ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

May 16, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 16, 2015



Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 16, 2015
Click on text highlighted in color to access the full report


Comptroller Di Napoli releases municipal audit reports for:

Carthage-West Carthage Water Pollution Control Facility
Both the clerk-treasurer and her deputy were able to perform all cash disbursement functions and have full access rights to record financial transactions in the accounting system with no oversight. Facility officials did not review bank reconciliations and bank statements and a comparison of canceled check images and online payments with approved abstracts.
http://www.osc.state.ny.us/localgov/audits/jointacts/2015/carthagewestcarthage.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release

City of Long Beach
The significant revenue and expenditure projections in the proposed budget appear reasonable. The proposed budget, however, includes revenue related to the sale of real property and federal aid which may not be realized. In addition, appropriations for overtime may not be sufficient. Finally, metered water sales and sewer rents include a 2 percent rate increase which has not yet been adopted by the city council. The city’s proposed budget complies with the property tax levy limit. 
http://www.osc.state.ny.us/localgov/audits/cities/2015/longbeach_br.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release
 
Oneida Public Library District
The board did not audit each claim before payment or provide oversight of disbursements related to the district’s line of credit, payroll or petty cash. Additionally, no district official reviewed the processed payroll reports before disbursing payroll checks.
http://www.osc.state.ny.us/localgov/audits/libraries/2015/oneida.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release

Village of Quogue
The justices did not ensure that court moneys were accounted for. The court did not properly prepare bank reconciliations or prepare an accountability analysis, resulting in excess funds in bail and fee accounts which could not be accounted for.
http://www.osc.state.ny.us/localgov/audits/villages/2015/quoguejc.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release

and the

Shelby Volunteer Fire Company
The board does not ensure that all financial activity is properly recorded and reported and that money is properly accounted for. In addition, between April and November 2013, the fire company paid $10,714 to a vendor that was owned by the company president. 
 http://www.osc.state.ny.us/localgov/audits/firedists/2015/shelby.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release 


Comptroller and Attorney General report former Executive Director of a nonprofit organization sentenced
State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman jointly announced that David Cohen, former executive director of the Metropolitan Council on Jewish Poverty (Met Council), has been sentenced to one year in jail. Cohen has also paid $650,000 in restitution to the Met Council. The joint investigation revealed that Cohen, together with former Met Council CEO William Rapfogel and other co-conspirators, stole approximately $9 million from the taxpayer-funded nonprofit organization as part of a 20-year grand larceny and kickback scheme. Cohen personally stole approximately $650,000 from the Met Council.
http://www.osc.state.ny.us/press/releases/may15/051115.htm?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051115release 

Audit of Empire State Development Corporation reveals advertising contract produced few “tangible results”
The Empire State Development Corporation (ESDC) spent $211 million on an advertising contract to promote economic development and tourism in New York state with no tangible results, according to an audit released by State Comptroller Thomas P. DiNapoli.



May 15, 2015

Loss of the license or other certification required for the performance of the duties of the position typically results in the termination of the individual’s employment



Loss of the license or other certification required for the performance of the duties of the position typically results in the termination of the individual’s employment
2015 NY Slip Op 04182, Appellate Division, Third Department

Although the loss of the license or the certification required to perform the duties of the position typically results in the termination of the individual’s employment, the courts have held that a termination for inability to produce proof of possession of a required license, permit or certificate is not a dismissal in the nature of discipline.*

However, an individual dismissed because he or she is unable to produce the required credentials to lawfully perform the duties of his or her position may also suffer another consequences following his or her termination - the Unemployment Insurance Appeal Board may determine that the Claimant was disqualified from receiving unemployment insurance benefits because he or she had  voluntarily left his or her employment “without good cause.”

In this instance Claimant had been employed as a full time heavy equipment operator by a municipality's highway department for more than four years . One of the conditions of his employment was that he maintain a valid commercial driver's license (CDL).

In the course of a traffic stop, Claimant “refused to submit to a breathalyzer test” and his CDL was automatically suspended as a result.

Although there was some discussion about Claimant’s continuing to work for the highway department as a laborer on a part-time basis, this did not occur and Claimant was unable to return to his job as a heavy equipment operator as a result of his CDL being suspended.

Claimant then applied for unemployment insurance benefits. Although Claimant’s application for unemployment insurance benefits was initially denied, on appeal an Administrative Law Judge ruled that Claimant was allowed to receive benefits. The Unemployment Insurance Appeal Board [Board], however, subsequently reversed this decision, concluding that Claimant was disqualified from receiving benefits because he had provoked his discharge.

Claimant appealed but the Appellate Division sustained the Board’s ruling. 

Citing Matter of Ramirez [Commissioner of Labor], 84 AD3d 1656 and other decisions, the court explained that applicants for unemployment insurance benefits “who have undertaken voluntary actions that have resulted in the forfeiture of their valid CDLs, a necessary condition of employment,” have been held to have provoked their discharge thereby disqualifying them from receiving unemployment insurance benefits.**

Rejecting Claimant’s argument to the contrary, the Appellate Division said that the appointing authority “was not obligated to offer [Claimant] a part-time position as a laborer,” following his termination from his heavy equipment operator position, citing Matter of Ramirez [Commissioner of Labor], 84 AD3d at 1657.

* See, for example, Matter of Cravatta v New York State Dept. of Transp., 77 AD3d 1399; Matter of Carr v New York State Dept. of Transp., 70 AD3d 1110.

** An applicant for unemployment insurance benefits who has left his or her position “without good cause” is typically held ineligible for such benefits. [See Hawkins v Commissioner of Labor, 71 AD3d 1215}.

The decision is posted on the Internet at:

May 14, 2015

The eight factors that a public agency or private employer must consider before rejecting an applicant for employment based on his or her criminal record



The eight factors that a public agency or private employer must consider before rejecting  an applicant for employment based on his or her criminal record
2015 NY Slip Op 04028, Court of Appeals

Distinguishing its decision in Acosta v New York City Board of Education [Board], in this action the Court of Appeals held that the Board’s denial of the application for certification as a school bus driver because of his prior criminal convictions was not arbitrary and capricious.

Here the applicant [Applicant] for certification as a school bus had disclosed that he had been convicted of two drug-related felonies as well as three theft-related misdemeanors, the most recent in 1993, when Applicant was 41 years old. Applicant explained that his criminal history was related to a past drug addiction, which he had overcome in the mid-1990s through a drug treatment program.

DOE withheld its certification as a school bus driver, advising Applicant’s employer that  the reason for the denial was that Applicant had been "convicted of an offense that render[ed] [him] unsuitable to perform duties associated with the transportation of school age children." As a result of petitioner's failure to receive certification, the bus company terminated Applicant's employment.

Applicant and other individuals who had been denied certification by the DOE based on criminal convictions commenced a proceeding pursuant to CPLR Article 78 challenging the denials. Supreme Court dismissed the proceeding. However, the Appellate Division modified Supreme Court's judgment, granted the petition to the extent of annulling the DOE's determinations, and remitted to the DOE, "to give petitioners an opportunity to review the information upon which DOE's determinations were based and to submit statements and documents pursuant to Chancellor's Regulation C-105."

Regulation C-105 provides that "[i]f, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with [DOE's Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information."

Although Applicant had submitted various documents to the DOE from a number of prior employers including the bus company, all which described Applicant as a reliable and responsible employee and a certificate of relief from disabilities with respect to his felonies issued by Supreme Court in 2002, DOE again denied his application.

Applicant again challenged DOE’s denial of certification to serve as a school bus driver.

Supreme Court granted Applicant’s petition to the extent of annulling DOE's determination, ordered the DOE to approve petitioner's application, and remanded. Supreme Court concluded that the DOE had "failed to consider all eight factors as set forth in section 753 of the Correction Law. . . . Respondent only considered petitioner's criminal history when reviewing his application and failed to consider his extensive evidence of rehabilitation. Petitioner's last conviction was eighteen years ago and he obtained a certificate of relief from disabilities" (see 2012 NY Slip Op 30552[U] [Sup Ct, NYCounty 2012]).

The Appellate Division reversed Supreme Court's judgment, holding that "[t]he DOE's May 4, 2011 determination that [Applicant’s] prior drug-related convictions as an adult bore on his fitness and/or ability to perform his school bus duties was rationally based, and it shows DOE gave due consideration to the relevant factors under Correction Law § 753 before denying his application. Although [Applicant] avers he has been drug free since 1994, and his crimes were directly related to his drug addiction at the time, the offenses were not youthful indiscretions (he was 41 years old), but were of a serious nature since each involved narcotics."

The Appellate Division granted Applicant leave to appeal to the Court of Appeals, certifying the question whether its order was properly made. The Court of Appeals affirmed the Appellate Division’s decision.

The Court of Appeals noted that the Correction Law sets out eight factors that a public agency or private employer must consider when deciding whether one of the §752 exceptions applies:

"(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his [or her] fitness or ability to perform one or more such duties or responsibilities.

(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

(e) The age of the person at the time of occurrence of the criminal offense or offenses.

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his [or her] behalf, in regard to his [or her] rehabilitation and good conduct.

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public."
(Correction Law § 753 [1].)

and that "[a] failure to take into consideration each of these factors results in a failure to comply with the Correction Law's mandatory directive."

Referring to it decision in Acosta, the court explained that there it had reviewed DOE's denial of an application for a security clearance, filed by an individual who had been convicted of first-degree robbery when she was 17 years old. Although DOE contended that issuance of the security clearance would pose "an unreasonable risk to property or to the safety or welfare of specific individuals or the general public,” the Court of Appeals held that the DOE acted arbitrarily because the agency failed to consider each of the factors specified in Correction Law § 753 and, further, did not take into consideration all of the documentation that Acosta submitted in support of her application, and therefore violated Correction Law §753(g). The court said that it concluded that DOE's review amounted to no "more than a pro forma denial of petitioner's application on the basis of her prior criminal conviction,"

In his appeal, Applicant argued that “DOE has, once again, failed to review anything other than an applicant's criminal record.”

The Court of Appeals said that it disagreed with Applicant, holding that in contrast to Acosta, Applicant “adduces no evidence demonstrating that the DOE failed to consider the information he provided concerning his relevant employment history.”  Here, said the court, the record indicates that the DOE may simply have given "greater weight to . . . the fact and circumstances of [Applicant's] conviction[s] than to . . . his subsequent accomplishments," and in these circumstances the DOE's determination cannot be overturned without "engaging in essentially a re-weighing of the factors, which is beyond the power of judicial review.

Considering these elements and the relevant statutes, the Court of Appeals, Chief Judge Lippman dissenting, said that under these circumstances “we cannot conclude that the DOE's determination, declining to grant the certification despite the certificate of relief from disabilities, was arbitrary and capricious.”

The decision is posted on the Internet at:

May 13, 2015

A reminder from the Internal Revenue Service



A reminder from the Internal Revenue Service
Free Webinars

1. Taxability of Fringe Benefits Part Two: Commonly Provided Fringe Benefits 
When: June 11, 2015; 2 p.m. (Eastern) [ [Did you miss Part One? See #3 below.]
How: Register for this event. You will use the same link to attend the event.

Learn about:
Cell phone usage
Payments In-Lieu of Insurance
Moving expense reimbursements
Meal allowances and reimbursements
Employee vehicles used for employer’s business
Employer provided vehicles

What else: Don't forget to register for these IRS Webinars:

2. Compliance Self-Assessment Tool for Government Entities
May 14, 2015; 2 p.m. (Eastern)

3. Taxability of Fringe Benefits Part One: What Is A Fringe Benefit and When Is It Taxable?  
May 19, 2015; 2 p.m. (Eastern)

Employers must provide a disabled individual with a reasonable accommodation of his or her disability in contrast to providing the accommodation preferred by the individual



Employers must provide a disabled individual with a reasonable accommodation of his or her disability in contrast to providing the accommodation preferred by the individual
2015 NY Slip Op 03936, Appellate Division, First Department

The Appellate Division agreed with Supreme Court’s finding that the City of New York as the employer [Employer] had demonstrated that it had engaged in a good faith interactive process through which it had provided Complainant with a reasonable accommodation to address her vision and reading disabilities.

However, said the court, neither the New York State’s Human Rights Law [Executive Law § 296] nor New York City’s Administrative Code [Administrative Code of City of NY § 8-107] requires that an employer provide a disabled individual with the specific accommodation he or she preferred, citing Pimentel v Citibank, 29 AD3d 141, leave to appeal denied, 7 NY3d 707.

Further, said the Appellate Division, Employer had established that the Complainant’s preferred additional accommodation would not have addressed the non-visual disabilities that were impacting her job performance and preventing her from satisfying the essential requisites of her job.

The decision is posted on the Internet at:

May 12, 2015

A requests for reconsideration of a final administrative decision does not toll the running of the Statute of Limitations



A request for reconsideration of a final administrative decision does not toll the running of the Statute of Limitations
2015 NY Slip Op 03929, Appellate Division, First Department

In 2006 the New York City Teachers' Retirement System (TRS) calculated a teacher’s [Retiree] total service credit and found her to be ineligible for an early retirement incentive (ERI) program.

In 2013 Retiree, after making multiple unsuccessful efforts to get TRS to rectify its allegedly erroneous determination, filed an Article 78 petition seeking a court order directing TRS to “correct” its decision regarding Retiree’s eligibility for the ERI.

Supreme Court dismissed Retiree’s petition  challenging TRS's calculation of her total service credit and its determination finding her ineligible for the ERI program as time barred. The Appellate Division agreed with Supreme Court’s ruling.

The Appellate Division said that TRS's determination became final and binding for statute of limitations purposes upon Retiree’s receipt of TRS's letter dated September 15, 2006 calculating her total service credit and explaining that she was ineligible to participate in the ERI program. Retiree did not dispute her having received this letter within five days after it was mailed on September 15, 2006. Further, said the court, there is no evidence in the record to substantiate Retiree’s claims that TRS misled her or undermined the “finality of the letter.”

The Appellate Division explained that Retiree’s many efforts to get TRS to rectify its purported error were, in effect, “requests for reconsideration, which do not serve to toll the statute of limitations,” citing Cauldwest Realty Corp. v City of New York, 160 AD2d 489. Thus, said the court, because Retiree commenced her Article 78 proceeding in 2013, well beyond the four-month statute of limitations, her challenge was time-barred.

Addressing another claim advanced by Retiree, credit for “uncompensated annual leave and cumulative absent reserve time” allegedly withheld by the Department of Education of the City of New York (DOE), the Appellate Division said Retiree’s claim was barred by the doctrine of laches  as she had waited more than 10 years after she retired from her employment with DOE to demand such relief, and Retiree provided no excuse for the delay. Laches is typically defined as "an unreasonable delay by the plaintiff in bringing the claim."

Further, said the court, under these circumstances, DOE was not required to show that it was prejudiced by Retiree's delay in bringing her claim.

The decision is posted on the Internet at:

May 11, 2015

Public pension reform effort by the Illinois State Legislature ruled unconstitutional by the Supreme Court of Illinois



Public pension reform effort by the Illinois State Legislature ruled unconstitutional by the Supreme Court of Illinois
In re Pension Reform Litigation, [Doris Heaton, et al,] v Pat Quinn, Governor, State of Illinois, et al, Supreme Court of Illinois, 2015 IL Docket 118585,

In this action the plaintiff contended the Act amending Illinois Pension Code (40 ILCS 5/1-101 et seq.) by reducing retirement annuity benefits for individuals who first became members of four of Illinois’ five State-funded pension systems prior to January 1, 2011 was unconstitutional. Members of the retirement systems affected by Public Act 98-599 and groups representing those members brought five separate actions challenging the validity of the new law on the grounds that it violated numerous provisions of the Illinois Constitution of 1970, including Article XIII, section 5 (Ill. Const. 1970, Art. XIII, § 5), popularly known as the Pension Protection Clause.

The Circuit Court declared Public Act 98-599 to be unconstitutional in its entirety as a violation of the so-called Pension Protection Clause, and permanently enjoined its enforcement. The court rejected Illinois’ claim that “the Act could be upheld, notwithstanding its violation of the Pension Protection Clause, based on the State’s reserved sovereign powers"

As the Circuit Court’s ruling invalidated a statute of the State of Illinois, Illinois could appeal directly to the Illinois Supreme Court.

Illinois has five State-funded Retirement Systems [Systems] for public employees, which Systems provide traditional defined benefit plans under which members earn specific benefits based on their years of service, income and age. All five Systems are subject to the pension protection clause set out in Illinois’ State Constitution, which provides that “Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired” [Ill. Const. 1970, art. XIII, § 5].

Concern over ongoing funding deficiencies and the attendant threat to the security of retirees in public pension systems eventually led directly to adoption of Article XIII, section 5, the Pension Protection Clause, when the new Constitution was adopted in 1970 inresponse to “the poor job governmental entities had done in meeting their pension obligations over time” whereby during the past twenty-two “the unfunded accrued liabilities of these pension plans in Illinois have increased from about $359,000,000 to almost $2,500,000,000, and the unfunded accrued liabilities are real and are not theoretical obligations based upon service already rendered.”

The advocates for adopting Article XIII, [see Record of Proceedings, Sixth Illinois Constitutional Convention 2925 (statements of Delegate Green)] argued that “Our language is that language that is in the New York Constitution which was adopted in 1938, really under a similar circumstance. In 1938 you were about at the end of the Depression, but there was a great consideration on the part of the New York General Assembly to really cut out some of the money that they were giving to the pension programs in New York; and it was for this reason that the New York Constitution adopted the language that we are suggesting. Since that time, the state of New York the pension funds for public employees have been fully funded, and so I think we have good reason to believe that this type of language will be a mandate to the General Assembly to do something which they have not previously done in some twenty-two years.”

After a scholarly analysis of the issues relevant to this case, the Supreme Court sustained the Circuit Court’s conclusion that Public Act 98-599 was void and unenforceable in its entirety, thereby holding that the Act was unconstitutional and sustained the Circuit Court’s “permanently enjoining its enforcement.”

The decision is posted on the Internet at:

May 10, 2015

New York State’s Human Rights Law protects unpaid interns in the public and private sectors from unlawful discrimination

New York State’s Human Rights Law protects unpaid interns in the public and private sectors from unlawful discrimination
Source: NYS Division of Human Rights

New York State Division of Human Rights Commissioner Helen Diane Foster has issued a press release reminding public and private sector employers in New York State that interns are protected from discrimination in the workplace under the New York State Human Rights Law. Foster indicated that “Unpaid interns are protected from harassment and other unlawful discrimination based on age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status. “
 
Commissioner Foster said that “The Human Rights Law defines “intern” as a person who performs work for an employer for the purpose of training under certain circumstances. Among them, that the employer is not committed to hire the person performing the work at the conclusion of the internship and that the person performing the work agrees with the employer that they are not entitled to wages for the work performed.  The work performed by the intern is to provide or supplement training that may enhance the intern’s "employability," provide experience for the intern’s benefit, be performed under close supervision of existing staff and not displace regular employees. If an individual is called an ‘intern’ but paid, that person will likely be considered a regular employee under the Human Rights Law.”
 
These provisions explicitly protect interns from sexual harassment, which under the Human Rights Law is considered a form of sex discrimination, as well as other forms of harassment
 
For their part, employers cannot discriminate against interns in selection, retention or terms, conditions and privileges of the internship or when advertising for the internship. It is also unlawful for employers to discriminate against pregnant interns or retaliate against an intern for opposing discriminatory behavior or for filing a complaint.
 
The Human Rights Law prohibits discrimination in employment, housing, credit, and other jurisdictions, based on age, race, national origin, sex, sexual orientation, marital status, disability, military status, and other specified classes.

Complaints with the Division must be filed within one year of the most recent incident of discrimination. For more information about the law and the work of the agency, please visit the Division of Human Rights’ website at www.dhr.ny.gov.

May 09, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 9, 2015



Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 9, 2015
Click on text highlighted in color to access the full report

Delaware Co. – Vehicle Usage and Disposal
County officials did not perform cost-benefit analyses to support the after-hours locations of vehicles. None of the six departments reviewed adequately monitored vehicle usage.
http://www.osc.state.ny.us/localgov/audits/counties/2015/delawareco.pdf

Fulton County IDA-PILOT Agreements
Seven of the eight payment in lieu of taxes (PILOT) agreements that were active during the audit period did not have a recapture clause to recover benefits from the businesses if they did not meet their projected goals.
http://www.osc.state.ny.us/localgov/audits/ida/2015/fultonco.pdf

Village of Medina – Ambulance Service Billings
The village board did not adequately monitor ambulance billings and amounts collected. Additionally, the village did not send invoices to the three towns for unpaid ambulance bills and administrative billing fees. As a result, the village is owed more than $1 million for ambulance services.
http://www.osc.state.ny.us/localgov/audits/villages/2015/medina.pdf

Village of Nissequogue – Information Technology operations
Village officials have not designated an IT administrator who is independent of the financial recordkeeping. In addition, the board has not developed written policies and procedures, including those for acceptable computer use, password security, data backups and disaster recovery.
http://www.osc.state.ny.us/localgov/audits/villages/2015/nissequogue.pdf

City of Poughkeepsie – Audit Follow-up
Of the seven previous audit recommendations, three recommendations were fully implemented and three recommendations were partially implemented. One recommendation was not implemented. For example, the city has taken steps to reduce the deficit in the general fund and developed a comprehensive plan to reduce outstanding debt.
http://www.osc.state.ny.us/localgov/audits/cities/2015/poughkeepsiefollowup.pdf

Sir William Johnson VFC - Controls over financial activities
Neither the former nor the acting treasurer maintained accurate, complete and up-to-date accounting records. Additionally, neither treasurer consistently performed monthly bank reconciliations or provided the board with monthly and annual financial reports.

Former Member of the State Assembly pleas guilty of State and Federal charges
State Comptroller Thomas P. DiNapoli, United States Attorney Richard S. Hartunian, New York State Attorney General Eric T. Schneiderman, and Andrew W. Vale, Special Agent in Charge of the Albany Division of the Federal Bureau of Investigation, announced that former Member of the State Assembly William Scarborough, age 69, of Queens, New York, has agreed to enter guilty pleas on federal and state public charges stemming from public corruption investigations.

College Savings Sweepstakes announced
New York State Comptroller Thomas P. DiNapoli announced a $500 sweepstakes to help a lucky New Yorker plan ahead for college. Winnings from the sweepstakes will be put in a new or existing 529 College Savings Program Direct Plan account. The New York 529 College Savings Program, an investment tool designed to help families save for college, is overseen by DiNapoli’s office in partnership with the Higher Education Services Corp.

Woman indicted for alleged stealing pension benefits payable to her deceased mother
New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one count indictment charging Linda Miller, 57, a resident of Englewood, N.J., with grand larceny in the second degree, a class C felony, in Albany County Court. Miller is alleged to have stolen over $162,000 in pension benefits from the New York State and Local Employees Retirement System, payable to her deceased mother, Josephine Miller.

New Jersey resident alleged to have stolen pension benefits payable to his deceased godfather
New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one count indictment before the Honorable Peter Lynch charging Terence Fitzpatrick, 43, a resident of Monmouth County, New Jersey, with the crime of Grand Larceny in the Second Degree, a class C felony, in Albany County Court. Fitzpatrick is alleged to have stolen over $78,000 in pension benefits from the New York State and Local Employees Retirement System, payable to his deceased godfather, Thomas Sullivan.

Former Town HighwaySuperintendent found guilty of having stolen $65,000 from the Town
Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced that Roger Burlew, the former Highway Superintendent for the town of Erin who stole $65,000 from the town, has been sentenced to serve six months in jail and five years of probation. As part of Burlew’s sentence, he must also pay full restitution to the town of Erin. In the event that Burlew fails to pay restitution, he faces up to fifteen years in state prison.

Legislative spending for travel and per diems to reported quarterly
State Comptroller Thomas P. DiNapoli announced that his office will report on legislative spending for travel and per diems on a quarterly basis. DiNapoli also announced his office approved 2,178 contracts valued at $2.9 billion and approved more than 2.8 million payments worth more than $19.7 billion in March. His office also rejected 230 contracts and related transactions valued at $364.5 million and nearly 5,000 payments valued at more than $12.3 million due to fraud, waste or other improprieties.

May 08, 2015

Computerized monitoring system records deemed substantial evidence of guilt in a disciplinary proceeding



Computerized monitoring system records deemed substantial evidence of guilt in a disciplinary proceeding
2015 NY Slip Op 03919, Appellate Division, First Department

An employee [Petitioner] was found guilty of the disciplinary charges filed against him alleging that he failed to follow standard that resulted in an injury to an individual using an “out of service” building elevator. Both elevators in the building were “in inspection mode and not in service when the injury occurred”

The penalty imposed: termination of the Petitioner from his position.

Petitioner filed an Article 78 action challenging the appointing authority’s decision and the penalty imposed. The Appellate Division, citing Pell v Board of Educ. of Union Free School Dist. No. 1, 34 NY2d 222, sustained the appointing authority’s decision.

The court explained that substantial evidence in the record supported the appointing officer’s action. The evidence in the record included:

1. The applicable written standard safety measures to be undertaken during elevator repair and/or outages, i.e., the appropriate and necessary warning notice had not been posted by Petitioner

2. Evidence that both elevators being out of service at the same time warranted the standard safety measures of posting out-of-service notices at the elevator banks and securing the elevators so that the public could not use them;

3. Evidence that Petitioner failed to follow these standard procedures;

4. A computerized elevator monitoring system printout and testimony interpreting the data; and

5. Recorded 911 calls.

The Appellate Division explained that notwithstanding Petitioner's arguments to the contrary, the hearing record contained substantial evidence supporting the appointing authority’s decision finding Petitioner [1] guilty of the charges filed against him and [2] the penalty imposed.

The decision is posted on the Internet at:


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