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

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:

A member of the NYS Employees’ Retirement System must file a timely application in order to be eligible to receive a disability retirement allowance


A member of the NYS Employees’ Retirement System must file a timely application in order to be eligible to receive a disability retirement allowance
2015 NY Slip Op 04907, Appellate Division, Third Department

A correction officer [Officer] employed by the Department of Corrections and Community Supervision [DOCCS] received two notices of discipline and, as a result of those notices, was suspended without pay.

In February 2012, Officer entered into a settlement agreement [Settlement] with DOCCS in full satisfaction of both notices of discipline. The Settlement provided that, for a two-week period, Officer would be both placed on administrative leave with pay and "on [the] payroll." The parties also agreed that the Settlement did not provide for or allow petitioner, during that two-week period, to perform any of the services for DOCCS for which he had been hired.

During that two-week period and in March 2012, Officer applied for disability retirement benefits and performance of duty disability retirement benefits. A Hearing Officer found that both of the applications submitted by Officer were untimely as a matter of law. The Comptroller adopted the findings of the Hearing Officer and rejected both the Officer’s applications for disability retirement benefits and his application for performance of duty disability retirement benefits.

The Comptroller found that Retirement and Social Security Law [RSSL] §507-a(b)(2) required that "an application be filed within three months from the last date the member was being paid on the payroll" includes the requirement that such a member be receiving payments for services rendered while working. Notably, the courts have held that the same phrase "on the payroll," used in RSSL §605(b)(2) contains a requirement that payments “are for services rendered while working.”

Officer appealed the Comptroller’s determination.

The Appellate Division sustained the Comptroller’s decision explaining that “[t]he Comptroller is vested with the exclusive authority to resolve applications for any form of retirement benefits.”  If the Comptroller's application and interpretation of the relevant statutes are not irrational, unreasonable or contrary to the statutory language, his determination will be upheld by the court.

Considering the events giving rise to this action, the court said that Comptroller's interpretation of RSSL §507-a(b)(2) “is consistent with this Court's construction of the identical phrase in RSSL§605(b)(2) and legislative history supports the conclusion that the identical phrases in those two provisions should be given the same construction.” Thus, said the court, the Comptroller’s interpretation of RSSL §507-a(b)(2) as requiring payment for services rendered while working is not irrational, unreasonable or contrary to the statutory language.

Citing Officer’s concession that he did not render “any services while working” after August 2009, the “Appellate Division confirmed the Comptroller’s determination” that Officer’s March 2012 application for disability retirement benefits was untimely.

The court reach the same conclusion regarding Officer's application for benefits pursuant to RSSL §507-b, whereby "[t]o be effective, an application for performance of duty disability retirement under [RSSL] §507-b . . . shall be filed within two years after the member is first discontinued from service, as provided . . . under . . . subdivision a of [RSSL §] 63" and a member is only entitled to a retirement allowance if the application is timely in relationship to the member being "[a]ctually in service upon which his [or her] membership is based."

As Officer “did not perform the services that entitled him to membership after August 2009,” the Appellate Division also confirmed the Comptroller’s determination that his March 2012 application for performance of duty disability retirement benefits was untimely.

The decision is posted on the Internet at:

July 14, 2015

Employee terminated because of a pattern of aggressive and inappropriate workplace conduct


Employee terminated because of a pattern of aggressive and inappropriate workplace conduct
2015 NY Slip Op 05422, Appellate Division, First Department

The Administrative Law Judge [ALJ] sustained three charges of misconduct against the employee [Petitioner] and Petitioner was terminated from his employment. Petitioner initiated an action pursuant to CPLR Article 78 challenging the ALJ’s findings, which Supreme Court transferred to the Appellate Division as the decision to dismiss Petitioner was made following an administrative hearing.

The Appellate Division sustained the ALJ’s decision, finding that substantial evidence supports the determination that Petitioner committed the charged acts of misconduct. The record, said the court, shows that Petitioner engaged in a pattern of aggressive and inappropriate workplace conduct, and there exists no basis to disturb the credibility determinations made by the ALJ.

The decision is posted on the Internet at:

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on


Employer required to consider providing a reasonable accommodation after employee placed on workers’ compensation leave


Employer required to consider providing a reasonable accommodation after employee placed on workers’ compensation leave
2015 NY Slip Op 05147, Appellate Division, Second Department

An employee [Employee] was injured on the job and as a result of her injury she was unable to work and was placed on leave of absence without pay pursuant to Civil Service Law §71, Workers’ Compensation Leave.*

About a year after being placed on leave pursuant to §71, the appointing authority sent Employee “a notice of proposed termination” of her employment** pursuant to Civil Service Law §71. Employee challenged the proposed termination and sought reinstatement prior to the effective date of her termination.

The appointing authority [Agency] denied Employee’s request, without ordering a new independent medical examination, on the grounds that the Employee [1] had failed to demonstrate that she was medically fit to return to work and [2] had failed to provide the appointing authority with a date by which she would be able to return to full duty. Ultimately Employee was terminated.

In an action to recover damages for unlawful discrimination in employment on the basis of disability and retaliation in violation of Executive Law §296, Employee appealed so much of an order of the Supreme Court dismissing her first cause of action in which she had alleged discrimination in employment on the basis of disability.

The Appellate Division reversed the Supreme Court’s granting the Agency motion for summary judgment dismissing Employee’s first cause of action in which she alleged unlawful discrimination in employment on the basis of disability, holding that the motion should have been denied.

Civil Service Law §71, Workers’ Compensation Leave, provides that an individual injured on the job and unable to perform the duties of his or her position is entitle to at least one year of leave without pay unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

Employee commenced this action, contending that the Agency discriminated against her because of her disability by failing to provide a reasonable accommodation in the form of light duty or additional time for recovery.

In the words of the Appellate Division, "The employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested," explaining that:

1. An employer normally cannot obtain summary judgment on a disability discrimination claim pursuant to Executive Law §296 "unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation; and 

2. An employer cannot present such a record "if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request.

Viewing the evidence in the light most favorable to Employee, the Appellate Division found that the Employee’s responses to the notice of proposed termination could reasonably have been understood as a request for accommodation which Agency rejected by terminating the Employee’s employment based on her inability to return to work within the one year permitted under Civil Service Law § 71.

The Appellate Division concluded that Agency failed to establish, prima facie, that it had engaged in a good faith interactive process that assessed the needs of Employee and the reasonableness of her requested 

* §71 permits an employee to use any and all available leave credits until exhausted in order to remain on the payroll while on Workers’ Compensation Leave.

** §71 provides for the reinstatement of the employee after separation for disability if the individual applies for such reinstatement within one year of the termination of his or her disability [Duncan v NYS Developmental Center, 63 NY2d 128].
 
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


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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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