Showing that an Article 78 proceeding was initiated after the statute of limitations had expired is the burden of the party making the claim of untimeliness

Showing that an Article 78 proceeding was initiated after the statute of limitations had expired is the burden of the party making the claim of untimeliness

2015 NY Slip Op 05998, Appellate Division, Third Department

The petitioner in this Article 78 proceeding [Spouse] was married to the retiree [Decedent] at the time of his death on January 11, 2011. In March 2011 the NYS Employees’ Retirement System [System] paid Decedent's ordinary death benefits to his son and his former spouse in accordance with the beneficiary designations reportedly filed by decedent.

In response to Spouse’s inquiry, the System advised her by letter dated June 12, 2013 that Decedent's death benefits had been paid out to the named beneficiaries. Spouse then commenced an action for declaratory against the System contending that she was entitled to "a portion" of Decedent's death benefits. Ultimately Supreme Court concluded that Spouse's challenge to the payment of death benefits should have been brought in a CPLR Article 78 proceeding and, after converting the action to a proceeding, dismissed the petition as untimely. Spouse appealed.

The Appellate Division, pointing out that the System "has the exclusive authority to determine the validity of beneficiary designations," said "A determination generally becomes binding when the aggrieved party is “notified” and the burden is on the party asserting the statute of limitations defense to establish that the petitioner "was provided notice of the determination more than four months before the proceeding was commenced."

In this action Spouse alleged that she was not notified when the death benefits were paid out to the beneficiaries and, in their motion to dismiss, the System failed to submit any proof that Spouse was notified or otherwise aware of the disbursement of such funds prior to June 2013.

In response to the Systems request that the Appellate Division take judicial notice of the materials appended to its brief, the court said that:

1. Most of these documents in the record on appeal were available to the System but were not submitted to Supreme Court with its motion to dismiss, and

2. These documents do not conclusively establish that [Spouse] received notice.

The Appellate Division found that “on the present record” the System failed to establish that Spouse’s action was untimely.

Considering another aspect of this litigation, the Appellate Division said that as Spouse was seeking a portion of Decedent's death benefits that were paid to the beneficiaries, those beneficiaries are necessary parties to this proceeding as their interests may be inequitably or adversely affected should Spouse prevail.

While not raised by the parties in this action, the Appellate Division commented that “the absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion."

Accordingly, the court said that the matter must be remitted to Supreme Court to order the beneficiaries to be joined if they are subject to the jurisdiction of the court or, if not, to permit their joinder by motion, stipulation or otherwise. If such joinder cannot be effectuated, “Supreme Court must then determine whether this proceeding should be permitted to go forward in the absence of these necessary parties.”

The Appellate Division reversed Supreme Court’s decision, on the law, and “remitted [the matter] to the Supreme Court for further proceedings not inconsistent with this Court's decision.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05998.htm

Pennsylvania police department is first in the state authorized to use unmanned aerial vehicles

Pennsylvania police department is first in the state authorized to use unmanned aerial vehicles

Source: AOPA’s Aviation e-Briefs

The Mount Carmel Township Police Department is the first in the state authorized by the Federal Aviation Administration to use unmanned aerial vehicles [UAV] to help during emergencies and investigations. Three officers have been trained to fly or observe the UAV, which will be used in search and rescue operations as well as general patrols.

Additional information posted on the Internet at: http://newsitem.com/news/local-police-first-in-pa-licensed-to-deploy-drone-1.1914065

Terminated probationer failed to establish any basis to go forward with her judicial challenged to her dismissal

Terminated probationer failed to establish any basis to go forward with her judicial challenged to her dismissal

128 AD3d 617

The Appellate Division sustained Supreme Court’s dismissal of a probationary teacher’s [Probationer] challenge to her termination from her position.

The court said that Supreme Court had “providently exercised its discretion” under the “interests of justice standard” in denying Probationer’s request for an extension of time to serve the petition and amended petition personally upon the employers because:

1. Probationer did not seek an extension of time until after the expiration of the four-month statute of limitations;

2. Probationer failed to provide an excuse for the delay or for failing to timely serve the employer;

3. Probationer’s pro se* status is not a reasonable excuse for such failure; and

4. Probationer’s failed to show that the termination of her probationary employment was made in bad faith or in violation of the law.

The Appellate Division said evidence in the record showed that Probationer received two unsatisfactory ratings following classroom observations despite mentoring and coaching throughout the school year and despite a post-observation conference advising her of her teaching deficiencies.

* In the event an individual represents himself or herself in a judicial or quasi-judicial proceeding, he or she is said to be serving “pro se.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04568.htm

Governor Cuomo Announces New Administration Appointments

Governor Cuomo Announces Administration Appointments 
Source: Office of the Governor

On July 20, 2015 Governor Andrew M. Cuomo announced the following seven appointments to his administration.

 

Paul Francis has been appointed Deputy Secretary for Health and Human Services. Previously, Mr. Francis served under Governor Cuomo as the Director of Agency Redesign. He has also previously served in New York State government as the Director of the Budget and the Director of State Operations. His business career includes serving as the Chief Financial Officer of Ann Taylor Stores Corporation and Priceline.com, as well as the Chief Operating Officer of the Financial Product Division of Bloomberg LP. Mr. Francis has served on the board of trustees of numerous organizations, including as the Chairman of the New York State Health Foundation prior to rejoining the Cuomo administration. Mr. Francis holds a J.D. from New York University and a B.A. from Yale University.

Kerri O'Brien has been appointed Chief Executive Officer for the State Liquor Authority. Ms. O'Brien has over 33 years of experience at the New York State Division of Alcoholic Beverage Control, most recently serving as the Deputy Commissioner of Licensing, where she helped reduce license application review times by 50 percent. Additionally, Ms. O'Brien has participated in panels to improve the State Liquor Authority's license application process, as well as helping to draft legislation and State Liquor Authority Board advisories—which resulted in the number of liquor manufacturers in the state more than doubling.

Greg Francis has been appointed Chief Investment Officer of The New York State Insurance Fund. Mr. Francis comes from an extensive background in financial management, most recently serving as the Head of Fixed Income Portfolio Management for Santa Clara County in California. Previously, he served at GE Capital as the Head of Fixed Income and Derivatives Portfolio Management, at Fortis Bank as the Senior Fixed Income and Derivatives Portfolio Manager, and at Capital One Asset Management as the Co-Head of Fixed Income Portfolio Management, among others. In these roles, he oversaw portfolios totaling billions of dollars while designing and supervising investment strategies. Mr. Francis holds a B.Sc. from the Columbia University School of Engineering.

Susan G. Rosenthal has been appointed General Counsel of the Roosevelt Island Operating Corporation. Ms. Rosenthal previously served as General Counsel for the New York State Department of Agriculture and Markets, and prior was Partner at Sheppard Mullin Richter & Hampton, LLP, among other private law practices. She has decades of experience as a litigator of commercial and corporate law disputes and as a mediator and arbitrator for the United States District Courts of the Southern and Eastern Districts. She holds a J.D. from New York University School of Law and B.A. from SUNY Binghamton, Harpur College.

Manuel Rosa has been appointed the Director of Community Relations for Faith-Based Groups at New York State Homes and Community Renewal. Mr. Rosa previously served as Assistant Director for the Promesa Community Residence Program, where he was responsible for gathering and creating supportive housing for individuals diagnosed with persistent mental illness and substance abuse addictions. Prior, he was Assistant Vice President of the NYC Health & Hospitals Corporation, where he managed the office's intergovernmental and external relations, as well as the Director for the New York State Department of Health's Office of Minority Health. Mr. Rosa is also currently an Adjunct Professor of Urban Studies at CUNY's Queens College and holds a B.S. from Colby College.

Natacha Carbajal has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance for the Department of Labor. Ms. Carbajal was most recently a senior associate at Baker & Hostetler LLP, having previously served as a Judicial Law Clerk for the United States Bankruptcy Courts of the Southern and Eastern Districts of New York. She is a member of the American Bar Association, Association of the Bar of the City of New York, and the Hispanic National Bar Association. Ms. Carbajal holds a J.D. from Fordham University and a B.S. from Cornell University.

Carey Merrill has been appointed Special Counsel to the Chief Information Officer for Ethics, Risk and Compliance in the Office of Information Technology Services. Most recently, Ms. Merrill served as Counsel to Professional Risk, Cyber and Surety underwriters at ACE North America. Prior, she served as a Senior Claims Specialist at ACE, a Trial Attorney at the Military Personnel Litigation Division and Employment Litigation Division, and in various other roles within the United States Air Force. Ms. Merrill holds a J.D. from George Washington University and a B.A. from Ithaca College.

Town tax collector admits she falsified her personal tax payments

Town tax collector admits she falsified her personal tax payments

Source: Office of the State Comptroller

An audit and investigation by State Comptroller Thomas P. DiNapoli’s staff led to the July 20, 2015arrest of the Town of DePeyster's Town Clerk and Tax Collector Michelle Sheppard. The Comptroller reported that Sheppard admitted she falsified her personal town and county tax payments of $4,303 and that she has been charged with nine counts of tampering with public records in the first degree, a Class D felony, and official misconduct, a misdemeanor, for crimes dating back to 2011.

As the Town’s tax collector, Sheppard was responsible for recording, depositing, remitting and reporting all real property tax moneys collected in a timely and accurate manner. Her actions were uncovered during an audit and investigation by the Comptroller’s staff. The auditors noticed discrepancies in the Town's books and obtained a confession from Sheppard. Comptroller DiNapoli indicated that the audit of DePeyster’s Town Clerk and tax collection has not yet been completed and Sheppard has since repaid the bulk of her delinquent tax bills.

DiNapoli’s audits and investigations have led to more than 90 arrests and $18 million in ordered restitution since 2011. Since taking office in 2007, DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Allegations of fraud involving taxpayer money may be reported by calling the Comptroller's toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

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The Discipline Book - The 2015 edition of this concise guide to disciplinary actions involving public officers and employees in New York State is now available in both a printed edition and in an electronic [e-book] edition. For more information click on http://booklocker.com/books/5215.html 

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Determining if an alleged violation of a collective bargaining agreement may be submitted to arbitration

Determining if an alleged violation of a collective bargaining agreement may be submitted to arbitration

Matter of Board of Educ. of the Catskill Cent. Sch. Dist. (Catskill Teachers Assn.), 2015 NY Slip Op 06190, Appellate Division, Third Department

The Board of Education of the Catskill Central School District [Board] and the Catskill Teachers Association [Association] were parties to a collective bargaining agreement [CBA] that was in effect during the relevant time period.

The Board filed grant applications with the State Education Department seeking funding for a universal prekindergarten program pursuant to Education Law §3602-e. In anticipation of the award of funds, the Board entered into a contract with a private sector instruction provider to retain the services of a prekindergarten teacher. The Association submitted a grievance alleging that the Board had violated the terms of the CBA by failing to “post the position” and appointing an individual “who was not a member” of the Association without its consent. The Board denied the grievance and the Association demanded that the matter be submitted to arbitration.

The Board filed an application with Supreme Court pursuant to CPLR Article 75 seeking a court order staying the arbitration. The Association, in response, filed a motion to compel arbitration. Supreme Court, finding the dispute was subject to arbitration, granted the Association’s motion. The Board appealed Supreme Court’s ruling, contending that arbitration of the subject matter of the dispute is barred by Education Law §3602-e and public policy.

The Appellate Division commenced its review of the Board’s appeal by noting that determining whether the subject matter of a dispute is arbitrable involves a two-step inquiry. The first test is “whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance.” If no such prohibition is found, does it meet a second test: “whether the parties agreed to submit the subject matter of the dispute to arbitration.”

The court noted that "[I]n order to overcome the strong [s]tate policy favoring the bargaining of terms and conditions of employment, any implied intention that there not be mandatory negotiation must be plain and clear or inescapably implicit in the statute."

Rejecting the Board’s contention to the contrary, the Appellate Division said that language set out in §3602-e does not suggest a legislative intent “that school districts be given wholly unfettered freedom to disavow existing, bargained-for contractual agreements for the purpose of entering into contracts with outside agencies for prekindergarten instructional services.” A more natural reading of §3602-e, said the court, supports a finding that the statute permits school districts to enter into such contracts, without in any way necessarily affecting the enforceability of a bargained-for agreement to secure such services through a CBA nor did the Appellate Division find that there was any intention by the Legislature to "prohibit, in an absolute sense" the arbitrability of the subject matter of the Association’s grievance.

Having found that there was no statutory, constitutional or public policy prohibition to submitting the Association’s grievance to arbitration, the Appellate Division addressed the second test: did the parties agreed to submit the subject matter of the dispute to arbitration.

The court found that the both Association’s grievance and the CBA concern the procedures that the Board must follow in hiring new employees, as well as the terms and conditions of employment. Noting that the Board contended that the absence of any specific reference to prekindergarten teachers in the CBA indicating that the parties did intend to bind themselves to arbitration on this subject, the Appellate Division ruled that "[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator."

Finding “a reasonable relationship” between the subject matter of the CBA and the dispute at issue, the Appellate Division sustained the Supreme Court’s ruling requiring the dispute to be submitted to arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06190.htm