Termination of employee by the New York City Police Commissioner following a disciplinary hearing unanimously confirmed by the Appellate Division

The New York City Police Commissioner terminated Petitioner's service with the New York City Police Department [NYPD] after Petitioner was found guilty disciplinary charges that alleged that he struck his wife, brandished a pistol at her, threatened her and his minor son, and failed to report his arrest to the NYPD's Operations Unit.

Petitioner appealed the Commissioner's decision and the penalty imposed by the Police Commissioner.

The Appellate Division unanimously confirmed the Commissioner's decision, noting that the Hearing Officer's determinations that:

1. Hearsay statements of Petitioner's wife and son were credible;

2. Petitioner's testimony was not credible; and 

3. That the photograph introduced by NYPD was sufficiently authenticated.

The court, citing Matter of Benjamin v Department of Housing Preserv. & Devel. of City of N.Y., 187 AD3d 433, also pointed out that Petitioner may not rely on a notification of disposition from the NYPD Transit Bureau's internal investigation, submitted for the first time with his petition, because "judicial review is limited to the facts and record adduced before the agency".

The Appellate Division also noted that it did not have the discretionary authority to review Petitioner's unpreserved challenges to the admission of sealed arrest records at the hearing, NYPD's reliance on Civil Service Law §75, or the Hearing Officer's representation of the evidence.

Considering Petitioner's challenge to the penalty imposed, termination of his employment with NYPD, the Appellate Division opined that "The penalty of termination does not shock one's sense of fairness in light of [Petitioner's] egregious conduct", citing Matter of Marks, 234 AD3d at 413; and Matter of Castillo v Shea, 226 AD3d 531, lv dismissed 42 NY3d 1071.

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

Attorney's failure to appear in Supreme Court for oral argument reviewed by the Appellate Division

In this appeal concerning seeking public records pursuant to New York State's Freedom of Information Law, the New York City Fire Department [NYFD], NYFD sought to have the Appellate Division vacate its default in appearing in Supreme Court for oral argument. 

The Appellate Division said FDNY was required to show it had a reasonable excuse for its default and a potentially meritorious opposition to the amended petition.

Citing HSBC Bank USA, N.A. v Hutchinson, 215 AD3d 645, the Appellate Division opined that "Where the claim is supported by a detailed and credible explanation of the default, the court may accept law office failure as a reasonable excuse". The court then opined that the ill health of the litigant's attorney is an acceptable excuse for a default and that FDNY demonstrated that its attorney failed to appear at oral argument due to illness, which was corroborated by medical documentation. 

The Appellate Division noted that:

1. FDNY's attorney had notified the petitioner's attorney and the Supreme Court of her illness several hours before the scheduled oral argument;

2. Petitioner had consented to an adjournment of the oral argument; and

3. FDNY's attorney reasonably believed that her appearance was not required.

Under these circumstances, the Appellate Division ruled that Supreme Court should have granted FDNY's motion to vacate its judgment and remitted the matter to the Supreme Court for a determination of the amended petition on the merits.

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

Concerning courts consideration of an inference of unlawful discrimination advanced by a plaintiff to show that the employer subjected the plaintiff to disparate treatment

In an action the Plaintiff, who had been employed by the City University of New York [CCNY] as a peace officer on a CCNY campus, sought to recover damages for alleged employment discrimination on the basis of religion and national origin and for alleged unlawful retaliation.

Supreme Court granted the Employer's motion for summary judgment dismissing the complaint. The Appellate Division affirmed the Supreme Court's granting the Employer's motion. In so doing, the Appellate Division, citing Graham v Long Is. R.R., 230 F3d 34, noted that "To prevail on a summary judgment motion in an action alleging discrimination in violation of the New York State Human Rights Law [NYSHRL]:

1. An employer must demonstrate either a plaintiff's failure to establish every element of intentional discrimination, or, 

2. If the employer offered legitimate, nondiscriminatory reasons for the challenged actions, the plaintiff must raise a triable issue of fact as to whether the employer's explanations were pretextual.

In this instance, the court, with respect to the "employment discrimination cause of action", observed that the Employer argued the Plaintiff failed to satisfy the fourth element: that the discharge occurred under circumstances giving rise to an inference of unlawful discrimination. Addressing this "fourth element", the Appellate Division said an employer can demonstrate that the termination did not occur under circumstances giving rise to an inference of discrimination by providing a legitimate, nondiscriminatory reason for the termination, and "demonstrating the absence of a material issue of fact as to whether its reason for termination was merely pretextual."

Citing Forrest v Jewish Guild for the Blind, 3 NY3d at page 308, footnote 5, the Appellate Division opined that "[It] matters not whether the [employer's] stated reason for terminating plaintiff was a good reason, a bad reason, or a petty one. What matters is that the [employer's] stated reason for terminating plaintiff was nondiscriminatory".

In this instance the court concluded the Employer "met its prima facie burden by offering legitimate, nondiscriminatory reasons for the [Plaintiff's] termination and by demonstrating the absence of material issues of fact as to whether its explanations were pretextual". In contrast, "Plaintiff failed to raise a triable issue of fact regarding pretext for discrimination".

Accordingly, the Appellate Division held that "Supreme Court properly granted the [Employer's] motion for summary judgment dismissing the [Plaintiff's] complaint".

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

Denise M. Miranda confirmed as Commissioner of the New York State Division of Human Rights

On June 2, 2025, the New York State Division of Human Rights announced that Denise M. Miranda, Esq. was confirmed as Commissioner of the Division by the New York State Senate following her historic nomination by Governor Kathy Hochul. 

The Division's announcement noted:

"Commissioner Miranda becomes the first Afro-Latina to serve in this role at the Division, and her confirmation follows her service as the Acting Commissioner since March 2024. 

"Under the Commissioner’s leadership, the Division has launched ambitious efforts to overhaul the agency’s discrimination complaint intake and case management processes while also implementing vital organizational changes and operational improvements. 

"These essential upgrades will result in a bolder, more powerful, and more efficient Division that is prepared to protect the rights of all New Yorkers at a time when that mission has never been more critical.

"Commissioner Miranda was appointed by Governor Hochul in March 2024 to serve as the Acting Commissioner of the Division of Human Rights. 

"Prior to this, Commissioner Miranda served as the Executive Director of the New York State Justice Center for the Protection of People with Special Needs for seven years. She oversaw the agency’s operations, which included investigations into abuse and neglect, criminal prosecutions, and administrative disciplinary proceedings. Under her leadership, the Justice Center managed the care of over one million individuals, with a workforce of more than 425 employees and a $41 million operating budget. 

 

"For nearly 30 years, Commissioner Miranda has been actively engaged in the practice of law and focused the majority of her career on social justice issues and protecting the rights of vulnerable individuals. Beyond her professional accomplishments, she is deeply committed to community service and embodies the values of justice, inclusion, and strategic leadership."

 

New York State Comptroller Thomas P. DiNapoli issued the audits described below on May 30, 2025

The New York State and agency audits summarized below were posted on the Internet on May 30, 2025.

Click on the text highlighted in color to access the complete text of the audit.

Empire State Development – COVID-19 Pandemic Small Business Recovery Grant Program (2023-S-10)
Empire State Development (ESD) was charged with administering the COVID-19 Pandemic Small Business Recovery Grant Program (Program) designed to support small businesses or for-profit independent arts and cultural organizations impacted by the COVID-19 pandemic that either did not qualify for federal assistance programs or that received inadequate federal COVID-19 support. ESD awarded the entirety of the $760 million allocated for small businesses to 40,842 applicants, with an average grant amount of $18,608. Auditors found ESD awarded almost $4.1 million to 101 businesses that were ineligible because they had already received assistance from federal business assistance programs. Additionally, ESD did not consider business type, need, or factors established in the original goals of the Program when awarding grants, instead favoring a first-come, first-served methodology to awarding grants, which resulted in tens of thousands of businesses that went unfunded and certain types of businesses—most notably sole proprietor transportation businesses without employees (i.e., rideshare drivers)—receiving a significant percentage of the total dollars spent.

State Education Department (Preschool Special Education Audit Initiative) – Jackson Child Development Center, Inc.: Compliance With the Reimbursable Cost Manual (2022-S-21)
Jackson Child Development Center, Inc. (JCDC), a New York City-based not-for-profit organization, is approved by the State Education Department (SED) to provide preschool special education services to children with disabilities ages 3 to 5. For the three fiscal years ended June 30, 2020, JCDC reported approximately $24 million in reimbursable costs for its SED preschool cost-based programs. Auditors identified $3,020,800 in reported costs that did not comply with requirements.

Department of Health and Department of Homeland Security and Emergency Services – Oversight of Water Supply Emergency Plans (Follow-Up) (2024-F-32)
The State Public Health Law requires community water systems that supply drinking water to more than 3,300 people to prepare and submit a Water Supply Emergency Plan to the Department of Health (DOH) for approval at least once every five years. Plans must include an Emergency Response Plan, a Vulnerability Analysis Assessment, and a Cybersecurity Vulnerability Assessment. A prior audit, issued in June 2023, found several instances where it had been more than 10 years since the last Emergency Response Plan or Vulnerability Analysis submission, and some water systems had never submitted a Cybersecurity Vulnerability Assessment. Further, there was limited participation by Local Health Department staff in calls and site visits where the Department of Homeland Security and Emergency Services (DHSES) communicates recommendations to water systems. DOH and DHSES officials have made significant progress in addressing the problems identified in the initial audit report, implementing four recommendations and not implementing one.

Office of Temporary and Disability Assistance – Monitoring of Homeless Data (2023-S-38)
The Office of Temporary and Disability Assistance (OTDA) supervises homeless shelters and related programs through 58 local departments of social services (Local Districts). While reports from Local Districts provide aggregate data to OTDA, Local Districts typically also collect and submit client-level data on the populations they serve to Homeless Management Information Systems (HMISs). In New York, federally funded regional or local planning bodies—Continuums of Care (CoCs)—that coordinate housing and services funding control access to the HMISs but are not required to share this data with OTDA or provide open access to the Local Districts that submit this data. Auditors found OTDA does not have access to the client-level data collected in the various HMISs—data that could be analyzed and used to help identify the root causes of homelessness, gauge progress toward achieving permanent housing, and better determine what programs are used or needed by the homeless population. OTDA asserts that it has no oversight of the HMIS data controlled by the CoCs and, consequently, has acquired permission to access the data from only seven of 24 CoCs, which represent approximately 7% of the State’s homeless population based on the U.S. Department of Housing and Urban Development’s point-in-time count.

New York State Health Insurance Program – UnitedHealthcare Insurance Company of New York: Overpayments for Physician-Administered Drugs (Follow-Up) (2024-F-35)
The Empire Plan is the primary health insurance plan for the New York State Health Insurance Program (NYSHIP), providing over one million members with health insurance coverage. The Department of Civil Service, which administers NYSHIP, contracts with UnitedHealthcare Insurance Company of New York (United) to administer the Medical/Surgical Program of the Empire Plan and to process and pay claims submitted by health care providers. Medical/surgical benefits cover a range of services, including physician-administered drugs, which are drugs (other than vaccines) that are administered by a health care provider in a physician’s office or other outpatient clinical setting. A prior audit, issued in September 2023, identified over $5.5 million in actual and potential overpayments for physician-administered drugs. United officials made some progress in addressing the problems identified in the initial audit, recovering about $501,000 of the overpaid claims, and were taking steps to make more recoveries. Of the initial report’s eight audit recommendations, one was implemented, six were partially implemented, and one was not implemented.

New York State needs better oversight of government Artificial Intelligence [AI] systems

On May 28, 2025, the Albany Times Union published an "op-ed" by New York State Comptroller Thomas P. DiNapoli addressing "the need for tougher oversight of governments use of Artificial Intelligence [AI] systems".

Artificial intelligence has the potential to transform how government operates and delivers services. New York state agencies have used AI companions to help seniors combat social isolation, and the Department of Motor Vehicles is using facial recognition technology to deter identity fraud.

These significant technological advances come with profound ethical, legal and societal questions that have to be addressed. If they aren’t, the very New Yorkers they are meant to help could be put in harm’s way.

That is why my office has called on New York’s leaders to enact robust oversight over government’s uses of AI. We need to be assured that these technologies are used safely, fairly and responsibly. In a recent audit that examined the state’s use of AI, my auditors found clear evidence that New York’s use of AI is running well ahead of the state’s ability to manage it.

AI governance must be baked into the process of agencies’ adoption and use of various technologies. This means having rules, guidelines and practices in place that promote transparency from the start, address the flaws and biases that can come with AI, and instill public accountability.

This year, New York strengthened its AI governance framework with a new law requiring state agencies to disclose the AI tools they use and directing the Office of Information Technology Services to keep a public inventory of AI systems. The law also includes protections for employees.

The state has also recently updated its AI acceptable-use policy, which requires agencies to perform a risk assessment of the AI systems they plan to use, assign a human to oversee it if it makes a decision that affects the public, check its performance and document the outcomes of using it.

These are positive developments, but they are not enough.

Our audit found that agencies lack specific procedures to test the accuracy and fairness of their AI systems. That leaves residents vulnerable to harmful automated decisions. One agency that uses voice biometric software to validate people’s identities had never tested its system’s accuracy. Another agency said it wasn’t using AI because it did not think facial recognition technology was AI - even though it had a facial recognition system that met the state’s definition of AI.

The lack of central oversight, inadequate guidance for agencies, the absence of an AI inventory and insufficient training are at the root of these problems. The result: State agencies are left largely alone to adopt AI and create the rules to govern it.

Unsurprisingly, this creates serious vulnerabilities. For example, when we asked what happens to the data created and collected by the AI companion devices given to seniors, officials said the vendor — not the state agency — owns the data on their performance and the recordings of their interactions. 

Failure to address who owns the data creates significant privacy risks. Agencies could lose the ability to delete the data; the vendor could use the data to develop new products or train models, or could sell it without agency consent; and the data could be exposed to security breaches and the loss of personal information.

Establishing good AI governance will require efforts on several fronts. We need a framework that sets clear boundaries for using AI and guidelines and training that help agencies understand and adhere to these standards. Systems must be tested, and not just by the vendor selling the technology. Testing and oversight have to be continuous as AI evolves.

Regular and independent audits will verify that agencies are living up to standards, checking for vulnerabilities and using what they learn to drive improvements. My office will look at the AI systems used by state agencies to see if they are working and verify that vendors are playing by the rules.

The new law will help increase transparency and accountability, but it will only be effective if it is implemented consistently and backed up by rigorous oversight. Audits help verify that written principles are upheld in practice and that these systems benefit New Yorkers by making government more effective at delivering services.

This strategy not only safeguards against current risks; it also prepares governments to adapt to future advancements and builds confidence that the state is using AI responsibly, ethically and transparently.

 ###

Click on the text highlighted in color to access the Comptroller's TU Op Ed and, or, the audit posted on the Internet.

Times Union Op Ed
Commentary: New York Needs Better Oversight of Government AI Systems

Audit
New York State Artificial Intelligence Governance

Conducting a disciplinary hearing in absentia

Supreme Court denied Plaintiff's petition seeking to annul a determination by the New York City Civil Service Commission [CSC] affirming the appointing authority's decision to impose the penalty of termination on the Plaintiff following a disciplinary hearing "conducted in absentia". Supreme Court also granted a cross-motion to dismiss the Plaintiff's petition. 

The Appellate Division unanimously affirmed the Supreme Court's ruling, without costs.

Citing Matter of Centeno v City of New York, 115 AD3d 537, the Appellate Division explained that Plaintiff's constitutional arguments, which are his only arguments reviewable under the "extremely narrow scope of review applicable" to CSC determinations, were unpreserved as Plaintiff's brief submitted to the CSC "never protested that [his] constitutional rights were being violated," and "[the Appellate Division said it] has 'no discretionary authority' to 'reach[] an unpreserved issue in the interest of justice' in an article 78 proceeding ... including issues touching on due process".

With respect to conducting a disciplinary hearing in absentia, New York courts have held that such a disciplinary hearing may proceed and the employee tried in absentia provided the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing.

2. A diligent effort to contact the individual to determine if he or she has a reasonable explanation for his or her absence from the scheduled disciplinary hearing must be made before the hearing officer proceeds to conduct the hearing in the absence of the accused employee even if the employee had earlier advised the appointing authority or the hearing officer that he or she will not participate in the disciplinary hearing.

3. A formal disciplinary hearing must be conducted and the appointing authority is required to introduce evidence proving the charges and specifications served on the employee to the hearing officer.

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee.

5. The employee must be advised of the appointing authority’s determination and of the employee's right to appeal if he or she has been found guilty of one or more of the charges and specifications considered at the disciplinary hearing conducted in absentia.

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