Applicant for accidental disability retirement benefits has the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law

In this action the Appellate Division was asked to review a determination of the New York State Comptroller denying Petitioner's application for accidental disability retirement benefits.

Petitioner, a police officer, [Petitioner] applied for accidental disability retirement benefits, alleging that he was permanently incapacitated as the result of having fallen while inspecting equipment at the Employer's facility where he worked. The New York State and Local Police and Fire Retirement System denied the application upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363.

In this action the Appellate Division is asked to review a determination of New York State Comptroller denying Petitioner's application for accidental disability retirement benefits.

The Appellate Division affirmed the findings of the Retirement System and the Comptroller, observing "As the applicant, Petitioner bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, and [the Comptroller's] determination in this regard will be upheld if supported by substantial evidence".

Citing Matter of Yurko v DiNapoli, 122 AD3d 1047, and granting deference to the Comptroller's credibility determinations and given inconsistencies in Petitioner's testimony as to what he was doing at the time he fell and regarding the nature of the substance he claims caused his fall, the Appellate Division opined "substantial evidence supports the Comptroller's determination that Petitioner's injuries occurred in the ordinary course of his employment duties and that he failed to establish that his injury was the result of an accident, rather than his own misstep".

Click HERE to access the Appellate Division's decision.

Selected items on blogs posted during the week ending March 28, 2025

Sui Generis-a New York Law Blog, has posted a new item. Below in the URL to read more: 

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Local Government Audits posted on the Internet by New York State Comptroller Thomas P. DiNapoli

On March 19, 2025, New York State Comptroller Thomas P. DiNapoli issued the following local government audits:

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

Village of Herkimer – Clerk-Treasurer’s Records and Reports (Herkimer County) The current and former clerk-treasurers did not maintain complete, accurate or up-to-date financial records. As a result, the board lacked the financial information necessary to properly monitor and manage village finances. The clerk-treasurers did not properly record financial activity totaling $10.5 million related to bank transfers, payroll, real property taxes and cash receipts and disbursements. They did not perform bank reconciliations, allowing discrepancies between general ledger cash balances and adjusted bank balances to remain unidentified and unresolved. They did not provide monthly balance sheet reports to the board or file Annual Financial Reports with the Office of the State Comptroller, as required by law. The board did not annually audit the clerk-treasurers’ records, as required by law.

Town of Ripley – Town Clerk Collections (Chautauqua County) The town clerk did not always record, deposit, remit and report all collections in a timely and accurate manner. Because of this, there was an increased risk for money to be lost or used for inappropriate purposes. The longer collections remain unremitted, the longer they are not available for town operations. The audit determined the clerk did not deposit 2023 tax collections totaling approximately $882,000 within 24 hours or record 2023 tax collections totaling approximately $560,000 daily as required. The board did not conduct an annual audit of the clerk’s records, as required.

Town of Elbridge – Payroll and Leave Accruals (Onondaga County) Town officials did not ensure that all payroll payments were accurate, supported and authorized and that leave accrual records were maintained accurately. Auditors determined that the town supervisor approved payroll without having any information regarding the numbers of hours that employees worked, the leave time that they used or their leave accrual balances. Also, staff were unaware of all the provisions of the collective bargaining agreement and the town’s employee handbook that affect leave accrual records. The handbook did not require salaried employees to prepare time sheets or timecards. As a result, seven full-time employees with 2024 salaries totaling $238,569 did not prepare time records to document their days and hours worked and leave accruals that they used.

Wallace Volunteer Fire Department, Inc. – Board Oversight (Steuben County) The department officers and members did not enforce financial provisions outlined in the department’s constitution and bylaws or adopt adequate policies and procedures to provide effective financial oversight of operations. The membership did not elect a five-member board or financial secretary and the president did not appoint members to the auditing committee to assist with financial oversight. The treasurer did not submit various annual reports as required, and did not have a system for recording all receipts and disbursements. The president had sole control of the foreign fire insurance bank account instead of the treasurer, as required by law. These actions result in an increased risk of theft and waste of department resources.

Town of Dayton – Audit Follow-Up (Cattaraugus County) The review assessed the town’s progress in implementing recommendations in the town’s prior audit report (2019M-189), released in January 2020. The audit found the supervisor did not maintain accurate financial records. The audit included seven recommendations to help improve the quality of financial records and reports. The audit follow-up found that town officials have not taken corrective action, as none of the seven audit recommendations were implemented.

Town of Dayton – Audit Follow-Up (Cattaraugus County) The review examined the town’s progress in acting on recommendations from another audit report examining the town’s fund balance management (2019M-221) released in January 2020. The prior audit determined the board did not properly manage fund balance, as the town-wide (TW) general fund and TW highway fund had deficit unrestricted fund balances. The prior audit also determined that the board did not develop and adopt comprehensive written multiyear financial and capital plans and written fund balance and reserve fund policies to help guide the budget development process. The audit included nine recommendations to help improve the town’s financial condition and financial reporting. It appears that the town has not implemented sufficient corrective action. The audit follow-up found that of the nine audit recommendations, only two were fully implemented and seven were not implemented.

Administrative Law Judge recommends a 45 day suspension without pay be imposed on an employee found guilty of storing and discharging an air rifle in a City of New York's building

New York City Office of Administrative Hearings and Trials Administrative Law Judge [ALJ] Faye Lewis recommended a 45-day suspension without pay as the penalty to be imposed on custodial engineer [Respondent] found guilty of storing an air rifle in a Department of Education warehouse building and fired it in the trucking bays of the warehouse on a Saturday when no one else was in the building. Respondent did not deny this allegation and testified that he brought the air rifle into the building and fired it on one occasion for the sole purpose of scaring away pigeons that had been roosting in the bay areas of the building, defecating on plastic wrapped pellets of food trays that were distributed to schools, and disturbing asbestos installation on the pipes. 

The ALJ found Respondent’s testimony to be clear, consistent, unrebutted, and corroborated by documentary evidence, such as emails and photographs documenting the significant health concerns posed by the pigeons. While the ALJ found that Respondent’s use of the air rifle was well-intentioned, she concluded that the storage and firing of the air rifle constituted misconduct as it showed poor judgment and was contrary to well-known standards of conduct. 

The ALJ dismissed the remaining charges against Respondent for storing alcohol and parking his motorcycle on petitioner’s property because the Petitioner [Employer] failed to produce sufficient evidence linking Respondent to the alcohol and failed to establish that parking his motorcycle constituted misconduct. 

Lastly, the ALJ dismissed a charge relating to the transfer or sale of Department property as time-barred. The ALJ rejected Employer’s argument that Respondent should be terminated for this misconduct, noting that there was significant mitigation underlying Respondent’s actions and that he has had a lengthy tenure with the Employer with high performance evaluations and no history of discipline. 

Accordingly, the ALJ recommended a 45-day suspension with credit for a 30-day pretrial suspension served. 

Click HERE to access Judge Lewis' decision posted on the Internet.

Enforcing the terms and conditions set out in a collective bargaining agreement beyond the grievance process.

State and municipal public employees in New York State have the right to negotiate terms and conditions of employment which are typically set out in a collective bargaining agreement [CBA]* pursuant to Article 14 of the Civil Service Law [typically referred to as "The Taylor Law]. Such individuals may also have rights provided by statute or regulation. 

Typically the collective bargaining agreement contains a mandatory grievance process the CBA and rarely provides employees with the authority to enforce the terms and conditions set out in the CBA beyond the negotiated grievance process.*

In this decision the Appellate Division pointed out that "Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed grievance procedure and initiate litigation involving a  contract issue directly against the employer".

Citing Matter of Obot [New York State Dept. of Correctional Services], 89 NY2d 883, the Appellate Division noted that allegations that an employer has breached the collective bargaining agreement are contract claims that may not be resolved in an Article 78 proceeding as "the proper mechanism is initiating a plenary action alleging both breach of contract by the employer and breach of the duty of fair representation by the union". In the words of the Appellate Division: As the employee's claim arises solely under the CBA, the employee was also required to follow the path laid out in the Appellate Division's decision in Ambach**

* On occasion such an agreement may issued in the form of a Memorandum of Understanding.

** Ed. Note: However, as the Appellate Division held in Amorosano-LePore v Grant, 56 AD3d 663, the employee's exhaustion of administrative remedies is not required where so doing would constitute "an exercise in futility".

Click HERE to access the Appellate Division's decision.