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December 15, 2014

National Publication Names NYS’s Tax Policy Director “Person of the Year”



National Publication Names NYS’s Tax Policy Director, Deputy Commissioner Robert Plattner, “Person of the Year”
Source: New York State Department of Taxation and Finance
A national publication has honored the NYS Tax Department’s policy chief with its annual Person of the Year Award for his vital role in the passage of sweeping corporate tax reform.
State Tax Notes, the preeminent publication on state tax issues, honored Deputy Commissioner Robert Plattner, the Tax Department’s Director of the Office of Tax Policy and Analysis, with this prestigious recognition in its December 15th edition.
The national publication presents the award each December to an individual or organization that had the most influence on state tax policy and practice during the past year.  In addition to “Person of the Year,” State Tax Notes recognized Mr. Plattner in an additional award category as “Administrator of the Year.” 
State Tax Notes chose Mr. Plattner for the awards “for spearheading the multi-year effort that led to reform.”  That reform has received accolades for making the law fairer and simpler, modernizing it to reflect the current marketplace, and enhancing the State’s business climate. 
The work on reform began within the agency, but then entered a phase of extensive discussions with the corporate community and other constituencies.  With critical support from Governor Andrew M. Cuomo and his Tax Reform and Fairness Commission, the reform legislation was included in the Governor’s Executive Budget for 2014-15, and signed into law shortly thereafter. 
The reforms promote fairness and help businesses invest with confidence, while ensuring a stable and predictable revenue flow for New York State.  As a result, it is easier and less expensive for businesses to comply with their tax responsibilities, and more likely that state revenues will result from voluntary compliance, rather than costly audits.   
The changes received widespread support from numerous organizations, including the Partnership for New York City, the Business Council of New York, the Tax Foundation, and the Securities Industry and Financial Markets Association.

Calculating a teacher's seniority for layoff and preferred eligible list purposes


Calculating a teacher's seniority for layoff and preferred eligible list purposes 
Decisions of the Commissioner of Education, Decision No. 16,686

An educator [Teacher A] challenged the actions of the School District in calculating her seniority for layoff and  preferred eligibility list  purposes. Teacher A claimed that this miscalculation resulted in her loss of an opportunity to be recalled to a full-time leave replacement substitute teaching position and asked the Commissioner to declare that she had greater seniority to another teacher, Teacher B, and to direct the District "to immediately transfer her to the relevant full-time leave replacement position and correct her place on the seniority list. 
 
The Commissioner noted that due to budgetary constraints, the School District had abolished both TeacherA's and Teacher B's positions in the elementary tenure area.

Although the Commissioner dismissed Teacher A's appeal on procedural grounds,* the decision notes that "Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits."

The Commissioner said that prior to Teacher A's appointment as a probationary teacher she had served in various capacities as a per diem substitute teacher in the district. The District had credited Teacher B with 8.97794 years of seniority and had credited Teacher A with 8.44 years of seniority. Teacher A alleged that District incorrectly calculated her seniority by failing to include time served as a "regular and consistent substitute."

Teacher A contended that based on the actual duties performed while serving as a per diem substitute in the elementary tenure area, she should be provided seniority credit for time served as a per diem substitute. The District, in contrast, argued that it had accurately calculated Teacher A's seniority, which should not include periods of time during which Teacher A served as a temporary per diem substitute.

The Commissioner explained that "It is well settled that service as a full-time regular substitute teacher entitles such teacher to seniority credit, when such service immediately precedes a probationary appointment." However, said the Commissioner, it is also clear that “an ‘itinerant’ or per diem substitute assigned on a temporary, as-needed basis does not accumulate seniority.”

In addition, the Commissioner observed that it is the nature and continuity of the particular substitute assignment that determines whether or not such service was regular, and therefore sufficient to warrant seniority credit.

While Teacher A was properly granted seniority credit for the period in which she served as a full-time leave replacement or regular substitute teacher in one particular class, the Commissioner said that the record reflected that other specific substitute service for which Teacher A sought seniority credit was, by its nature, per diem. 
 
Although Teacher A was required to report to one of the School District's elementary schools, the fact that Teacher A served in certain classrooms for a few days or a week at a time on an as-need basis does not change the fundamental nature of her position as a per diem substitute position. Accordingly, although Teacher A's substitute service may have been regular and consistent within the school building, because she substituted for various teachers, in various capacities, and for various time periods, the Commissioner said that the School District had  properly omitted Teacher A’s per diem substitute service when calculating her seniority.

* The most significant omission was A's failure to name B as a necessary party as B's rights could be adversely affected were A to prevail in her appeal,

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume54/d16686

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Selected reports and information published by New York State's Comptroller during the Week Ending December 14, 2014



Selected reports and information published by New York State's Comptroller during the Week Ending December 14, 2014
Click on text highlighted in color  to access the full report



New York State Comptroller Thomas P. DiNapoli Thursday released a report, “Preserving and Expanding Affordable Housing Opportunities,”that summarizes his recent series of audits of affordable housing programs and highlights recommendations for improving New York’s well-intentioned efforts.


DiNapoli Releases Report on Environmental Funding in New York State

The Department of Environmental Conservation (DEC) has experienced staff cuts and constrained funding since 2003 while its responsibilities have grown, according to a report released Wednesday by New York State Comptroller Thomas P. DiNapoli.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of the Baldwinsville Public Library, City of Lockport, Town of Saranac, and the West Corners Fire Company.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of the Bemus Point Central School District, Byron-Bergen Central School District, Haverstraw-Stony Point Central School District, and the Westmoreland Central School District.

December 13, 2014

The 50 Most Popular New York Law Blawgs

The 50 Most Popular New York Law Blawgs

The 50 most popular Law Blogs of the 352 listed by Justia as having a "New York State" focus are listed below. The reference to the Blog's “Rank this week” refers to its rank in the 5,983 Blawgs in 74 subcategories for which Justia maintains statistics for the past week. If you would like to receive updates to any of the Blogs listed as material is posted, click on [Feed] to sign-up for complimentary  new postings.

Includes news, cases and commentary on real estate and property law in New York and nationwide. By Newman Ferrara LLP.
Last Updated: December 8, 2014- Rank this Week: 7

Provides summary and commentary on selected court and administrative decisions and related matters affecting public employers and employees in New York State. By Harvey Randall, Esq.
Last Updated: December 8, 2014- Rank this Week: 29

Covers New York criminal law topics such as criminal procedure, DWI and traffic offenses, drugs and narcotics, fraud related offenses, and violent crimes. By Jeremy Saland.
Last Updated: November 20, 2014- Rank this Week: 76

News and information gateway to web based services provided by the New York State Supreme Court Criminal Term Library in New York County.
Last Updated: December 14, 2010- Rank this Week: 99

Covers legal malpractice basics, cases and news. By Andrew Lavoott Bluestone.
Last Updated: December 8, 2014- Rank this Week: 110

Comments on developments in copyright and trademark law. By Andrew Berger.
Last Updated: July 24, 2013 - Rank this Week: 168

Features stock fraud news.
Last Updated: December 8, 2014- Rank this Week: 186

From the Forum on Law, Culture & Society at Fordham Law.
Last Updated: October 19, 2014- Rank this Week: 187

Covers Long Island criminal defense law. By Joseph Potashnik & Associates PLLC.
Last Updated: April 26, 2013 - Rank this Week: 200

Features immigration news, policies and discussion. By Pozo Goldstein & Miranda, LLP.
Last Updated: October 28, 2014- Rank this Week: 218

Covers criminal law, information technology and news for law librarians. By David Badertscher.
Last Updated: August 12, 2012- Rank this Week: 220

Covers New York divorce law. By David Centeno.
Last Updated: May 6, 2013 - Rank this Week: 248

By the Langel Firm.
Last Updated: December 7, 2014- Rank this Week: 290

Covers securities law. By Gana LLP.
Last Updated: December 8, 2014- Rank this Week: 333

Covers motor vehicle accidents, medical malpractice, and municipal liability. By Michaels & Smolak, P.C.
Last Updated: December 6, 2014- Rank this Week: 356

Covers New York wrongful death cases involving auto accidents, hospital negligence, and medical malpractice. By Leland T. Williams.
Last Updated: December 13, 2011- Rank this Week: 353

By Leonard E. Sienko, Jr.
Last Updated: December 8, 2014- Rank this Week: 400

Covers the relationship between art and law with a focus on intellectual property, nonprofit tax-exempt organizations, free speech, and contemporary art. By Sergio Muñoz Sarmiento.
Last Updated: December 8, 2014- Rank this Week: 391

Provides a summary of an Appellate Division case of special interest to New York practitioners.
Last Updated: December 8, 2014- Rank this Week: 365

Covers child custody, child support, divorce, equitable distribution, marriage, spousal maintenance, and visitation. By Daniel E. Clement.
Last Updated: December 4, 2014- Rank this Week: 393

Published By Fogelman and Fogelman LLC
Last Updated: December 3, 2014- Rank this Week: 403

Covers probate news, procedures and resources. By Philip M. Bernstein.
Last Updated: November 3, 2014- Rank this Week: 358

Covers debt collection and consumer law.
Last Updated: September 29, 2014- Rank this Week: 396

By Neil Cahn, PLLC.
Last Updated: December 8, 2014- Rank this Week: 450

Discusses the intersection of civil rights, criminal defense, and police misconduct litigation, from the perspective of a NYC litigator. By Michael Lumer.
Last Updated: December 7, 2014- Rank this Week: 432

Covers New York insurance coverage cases and issues. By Roy A. Mura.
Last Updated: September 22, 2014- Rank this Week: 438

Covers employeee benefits, ERISA, and employment law. By Stanley D. Baum.
Last Updated: December 8, 2014- Rank this Week: 481

Covers regulatory and statutory updates from the healthcare industry. By O'Connell & Aronowitz.
Last Updated: December 1, 2014- Rank this Week: 484

Covers immigration law, news and commentary. By Matthew L. Kolken.
Last Updated: November 21, 2014- Rank this Week: 478

Covers traffic ticket laws and news. By Matthew J. Weiss.
Last Updated: November 6, 2014- Rank this Week: 535

Covers issues in the law of torts, products liability, evidence, and expert witnesses. By Nathan A. Schachtman, Esq., PC.
Last Updated: November 28, 2014- Rank this Week: 603

Provides news, updates and insights for financial services employers. By Epstein Becker Green.
Last Updated: November 26, 2014- Rank this Week: 548

Covers futures, commodities and forex regulation. By Shipkevich Law Firm.
Last Updated: August 8, 2014 - Rank this Week: 571

Cover qui tam law and the process of bringing a case. By Getnick & Getnick.
Last Updated: October 30, 2013- Rank this Week: 640

Features news, commentary and thoughts on the law of the securities markets. By Mark Astarita.
Last Updated: December 8, 2014- Rank this Week: 685

Covers employment discrimination, severance, wage violations, sexual harassment and civil rights. By The Harman Firm, P.C.
Last Updated: December 8, 2014- Rank this Week: 747

Covers the civil justice system, New York Courts, injury law cases and news. By Eric Turkewitz.
Last Updated: December 8, 2014- Rank this Week: 744

Covers dissolution and other disputes among New York corporations, LLCs and partnerships. By Peter A. Mahler.
Last Updated: December 8, 2014- Rank this Week: 739

Covers personal injury law. By the Law Offices of Stephen Bilkis & Associates.
Last Updated: December 8, 2014- Rank this Week: 1033

By LeCours, Chertok & Yates, LLP.
Last Updated: December 8, 2014- Rank this Week: 885

Covers New York personal injury topics. By Carol L. Schlitt.
Last Updated: December 8, 2014- Rank this Week: 1006

Covers knowledge management. By V. Mary Abraham.
Last Updated: December 8, 2014- Rank this Week: 1030

Covers workers’ compensation law and drug injuries. By Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP.
Last Updated: December 4, 2014- Rank this Week: 977

By Jules Martin Haas.
Last Updated: December 3, 2014- Rank this Week: 860

Covers New York estate planning, probate, elder law and health care issues. By Dutcher & Zatkowsky.
Last Updated: December 3, 2014- Rank this Week: 974

Covers the defense of misclassification claims and class actions, audits and investigations by the IRS and state tax and workforce agencies. By Pepper Hamilton LLP.
Last Updated: December 2, 2014- Rank this Week: 998

By the Law Offices of Nicholas Rose, PLLC.
Last Updated: November 30, 2014- Rank this Week: 865

Covers New York family law and divorce law. By Andrea Vacca.
Last Updated: November 25, 2014- Rank this Week: 851

Covers New York criminal law news. By Law Offices of Stephen Bilkis & Associates.
Last Updated: October 26, 2014- Rank this Week: 932

Covers estate planning and special needs trusts. By Ellen A. Victor.
Last Updated: June 12, 2014 - Rank this Week: 887

December 12, 2014

Claimant's willful misrepresentation on his or her application for unemployment insurance results in the imposition of both a recoverable overpayment and forfeiture penalty


Claimant's willful misrepresentation on his or her application for unemployment insurance results in the imposition of both a recoverable overpayment and forfeiture penalty
Campon (Commissioner of Labor), 2014 NY Slip Op 08298, Appellate Division, Third Department
.
John J. Campon was terminated from his position as a result of his having engaged in a prolonged campaign of harassment against a coworker in violation of his employer's anti-harassment policy.

Campon, alleging that he had lost his employment due to lack of work, applied for and received unemployment insurance benefits. 
 
The Unemployment Insurance Appeal Board subsequently disqualified him from receiving unemployment insurance benefits based on its finding that he had been terminated from his employment as the result of his misconduct. The Board also charged Campon with a recoverable overpayment and forfeiture penalty due to his willful misrepresentations in his application for unemployment insurance benefits.

Campon appealed the Board's actions. The Appellate Division affirmed the Board's determinations, explaining that “There is no question 'that offensive behavior in the workplace which is detrimental to the employer's best interest constitutes disqualifying misconduct.'" Here, said the court, there was substantial evidence in the record to support the Board's rulings.

Further, the Appellate Division said that Compon's “inaccurately asserted that he was unemployed due to a lack of work when he applied for benefits,” and thus there was no reason to disturb either the Board's finding of willful misrepresentation or its imposition of both a recoverable overpayment and forfeiture penalty.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_08298.htm
.



December 11, 2014

Demonstrating a constitutional claim of member service credits bars their prehearing removal and the cancellation of the individual's retirement application by the retirement system



Demonstrating a constitutional claim of member service credits bars their prehearing removal and the cancellation of the individual's retirement application by the retirement systemKravitz v DiNapoli, 2014 NY Slip Op 08284, Appellate Division, Third Department

Jay A Kravitz, a licensed physician, provided part-time professional services to four public school districts since the mid-1980s. In the course of his providing such services, Kravitz was reported as a school employee to the New York State and Local Employees' Retirement System [ERS] and made annual employer contributions toward his public pension.

In a September 2011 letter from ERS notified Kravitz that ERS had been determined that he was an independent contractor rather than an employee of the school districts that he served and thus would lose approximately 20 years of member service credits in the Retirement System. Kravitz was also advised that [1] he had the right to a hearing to challenge the determination; [2] if no hearing was requested within four months, the service credits would be removed and [3] any contributions he made would be refunded.

Kravitz timely requested a hearing, but such a hearing had not been held as of the date of this decision by the Appellate Division. The court noted that the record includes a November 2012 letter from Kravitz's attorney requesting that the hearing be deferred until the following August due to Kravitz's absence from the country.

In October 2012, Kravitz filed an application with the Retirement System but ERS advised Kravitz that as a result of “the loss of approximately 20 years of service credits,” his remaining 1.55 years of service credits “rendered him ineligible to receive a pension benefit at that time.” Kravitz's attorney objected to ERS “removal of Kravitz's service credits” and requested that ERS process Kravitz's retirement application pending the hearing. ERS, however, advised Kravitz that he was not eligible for retirement benefits because he had insufficient years of service credits and canceled his retirement application.

Kravitz then commenced a CPLR Article 78 action seeking a judgment declaring that ERS' removal of his service credits and refusal to accept and process his retirement application was, among other things, arbitrary and capricious and a violation of due process. ERS asked Supreme Court to dismiss Kravitz's petition “for failure to state a cause of action” and for his failure to exhaust administrative remedies. Finding that Kravitz failed to exhaust his administrative remedies, Supreme Court granted ERS' motion.

ERS contended that inasmuch as it has not made a final determination with regard to Kravitz's service credits and retirement application, the matter is not ripe for judicial consideration, citing Swergold V Cuomo, 70 AD3d 1290. Kravitz argued that even though no hearing has occurred, the matter is ripe for judicial review because ERS had already removed his service credits and canceled his retirement application, resulting in a violation of his constitutional due process rights to such a predeprivation hearing.

The Appellate Division said that it agreed with Kravitz and vacated the Supreme Court's ruling.In Swergold the Appellate Division found that the member's due process claims “were rendered moot and/or were premature after the Retirement System restored their service credits pending administrative hearings and averred that it would not revoke those credits until the completion of such hearings.”

In contrast to Swergold, in Kravitz, said the court, ”not only has the Retirement System removed Kravitz's service credits, it has also canceled Kravitz's retirement application and has not represented that it would restore his service credits until his hearing is completed and a final determination is rendered.”

Accordingly, requiring Kravitz to exhaust his administrative remedies arguably could cause irreparable injury, for example, in the event of his death pending an administrative hearing.

Under these circumstances, said the Appellate Division, it concluded that Kravitz “has a cognizable constitutional claim regarding the prehearing removal of his service credits and cancellation of his retirement application that is ripe for our review and survives [ERS'] motion to dismiss.

As Kravitz's appeal was before the Appellate Division on ERS' pre-answer motion to dismiss, the court ruled that the matter must be remitted to Supreme Court to permit ERS to serve an answer to Kravitz's petition.

However, in a footnote to its ruling, Appellate Division said that “Considering the viability of the petition, we are of the view that [ERS] should be precluded from removing Kravitz's service credits and refusing to accept his retirement application until a final determination is made by Supreme Court with respect to the petition and by the Comptroller as to his employment status after an administrative hearing.”

The decision is posted on the Internet as:http://www.nycourts.gov/reporter/3dseries/2014/2014_08284.htm

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