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July 18, 2015

New York State Comptroller is holding $14 Billion in Unclaimed Funds


New York State Comptroller is holding $14 Billion in Unclaimed Funds
[Click on text highlighted in colorto access the Comptroller "Unclaimed Funds website] 

New York State Comptroller DiNapoli has made it a priority to reunite rightful owners with their lost money. This year, New York again set a national record for paid claims, with more than $427 million returned. An overview report of the State's unclaimed funds program is available online at the Comptroller’s website.*

These monies are not simply those “forgotten” by individuals and businesses. State and local agencies, school districts, labor unions and law firms may also have “forgotten” funds being held by the Comptroller.

Listed below are some of the govenmental entities having funds being held in the Comptroller’s “Abandoned Property Fund:"

DEPARTMENT OF LAW Reported By YUM BRANDS RESTAURANTS SERVICE GROUP INC & AFFILIATES

SUNY DOWNSTATE Reported By STAPLES INC

COUNTY OF CORTLAND,  Reported By NATIONWIDE RETIREMENT SOLUTIONS

TOWN OF COLONIE Reported By ANTHEM INC

VILLAGE OF CANTONPOLICE DEPT Reported By GALLS LLC

SCHOOL DISTRICT OF ALBANY Reported By CDW LLC

UFSD-22 FARMINGDALE NY Reported By NATIONAL GRID

CSEA LOCAL 1000 AFSCM Reported By STATE OF CALIFORNIA

DEPARTMENT OF HOMELAND SECURITNSHIP Reported By NEW YORKSTATE DIVISION OF THE TREASURY

With the recent improvements to the Comptroller's online search function, the process is now easier than ever. The online search tool is compatible with mobile devices so users can check to see if there are any unclaimed funds in their name or in the name of their organization using a number of electronic devices such as a "smart" phone, a tablet, or a computer. On average, the Comptroller returns $1 million a day to rightful owners.

To get the process started is go to https://ouf.osc.state.ny.us/ouf/  and enter your name or the name of your organization in the appropriated space. However, finding a particular entity may require some imagination. For example, entering “SUNY Albany” and entering  “Albany Universityat Albany” as the name of the entity both returned different “hits” as indicated below.

SUNY ALBANY Reported By XEROX CORP and by COCA COLA REFRESHMENTS USA INC. and by ELRAC LLC

ALBANY UNIVERSITYAT ALBANY Reported By YOUNG & RUBICAM INC

July 17, 2015

Using the job description of the individual assigned to light, limited or restricted duty in determining eligibility for disability retirement benefits


Using the job description of the individual assigned to light, limited or restricted duty in determining eligibility for disability retirement benefits
2015 NY Slip Op 04557, Appellate Division, Third Department

The Comptroller denied a retirement system member’s [Member] petitioner's for disability retirement benefits. Member had sustained multiple injuries in a 2008 motor vehicle accident and, upon his return to work on July 30, 2008, was placed on limited-duty assignment. Member, a detective, had not returned to his full duties and was absent on multiple occasions for varying periods due to his injuries.

In November 2010, Member applied for accidental disability retirement benefits. The Comptroller, ruling that the light duty standard set out in 2 NYCRR 364.3(b)*was applicable, found that Member was not permanently incapacitated from the performance of his duties and denied his application.

Member then initiated a CPLR Article 78 proceeding challenging the Comptroller’s decision.

Member contended that because he was not continuously assigned to light duty work for a period of two years given that the employer placed him on "no duty" assignment during the periods that he was absent from work the Comptroller improperly measured his application against the light duty standard rather than his "full duties" as a detective. The Appellate Division disagreed.

The court explained that where an applicant "'has been continuously assigned to light, limited or restricted duties for at least two years prior to the date [of his or her] application, the determination of permanent incapacity is to be based upon 'such light, limited or restricted duty assignment' rather than full duties." Continuously assigned, in this context does not mean continuous performance and is not interrupted by absence from work [due to the injuries], which, said the court, is a rational, reasonable reading of the regulation.

Noting that the record establishes that Member's absences from work were due to his injuries and not as the result of any reassignment of duties by the employer, the Appellate Division sustained the Comptroller’s application of the regulation.

* Subdivision (b) of NYCRR §364.3, Job descriptions for individuals assigned to light, limited or restricted duty, provides that “In the case of an applicant who, in connection with an alleged illness, disease, disability or physical limitation, has been continuously assigned to light, limited or restricted duties for at least two years prior to the date application for disability retirement benefits was filed with the Comptroller (whether or not the assignment was made pursuant to an organized light duty or restricted duty program) the employer shall provide a written description of the duties and/or physical or psychological job requirements which have been applicable to the applicant since such reassignment to light, limited or restricted duties. With respect to such applicants, the Retirement System shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.”

The decision is posted on the Internet at:


Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

July 16, 2015

Determining the availability of Jarema credit for the purposes of attaining tenure


Determining the availability of Jarema credit for the purposes of attaining tenure
2015 NY Slip Op 04847, Appellate Division, Second Department

Pursuant to Education Law §3012(1)(a), teachers were appointed for a probationary period of three years.*However, in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years and has been appointed to teach the same subject on an annual salary, the probationary period is limited to one year. Although service as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher, a substitute teacher's three-year probationary period can be reduced to one year through so-called "Jarema" credit, so named for the sponsor of the bill that provided for this calculation of credit.**

A certified teacher [Petitioner] in elementary education and special education was employed by the School District as a permanent substitute teacher in a general education kindergarten class during the 2008-2009 school year. She subsequently taught as a probationary special education teacher during the 2009-2010, 2010-2011, and 2011-2012 school years in first and fourth grade integrated co-teaching classes.

On May 22, 2012, based on the recommendation of the Superintendent of Schools, the  School District’s Board of Education terminated Petitioner's employment without a hearing effective June 22, 2012. Petitioner, contending that she had attained tenure by estoppel and thus could not be terminated without a hearing, commenced a CPLR Article 78 proceeding in the nature of mandamus seeking a judgment compelling her reinstatement as a tenured teacher by the School District with back pay.

The Supreme Court denied the petition and dismissed the proceeding, concluding that the Petitioner did not establish that she had acquired tenure by estoppel and thus was not entitled to a hearing before her employment could be terminated. As to attaining tenure by estoppel, in McManus v Board of Education, Hempstead UFSD, 87 NY2 183, the Court of Appeals held that "Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term."

The Appellate Division said that Supreme Court properly concluded that Petitioner did not acquire tenure by estoppel,*** explaining:

1. Petitioner did not acquire tenure by estoppel in the special education tenure area, as the Petitioner did not teach in that area for a period of time exceeding the three-year probationary period required for gaining tenure.

2. Probationer was not entitled to Jarema credit for the additional year she taught general-education kindergarten, as such service was not in the same "subject" area as special education.

3. Petitioner failed to establish that she acquired tenure by estoppel in the elementary education tenure subject area as during the 2009-2010, 2010-2011, and 2011-2012 school years, Petitioner was employed as a probationer in the special education tenure subject area, not the elementary tenure subject area and she taught as a special education teacher in co-teaching classrooms along with general education teachers.

4. Petitioner failed to establish that she devoted at least 40% of her time to teaching elementary education in the co-teaching classes, as opposed to teaching special education in those classes.

Thus, said the Appellate Division, the record does not support Petitioner’s contention that she was entitled to tenure by estoppel as an elementary education teacher.


**  Jarema credit cannot exceed two years and the service as a substitute teacher must be continuous for at least one school term.

***Tenure by estoppel” is sometimes referred to as “tenure by acquisition,” “tenure by default,” or “tenure by inaction.”

The decision is posted on the Internet at:

July 15, 2015

Advisory opinions of the New York City Corporation Counsel



Advisory opinions of the New York City Corporation Counsel
2015 NY Slip Op 05887, Appellate Division, First Department

In this action a
trustee [Trustee] on the Police Pension Fund (PPF) Board of Trustees sought a court order prohibiting the New York City Corporation Counsel from providing statutory interpretation and legal direction to the New York City Police Pension Fund Medical Board regarding the application of Administrative Code of City of NY §13-254. §13-254 sets out a mechanism for a police officer retired on disability to be reexamined by the Medical Board with an eye toward returning to City employment, either at the pensioner's own request or by application of the Board of Trustees.

The Appellate Division said that the Medical Board is the Corporation Counsel’s client and that such a communication falls well within his broad duty to "conduct all the law business of the city and its agencies,” rejecting Petitioner's argument that such communication was barred by attorney-client privilege attaching to either the Board of Trustees or Trustee individually.

Further, said the court, the Board of Trustees is empowered to differ with its counsel on matters of statutory interpretation and reach its own position on such questions, citing Seiferheld v Kelly, 16 NY3 561.

In the words of the court, "… the trustees should weigh the advice of the City's Law Department in deciding the question, but the decision is theirs, subject to appropriate judicial review."

The decision is posted on the Internet at:

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