New York State local government and school district audits posted on the Internet

On June 14, 2024 New York State Comptroller Thomas P. DiNapoli announced the following local government and school district audits were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

Gates Fire District – Board Oversight of Long-Term Planning (Monroe County)  The board and district officials did not properly plan for the district’s long-term financial and capital needs which inhibited the board and officials from effectively managing finances and addressing future operating and capital needs. Their efforts were hindered by inaccurate and inadequate financial records, reports and unrealistic budgeting. As a result, the board was not transparent with taxpayers and fund balance declined despite the board increasing the tax levy more than $7.5 million (80%) for 2020 through 2024.

Town of Poestenkill – Credit Card Purchases (Rensselaer County) The board did not ensure all credit card purchases were adequately supported, for legitimate purposes and approved before payment. As a result, the town paid $1,322 for inappropriate personal purchases including household and personal care items, video streaming services and clothes that were made by the former assistant using town resources. The assistant was arrested in March 2023 and pleaded guilty to a Class A misdemeanor for petit larceny in February 2024. She paid $2,640 in restitution, which included additional amounts uncovered during the investigation.

Red Hook Central School District – Inventories (Dutchess  County)  District officials did not adequately monitor and safeguard fuel and E-ZPass tags. As a result, officials cannot accurately account for fuel purchases and usage, or determine whether unauthorized E-ZPass charges occurred.

Charter School of Educational Excellence – Information Technology (IT) (Westchester County) The board and officials did not adequately secure student data to help protect it from unauthorized access or develop an IT contingency plan. As a result, there was an increased risk of unauthorized access to student personal, private and sensitive information and personally identifiable information. In addition, the school could suffer a serious interruption to operations since its ability to communicate during a disruption or disaster could affect the timely processing of its business functions.

Chautauqua Lake Central School District – Procurement (Chautauqua County) District officials did not procure fuel in compliance with the district’s policies. District officials did not seek competition for fuel purchases made from a single vendor totaling approximately $166,000, or adequately review purchases made to ensure charges were appropriate, resulting in approximately $2,200 in overpayments.

Harborfields Central School District – Information Technology Asset Management (Suffolk County) District officials did not ensure that IT assets were appropriately tracked, inventoried and safeguarded. Complete, accurate and up-to-date inventory records help district officials ensure that IT assets are properly insured, tracked through their life cycle and replaced as necessary. As a result, district officials cannot assure taxpayers that the $3.9 million invested in IT assets has been appropriately safeguarded.

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Plaintiff cited several nonexistent cases in his initial memorandum of law using "legal software applications" that "deploy artificial intelligence" and the Appellate Division cautioned Plaintiff that his pro se status does not excuse his failure to check the legal citations that he offers to a court

  

Dowlah v Professional Staff Congress

2024 NY Slip Op 02980

Decided on May 30, 2024

Appellate Division, First 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: May 30, 2024
Before: Moulton, J.P., Scarpulla, Shulman, Higgitt, O'Neill Levy, JJ.

Index No. 151561/22 Appeal No. 2412 Case No. 2023-06121

[*1]Caf Dowlah, Plaintiff-Appellant,

v

Professional Staff Congress (PSC-CUNY), et al., Defendants-Respondents.

        Caf Dowlah, appellant pro se.

Levy Ratner, P.C., New York (Patricia McConnell of counsel), for Professional Staff Congress/City University of New York and Peter Zwiebach, respondents.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Richard W. Boone, Jr. of counsel), for Hanan Kolko, respondent.

Order, Supreme Court, New York County (Eric Schumacher, J.), entered October 25, 2023, which granted defendants' motions to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously affirmed, without costs.

Plaintiff's legal malpractice claim against his union-appointed attorney who represented him in arbitration is preempted by Federal labor law, as "attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services performed constitute part of the collective bargaining process" (Mamorella v Derkasch, 276 AD2d 152, 155 [4th Dept 2000]).

Plaintiff's claims against his union, Professional Staff Congress (PSC-CUNY), and its legal director, arising from their selection of an allegedly biased arbitrator are barred by res judicata and collateral estoppel based on this Court's resolution of that issue in plaintiff's prior appeals (see Matter of Dowlah v City Univ. of N.Y., 189 AD3d 533, 534 [1st Dept 2020]; Dowlah v American Arbitration Assn., 221 AD3d 426, 426 [1st Dept 2023]). Plaintiff's instant claims are based on the same transaction as in both earlier actions, and therefore they are barred even though they are based upon different legal theories (Dowlah, 221 AD3d at 427). "That plaintiff has pleaded different causes of action and included new parties is of no moment" since "plaintiff, the party against whom preclusion is sought, was a party in the earlier action[s]" (id.).

To the extent plaintiff's claim against PSC-CUNY arises from its appointment of plaintiff's allegedly negligent attorney and thus raises a distinct issue, his allegations constitute a claim that he was improperly represented by his union, which is untimely under CPLR 217(2)(a)'s four-month limitations period (see Roman v City Empls. Union Local 237, 300 AD2d 142, 142 [1st Dept 2002], lv denied 100 NY2d 501 [2003]).

Res judicata also bars plaintiff from relitigating his prior appeals, and his arguments for recusal of Justices who participated in those appeals are entirely unsupported by evidence.

Plaintiff cites several nonexistent cases in his initial memorandum of law. In his reply brief he acknowledges that these citations were the result of research using "legal software applications" that deploy artificial intelligence. Plaintiff avers that he has an LLM (among other advanced degrees) but not much "legal expertise" and he apologizes for the fictitious precedents. We caution plaintiff that his pro se status does not excuse his failure to check the legal citations that he offers to a court.

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 30, 2024

Where there is a conflict in the testimony offered in the course of a disciplinary hearing and either of two inferences may be drawn, the duty of choosing between the inferences is the agency's, and the courts may not reject the agency's choice

 

Matter of Henn v Sewell

2024 NY Slip Op 02984

Decided on May 30, 2024

Appellate Division, First 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: May 30, 2024
Before: Moulton, J.P., Scarpulla, Shulman, Higgitt, O'Neill Levy, JJ.

Index No. 152739/23 Appeal No. 2401 Case No. 2023-05125

[*1]In the Matter of Brian Henn, Petitioner,

v

Keechant L. Sewell etc., et al., Respondents.

Worth, London & Martinez, LLP, New York (Stuart Gold of counsel), for petitioner.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Geoffrey E. Curfman of counsel), for respondents.

        Determination of respondent Police Commissioner, dated November 29, 2022, which, to the extent appealed from as limited by the briefs, found petitioner guilty of two charges of inappropriate statements and one charge of inaccurate statements during an investigation, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order, Supreme Court, New York County [Kathleen Waterman-Marshall, J.], entered October 5, 2023), dismissed, without costs.

The determination is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-180 [1978]). The New York City Police Department (NYPD) carefully weighed the evidence before it, discussing in detail the strengths and weaknesses of the testimonial and documentary evidence. Based on this analysis, the NYPD determined that petitioner had made inappropriate statements motivated by ethnicity and perceived religious affiliation. The Commissioner also had a rational basis for finding that petitioner provided an inaccurate statement during the investigation regarding his inability to recall sending offensive images by text to another officer, given the memorable nature of the images and that petitioner testified that he did not send the images to anyone else. Moreover, petitioner later testified at the hearing that he did recall sending the images to the officer. "[W]here there is a conflict in the testimony and either of two inferences may be drawn, the duty of choosing between the inferences is the agency's, and the courts may not reject the agency's choice" (Matter of Fields v New York State Off. of Children & Family Servs., 198 AD3d 454, 455 [1st Dept 2021]).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 30, 2024

 

Paid Parental Leave for PBANYS – Agency Police Services Unit (APSU) Employees

The New York State Department of Civil Service has posted its Policy Bulletin 2024-04, Paid Parental Leave for PBANYS – Agency Police Services Unit (APSU) Employees, on the Internet.

The text of Policy Bulletin 2024-04 is posted on the Internet at: https://www.cs.ny.gov/attendance_leave/PolBull24-04.cfm 

A printable version of Policy Bulletin 2024-04 in PDF format is posted on the Internet at: https://www.cs.ny.gov/attendance_leave/PB2024-04Combined.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

 

A criminal "acquittal" is not proof of innocence of misconduct and does not preclude a proceeding in a civil forum such as an administrative disciplinary proceeding

 

Matter of Joseph v Sewell

2024 NY Slip Op 02985

Decided on May 30, 2024

Appellate Division, First 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: May 30, 2024
Before: Kern, J.P., Singh, González, Pitt-Burke, Rosado, JJ.

Index No. 159873/22 Appeal No. 1987 & M-2024-01240 Case No. 2023-05198

[*1]In the Matter of Jose J. Joseph, Petitioner,

v

Keechant L. Sewell etc., et al., Respondents.

       The Sanders Firm, P.C., New York (Eric Sanders of counsel), for petitioner.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Karin Wolfe of counsel), for respondents.

Determination of respondent Police Department of the City of New York (NYPD), dated July 20, 2022, which found petitioner guilty of engaging in an off-duty physical altercation and failing to remain on the scene, and terminated petitioner's employment, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Judy H. Kim, J.], entered on or about April 19, 2023), dismissed, without costs.

Substantial evidence supports the NYPD's determination that petitioner engaged in a physical altercation with his then intimate partner, Annette (this Court adopts the agency's use of a pseudonym to protect Annette's privacy). Annette testified that petitioner "slapped" her in the face, "choked" her with his hands, and put her in a "headlock," causing her to lose consciousness until petitioner roused her by striking her abdomen and asking whether she was dead. Annette's testimony was corroborated by her consistent statements to NYPD officers who responded to her 911 call, photographs showing marks on her neck and lacerations to her face and lip, which petitioner acknowledged were not there earlier in the evening, and medical records documenting her abrasions and complaints of pain. Petitioner did not dispute that he did not remain on the scene after the incident. The Hearing Officer expressly credited Annette's testimony about the assault and found petitioner's denials "contrived, self-serving, and incredible," determinations which this Court may not displace (see Matter of Amann v New York City Loft Bd., 262 AD2d 234, 234 [1st Dept 1999]).

Petitioner's acquittal of criminal charges arising from the assault does not undermine the NYPD's determination that his conduct warranted professional discipline. The NYPD can impose discipline for a broad range of "conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer," even if that conduct is not criminal (Administrative Code of City of NY § 14-115[a]). A criminal "acquittal is not proof of innocence of misconduct, and does not preclude a . . . proceeding in a civil forum," such as an administrative disciplinary proceeding, "where the standard of proof is lower" (Matter of Strier, 190 AD2d 140, 143 [1st Dept 1993], lv denied 82 NY2d 663 [1993]).

The NYPD did not abuse its discretion in terminating petitioner's employment. Given the severity of petitioner's assault on Annette, which caused her to lose consciousness, as well as his prior disciplinary record, the penalty of dismissal does not shock the conscience (see Matter of Astacio v Bratton, 146 AD3d 613, 614 [1st Dept 2017]; Matter of Guzman v Bratton, 161 AD3d 591, 593 [1st Dept 2018]).

M-2024-01240 — Matter of Joseph v Sewell, et al.

Motion to seal certain exhibits, granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED[*2]: May 30, 2024