State retiree's pension and social security benefits were stolen by two individuals he entrusted to take care of him and forced him to live in squalor in his own home

New York State Comptroller Thomas P. DiNapoli, Rensselaer County District Attorney Mary Pat Donnelly, and New York State Police Superintendent Steven G. James announced the guilty plea of Devin Zielinski, 33, for stealing over $230,000 from an elderly victim. His co-defendant in this caretaker scheme, Amber Diacetis, a 31-year-old Albany woman, pleaded guilty to grand larceny in the third-degree last year.

“Preying on a vulnerable senior citizen to steal his hard-earned pension and social security benefits while forcing him to live in squalor in his own home is reprehensible,” DiNapoli said. “Thanks to my partnership with Rensselaer County DA Donnelly, State Police Superintendent James and the Schodack Police Department, the people who committed this heinous crime have been held accountable and their victim is in a safe and secure environment.”

District Attorney Donnelly stated, “This was a case of abuse of trust and greed. The defendants scammed and stole from a senior citizen who entrusted them to take care of him. The acts of these defendants have had a devastating impact on the victim and the victim’s family. The Rensselaer County DA’s Office will continue to work with our partners in the State Comptroller’s Office and in law enforcement to ensure financial predators like Devin Zielinski face the consequences for crimes against the elderly.”

Superintendent James said, “Zielinski and his co-conspirator took advantage of an elderly individual, stealing the pension and social security benefits he earned over a lifetime of work while forcing him to live in absolute squalor. I want to thank our members, Comptroller DiNapoli, the Rensselaer County District Attorney’s Office and the Schodack Police Department for ensuring the suspects will be held accountable for their criminal actions, and for providing a measure of justice for the victim.”

The victim, a now 87-year-old New York state pensioner, met Diacetis through an online service. Diacetis then introduced the victim to Zielinski and the two then schemed to convince the victim to let them become his live-in caregivers.

The victim, whose wife had died years earlier and had no other direct support, received a monthly income of $3,526 for his pension and $2,138 from Social Security. The defendants persuaded the victim to allow them to control his affairs, including his finances.

Investigators found that the defendants did not pay the victim’s mortgage, property taxes or other bills for four years, causing the victim’s home to be placed in foreclosure, his vehicle to be repossessed and his electricity to be turned off. Instead, the defendants stole the money for their personal entertainment. The victim was unaware his bills were not being paid due to his isolation and condition.

From January 2018 to August 2023, a total of $338,000 in pension and Social Security income were deposited into the victim’s bank accounts. The investigation revealed that the defendants made more than $230,000 in cash withdrawals from the victim’s accounts.

In addition to the alleged theft, the defendants’ actions caused the victim to live in deplorable conditions: the toilet and shower in the home were inoperable, animal feces were on the floor, and the victim was found in need of care. He was subsequently provided with the necessary treatment and services and is no longer living in his house.

Zielinski remained in the home after the victim was removed and foreclosure proceedings began. Zielinski currently resides at the property in a squatter capacity.

Zielinski pleaded guilty to grand larceny in the third degree before Judge Jennifer G. Sober in Rensselaer County Court. His sentencing is scheduled for June 18. Diacetis is due back in court for sentencing on May 20.

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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.

A claimant's application for New York State unemployment insurance benefits may be denied for failing to cooperate

The New York State Unemployment Insurance Appeal Board ruled that Claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant had been served with administrative disciplinary proceeding pursuant to Civil Service Law §75 after the Employer received "public complaints about a potential derogatory post on Claimant's social media account", which account identified Claimant's place of employment.  Such disciplinary charges alleged that Claimant had violated the Employer's code of conduct. These charges were then  amended to include allegations that Claimant violated the Employer's established policies by failing to cooperate in the agency's investigations which followed. 

Ultimately these charges were sustained by an administrative hearing officer and the hearing officer recommended that Claimant be terminated from his position. The hearing officer's findings and recommendation were adopted by the appointing authority and Claimant was terminated from his position.

Claimant then applied for unemployment insurance benefits. However, in the Unemployment Insurance Board hearings which followed the parties limited the issue to whether Claimant's social media post amounted to misconduct. The Unemployment Insurance Board's Administrative Law Judge [ALJ] gave "collateral estoppel effect to the findings of fact made at the disciplinary proceeding regarding the social media post" but then made independent additional factual findings.

The ALJ found that Claimant's conduct was an isolated incident of poor judgment that did not amount to disqualifying misconduct and ruled that Claimant was entitled to unemployment insurance benefits. 

The Employer submitted an  administrative appeal challenging the ALF's ruling and the Unemployment Insurance Appeal Board remanded the matter for further consideration of the additional issue of whether Claimant's conduct in failing to cooperate with the investigations into the disciplinary charges filed by the Employer constituted disqualifying misconduct.

The ALJ, adhering to the previous ruling related to the social media posting, held that Claimant's "failure to cooperate in the disciplinary investigations, which was in violation of a known policy of the [Employer]," constituted disqualifying misconduct. The Board affirmed the ALJ's findings and Claimant appealed.

The Appellate Division held that substantial evidence supported the Board's decision that Claimant's failure to cooperate with the Employer's investigations in contravention of a known policy of the Employer amounted to disqualifying misconduct, citing  Matter of Telemaque [Commissioner of Labor], 148 AD3d 1441, and other decisions. In so doing the Court rejected Claimant's argument that the Board "erred in remitting the matter for further development and consideration of whether [Claimant's] failure to cooperate in the investigations amounted to misconduct", noting that this issue was litigated in the course of the §75 disciplinary proceeding and was a basis for Claimant's discharge from employment. 

Thus, explained the Court, the Board "was not precluded from remanding the matter for further consideration and development of the record in order to independently determine whether [Claimant] was properly denied unemployment insurance benefits for failing to cooperate."

The Appellate Division's decision also noted that Claimant had "commenced a federal action challenging his discharge, which was resolved by a settlement under which the [Employer] agreed to, among other things, internally change [Claimant's]  termination for misconduct to an irrevocable voluntary resignation", pointing out that the Appellate Division and the parties agreed that such settlement has no impact on the instant appeal.

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

Plaintiffs allege their employer, by failing to adequately investigate their claims of employee misconduct, created a racially hostile work environment in violation of Title VII

Plaintiffs brought an action in federal district court alleging that their employer, the New York State Department of Corrections and Community Supervision [DOCCS], "negligently created a racially hostile work environment in violation of Title VII" by failing to adequately investigate their allegations of misconduct by certain coworkers. The federal district court had granting summary judgment in favor of DOCCS after finding Plaintiffs failed to show:

1. Liability for the alleged misconduct could be imputed to the DOCCS;

2. The alleged misconduct was severe or pervasive enough to alter the conditions of their employment; and 

(3) The alleged misconduct was based on their race. 

Plaintiffs appealed each of the district court's ruling to the U.S. Circuit Court of Appeals, Second Circuit.

Citing Rasmy v. Marriott Int’l, Inc., 952 F.3d 379, the Circuit Court said “An employer violates Title VII when the ‘workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment so long as there is a basis for imputing the conduct that created the hostile environment to the employer." In addition, the Court noted that the plaintiff must demonstrate that the conduct occurred because of the plaintiff's protected status, citing Agosto v. N.Y.C. Department of Educ., 982 F.3d 86, and Desardouin v. City of Rochester, 708 F.3d 102.

Opining that "It is insufficient for a plaintiff to allege that he or she is a member of a protected class, experienced a hostile workplace, and therefore that the hostility must have been because of his or her protected class", the Circuit Court of Appeals said it agreed the district court that "there is no evidence from which a reasonable jury could conclude that these acts of harassment were directed at [Plaintiffs] because of their race".

In the words of the Circuit Court, "the only evidence referencing any reason for the alleged abuse, including the [Plaintiffs’] own testimony, tended to indicate that [Plaintiffs] were harassed because they were perceived to be disloyal* and the evidence offered nothing to suggest that the treatment of Plaintiffs was based on their race.**

Nor, said the Court, could a reasonable jury infer that the supervisors discriminated against Plaintiffs because of their race. Although Plaintiffs argued that they were assigned to “less desirable” posts more often than white officers, the record indicates that (1) “[t]here are no inferior posts,” (2) other officers were assigned to the posts that were subjectively considered "less desirable" at least as much as [Plaintiffs] and (3) [Plaintiffs] "were assigned to posts that were consistent with their job responsibilities" and Plaintiffs did not submit any evidence "to support the assertion that the posts they requested were assigned to white officers."

Concluding that the federal district court correctly granted summary judgment to DOCCS on the ground that no reasonable jury could find that Plaintiffs were harassed because of their race, the Circuit Court of Appeals affirmed the judgment of the district court.

* One Plaintiff said "that other officers believed Plaintiff was a 'rat' because Plaintiff had testified on behalf of an inmate in a disciplinary hearing" while the second Plaintiff said  "other officers regarded him [quoting derogatory language] because he had testified against a fellow corrections officer at another institution where he had worked". 

**The Court said that the evidence is consistent with the theory that [Plaintiffs] experienced “workplace bullying completely detached from any discriminatory motive.” 

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

An employee's submitting a resignation letter and, or, requesting to be removed from the employer's payroll held critical to effecting a bona fide retirement

As noted by the Appellate Division in a Footnote in its decision dated April 10, 2025, set out below, members of the New York State and Local Retirement System [NYSLRS] who retire as correction officers are entitled to benefits under Article 14 of the New York State Retirement and Social Security Law whereas members of NYSLRS employed by certain other participating public employers, including school districts, are entitled to benefits pursuant to Article 15 of such Law. 

Further, if a former correction officer retires from service with an Article 15 employer, that individual's years of service under Article 14 is considered in the Article 15 retirement benefit calculation and, in some instances, the benefits available under Article 15 may be more advantageous. 

Significantly, an employee's submitting a letter of resignation letter and, or, being removed from the employer's payroll is critical to effecting his or her retirement.

In the second footnotes in the decision set out below, the Appellate Division said "Given the similar failure to submit a resignation letter and/or seek to be removed from the school district's payroll, we find that [NYSLRS'] determination that the break in petitioner's employment attributable to the COVID-19 pandemic did not constitute a bona fide retirement is also supported by substantial evidence", citing Matter of Strzepek v DiNapoli, 227 AD3d at 1356-1357.

The text of the Appellate Division's decision in the instant appeal is set out below:

In the Matter of Daniel Radwan, Petitioner,

v

Thomas P. DiNapoli, as State Comptroller, Respondent.

Calendar Date: February 10, 2025
Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Powers, JJ.

Creighton, Johnsen & Giroux, Buffalo (Jonathan G. Johnsen of counsel), for petitioner.

Letitia James, Attorney General, Albany (Frederick A. Brodie of counsel), for respondent.

Pritzker, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for Retirement and Social Security Law article 15 service retirement benefits.

Petitioner worked as a correction officer for the Department of Corrections and Community Supervision (hereinafter DOCCS) for over 30 years until April 15, 2019. In December 2018, petitioner also began working as a part-time laborer on an as-needed basis for the Frontier Central School District. Less than one year later, petitioner filed an application with the New York State and Local Retirement System seeking service retirement benefits under Retirement and Social Security Law article 15 and listing the effective date of his retirement as April 27, 2019.^[FN1] Significantly, however, petitioner did not submit a resignation letter to the school district until April 2021. In response to petitioner's application for retirement, the Retirement System sent a letter to the school district indicating that petitioner had applied for retirement, that the effective date thereof would be April 27, 2019 and that the day prior thereto would be the last day that petitioner could receive a salary. Despite this, petitioner continued working for the school district and collecting a salary.

Beginning in May 2019, the Retirement System's pension integrity bureau began investigating retirement applications of correction officers who predominately worked under Retirement and Social Security Law article 14 but were seeking benefits under Retirement and Social Security Law article 15. In a September 2021 letter, the pension integrity bureau informed petitioner that, upon reviewing his application, petitioner "did not have a bona fide termination from employment prior to the effective date of [his] retirement." Upon petitioner's request, a hearing ensued, at the conclusion of which the Hearing Officer denied petitioner's application and found, among other things, that there was no genuine termination of petitioner's employment with the school district in 2019 and, as a result, petitioner would need to return payments that he had been receiving but to which he was not entitled. Respondent upheld the Hearing Officer's decision, prompting petitioner to commence this CPLR article 78 proceeding to challenge respondent's determination, which was transferred to this Court (see CPLR 7804 [g]).

Petitioner argues that respondent's interpretation of Retirement and Social Security Law article 15 as requiring an applicant to actually stop working for a public employer in order to obtain retirement benefits is unreasonable. In light of this Court's recent decision in Matter of Strzepek v DiNapoli (227 AD3d 1353, 1356 [3d Dept 2024]), we disagree. Respondent "is vested with the exclusive authority to determine all applications for retirement benefits and the determination must be upheld if the interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence" (Matter of Tamucci v DiNapoli, 133 AD3d 960, 961 [3d Dept 2015] [internal quotation marks, brackets and citations omitted]; see Matter of Graziose v DiNapoli, 137 AD3d 1452, 1453 [3d Dept 2016]). To that end, as we held in Matter of Strzepek v DiNapoli, "we have no quarrel with the proposition that, in order to qualify for benefits under Retirement and Social Security Law article 15, an applicant such as petitioner indeed must demonstrate that he or she actually retired from public service employment in the first instance. We are similarly persuaded that it is entirely rational and reasonable for respondent to require that such retirement be genuine, i.e., the applicant must demonstrate that there has been a legitimate cessation or termination of employment. . . . [S]imply filing an application for benefits, selecting a retirement date and abstaining from performing services for the employer on the effective date thereof does not constitute a legitimate retirement — particularly where . . . the applicant in question remains on the employer's payroll and subsequently continues to perform services for the employer" (227 AD3d at 1356 [footnote omitted]). In light of the foregoing, we also find that respondent's determination that petitioner did not actually retire on April 27, 2019 is supported by substantial evidence (see id. at 1357). Specifically, the evidence demonstrates that, although claimant informed the school district that he would be retiring on said date, he did not submit a resignation letter nor ask to be removed from the payroll. And, when the school district contacted him to work again only days after his purported retirement date, claimant agreed to work, and then continued working, albeit with some breaks,^[FN2] until he submitted a resignation letter in April 2021. As such, we decline to disturb respondent's determination.

We now turn to petitioner's argument that his right to due process was violated. Petitioner's contention that his due process rights were violated by respondent's adoption of a new policy is without merit as respondent acted within the purview of his authority when he provided an interpretation of the relevant statutory text to determine whether petitioner had actually retired (see id. at 1355). Nor do we find that an edit made to an information booklet in 2021 suggests the imposition of a new standard as the main purpose of the edit appears to be to inform applicants that "a bona fide termination" of employment must occur before an applicant is considered retired. However, inasmuch as petitioner failed to effectively terminate his employment with the school district, he did not have a legitimate claim of entitlement to the retirement benefits that had accrued on his behalf (see generally Matter of Montgomery v New York State Dept. of Corr. & Community Servs., 192 AD3d 1437, 1440 [3d Dept 2021], lv denied 37 NY3d 908 [2021]; Matter of Soriano v Elia, 155 AD3d 1496,1501 [3d Dept 2017], lv denied 31 NY3d 913 [2018]). In this regard, his due process rights as to those benefits could not have been violated (see id.).

Finally, petitioner contends that respondent should be estopped from recouping monies paid to petitioner during the period respondent now says he was not retired. Petitioner's assertion in this respect centers around alleged erroneous advice given by one of respondent's employees who advised petitioner that, in order to retire from the school district, he could not work on the day of retirement or the day after. However, "[a]s a general rule, estoppel may not be invoked against a governmental body with regard to the exercise of its governmental functions or its correction of an administrative error" (Matter of Taranto v City of Glen Cove, 212 AD3d 826, 828 [2d Dept 2023]; see Matter of Smith v DiNapoli, 167 AD3d 1208, 1211 [3d Dept 2018]). Contrary to petitioner's contention, we do not find his case to be one of "the rarest of cases" in which an exception to the general rule applies (Matter of Taranto v City of Glen Cove, 212 AD3d at 828 [internal quotation marks and citation omitted]; see Matter of Smith v DiNapoli, 167 AD3d at 1211). Moreover, "[u]nder settled principles, the doctrine of estoppel will not provide eligibility [to retirement benefits] where by statute a person clearly does not qualify" (Matter of Price v New York State & Local Employees' Retirement Sys., 107 AD3d 1212, 1216 [3d Dept 2013] [internal quotation marks, brackets and citation omitted]; see Matter of Schuyler v New York State & Local Employees' Retirement Sys., 158 AD3d 909, 912 [3d Dept 2018]), "even if the advice of the administrative employees was erroneous" (Matter of Burns v Regan, 87 AD2d 944, 946 [3d Dept 1982], appeal dismissed 57 NY2d 954 [1982]; see Matter of Lane v DiNapoli, 179 AD3d 1267, 1269-1270 [3d Dept 2020]). Additionally, to the extent that petitioner was provided with incorrect information, it was not his reliance on this information that was ultimately the source of his problems; rather, it was his failure to properly retire by submitting a resignation letter to the school district and/or seeking to be removed from its payroll. Thus, despite the erroneous advice of the Retirement System's administrative officials, the doctrine of estoppel cannot provide petitioner eligibility to retirement benefits for which he did not qualify (see Matter of Lane v DiNapoli, 179 AD3d at 1269-1270; Matter of Schuyler v New York State & Local Employees' Retirement Sys., 158 AD3d at 912; Matter of Price v New York State & Local Employees' Retirement Sys., 107 AD3d at 1215-1216; Matter of Burns v Regan, 87 AD2d at 946). We have reviewed petitioner's remaining contentions and, to the extent not specifically addressed herein, find them to be lacking in merit.

Aarons, J.P., Reynolds Fitzgerald, Ceresia and Powers, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

Footnotes

Footnote 1: Retirement System members who retire as correction officers are entitled to benefits under Retirement and Social Security Law article 14, whereas members employed by certain other public employers, including school districts, are entitled to benefits under Retirement and Social Security Law article 15 (see Retirement and Social Security Law §§ 504 [e]; 600 [2] [a]). However, and according to respondent, if a former correction officer retires after service with an article 15 employer, that individual's years of service under article 14 are considered in the article 15 retirement benefit calculation and, in some instances, the benefits available under article 15 may be more advantageous.

Footnote 2: Given the similar failure to submit a resignation letter and/or seek to be removed from the school district's payroll, we find that respondent's determination that the break in petitioner's employment attributable to the COVID-19 pandemic did not constitute a bona fide retirement is also supported by substantial evidence (See Matter of Strzepek v DiNapoli, 227 AD3d at 1356-1357).

N.B.: See Matter of Petricca v DiNapoli, 2025 NY Slip Op 02121, also decided on April 10, 2025, by the Appellate Division, Third Department. 

A New York City Office of Administrative Trials and Hearings Administrative Law Judge recommended dismissal of disciplinary charges filed against a New York City Probation Officer

OATH Administrative Law Judge Kevin F. Casey found a probation officer guilty of insubordination and conduct prejudicial to good order and discipline as the result of her wearing business attire to work "instead of a polo shirt required by a new dress code" and other clothing required by the Employer's new dress code. 

The probation officer, whose duties included regular courtroom appearances, was charged with misconduct for not wearing a Department-issued polo shirt with the agency’s logo. In addition, the new dress code required the probation officers required to provide, at their own expense, "blue cargo pants, black shoes, and lightweight jackets with the Department’s logo" that was to be worn. 

Citing Ferreri v. NYS Thruway Authority, 62 N.Y.2d 855, the ALJ's observed that employees "were required to obey a supervisor’s order; if the employee believes that an order is improper, the employee can later grieve it through appropriate channels". Judge Casey also noted that the Probation Officer "failed to show that the order to wear the shirt was unlawful, clearly beyond management’s authority, or imminently threatening to health or safety."

However, Judge Casey also found that the Department improperly retaliated against the officer for complaining about the new "dress code" to the Commissioner’s representative and the Department’s General Counsel. 

The ALJ said that the record, the Probation Officer’s credible testimony and other evidence indicated that less than one week after complaining about the new policy, the Department took adverse employment action against the officer by transferring her to another unit, in a different borough, without following Department procedures for involuntary transfers and imposing an unlawful 30 work-day pre-trial suspension without pay.

The ALJ recommended the that the Appointing Authority dismiss all of the disciplinary charges filed against the Probation Officer.

Click HERE to access Judge Casey's findings and recommendation posted on the Internet.