decision".

Citing Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d at 387-388, the Appellate Division held that this omission in the instant disciplinary action "would render the requirements of Civil Service Law §75(2) meaningless". 

Reversing the employer's determination, the Appellate Division remitted the matter to the employer for a determination after a de novo review of the record and the Hearing Officer's complete decision and findings.

The Appellate Division's decision is set out below:

Matter of Alexander v City of Albany

2025 NY Slip Op 04949

Decided on September 11, 2025

Appellate Division, Third 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 and Entered:September 11, 2025

CV-24-1352

[*1]In the Matter of Andre Alexander, Appellant,

v

City of Albany et al., Respondents.

Calendar Date:August 14, 2025
Before:Lynch, J.P. Ceresia, Fisher, Powers and Mackey, JJ.

Daren J. Rylewicz, Civil Service Employees Association, Inc., Albany (Scott Lieberman of counsel), for appellant.

Robert Magee, Corporation Counsel, Albany (Brett T. Williams of counsel), for respondents.

Mackey, J.

Appeal from a judgment of the Supreme Court (Kimberly O'Connor, J.), entered July 12, 2024 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion for dismissal of the petition.

Petitioner was employed as a supervisor for the Department of General Services (hereinafter DGS) of respondent City of Albany. In February 2023, respondent Sergio Panunzio, DGS commissioner, brought 12 charges against petitioner alleging numerous violations of the City's employee manual and standard operating procedures, including, among other things, the unauthorized use of a City-owned vehicle and obstruction of the view of an in-vehicle camera. As a result, petitioner was suspended from his employment and directed to stay away from his workplace and subordinates. Shortly thereafter, petitioner approached his former subordinates and engaged in verbally abusive conduct, resulting in additional charges, including workplace violence.

Following a multiday hearing, a Hearing Officer determined that the City had presented credible evidence in support of the charges and recommended petitioner's termination. The Hearing Officer read his decision into the record and directed the City to "prepare an order for [him] to sign consistent with this decision and opinion." A pro forma order to this effect was signed on June 27, 2023, and received by Panunzio that same day. Roughly three weeks later, and following a further review, Panunzio accepted the Hearing Officer's recommendation and issued his final decision terminating petitioner. Respondents did not receive a copy of the hearing transcript until the following day.

Petitioner thereafter commenced this CPLR article 78 proceeding alleging, among other things, that the decision to terminate him was arbitrary, capricious and affected by an error of law because, in the absence of the hearing transcript, respondents failed to adequately review the record prior to issuing their determination. Respondents moved to dismiss the petition for failure to state a claim, which motion petitioner opposed.^[FN1] Supreme Court granted respondents' motion, finding that the determination terminating petitioner's employment was not made in violation of lawful procedure or affected by an error of law. Petitioner appeals.

Petitioner's challenge to respondents' determination rests upon his contention that respondents failed to conduct a proper review of the evidence and the Hearing Officer's factual findings inasmuch as they did not receive the hearing transcript until after their decision had already been issued. Indeed, following a disciplinary hearing held pursuant to Civil Service Law § 75 (2), a hearing officer "shall make a record of such hearing which shall, with his [or her] recommendations, be referred to such officer or body [having the power to remove the employee] for review and decision" (Civil Service Law § 75 [2]; see Matter of Hardy v Kraham, 224 AD3d 946, 947 [3d Dept 2024]). The resulting administrative [*2]determinations are entitled to a presumption of regularity (see Matter of McKinney v Bennett, 31 AD3d 860, 861 [3d Dept 2006]) and, "in the absence of a clear revelation that the administrative body made no independent appraisal and reached no independent conclusion, its decision will not be disturbed" (Matter of Taub v Pirnie, 3 NY2d 188, 195 [1957] [internal quotation marks and citation omitted]; see Matter of Lake George Assn. v NYS Adirondack Park Agency, 228 AD3d 52, 65 [3d Dept 2024], lv denied 42 NY3d 908 [2024]).

In reaching the determination, the record reflects that Panunzio reviewed the Hearing Officer's undetailed written decision and recommendation, certain evidence presented at the hearing,^[FN2] and discussed the matter with the City's counsel and a DGS representative, both of whom were present at the hearing (compare Matter of Zlotnick v City of Saratoga Springs, 122 AD3d 1210, 1213-1215 [3d Dept 2014]). Panunzio did not, however, review the Hearing Officer's detailed and thorough decision, as such was read into the record at the hearing and the hearing transcript was not received until after the determination terminating petitioner had already been issued. As Panunzio was unable to review the Hearing Officer's complete report and findings, respondents had "no basis upon which to act" and their determination was thus "unavoidably . . . arbitrary" (Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385, 388 [1983]). To be sure, a reviewing officer need not review all evidence presented before the hearing officer or defer to his or her findings (see Matter of Perryman v Village of Saranac Lake, 64 AD3d 830, 836 [3d Dept 2009]; Matter of Pignato v City of Rochester, 288 AD2d 825, 826 [4th Dept 2001], appeal dismissed 97 NY2d 725 [2002], lv denied 98 NY2d 604 [2002]). Nevertheless, to permit respondents to issue a determination without even having the availability of the Hearing Officer's complete report and findings would render the requirements of Civil Service Law § 75 (2) meaningless (see Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d at 387-388). Accordingly, we reverse and remit the matter for a determination after a de novo review of the record and the Hearing Officer's complete decision and findings (see generally Matter of Botsford v Bertoni, 112 AD3d 1266, 1269 [3d Dept 2013]). In view of our decision, we need not address petitioner's remaining contentions.

Lynch, J.P., Ceresia, Fisher and Powers, JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, determination annulled and matter remitted to respondents for further proceedings not inconsistent with this Court's decision.

Footnotes

Footnote 1: Although respondents' pre-answer motion was delineated as a motion to dismiss, Supreme Court essentially treated the motion as one seeking summary judgment and rendered a merit-based determination. On appeal, the parties raise no issues in this regard and treat the judgment as having been made on the merits of the petition (see Matter of Boyle v NYS Dept. of Motor Vehs., 209 AD3d 1222, 1223 n [3d Dept 2022], lv denied 39 NY3d 909 [2023]).

Footnote 2: The GPS and video evidence of the charged misconduct relied upon have not been included in the record on appeal.

New York State's Comptroller posts municipal and school district audits on the Internet

On September 12, 2025, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

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

Rochester Prep Charter School 3 – IT Asset Management (Monroe County) Although the school board contracted with a management company to facilitate the school’s procurement of IT assets and services and to maintain inventory records, school officials did not ensure that company employees maintained complete and accurate inventory records for all IT assets, including for those purchased with federal funds. As a result, the school’s inventory records did not include all IT assets and no records contained adequate information to sufficiently track or identify the school’s IT assets because they were incomplete or inaccurate and lacked asset-identifying information.

West Sparta Independent Volunteer Fire Department Company Number 1, Inc. (Department) – Board Oversight (Livingston County) The board did not provide adequate oversight of financial operations, placing department resources at risk of waste and theft. The board generally did not review the department’s bills before or after they were paid to help ensure that all 230 claims totaling $260,823 were properly supported and for appropriate purposes. The board also did not ensure that the treasurer maintained supporting documentation for all revenues and redeposited startup cash totaling $259,178. The treasurer did not file the 2023 foreign fire insurance (FFI) tax proceeds annual report with the State Comptroller’s office until after auditors asked about it. Auditors determined that disbursements of FFI tax proceeds were not approved by the membership and were used for inappropriate purposes, such as purchasing approximately $4,000 in gift cards.

Town of Windsor – Capital Project (Broome County) The board did not properly manage its highway garage capital project. Although three project construction contracts totaling $4.8 million were properly procured, the board may have made material alterations to bid specifications for two other contracts totaling $1.2 million, which brings into question whether they were properly awarded. Additionally, although not required by the town’s procurement policy, the board could have solicited some type of competition and documented the results to help provide assurance that one professional service contract totaling approximately $382,000 was obtained under the most favorable terms and conditions possible and without favoritism. Town officials partially funded the project with $1.5 million in town-outside-village funds and did not have adequate documentation to support how the funds were used or that the appropriate tax base was charged.

Eastport Fire District – Procurement (Suffolk County) Officials did not obtain competitive quotes in accordance with their procurement policy. The board-adopted policy addresses the procurement of goods and services not required to be bid. However, the policy does not provide guidance or encourage competitive methods for the procurement of professional services and insurance. The board did not use a competitive method to procure professional services and insurance coverage from 10 vendors totaling $203,097. In addition, the district paid 20 vendors for goods and services totaling $96,955, without obtaining quotes as required by the policy. As a result, the district may not have received the best price for the goods and services it purchased.

Town of Danby – Audit Follow-Up (Tompkins County) The purpose of our review was to assess the Town of Danby’s progress as of May 2025 in implementing our recommendations in the audit report Town of Danby – Town Clerk (2022M-8), released in May 2022. The audit determined that the town clerks did not identify tax collection account errors totaling $64,959 and could not account for approximately $1,000 in cash from tax collections. The town clerks also did not maintain adequate supporting documentation for collections and complete monthly bank reconciliations and accountabilities. In addition, the board did not perform an annual audit of the town clerk’s records. Of the 10 audit recommendations, town officials implemented four recommendations, partially implemented one recommendation and did not implement five recommendations.

Starpoint Central School District – Audit Follow-Up (Niagara County)  The purpose of our review was to assess the Starpoint Central School District’s progress as of May 2025 in implementing our recommendations in the audit report Starpoint Central School District – Network Access and Application User Permissions (2022M-101), released in October 2022. The audit determined that district officials did not adequately secure access to the network or properly manage user permissions to the financial and student information applications. Of the five audit recommendations, the Board of Education, district officials, the network manager and district-assigned BOCES coordinator fully implemented one recommendation, partially implemented three recommendations, and did not implement one recommendation. We also reviewed the district’s progress in implementing our recommendations related to sensitive IT control weaknesses, which we communicated to district officials confidentially.

###

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