NYPPL summaries most often read during the month of November 2012

NYPPL summaries most often read during the month of November 2012

The following were the five case summaries most often read by the 16,138 visitors to this LawBlog during the month of November 2012.

The legal distinction between domicile and residence at:

http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html

Essentials of the "Pickering Balancing Test” at:

http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member at:

http://publicpersonnellaw.blogspot.com/2011/04/school-board-member-seeking-removal-of.html

Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law at:

http://publicpersonnellaw.blogspot.com/2011/04/ordering-correction-officer-to-submit.html

and

Court finds Pension Board's failure discontinue the payment of disability retirement benefits obviates the “suspension” of the retiree’s benefits at:

http://publicpersonnellaw.blogspot.com/2011/04/court-finds-pension-board-failure.html

From the Office of the State Comptroller

From the Office of the State Comptroller

For the week of November 26 - December 2, 2012 

Unclaimed funds for New Yorkers in areas hard–hit by Superstorm Sandy

“Nearly $3 billion in unclaimed funds are waiting to be returned to New Yorkers who reside in areas devastated by Superstorm Sandy. I would like to return the money to the rightful owners,” New York State Comptroller Thomas P. DiNapoli said.

“In these difficult times we are seeing more than ever that every single dollar counts. I encourage New Yorkers who have been impacted by the recent storm to initiate the simple process of retrieving their unclaimed funds as they continue to rebuild.”

N.B. You can search for unclaimed funds being held in the Comptroller’s “Unclaimed Property Fund” by clicking on: https://ouf.osc.state.ny.us/ouf/

DiNapoli: Town of Hempstead Should Examine Animal Shelter Costs

Auditors found high operational costs at the Hempstead Animal Shelter among other problems, State Comptroller Thomas P. DiNapoli said Friday. The auditwas undertaken after requests by town residents and Nassau County District Attorney Kathleen Rice.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the audits of:

the Town of Butler;

the Town of Caneadea;

the East Islip Fire District;

the Town of Gates;

the Town of Jay;

he Town of Mamakating;

the City of Newburgh;

he North Bay Fire District;

the Village of Otisville; and,

the Town of Vienna.

Recent rulings and recommendations by OATH Administrative Law Judges

Recent rulings and recommendations by OATH Administrative Law Judges

Summaries published by the NYC Office of Administrative Tribunals and Hearings

Employee alleged to have refused to work overtime
OATH Index No 1748/12

A hospital special officer was charged with insubordination after refusing to work mandatory overtime on 42 occasions. The employee did not appear at the hearing and the matter proceeded by inquest.*

Administrative Law Judge Kara J. Miller found that on each occasion the officer was given a form ordering him to work mandatory overtime and warning him that non-compliance could result in disciplinary action.  Each form was signed and dated by special officer and a supervisor. 

ALJ Miller found that this documentation proved the insubordination.  She recommended that the special officer be suspended without pay for 45 days.

* Courts have held that the appointing authority or its designee may proceed with the disciplinary action even though the employee is not present. Where the individual is to be  tried in absentia, a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did appear at the appointed time and place. Notwithstanding the absence of the individual, the burden is on the charging party to present and prove the disciplinary charges filed against the worker.

The decision is posted at Health & Hospitals Corp. (Jacobi Hospital Ctr.) v. Cooper (in PDF), .

Supervisor charged with leave violations, failure to supervise subordinates, sleeping on duty and misuse of agency property.
OATH Index No. 760/12 

Following a 7-day hearing, ALJ Kevin F. Casey sustained some of the leave violations, the sleeping on duty charge and the misuse of property charge, but he dismissed the failure to supervise charges. 

Noting that it was undisputed that some of supervior’s absences may have been due to medical conditions that he developed after his service at Ground Zero, and that the most serious disciplinary penalty previously imposed on employee was the loss of 10 vacation days, Judge Casey found termination of employment to be an overly harsh penalty and recommended a 48-day suspension without pay, based on principles of progressive discipline. 

The decision is posted on the Internet at Dep’t of Sanitation v. Harris (in PDF),  

Employees alleged to have ignored directives to stop distributing union literature while not on duty
OATH Index Nos. 1497/12, 1499/12, 1707/12

Three New York City correction officers were charged with a number of allegations of misconduct, chief among them refusing to comply with orders to stop distributing union literature on Rikers Island while not on duty and refusing to obey orders to leave the secured island.

The individuals denied they were ever given such orders and asserted a First Amendment right to distribute union information while off-duty. They also offered videos of some of the incidents into evidence.

ALJ Alessandra F. Zorgniotti sustained the charges that correction officers refused to obey orders to stop distributing their materials and orders to leave the island, as well as charges that one officer filed a false report and another failed to turn over his parking pass promptly.

Other allegations were dismissed.

ALJ Zorgniotti noted that a correctional facility presents special circumstances under the First Amendment, and that the employees had failed to prove that their First Amendment rights outweighed the compelling interest of the Department in maintaining a secure facility. 

Judge Zorgniotti recommended that each officer be suspended for 10 days without pay. 

The decision is posted on the Internet at Dep’t of Correction v. Reuter (in PDF), OATH Index Nos. 1497/12, 1499/12, 1707/12

Motor vehicle operator alleged mentally unfit to perform her dutie
OATH Index No. 1546/12  

Administrative Law Judge John B. Spooner found that the individual had a mental disability but that the proof presented at the hearing was insufficient to sustain the allegation that she was presently unfit for her job as a driver.

The ALJ noted that [1] neither of the two incidents proven at trial established that employee was an unfit driver, [2] the individual had recently received favorable evaluations of her driving performance, and[3]  there had been no complaints about the employee since January 2011.

Judge Spooner recommended that the disciplinary charges be dismissed.

The decision is posted on the Internet at  Admin. for Children’s Services v. Anonymous(in PDF),

Newspaper reports admitted into evidence in an administrative disciplinary proceeding

Newspaper reports admitted into evidence in an administrative disciplinary proceeding
2012 NY Slip Op 07479, Appellate Division, Fourth Department

A volunteer firefighter filed an Article 78 petition challenging the Volunteer Fire Company’s decision,  to expel him from membership in the Fire Company following a hearing held pursuant to General Municipal Law §207-l.

The petitioner contended that the Fire Company had violated §160.50 of the Criminal Procedure Law, which provides for the “sealing” of certain record, when the Company admitted into evidence media reports related to the petitioner's arrests or when it presented the testimony of a police investigator who was involved in the relevant criminal investigations.

As to newspaper media reports concerning petitioner's arrests, the Appellate Division, citing New York State Dept. of Mental Hygiene v State Div. of Human Rights, 103 AD2d 546, 549, affd 66 NY2d 752, said that such newspaper reports are not "official records and papers . . . relating to [the petitioner's] arrest or prosecution" within the meaning of CPL §160.50(1)(c). Further, said the court, it is " permissible to consider the independent evidence of the conduct [of the petitioner] leading to the criminal charges."

As to the testimony of the police investigator, the court explained that the police investigator was "free to testify from memory" concerning the conduct that led to the petitioner's arrests.”

The Appellate Division then stated there was substantial evidence establishing that the petitioner had exhibited a lack of "good moral character" in violation of Article II, §2 of the Fire Company's Constitution and By-laws and had committed misconduct under General Municipal Law §209-l".

N.B. §209-l provides for the removal of volunteer officers and volunteer members of fire departments charged with, and found guilty of, misconduct or incompetence after a hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07479.htm

E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law

E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law
Hernandez v Office of the Mayor of the City of New York, 2012 NY Slip Op 08067, Appellate Division, First Department

Sergio Hernandez filed an Article 78 petition seeking a court order annulling the determination of the Office of the Mayor of the City of New York denying his requests under the Freedom of Information Law (FOIL) for certain e-mails sent from or “received by any government email accounts assigned to the Office of the Mayor to or from Cathleen Black, at the time she was a nominee for the position of New York City School Chancellor” and certain other records.

Supreme Court directed the City to produce redacted copies of such e-mails, which as the Appellate Division subsequently noted, were not exempt from disclosure as inter- or intra-agency materials within the meaning of Public Officers Law §89[2][g].

The City appealed the court’s order.

The Appellate Division sustained the lower court’s ruling, explaining that Black was not an agent of the City since she had not yet been retained as Chancellor. In addition, said the court, Black was not acting simply as an outside consultant on behalf of the City, but was a private citizen with interests that may have diverged from those of the City.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08067.htm

Failure to correctly identify the court and the name of the judge signing a search warrant a fatal defect

Failure to correctly identify the court and the name of the judge signing a search warrant a fatal defect

People v Gavazzi, 2012 NY Slip Op 08054, Court of Appeals

This LawBlog’s summary of Gusler v. City of Long Beach, USCA, Docket #11-4493-cv [see http://publicpersonnellaw.blogspot.com/2012/11/the-failure-to-name-parties-appealing.html] noted that the U.S. Court of Appeals, Second Circuit, ruled that the failure to correctly name the parties appealing a federal district court’s ruling was a fatal jurisdictional defect.

In People v Gavazzi the defects challenged by Gavazzi involved the name of the jurisdiction, the name of the court and the name of the justice signing a search warrant.

The Court of Appeals, Justice Smith dissenting, held that a warrant to search Gavazzi’s residence in the Village of Greene, Chenango County, was defective as the result of the inadvertent typing of "Local Criminal Court, Town of Broome, Broome County" at the head of the warrant instead of "Local Criminal Court, Town of Greene, Chenango County." There is no municipality of Broome in either Broome County or Chenango County and the Village Justice signed the warrant without correcting the error.

Further, said the court, the Justice’s signature on a line marked "Signature of Judge or Justice” was illegible.

The Appellate Division had held that the warrant did not substantially comply with §690.45(1)* of the Criminal Procedure Law because it contained "no information from which the issuing court can be discerned" (see 84 AD3d 1427 at 1429). The Court of Appeals agreed with the Appellate Division's analysis, explaining that a search warrant must contain "[t]he name of the issuing court," again citing CPL §690.45 [1]).** Here, however, the Village Justice who signed the warrant included no designation of his court, his signature was illegible, there is no seal, and the caption referred to a nonexistent town.

In the words of the Appellate Division, "on its face the warrant appears to [have been] issued by an unidentified judge in a nonexistent court and town in a different county", concluding that the warrant did not substantially comply with CPL §690.45(1).

The bottom line: evidence sized under color of the warrant had to be suppressed.

* §690.45, in pertinent part, provides that “A search warrant must contain: 1. The name of the issuing court and, except where the search warrant has been obtained on an oral application, the subscription of the issuing judge;"

** The Court of Appeals noted that standard for adherence to the statutory requirement is "substantial — rather than literal — compliance."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08054.htm

Possession of a valid license or permit to perform the duties of the position

Possession of a valid license or permit to perform the duties of the position

Lutz v Krokoff, 2012 NY Slip Op 07938, Appellate Division, Third Department

It is well settled that employment in certain positions or occupations in New York State requires the individual to posses a valid license or its equivalent. Examples of this include teaching in a public school, operating motor vehicle on public highways, practicing law or medicine and serving as a certified public account. In the event the individual no longer possesses the required license or permit, he or she can neither lawfully perform nor be permitted to perform the duties requiring the possession of a valid permit or license.*

When it learned that a police officer’s driver's license was temporarily revoked, the police department’s chief advised the officer that possession of a valid driver's license was a minimum qualification for employment by the department as a police officers and gave him an opportunity to provide documentation demonstrating that he possessed a valid driver’s license.**

When the officer could not produce evidence that he possessed a valid driver’s license his employment was terminated “for failure to meet the minimum qualifications for his position.”

The officer then initiated an Article 78 proceeding challenging his termination as arbitrary and capricious and affected by an error of law. Supreme Court dismissed the police officer’s petition, prompting his appeal to the Appellate Division.

The police department, conceding that possession of a valid driver's license was not specifically listed as a minimum qualification for appointment to the position of a police officer, nevertheless contended that such a license was an implied requirement in view of the fact that the job description for its police officers listed, among other things, the "[a]bility to operate an automobile."

The Appellate Division was not persuaded by this argument, ruling that “summary dismissal of an employee based merely upon an inference cannot be countenanced.” In contrast, said the court, “Where summary dismissal has been upheld for failure to maintain a minimum qualification of employment, the qualification at issue has been clearly and explicitly set forth.”

Further, the court observed that the record indicated that almost one third of the police officers employed by the department performed functions other than those requiring possession of a valid driver’s license and noted that the department’s “Standard Operating Procedures” stated that a police officer shall "[p]ossess a valid New York State driver[']s license, whenever required as a condition of employment" (emphasis supplied by the court).

In the court’s view, this “conditional language” suggested that that there were police officers in the department who were not required to possess a driver's license as a necessary condition of employment.

Noting that the civil service commission having jurisdiction had promulgated a class specification for another position, firefighter, that explicitly required the possession of a valid New York State driver's license at the time of employment and throughout the duration of the individual’s employment as a firefighter, the Appellate Division concluded that the police officer’s termination without a hearing was both arbitrary and capricious and contrary to law and reversed the lower court’s ruling

* See, for example, Meliti v Nyquist, 41 NY2d 183

** In the words of the Appellate Division, citing Carr v NYS Dept. of Transportation, 30 AD3d 1110, "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07938.htm

Self-critical privilege not available to public entities in New York State objecting to the release of certain information

Self-critical privilege not available to public entities in New York State objecting to the release of certain information

Uniformed Fire Officers Assn., Local 854 v City of New York, 2012 NY Slip Op 07899, Appellate Division, First Department

Supreme Court denied the City of New York’s motion to quash a judicial subpoena obtained by the Uniformed Fire Officers Association, Local 854, requiring the City to supply it with copies of drafts of a public safety consultant's report recommending a change affecting the City’s 911 call system.

The Appellate Division sustained the Supreme Court’s ruling, holding that the City failed to show that the public interest would be harmed by the disclosure of drafts of the consultant's report to the Local.

The court explained that the City’s claim of protection under the so-called "self-critical" privilege*was misplaced as “This privilege has never been recognized under New York law.”

Further, the Appellate Division observed that the City had not demonstrated that there were "exceptional and compelling circumstances" that might justify the judicial creation of a new privilege

In the words of the court, “Absent sensitive subject matter or exposure of review participants to liability, the City's contention that the disclosure of the drafts would have a chilling effect on the internal discussions of those engaged in reviewing technical projects such as this is speculative.”

In contrast, said the court, Local 854 had shown a need for the drafts for the purpose of  preparing its case before the City’s Collective Bargaining Board.

* The self-critical analysis privilege, if available, would protect an entity’s self-evaluative materials from disclosure when it is shown that the public interest in preserving the internal evaluations of the organization outweighs an interested party's right to the information.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07899.htm

The failure to name the parties appealing a lower court’s ruling held a fatal jurisdictional defect

The failure to name the parties appealing a lower court’s ruling held a fatal jurisdictional defect

Gusler v. City of Long Beach, USCA, Docket #11-4493-cv

Jay Gusler, acting pro se, filed an action under 42 U.S.C. §1983 alleging that the defendants* unlawfully retaliated against him.

The district court dismissed claims against some of the defendants but then dismissed a motion by the remaining individual defendants' raising a defense of qualified immunity. The remaining defendants then appealed the district court's dismissal of their motion.

The Circuit Court of Appeals rejected the appeal filed by the remaining individual defendants, finding that it lacked jurisdiction to consider the merits of the appeal as they had not filed a timely notice of appeal.

Although the notice of appeal contained the full caption of the action, the body of the appeal stated: “Notice is hereby given that the defendant Nassau County hereby appeals.” However, said the court, while The City of Long Beach is in Nassau County, Nassau County itself is not a party in the action.

The Circuit Court said that the appeal as initially filed did not “provide notice to the court [or] to the opposing parties of the identity of the appellant or appellants” so that neither the Circuit Court, nor the district court, nor the plaintiff  “know . . . which parties are bound by the district court’s [decision] [and] which parties may be held liable for costs or sanctions on the appeal.”

Further, noted the Circuit Court, the amended notice of appeal did not cure the problem as the amended notice was filed after the time to appeal had run.**

The Circuit Court dismissed the appeal, explaining that “Because the notice of appeal did not specify which defendants were taking an appeal of the district court’s decision, we lack jurisdiction to consider their appeal.”

* Gusler had named as the defendants in his action The City Of Long Beach, The Long Beach Volunteer Fire Department, The Long Beach Police Department, and twelve individuals.

** The Circuit Court also pointed out that the defendants “did not seek an extension of time to amend and correct the notice of appeal … and the time to do so has long since passed….”

The Circuit Court's decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/67fcaa5c-1014-4d83-957a-173edf363d85/1/doc/11-4493_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/67fcaa5c-1014-4d83-957a-173edf363d85/1/hilite/

Releasing medical records

Releasing medical records

The Port Authority of New York and New Jersey filed a motion to mandate that the plaintiff authorize the release of all of his medical records preceding the accident in which he alleged he was injured.

Supreme Court directed that the plaintiff provide authorizations to release his medical records but limited the release of his medical records to the five years preceding the accident.

The Appellate Division affirmed the lower court’s order, holding that the Authority “failed to demonstrate that all plaintiff's pre-accident medical records were material and necessary in the defense of this action,” explaining that the plaintiff did not allege that the accident “aggravated or exacerbated a preexisting injury or condition.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07898.htm

Challenging the employee's dismissal during his or her probationary period

Challenging the employee's dismissal during his or her probationary period

Supreme Court dismissed a former probationary employee’s petition seeking to annul his termination from his position, the revocation of his New York City Department of Education [DOE] teaching certification, his placement of his name on the DOE's Ineligible/Inquiry list,* and his overall unsatisfactory rating for the 2010-2011 school year.

The Appellate Division sustained the lower court’s actions, explaining that the probationer had failed to establish that his termination, the revocation of his teaching certificate and his placement on the DOE's ineligible/inquiry list, was done in bad faith.

Addressing the individual’s allegation of bad faith, the court noted the record contained evidence of good faith on DOE’s part. For example, said the Appellate Division, the school principal’s "intention was not to terminate [the] petitioner's employment but to extend his probation for an additional year."

In addition, said the court, the record contained evidence of deficiencies in individual's performance during the probationary period.

As to the individual’s challenge to the revocation of his teaching certification and the placement of his name on the ineligible/inquiry list, the Appellate Division ruled that those challenges were not untimely but that Supreme Court had correctly sustained those administrative determinations.

Finally the Appellate Division pointed out that the lower court had correctly dismissed the individual’s challenge to his “U-rating” as it was premature because he had not yet exhausted his administrative remedies.

*Placing an individual’s name on the "Ineligible/Inquiry" list maintained by the New York Department of Education bars that individual from employment at any DOE school while his or her name remains on such list [McPherson v. New York City Dep't of Education, 457 F.3d 211].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07888.htm

Reassignment of “exclusive duties” being performed by negotiating unit employees to non-unit employees

Reassignment of “exclusive duties” being performed by negotiating unit employees to non-unit employees

Stony Point Police Benevolent Association v Town of Stony Point, PERB Case #U-29118

Attorney Brian D. Nugent* advised NYPPL of a November 14, 2012 ruling by the Public Employment Relations Board [PERB] that considered “exclusivity of unit work” in the context of the employer's reassigning certain duties and functions being performed by employees in a negotiating unit to non-unit employees.

The Stony Point Police Benevolent Association [PBA] filed an improper practice charge with PERB contending that the Town of Stony Point violated §209-a.1(d) of the Civil Service Law [The Taylor Law] when it unilaterally reassigned certain security duties that had been performed exclusively by employees in the  negotiating unit represented by the PBA to non-unit employees.

PERB agreed with the Town that the parties' past practice established a discernible boundary between the work assignment at issue: the reassignment of certain security duties being performed by PBA unit members at the Town's Justice Court to non-unit part-time personnel who were not sworn officers.**

PERB, noting that the duties at issue were transferred from sworn police officers to civilian employees, ruled that under its precedents “it is well-settled that an employer’s civilianization of uniformed services constitutes a de facto change in job qualifications.”

PERB then considered the "balancing test" set out in its decision in Niagara Frontier Transportation Authority, 18 PERB 3083.

Finding that there had been a significant change in the "job qualifications" with respect to the "at-issue" duties, PERB said that the only loss suffered by the PBA and its unit members was the “loss of at-issue work” in contrast to a loss in the number of positions in the unit or a loss of unit member benefits.

PERB's conclusion: the Town had not violated §209-a.1(d) of the Taylor Law, explaining that the Town’s interests associated with the civilianization of the at-issue work outweigh the interests of the unit employees.

* Brian D. Nugent, Esq., Feerick Lynch MacCartney Pllc, http://www.flmpllc.com, represented the Town in this proceeding. 

** See Criminal Procedures Law §1.20.34

No legal obligation to initiate disciplinary charges against an individual

No legal obligation to initiate disciplinary charges against an individual

Decisions of the Commissioner of Education, Decision #16,427

A tenured high school teacher alleged that the high school superintendent neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against the principal of the high school at which he was serving.

The teacher alleged that he reported the school’s principal for alleged violations including failure to identify at-risk students as required by Title I of the federal Elementary and Secondary Education Act (20 USC §6301, et seq.) and scoring irregularities on New York State Regents mathematics examinations.

Following his reporting these alleged violations, the teacher claimed that the principal retaliated against him by [1] placing several disciplinary letters in his personnel file, [2] his being ordered to undergo medical examination and [3] his removal from the school to a “temporary assignment center.”*

The teacher asked the Commissioner to remove the high school superintendent and the Chancellor of the New York City Department of Education from their respective positions because they failed to take disciplinary action against the principal.

After considering a number of procedural issued, the Commissioner said that the teacher’s application “must be dismissed on the merits.”

The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

The teacher alleged that the high school superintendent “neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against [the principal].” However, said the Commissioner, the teacher s failed to meet his burden of proof as he did not establish how the superintendent’s failure to file an Education Law §3020-a charge against the principal, at his request, constituted a willful violation or neglect of duty under the Education Law, requiring her removal under Education Law §306 nor did the teacher show that the superintendent “was under a legal obligation to initiate Education Law §3020-a charges against [the principal].”

The Commissioner ruled that “On the record before me, I find that [the teacher] has failed to demonstrate that [the high school superintendent] has willfully neglected her duties [and] failed to establish any basis for [the superintendent’s] removal” and denied the teacher’s application.

* The teacher was later restored to service at the school..

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16427.html

A school district may sue its board members, employees, former board members and former employees for alleged mismanagement or misconduct

A school district may sue its board members, former board members, employees, and former employees for alleged mismanagement or misconduct

Roslyn Union Free Sch. Dist. v Barkan, 2012 NY Slip Op 07652, Appellate Division, Second Department

The Roslyn Union Free School District initiated a lawsuit  against Michael Barkan, Karen Bodner, William Costigan, Mary Ann Combs Ronna Niederman, Ellen Siegel, and Patricia Schissel to recover damages for alleged breaches of fiduciary duty and negligence.

Supreme Court denied their respective motions to dismiss the complaints insofar as asserted against each of them and they appealed the Supreme Court’s ruling to the Appellate Division.

The Appellate Division sustained the lower court's decision, rejecting their argument that, in the absence of specific enabling legislation, a school district may not commence an action against current or former members of its board of education.

Citing a decision by the Court of Appeals in a prior appeal in this action, Roslyn Union Free School Dist. v Barkan, 16 NY3d 643,the court explained that the plaintiff here – the Roslyn Union Free School District -- is a "corporation" and a corporation has the right to sue and be sued.

Accordingly, said the court, the school district has the right to prosecute an action "for injury and damages sustained by it by reason of mismanagement or misconduct in its affairs, waste of assets, or derelictions in duty by the directors, officers, agents or employees of the corporation."

Finding that the school district’s complaint “adequately alleges causes of action to recover damages for breach of fiduciary duty and negligence,” the Appellate Division dismissed the appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07652.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli For the week of November 12 - 18, 2012 [Click on the caption to access the full report] DiNapoli: Improvements Needed At Saratoga Housing Authority Auditors found lax spending controls at the Saratoga Housing Authority, according to an audit released Friday by State Comptroller Thomas P. DiNapoli. DiNapoli: Schenectady’s Fiscal Condition Improving The City of Schenectady faces an unstable financial future, but increased economic development and better long–term financial planning point to signs of progress, according to an audit issued Tuesday by State Comptroller Thomas P. DiNapoli. DiNapoli: Dunkirk Mishandled Federal HUD Grant Funding The City of Dunkirk spent more than $1 million from the U.S. Department of Housing and Urban Development’s (HUD) Community Development Block Grant program on unauthorized or questionable activities, according to an audit issued Tuesday by State Comptroller Thomas P. DiNapoli. The findings have been referred to HUD for further review. Comptroller DiNapoli Releases Audits New York State Comptroller Thomas P. DiNapoli last Friday announced his office completed the following audits:  Department of Health;  Division of Housing and Community Renewal;  Office of Mental Health,  Quality of Internal Control Certification;  Office of Parks, Recreation and Historic Preservation;  Department of Health Overpayments for Hospital Readmissions; and,  Thoroughbred Breeding and Development Fund. Hurricane Sandy Relief Efforts Comptroller Thomas P. DiNapoli and volunteers from the Comptroller’s Office, along with family and friends, will deliver a semi–trailer truckload of supplies to residents of Long Beach at 1 p.m. Saturday, November 17, at the Long Beach Ice Arena as part of the Comptroller’s Office’s Hurricane Sandy relief campaign. The Comptroller and staff volunteers will unload the truck and assist the relief center with sorting and distribution of the household and cleaning supplies. The Comptroller’s Office continues to work with our partners in government to expedite the approval of all storm related contracts and expenditures. Additional items:

Saratoga Springs Housing Authority criticized in audit Comptroller’s Audit Finds Problems In Dunkirk NY Thruway toll hike on hold