Plaintiff's cause of action alleging unlawful discrimination trigged by requiring all employees of the City of New York to provide proof of COVID-19 vaccination dismissed

Plaintiff in this action sought to recover certain damages, alleging he had suffered employment discrimination on the basis of religion in violation of the New York State Human Rights Law [NYSHRL] and the New York City Human Rights Law [NYCHRL] as the result of the Defendants "intentional tort of forcing unwanted medical care on [the Plaintiff]" as the result of New York City's Commissioner of Health and Mental Hygiene requiring all City employees, among others, to provide proof of COVID-19 vaccination. 

Supreme Court granted the motion of the City of New York, New York City Police Department [NYPD], the New York City Department of Health and Mental Hygiene, and others [Defendants] to dismiss the complaint insofar as asserted against them. Plaintiff appealed the Supreme Court's ruling.

The Appellate Division, noting that both the "NYSHRL and NYCHRL prohibit employment discrimination on the basis of religion", observed that Plaintiff's "complaint's conclusory assertions that the [Defendants] discriminated against the [Plaintiff] based on religion were unsupported by sufficient factual allegations to state a cause of action under either the NYCHRL or the NYSHRL". 

Further, opined the Appellate Division, Plaintiff's "complaint failed to sufficiently allege that the NYCHRL 'required a more robust or individualized dialogue than the process he received'." 

Accordingly, the Appellate Division ruled that Supreme Court "properly granted that branch of the [Defendants'] motion to dismiss the causes of action alleging violations of the NYSHRL and the NYCHRL and "for aiding and abetting violations of those statutes insofar as asserted against them".

Further, the Appellate Division held that:

1. As the vaccine mandate was rescinded in February 2023, the cause of action seeking certain declaratory relief regarding the [Defendants'] "policy and practice" with respect to "religious accommodations to [the Defendants'] vaccine policies," is academic; 

2. The exception to the mootness doctrine is inapplicable here and Supreme Court properly granted that branch of the [Defendants'] motion to dismiss the cause of action seeking "certain declaratory relief insofar as asserted against them";

3. Supreme Court properly granted that branch of the Defendants' motion to dismiss the Plaintiff's cause of action alleging a violation of the Free Exercise Clause of the New York Constitution insofar as asserted against them "as the Plaintiff has no private right of action to recover damages for violations of the New York State Constitution, since the alleged wrongs could be redressed by alternative remedies, including those pursued under the NYCHRL and the NYSHRL in this action"; and

4. Failure to comply with a statutory notice of claim requirement is a ground for dismissal pursuant to CPLR 3211(a)(7) for failure to state a cause of action and in this instance "the notice of claim failed to include any allegations relating to these causes of action". 

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

Disability inclusion in aging law and policy

Join the Government Law Center at Albany Law School on October 8, 2025, for the annual Nancy M. Sills ’76 Memorial Lecture on Aging Law and Policy, featuring leaders and disability advocates from the Office of the Chief Disability Officer of the State of New York. 

This free event is open to the public and includes a reception after the speaking program.

A remote attendance option will be available. This link will be shared after registration.

Click HERE to Register. 

Former president of a snowmobile club pleads guilty to stealing $17,000 which New York State and Fulton County provided to maintain snowmobile trails in the Adirondacks

New York State Comptroller Thomas P. DiNapoli, Fulton County District Attorney Mike Poulin and New York State Police Superintendent Steven G. James announced that the former president of the Snowdrifters of Stratford, Chad Daley, pleaded guilty to stealing $17,000 from the nonprofit. As part of his plea agreement, Daley paid full restitution to the club.

“Chad Daley abused his position to enrich himself with funds meant to support his community,” said DiNapoli. “Any violation of the public’s trust for personal gain is unacceptable. Thanks to our partnership with District Attorney Poulin and the New York State Police in this case, Mr. Daley has been held accountable for his crimes.”

James said, “I commend our State Police members, the State Comptroller’s Office, and Fulton County District Attorney’s Office for their rigorous work on this case. This individual abused the position he was entrusted in, taking thousands of dollars that were meant to keep snowmobile trails and the community safe. We have zero tolerance for those who seek to defraud others and put the unsuspecting public in harm’s way.”

The Snowdrifters of Stratford receives funding from New York state and Fulton County to maintain snowmobile trails in the Adirondacks. Daley was the organization’s president for more than 10 years.

From late 2018 through 2023, Daley stole $5,300 in checks made payable to the “Snowdrifters Club” by depositing them into his own personal bank account. He also transferred over $3,000 in funds from the club’s account to his personal account and wrote a $3,500 Snowdrifters’ check to cash, which was endorsed and cashed by his longtime partner.

Daley also made cash withdrawals of over $5,000 from the Snowdrifters’ bank account without authorization or a corresponding purchase order. He took advantage of the club’s tax-exempt status to purchase snowmobiles and trailers using the organization’s funds while registering the vehicles to himself. Daley used the money he stole to support his personal expenses as well as to purchase a snowmobile for his own use. 

Daley pleaded guilty to petit larceny before Judge Nicholas Rissmeyer in Stratford Town Court.

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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. Report allegations of fraud involving New York 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.

 

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.

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