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

June 05, 2015

Taxing Fringe Benefits



Taxing Fringe Benefits
Source: FSLG Newsletter

What: Free Webinar – Taxability of Fringe Benefits Part Three: Other Compensation and Payments to Employees 

When: July 9, 2015; 2 p.m. (Eastern)

How: Register for this event. You will use the same link to attend the event.

Learn about:
  • Uniforms and clothing allowances
  • Other types of compensation
  • Payment of awards and prizes
  • Professional licenses and dues
What else: 

Don’t forget to register for the following webinars if you have not already done so:

Backup Withholding and Form 1099 Miscellaneous
Taxability of Fringe Benefits Part Two: Commonly Provided Fringe Benefits
If you have any questions or comments for the IRS please send us an e-mail

Filing a notice of claim required by Education Law §3813(1) not a condition precedent to an action seeking to vindicate a “public interest” in contrast to advancing a private right

Filing a notice of claim required by Education Law §3813(1) not a condition precedent to an action seeking to vindicate a “public interest” in contrast to advancing a private right
2015 NY Slip Op 04675, Court of Appeals

A teacher serving a three-year probationary period [Probationer] was terminated before the end of the probationary period. Probationer brought a CPLR Article 78 proceeding seeking a court order [1] annulling the School District's determination, [2] reinstatement with tenure and [3] back pay.

The School District asked Supreme Court to dismiss Probationer’s petition contending that Probationer had not served a timely notice of claim as required by Education Law §3813(1).

Probationer’s sole argument in opposition to the District’s "affirmative defense" was that such a "[n]otice of [c]laim is not a condition precedent to a special proceeding properly brought pursuant to CPLR [a]rticle 78 seeking judicial enforcement of a legal right derived through enactment of positive law."

Supreme Court agreed with Probationer and directed that the District reinstate Probationer to her position with back pay “pending a hearing to determine whether Probationer was denied tenure and terminated from her probationary employment in bad faith.”

The School District appealed and the Appellate Division reversed the lower court’s determination.

The Appellate Division ruled that the “positive-law exemption” on which Probationer relied “was not relevant to the situation of a probationary teacher seeking to compel a school district to grant tenure.”*

The Appellate Division also commented that in its view Education Law §3813(1) does not apply when a litigant seeks only equitable relief, but observed that Probationer asked for damages in the form of back pay in addition to an equitable remedy and brought the lawsuit “to advance a private right rather than vindicate a public interest.”

The Court of Appeals, after granting Probationer leave to appeal, affirmed the Appellate Division’s ruling, explaining that on appeal to the court Probationer advanced two arguments:

1. The monetary damages that Probationer demands “are merely incidental” to Probationer’s primary claim for equitable relief; and, or,

2. That Probationer seeks to enforce her claim to tenure by estoppel rights.

However, said the Court of Appeals, “Even if the Appellate Division may have considered one or both of these arguments,” Probationer “did not raise them at Supreme Court; therefore, they are unpreserved for our review.”  

* In Sephton v Board of Education of the City of New York, 99 AD2d 509 [appeal denied 62 NY2d 605], the Appellate Division noted that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights,” [citations omitted]. However, said the Sephton court, the Sephton plaintiffs “are seeking to recover back pay due to the allegedly improper restructuring of their salaries. Such a claim seeks vindication of private rights and duties. Thus a [timely §3813(1)] notice of claim was a condition precedent to the maintenance of the action (citations omitted).”

The decision is posted on the Internet at:

June 04, 2015

New York Governor Andrew M. Cuomo announces thirteen new appointments to his administration

New York Governor Andrew M. Cuomo announces thirteen new appointments to his administration

Jen McCormick has been appointed First Deputy Commissioner of the Department of Agriculture and Markets. Ms. McCormick previously served as Interim Executive Deputy Director of the Thruway Authority/Canal Corporation and, prior, as Assistant Deputy Director of State Operations for Governor Cuomo, aiding in the development of implementation strategies for the Governor’s initiatives. Before this role, she was Deputy Commissioner in the Division of Business Advocacy and Research for Empire State Development. She also served as Director of the Office of Budget Studies for New York State Comptroller from 2005 to 2007 and was Secretary to the State Senate Finance Committee for the Minority. Ms. McCormick has a B.A. from SUNY Empire State College and an M.P.A. from the University at Albany

Linda Lacewell has been appointed as
New York State's first Chief Risk Officer. She will design and oversee an enterprise risk management system for state agencies and authorities. Since January, Ms. Lacewell has been building and implementing the first statewide system for ethics, risk and compliance in agencies and authorities, with over a dozen agencies and authorities participating to date. This system will now operate under her as Chief Risk Officer, with the Special Counsels for Ethics, Risk, and Compliance continuing to report to her. Ms. Lacewell will continue her advisory role in the Executive Chamber as Counselor to the Governor. Ms. Lacewell was formerly Special Counsel to the Governor, as well as the architect of OpenNY, a state-of-the-art open data initiative. She was formerly Special Counsel to Attorney General Cuomo, where she oversaw the public pension fund pay-to-play investigation and the out-of-network health insurance investigation, both of which led to nationwide systemic reform. She spent nine years as an Assistant U.S. Attorney for the Eastern District of New York, including two years on the Enron Task Force, and received the Henry L. Stimson Medal and the Attorney General’s Award for Exceptional Service. She earned her Bachelor of Arts degree from New College of the University of South Florida and her Juris Doctor with honors from the University of Miami School of Law. She clerked for a United States District Judge for the Southern District of Florida. She is an Adjunct Professor of Law at New York University School of Law, teaching Ethics in Government, and was formerly an Adjunct Professor of Law at Fordham University School of Law, teaching International Criminal Law.

Camille Joseph Varlack has been appointed Special Counsel to the Superintendent for Ethics, Risk and Compliance for the Department of Financial Services. Ms. Varlack formerly served as a Principal Law Clerk for the New York State Supreme Court and, prior, Assistant Vice President and Counsel at AXA Financial, Inc. Earlier in her career, she was an Assistant District Attorney for the Kings County District Attorney’s Office, Legal Assistant in the Law Department of News Corporation and an Investigative Assistant for the New York State Attorney General. Ms. Varlack has a B.A. from the State University of New York at
Buffalo and a J.D. from Brooklyn Law School.

Maureen Coleman has been recommended to serve as General Counsel for the Environmental Facilities Corporation. This recommendation requires approval by the Environmental Facilities Corporation Board. Ms. Coleman previously served as Assistant Counsel to the Governor, focusing on energy and environment, where she advised the Governor and policy staff on legal matters related to the environment, agriculture and energy. Prior to this role, she held a number of roles at the Department of Environmental Conservation, where she served for 13 years, beginning as an Assistant Legislative Counsel and culminating in Bureau Chief of Water and Natural Resources for the Department’s Office of General Counsel. She was also Vice President of Law and Regulation and Assistant Secretary of Seligman Investment Companies at J.W. Seligman & Co. Incorporated. Ms. Coleman has a B.A. from
College of Saint Rose, a joint M.S. in Industrial and Labor Relations from Cornell University and Baruch College, and a J.D. from Brooklyn Law School.

Geraldine Reilly has been appointed to serve as Chair of the Unemployment Insurance Appeal Board, of which she is currently a member. Ms. Reilly previously served as Chief of Staff and Counsel to Assemblywoman Catherine Nolan and, prior, was part of the program and counsel staff for the New York State Assembly. She has held a number of labor-related positions, including Labor Relations Liaison for New York State Electric and Gas, Manager of Labor Relations for the
Triborough Bridge and Tunnel Authority and Labor Relations Specialist for the New Jersey Transit Rail Operation. Ms. Reilly has a B.A. from Brooklyn College and a J.D. from Seton Hall University School of Law.

Randall T. Douglas has been appointed to serve on the Unemployment Insurance Appeal Board. Mr. Douglas is currently serving an unprecedented sixth term as Essex County Chairman of the Board of Supervisors and 12th year as Town of
Jay Supervisor, during which he continues to lead both municipalities through the biggest disaster and recovery efforts in their history following Hurricane Irene in 2011. He also serves as President-Elect of the New York State Association of Counties, is a member of the Board of Directors of the Adirondack Association of Towns and Villages and sits on the resolutions committee for the New York State Association of Towns. He previously served in the Maintenance Department at the Adirondack Correctional Facility in Ray Brook, NY, where he supervised inmate maintenance crews. He was also Vice Chair of the Essex County Democratic Party, a liaison to the Staten Island/Sandy Victims Property Acquisition Committee and a Board Member of the North Country United Way. He studied criminal justice at Clinton Community College and attended the Dennis A. Pelletier County Government Institute.

Tracy McKibben has been nominated as Trustee of the New York Power Authority. Ms. McKibben is currently the Founder and President of MAC Energy Advisors LLC., a consulting company that assists clients on alternative energy, renewable energy, water and clean technology investments. Previously, she was Managing Director and Head of Environmental Banking Strategy for Citigroup Global Markets, and served on the National Security Council at The White House as Director of European Economic Affairs and European Union Relations, as well as various senior advisory roles within the U.S. Department of Commerce. Ms. McKibben holds a B.A. from
West Virginia State University and a J.D. from Harvard Law School.

Michael Fascitelli has been nominated as a Commissioner of the Port Authority of New York and
New Jersey. Mr. Fascitelli is the Founder of MDF Capital LLC, previously serving as President and Chief Executive Officer of Vornado Realty Trust as well as President of Alexander’s Inc. Mr. Fascitelli continues to serve as a Trustee of Vornado Realty Trust. Prior to joining Vornado, he was a Partner at Goldman, Sachs & Co. Currently, he is a Trustee of Starwood Waypoint Residential Trust, as well as a Board Member at Child Mind Institute, Rockefeller University and Urban Land Institute. Mr. Fascitelli holds an MBA, with highest distinction, from Harvard Business School and a B.S. in Industrial Engineering, Summa Cum Laude, from the University of Rhode Island.

Andrew Stone has been nominated as a Director of the New York Convention Center Operating Corporation (Javits). Mr. Stone is currently the Managing Partner and CEO of
Petra Capital Management, and he has been involved in all phases of the firm’s development since its founding. Prior to founding Petra, Mr. Stone was a Managing Director and head of the Principal Transactions Group (“PTG”) at Credit Suisse First Boston where he was responsible for the firm’s worldwide real estate effort, including debt origination, equity investments and securitization. Prior to CSFB, Mr. Stone was Senior Managing Director in charge of the Mortgage, Asset- Backed and Real Estate Securities Group at Daiwa Securities America. Mr. Stone founded the department and was responsible for managing the origination, trading, structuring and sales of all mortgage and asset-backed securities. Prior to Daiwa, Mr. Stone was Managing Director and head of the Mortgage and Asset-Backed Group at Prudential Bache. Mr. Stone received his B.S. from the Wharton School of the University of Pennsylvania with dual majors in finance and entrepreneurial management and his M.B.A. from the University of Chicago with a double concentration in finance and marketing.

Hamilton "Tony" James has been nominated as a Commissioner of the Port Authority of New York and
New Jersey. Mr. James is currently the President and Chief Operating Officer of The Blackstone Group. Prior to joining Blackstone, Mr. James was Chairman of Global Investment Banking and Private Equity at Credit Suisse First Boston, and Chairman of the Banking Group at Donaldson, Lufkin & Jenrette. He is a Director of Costco Wholesale Corporation, is a former member of the President's Export Council – Subcommittee on Technology and Competitiveness, and serves as a trustee at many organizations including the Second Stage Theatre, The Metropolitan Museum of Art, Woods Hole Oceanographic, the Wildlife Conservation Society. Mr. James holds his B.A. and M.B.A. from Harvard College and Harvard Business School.

Nicholas Melissinos will be appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance at the Division of Human Rights. Currently, Mr. Melissinos is Assistant Corporation Counsel at the New York City Law Department's Special Federal Litigation Division, and prior, has held roles at private law firms. He volunteers for the LeGaL Foundation to provide guidance for LGBTQ participants and at the NYC Bar Association, where he is a member of the LGBT Rights Committee. Mr. Melissinos holds a J.D. from
Brooklyn Law School and a B.A. from George Washington University.

Michael Shollar will be appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance at the Department of Taxation and Finance. For nearly ten years, Mr. Shollar served in the Richmond County District Attorney's Office as an Assistant District Attorney in the Investigations Bureau and the Appeals Bureau. He holds a J.D. from Northwestern University School of Law and a B.A. from the
University of Rochester.

Kevin Hickey has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance at the Office of Temporary and Disability Assistance. Mr. Hickey currently serves as the Director of Litigation at the Office of Temporary and Disability Assistance, and has previously worked as Assistant Attorney General in the Office of the New York Attorney General as well as in private law firms. He holds a J.D. from
Albany Law School and a B.S. from SUNY University at Albany.

Courts will strictly construe the terms of a disciplinary settlement agreement setting out the reason permitting the employee to be summarily terminated from his or her position

Courts will strictly construe the terms of a disciplinary settlement agreement setting out the reason permitting the employee to be summarily terminated from his or her position
2015 NY Slip Op 01181, Appellate Division, First Department 

Supreme Court denied an Article 78 petition filed by an individual [Plaintiff] seeking to annul the appointing authority’s decision to terminate his employment. The court held that the parties' disciplinary settlement agreement executed in 2012 served to waive Plaintiff's right to appeal or seek judicial review of his termination of employment “in all scenarios.”

The 2012 settlement agreement's introductory paragraph stated that the parties agreed to settle Plaintiff's violation of an earlier disciplinary settlement agreement that addressed Petitioner’s violation of the appointing authority’s policy concerning the "Sales of Goods and Services in Hospital." 2012 settlement agreement provided that should Plaintiff engage in misconduct that was the "same or similar to" that constituting the violation of the prior agreement, to be determined solely by the Director of Labor Relations or her designee, he would be terminated and could not appeal the penalty in any administrative or legal forum.*

The Appellate Division reversed the Supreme Court’s decision and remanded the matter “for further consideration” as the Supreme Court “never reached the merits of Plaintiff’s petition.”

The Appellate Division explained that courts should not "adopt an interpretation that renders a portion of the contract meaningless," citing Wallace v 600 Partners Co., 205 AD2d 202. In this instance, said the court, the appointing authority terminated Plaintiff for allegedly taking leave under color of the Family Medical Leave Act (29 USC §§ 2611 et seq.) without obtaining prior approval from his department or the Office of Labor Relations.

Such conduct is not the "same or similar to" the sale of goods in the hospital  and,  hence, the terms and conditions of set out in Paragraph 1 of the 2012 settlement agreement, including Plaintiff's waiver of judicial review, are inapplicable. The Appellate Division said that to hold otherwise “would be to render superfluous paragraph three, which speaks to the penalty for failing to adhere to policies and procedures generally, but does not include such additional restrictions.”

Further, noted the court, the employer “failed to follow” its own procedures and the terms of the settlement agreement by effectively precluding Plaintiff “from having an opportunity to explain why he should not be terminated.”

Similarly, Taylor v Cass, 122 A.D.2d 885, illustrates impact of a settlement agreement providing for a disciplinary probation award that provided that the appointing authority could summarily terminate the employee without any hearing if, in the opinion of his superior, "his job performance was adversely affected by his intoxication on the job during the next six months.”

Taylor was terminated during his disciplinary probationary period without a hearing for failing to give a fair day’s work and sleeping during scheduled working hours. However, there was no allegation that he had been intoxicated on the job as a reason for his dismissal as a disciplinary probation employee.

Taylor sued, challenging his dismissal and won reinstatement with back salary. The Appellate Division said that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

* Paragraph three of the agreement separately provided that Plaintiff agreed to adhere to departmental policies and procedures and would be terminated for his failure to do so, but provided no limitation on who would determine his guilt, nor did it waive any judicial review.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2015/2015_01181.htm



The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on
http://thedisciplinebook.blogspot.com
 

June 03, 2015

Certification to teach in the position sought critical to teacher’s reinstatement from a preferred list following his or her layoff



Certification to teach in the position sought critical to teacher’s reinstatement from a preferred list following his or her layoff
2015 NY Slip Op 04492, Appellate Division, Second Department

A teacher [Teacher] certified to teach Spanish, was appointed as a foreign language teacher in the school district’s elementary school. Teacher taught Spanish and acquired tenure in that position.

The school board [Board] subsequently abolished the elementary school Spanish teacher position for economic reasons and Teacher’s name was placed on a "preferred eligible list" for appointment to any vacancy which may arise in a similar position within seven years from the date that her position was abolished as provided by Education Law §§2510[3][a]; 3013[3][a]).

In 2011, the Board of Education created a new a full-time position of "French/Spanish Teacher 7-12" and appointed an individual who was certified to teach both French and Spanish to fill that vacancy.

Teacher commenced a CPLR Article 78 in the nature of mandamus to compel the Board to appoint her to a position of part-time Spanish teacher. 

Teacher argued that the Board, in effect, had created "a teaching position that is [part-time] Spanish and [part-time] French," and that she was entitled pursuant to Education Law §§2510(3)(a) and 3013(3)(a) to be appointed to the purported part-time Spanish teacher position.

Supreme Court denied the petition and dismissed the proceeding on the merits and Teacher appealed.

The Appellate Division affirmed the Supreme Court’s action, explaining that "[CPLR] Article 78 relief in the form of mandamus to compel may be granted only where a petitioner establishes a clear legal right to the relief requested." In determining whether Teacher is entitled to re-employment pursuant to Education Law §§2510 or 3013 in this action, "the threshold question must be one of certification to teach in the position sought. Absent such certification, re-employment rights cannot attach."

Noting that Teacher did not challenge the propriety of the Board's decision to create a single full-time position encompassing instruction of both French and Spanish, the Appellate Division ruled the her “claim must fail because, as [Teacher] conceded, she lacks the dual certification necessary for [appointment to] the full-time position.”

Thus, held the Appellate Division, as Teacher “failed to demonstrate a clear legal right to the relief sought,” the Supreme Court properly denied the petition and dismissed the proceeding on the merits.

The decision is posted on the Internet at:

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html


June 02, 2015

Civil Service Commission overturns agency’s disqualification of applicant for examination



Civil Service Commission overturns agency’s disqualification of applicant for examination
Matter of City of New York v New York City Civ. Serv. Commn., 2015 NY Slip Op 03036

The New York City Civil Service Commission, after a hearing, reversed a determination by the City’s Department of Citywide Administrative Services that an applicant for the examination for “Principal Administrative Associate” did not meet the minimum qualifications for admission to the examination.

The Appellate Division, sustaining the Commission’s determination, found that the Commission's decision was supported by substantial evidence. The court said that the evidence presented by the applicant for the examination at the hearing before the Commission demonstrated that she possessed the requisite supervisory and/or administrative experience to qualify for admission to the examination for appointment to the position.

The decision is posted on the Internet at:

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 30, 2015


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 30, 2015
Click on text highlighted in color  to access the full report

Audits of State Agencies:

Department of Agriculture and Markets: Annual Assessment of Market Orders for 2012, 2013, and 2014 (2014-S-58)
The department has adequate procedures in place to ensure that it accurately reports its assessable expenses in all material aspects. However, the department needs to improve its oversight of its Market Order Program, particularly its Apple Market Order, which is administered pursuant to a contract with the New York Apple Association.


Department of Health: Medicaid Claims Processing Activity October 1, 2013 Through March 31, 2014 (2013-S-50)
For the period October 1, 2013 through March 31, 2014. Auditors identified about $3.3 million in inappropriate Medicaid payments, including $1,335,151 in overpayments for hospital claims for which eMedNY did not properly factor Medicare coverage or a lower level of care into the payment; $682,022 in overpayments for pharmacy claims that were not in compliance with various regulations and policies; and $416,314 in improper payments for claims that were not subjected to the appropriate claims processing logic in eMedNY. By the end of the audit fieldwork, auditors recovered about $2 million of the overpayments identified.

Department of Labor (DOL): Wage Theft Investigations (Follow-Up) (2015-F-9)
In an initial report, issued in June 2014, auditors determined DOL was not completing wage theft investigations in a timely manner. As of August 2013, DOL had a caseload of 17,191 cases, including 9,331 active investigations and 7,860 cases pending payment. Of these, 12,938 cases (75 percent) had been open more than one year since the initial claim was received. In a follow-up report, auditors found DOL has made substantial progress in addressing the issues identified in the initial report. For example, DOL is now completing 80 percent of its wage investigations within six months. At the time of this follow up, DOL only had 305 cases that were open for more than one year.

Office of Mental Health (OMH): Assertive Community Treatment (ACT) Program (2014-S-25)
OMH is not effectively overseeing the ACT program to ensure that provider teams are complying with certain important program requirements. Provider teams are not recertified in a timely manner; program data in the CAIRS system is not complete or accurate; some program staff do not receive required training; and program recipients’ treatment plans are not completed on time, with required team leaders’ approvals. As a result, program recipients’ service needs may not be adequately addressed. The office has also not established methods to assess the extent to which it is achieving overall program goals.

Metropolitan Transportation Authority: Selected Aspects of Travel Expenses (2013-S-79)
Auditors found the Metropolitan Transportation Authority’s New York City Transit, MTA Bus Company, and MTA Bridges and Tunnels units should strengthen certain controls over travel to help reduce costs. For trips booked by MTA’s travel agent, auditors projected that 753 hotel stays exceeded the government lodging rates established by the General Services Administration (GSA) and the U.S. Department of State by at least $127,963. Transit paid more than the GSA maximum lodging rate for 12 of 15 rooms booked by a total of $3,962.

Office of the Nassau County Public Administrator (NCPA): Selected Financial Management and Administrative Practices (2013-S-37)
Among several issues noted by auditors, the NCPA did not have documentation to support the hiring and compensation of employees who are paid through the suspense account. The average monthly balance in the NCPA’s suspense account dropped from $241,214 in 2010, to $74,442. Although the NCPA publicly advertised for vendors annually, it did not prepare the required list of preferred vendors until 2013. Additionally, several vendors did not complete the required “Application to Provide Services.” The NCPA also did not maintain written documentation justifying the selection of particular vendors as required and certain estate assets were put up for sale without the documented formal prior approval of the Surrogate’s Court pursuant to statute. Additionally, the NCPA’s annual reports to the State Comptroller did not list non-cash estate assets as required by law. 


Municipal Audits 






DiNapoli: Canal Corp. Must Address Gaps in Inspection Performance

The New York State Canal Corporation has not performed inspections as required on a significant number of critical structures along the system’s 524 miles of waterways, according to an audit released by State Comptroller Thomas P. DiNapoli.

DiNapoli: Local Governments Should Improve Enforcement of State Fire Code Regulations

A sampling of municipalities from across New York reveals gaps in the review of fire safety plans or evacuation procedures for public buildings such as adult care facilities, hospitals, hotels, preschools, libraries and shopping malls, according to an audit released by State Comptroller Thomas P. DiNapoli. The audit reviewed enforcement of the state’s Uniform Fire Code in seven cities and three villages.

DiNapoli: Former Treasurer Pleads Guilty to Felony in Theft of More than $5,000 in Fire District Funds

The former treasurer for Pulteney Fire District No. 2 pleaded guilty to stealing more than $5,000 in public funds, after an audit and investigation by State Comptroller Thomas P. DiNapoli revealed that she falsified vouchers and paid herself an additional, illegal salary.

DiNapoli: State Needs to Ensure Timely Execution of Contracts with Not-for-Profits

State agencies were late more than 77 percent of the time in approving contracts with not-for-profit providers in 2014, according to a report released by State Comptroller Thomas P. DiNapoli. The late approvals prompted interest payments, mandated under the Prompt Contracting Law, that cost the state $195,663 last year, the report found.

Discrimination against applicants having limited proficiency in English constitutes unlawful discrimination based on national origin



Discrimination against applicants having limited proficiency in English constitutes unlawful discrimination based on national origin
2015 NY Slip Op 04239, Appellate Division, First Department

The Appellate Division held that the New York City Human Resources Administration, the City’s department in charge of the majority of the City’s social services programs, as a “provider of public accommodation,” violated New York City’s Human Rights Law’s* prohibition against discrimination on the basis of national origin by withholding from or denying “accommodations, advantages, facilities, or privileges” from individuals having  limited English proficiency as such action constitutes discrimination based on national origin.

* See Administrative Code § 8-107[4][a]

The decision is posted on the Internet at:

June 01, 2015

Disciplinary hearing held in absentia



Disciplinary hearing held in absentia
OATH Index No. 1114/15.

Following a default hearing, Administrative Law Judge Astrid B. Gloade found that petitioner proved charges that respondent, a job opportunity specialist, was AWOL and defrauded his employer.

The undisputed proof showed that respondent issued rental assistance checks to persons who were not landlords and who were not entitled to the funds. The proof further showed that the fake landlords gave respondent the amount of the issued checks and he, in return, gave them cash. Respondent pled guilty in criminal court to welfare fraud where he admitted that he had engaged in a kickback scheme that defrauded his employer of over $ 690,000 in agency funds. Termination of employment recommended.

Posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1114.pdf



The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html
 

Grounds for vacating an arbitration award



Grounds for vacating an arbitration award
2015 NY Slip Op 04486, Appellate Division, Second Department

In this action to confirm an arbitration award Supreme Court granted the petition and denied the disappointed party’s [Lieberman] application to vacate the arbitration award. 

In the appeal that followed challenging the Supreme Court’s ruling the Appellate Division sustained, in relevant part, the confirmation of the arbitration award, explaining "Even where the arbitrator makes a mistake of fact or law, [an arbitration] award is not subject to vacatur unless the court concludes that it is totally irrational or violative of a strong public policy and thus in excess of the arbitrator's powers."

Here, said the court, Lieberman failed to demonstrate that the arbitration panel exceeded its power in making the award.

Citing Town of Haverstraw v Rockland County Patrolmen's Benevolent Assn., 65 NY2d 677, the Appellate Division said "An arbitrator may do justice as he [or she] sees it, applying his [or her] own sense of law and equity to the facts as he [or she] finds them to be."

The decision is posted on the Internet at:

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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