A showing of a direct causal relationship between job duties and the resulting illness or injury entitles an eligible individual to General Municipal Law §207-c benefits

A showing of a direct causal relationship between job duties and the resulting illness or injury entitles an eligible individual to General Municipal Law §207-c benefits

Lynn v Town of Clarkstown, 2015 NY Slip Op 06726, Appellate Division, Second Department

Lynn v Town of Clarkstown, 2015 NY Slip Op 06727, Appellate Division, Second Department

§207-c of the General Municipal Law provides for the payment of salary, medical and hospital expenses of police officers, deputy sheriffs, correction officers and others serving in titles listed in subdivision 1 of §207-c who suffer injuries or illness incurred in, or resulting from, the performance of their duties.

The Chief of Police of the Town of Clarkstown Police Department denied Clarkstown Police Officer Robert Lynn’s applications for benefits pursuant to General Municipal Law §207-c [1] for injuries he reported he suffered when he fell while walking to his patrol vehicle while on duty and [2] for injuries he reported he suffered when he tripped and fell responding to an injured animal call while on patrol duty. The Chief of Police denied the applications on the ground that Lynn was not injured in the performance of his duties.

Lynninitiated two CPLR Article 78 proceedings to review the Chief’s determinations. The Supreme Court granted both petitions thereby annulling the Chief’s determinations and the Town appealed.

The Appellate Division said that a determination denying an application for General Municipal Law §207-c benefits may be annulled only if it was arbitrary and capricious, and "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts," citing Peckham V Calogero, 12 NY3d 424.

The court explained that "a covered municipal employee need only prove a direct causal relationship between job duties and the resulting illness or injury" in order to be entitled to §207-c benefits. Further, said the Appellate Division, the word "duties" in General Municipal Law § 207-c "encompasses the full range of a covered employee's job duties," citing Theroux v Reilly, 1 NY3d at 232.

The Appellate Division ruled that Supreme Court properly found that [Lynn] had been injured in the performance of his duties in both instances and that the denial of his applications for §207-c benefits was arbitrary and capricious.

The decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06726.htmand

http://www.nycourts.gov/reporter/3dseries/2015/2015_06727.htm

_____________________

Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law §§207-a/207-c and other laws, rules, regulations and court decisions applicable to New York State officers and employees unable to perform the duties of their position as the result of an injury or disease. For more information click on http://booklocker.com/books/3916.html

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Police officer suspended without pay pending a determination of criminal charges filed against him and any administrative disciplinary action taken against him

Police officer suspended without pay pending a determination of criminal charges filed against him and any administrative disciplinary action taken against him

2015 NY Slip Op 06729, Appellate Division, Second Department

In February 2013 a City of Mount Vernon police officer [Officer] was suspended without pay by the Commissioner of the City of Mount Vernon Police Department [Commissioner] pending a determination of the criminal charges and any administrative disciplinary action taken against him as the result of Officer’s arrest and being charged with falsifying business records in the first degree. It was alleged that Officer had submitted false overtime slips indicating that he had worked overtime during certain periods when he had not, in fact, worked overtime.

Before any administrative disciplinary charges were filed against Officer he commenced a proceeding pursuant to CPLR Article 78 alleging that the Mount Vernon City Charter did not authorize the Commissioner to impose punishment on a police officer unless the police officer had been found guilty after a disciplinary hearing.Officer asked Supreme Court for an order reinstating to his position as a police officer with back pay. 

Supreme Court, concluding that the Commissioner exceeded his authority under the City Charter by suspending Officer indefinitely without pay, granted Officer’s petition to the extent of limiting the period of suspension without pay to 30 days, restoring Officer’s salary pending a final determination of any administrative disciplinary charges, and awarding Officer back pay from March 15, 2013.

Citing Coscette v Town of Wallkill, 281 AD2d 479, the Appellate Division revered the Supreme Court’s ruling. The court explained that the Mount Vernon City Charter was enacted prior to Civil Service Law §§75 and 76 and thus the provisions of the City Charter governing the discipline of police officers are controlling with respect to matters concerning police discipline.

The Mount Vernon City Charter §116, said the court, provides that the Commissioner "is authorized and empowered to make, adopt, promulgate and enforce reasonable rules, orders and regulations for the government, discipline, administration and disposition of the officers and members of the Police Department, and for the hearing, examination, investigation, trial and determination of charges made or prepared against any officer or member of said Department" for certain specific offenses"

Pursuant to the delegation of rule-making authority in City Charter §116, the Commissioner had, in fact, promulgated a disciplinary procedure, which includes a regulation providing that "[m]embers of the [Police] Department may be suspended from duty, whenever in the opinion of the Commissioner . . . such action is appropriate." The Commissioner relied on this regulation in suspending Officer without pay pending a determination of the criminal charges and any future disciplinary charges.

The Appellate Division held that given the broad delegation of authority in City Charter §116, the disciplinary procedure regulation allowing the Commissioner to suspend members of the Mount Vernon Police Department has a rational basis and was not unreasonable, arbitrary and capricious, or contrary to the statute under which it was promulgated.

Thus, said the court, the Commissioner did not exceed his authority under the City Charter in relying on this regulation to suspend Officer without pay pending a determination of the criminal charges and any future administrative disciplinary action and, accordingly, the judgment of the Supreme Court must be reversed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06729.htm

_____________________

The Discipline Book - a 448 page e-book focusing on disciplinary actions involving State, municipal and school district public officers and employees. For more information click on http://thedisciplinebook.blogspot.com/

_____________________

40 Most Popular New York Law Blogs Of All Time

40 Most Popular New York Law Blogs Of All Time

Source: Copyright Litigation Law Blog

Ray Dowd, a partner in the law firm Dunnington Bartholow & Miller LLP in New York City, posts a Law Blog on the Internet addressing copyright law and litigation at http://copyrightlitigation.blogspot.com/.

Mr. Dowd reports that according to Justia Blawg Search,* there are 302 blogs focusing on New York law and he conveys his “thanks to everyone for these great contributions to New York law and thanks to Justia for keeping tabs!”

Below are Justia’s top 40 “for all time” listed by Mr. Dowd in his LawBlog:

Real Estate Law Blog [Feed]

Includes news, cases and commentary on real estate and property law in New Yorkand nationwide. By Newman FerraraLLP.

http://www.nyrealestatelawblog.com/

New York Supreme Court Criminal Term Library [Feed]

News and information gateway to web based services provided by the New York State Supreme Court Criminal Term Library in New York County.

http://crimlawlib.blogspot.com/

New York Public Personnel Law [Feed]

Provides summary and commentary on selected court and administrative decisions and related matters affecting public employers and employees in New York State. By Harvey Randall
http://publicpersonnellaw.blogspot.com/

New York Attorney Malpractice Blog [Feed]

Covers legal malpractice basics, cases and news. By Andrew Lavoott Bluestone.

http://blog.bluestonelawfirm.com/

Copyright Litigation Blog [Feed]

Review of copyright law, copyright litigation, art litigation and relevant current events. Discussions of recent case law and federal rules of civil procedure. By Ray Dowd.

http://copyrightlitigation.blogspot.com/

Criminal Law Library Blog [Feed]

Covers criminal law, information technology and news for law librarians. By David Badertscher.

http://www.criminallawlibraryblog.com/

Clancco: Art & Law [Feed]

Covers the relationship between art and law with a focus on intellectual property, nonprofit tax-exempt organizations, free speech, and contemporary art. By Sergio Muñoz Sarmiento.

http://clancco.com/wp

New York Criminal Lawyer Blog [Feed]

Covers New York criminal law topics such as criminal procedure, DWI and traffic offenses, drugs and narcotics, fraud related offenses, and violent crimes. By Jeremy Saland.

http://www.newyorkcriminallawyer-blog.com/

Coverage Counsel [Feed]

Covers New York insurance coverage cases and issues. By Roy A. Mura.

http://nycoveragecounsel.blogspot.com/

ERISA Lawyer Blog [Feed]

Covers employee benefits, ERISA, and employment law. By Stanley D. Baum.

http://www.erisalawyerblog.com/

New York Law Notes [Feed]

Provides a summary of an Appellate Division case of special interest to New Yorkpractitioners.

http://drdiekman.podbean.com

Sui Generis--a New York law blog [Feed]

Offers commentary on civil rights issues, recent decisions and other areas of interest to New York civil litigators and criminal practitioners. By Nicole L. Black.

http://nylawblog.typepad.com/suigeneris/

New York Personal Injury Law Blog [Feed]

Covers the civil justice system, New York Courts, injury law cases and news. By Eric Turkewitz.

http://www.newyorkpersonalinjuryattorneyblog.com/

CFTC Law [Feed]

Covers futures, commodities and forex regulation. By Shipkevich Law Firm.

http://www.cftclaw.com/

Securities Law Blog [Feed]

Features news, commentary and thoughts on the law of the securities markets. By Mark Astarita.

http://seclaw.blogspot.com/

LoTempio Law Blog [Feed]

Covers patents, trademarks and copyright news. By Vincent G. LoTempio.

http://www.lotempiolaw.com/

NY Medical Malpractice Video Tutorials [Feed]

Covers medical malpractice and accident law in New York. By Gerry Oginski.

http://www.medicalmalpracticetutorial.com/

IP in Brief [Feed]

Comments on developments in copyright and trademark law. By Andrew Berger.

http://www.ipinbrief.com

Quitam Help [Feed]

Cover qui tam law and the process of bringing a case. By Getnick & Getnick.

http://www.quitamhelp.com/

Restaurant Worker News Blog [Feed]

Covers employment law issues in the restaurant industry. By Berke-Weiss & Pechman LLP.

http://waiterpay.com/blog/

Food, Farm & Family Law Blog [Feed]

Covers national and international agriculture issues. By Rincker Law PLLC.

http://rinckerlaw.com/blog

Immigration News Blog [Feed]

Covers immigration law, news and commentary. By Matthew L. Kolken.

http://kolken.blogspot.com/

New York Business Divorce [Feed]

Covers dissolution and other disputes among New York corporations, LLCs and partnerships. By Peter A. Mahler.

http://www.nybusinessdivorce.com/

UB Law Library Blog [Feed]

Features news from the UB Law Library.

http://libweb.lib.buffalo.edu/blog/law

New York Criminal Lawyer Blog [Feed]

Covers criminal law topics. By Stephen Bilkis & Associates

http://www.nycriminalattorneyblog.com/

New York Personal Injury Lawyer Blog [Feed]

Covers personal injury law. By the Law Offices of Stephen Bilkis & Associates.
http://www.newyorkinjurylawyer247blog.com/

Culture Forum Blog [Feed]

From the Forum on Law, Culture & Society at Fordham Law.

http://www.forumonlawcultureandsociety.org/blog/

lennyesq [Feed]

By Leonard E. Sienko, Jr.
https://lennyesq.wordpress.com/

NY Divorce Attorney Blog [Feed]

Covers New York divorce law. By David Centeno.

https://nyuncontesteddivorceattorney.com/wordpress/

Business Blog [Feed]

Covers business law, labor & employment, real estate and securities and finance topics. By Scarinci Hollenbeck.

http://www.businesslawnews.com/

Brain Injury Lawyer Blog [Feed]

Covers accidents that cause brain trauma, contusions and concussions. By the Law Offices of Stephen Bilkis & Associates.

http://www.braininjurylawyer24-7blog.com/

Central New York Injury Lawyer Blog [Feed]

Covers motor vehicle accidents, medical malpractice, and municipal liability. By Michaels & Smolak, P.C.

http://www.centralnewyorkinjurylawyer.com/

Wait A Second! [Feed]

Covers civil rights opinions of the United States Court of Appeals for the Second Circuit. By Bergstein & Ullrich, LLP.

http://secondcircuitcivilrights.blogspot.com/

New York City Debt Defense Blog [Feed]

By the Langel Firm.

http://www.thelangelfirm.com/Debt-Defense-Blog.aspx

New York Probate & Estate Litigation Blog [Feed]

Covers probate news, procedures and resources. By Philip M. Bernstein.

http://www.nyprobatelitigation.com/

New York Law Thoughts [Feed]

Covers New York personal injury topics. By Carol L. Schlitt.

http://nylawthoughts.com

New York Employment Attorneys Blog [Feed]

Covers employment discrimination, severance, wage violations, sexual harassment and civil rights. By The Harman Firm, P.C.

http://www.newyorkemploymentattorneysblog.com/

Health Law Attorney Blog [Feed]

Covers health law and compliance issues. By The Health Law Partners.

http://www.healthlawattorneyblog.com/

New York Legal Update [Feed]

Covers developments in New York Law. By Thomas Swartz.

http://tswartz1.typepad.com/new_york_legal_update/

Title 17: The S(c)ite For Copyright Law [Feed]

Provides analysis, learn­ing and discussion relating to copyright law. By Paul Fakler.

http://title17.net/

* A list of the ranking of the 6,232 Blawgs [in 74 subcategories] currently reported by Justia is found on the Internet at: http://blawgsearch.justia.com/topblogs?page=1&sortby=popularity&dispmode=list&popmode=week

Employer contributions to New York State and Local Retirement System will decrease for fiscal year 2016-17

Employer contributions to New York State and Local Retirement System will decrease for fiscal year 2016-17

Source: Office of the State Comptroller

On September 4, 2015 New York State Comptroller Thomas P. DiNapoli announced the New York State and Local Retirement System (NYSLRS) employer contribution rates will decrease for fiscal year 2016-17 and the assumed rate of return for NYSLRS will be lowered from 7.5 percent to 7 percent.*

The average contribution rate for the Employees’ Retirement System (ERS) will decrease from 18.2 percent of payroll to 15.5 percent. While the average contribution rate for the Police and Fire Retirement System (PFRS) will decrease from 24.7 percent of payroll to 24.3 percent. This is the third year in a row that there will be a decline in pension contribution rates as a result of solid investment returns DiNapoli said.

Predicting a “tougher investment climate ahead,“ the Comptroller said that assuming a lower assumed rate of return is fiscally prudent and will better position the state pension fund for the future.**  Employer rates are determined based on actuarial assumptions recommended by NYSLRS’ actuary Michael R. Dutch.

The announced rates will apply to each employer’s salary base during the period April 1, 2015 through March 31, 2016. Payments based on those rates are due by Feb. 1, 2017, but may be pre-paid by Dec. 15, 2016. Projections of required contribution rates will vary by employer depending on factors such as retirement plans, salaries and the distribution of employees among the six retirement tiers.

This is the second time since becoming State Comptroller in 2007 that the Comptroller has lowered the assumed rate of return. In 2010, he lowered the assumed rate of return from 8 percent to 7.5 percent. According the National Association of State Retirement Administrators, the median assumed rate of return for public pension funds is 7.75 percent.

The Annual Report to the Comptroller on Actuarial Assumptions is posted on the Internet at:

http://www.osc.state.ny.us/retire/word_and_pdf_documents/reports/actuarial_assumption/aa_2015.pdf

A chart of historical employer contribution rates is posted on the Internet at:

http://www.osc.state.ny.us/press/releases/sept15/1972-2017_Hist_Emp_Contrib_Avg_Rates.pdf

A “fact sheet” about the NYSLRS is posted on the Internet at:

http://www.osc.state.ny.us/retire/word_and_pdf_documents/general_info/nyslrs_fact_sheet.pdf

*  The National Association of State Retirement Administrators reports that the median assumed rate of return for public pension funds is 7.75 percent.

** The audited value of the New York State Common Retirement Fund as of March 31, 2015 was $184.5 billion.

Testing positive for marijuana

Testing positive for marijuana

OATH Index No. 1686/15

OATH Index No. 1685/15

In OATH 1686/15 the employee attributed his violation of his employer’s substance abuse policy to the employee’s difficulties with his former spouse.  

Following an accident involving a sanitation worker's truck and a civilian car, which resulted in injuries to passengers in both vehicles, the employee submitted to drug and alcohol testing in accordance with the department's substance abuse policy. At the OATH hearing the employee admitted to testing positive for marijuana and testified on own his behalf in mitigation of the employer's proposed penalty.

Although the employee attributed his violation of the policy to difficulties with his former wife, OATH Administrative Law Judge Ingrid M. Addison was not persuaded that he was not a risk to relapse. Judge Addison recommended that the employee be dismissed from his position, noting that the employee had violated the substance abuse policy three times, and had previously received a 44-day suspension for similar conduct.

In contrast, in OATH 1685/15 the employee’s claim that he had innocently ingested marijuana” as his defense after testing positive for marijuana was credited by the Administrative Law Judge.

In this case, the employee charged with testing positive for marijuana raised the defense of "innocent ingestion" of the drug. OATH Administrative Law Judge Kevin A. Casey recommended dismissal of the charge.

The worker testified that he attended a party, where he got into an argument with an acquaintance. As a “joke,” the acquaintance later gave the employee a marijuana-laced brownie, without telling him that it contained marijuana. The employee testified that he then ate the brownie not knowing that it contained marijuana. Judge Casey found that the acquaintance’s credible testimony corroborated the employee's version of events, particularly because the acquaintance had no motive to lie and she testified to participating in illegal activities against her own interests.

Finding that the employee did not knowingly ingest marijuana, ALJ Casey recommended that the charges be dismissed. 

The 1686/15 decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1686.pdf

The OATH Index No. 1685/15 decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1685.pdf

________________

The Discipline Book -- A 448 page e-book focusing on disciplinary actions involving State, municipal and school district officers and employees. For more information click on http://thedisciplinebook.blogspot.com/

________________

Using personal cell phones in the course of conducting “official business”

Using personal cell phones in the course of conducting “official business”

Glenda Nissen v Pierce County, Supreme Court of the State of Washington, Docket #90875~3

In 2010 the Supreme Court of the State of Washington ruled that the State’s Public Records Act (PRA) applied to a record stored on a personal computer. The court explained that "[i]f government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined."*

In the Nissen case the Washington Supreme Court considered a similar issue: Does the PRA apply when a public employee uses a private cell phone to conduct government business?

The court held that "text messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone.”

Presumably any record regardless of its format concerning or related to “official business” found or stored on the private cell phone of a public officer or employee would be viewed by the court as a public record subject to the State of Washington’s PRA.

* O'Neill v. City of Shoreline, 170 Wn.2d 138

The decision is posted on the Internet at:

http://hr.cch.com/ELD/NissenPierceCounty.pdf

Audit reports for certain governmental entities posted on September 1, 2015

Audit reports for certain governmental entities posted on September 1, 2015

Source: Office of the State Comptroller

On September 1, 2015 New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the governmental entities listed and summarized below. Click on the material highlighted in color below to access the full report.

Ballston Spa Public Library

The board has not established procedures for the library’s collection and disbursement of donated funds, or for cash receipts collected at the circulation desk. The treasurer has not maintained adequate records for the money received from donations and fundraising activities. http://www.osc.state.ny.us/localgov/audits/libraries/2015/ballstonspa.pdf

Bovina Fire District
The district’s available fund balance has accumulated to more than 400 percent of the 2015 budgeted appropriations as of the end of 2014. In addition, the board has not formally established capital reserves. http://www.osc.state.ny.us/localgov/audits/firedists/2015/bovina.pdf

Brighton Memorial Library
The library has accumulated more than $750,000 in private funds as of the end of 2014 and it has no formal plan to use the money. The library maintains approximately $627,000 in mutual funds, fixed income securities and cash equivalents with two investment brokerage firms; these are improper investments at unauthorized financial institutions. http://www.osc.state.ny.us/localgov/audits/libraries/2015/brighton.pdf

Village of Cape Vincent
Payroll duties are not adequately segregated and there is no periodic management review of transactions, certification of payrolls or review of leave records. The board also did not clearly document its authorization of compensation for all village employees. http://www.osc.state.ny.us/localgov/audits/villages/2015/capevincent.pdf

Town of Cayuta
The board did not adopt, review, update or enforce adequate financial policies to ensure town resources were protected. The former clerk did not routinely issue duplicate receipts, record daily cash receipts properly, or make deposits intact. As a result, auditors identified a cash shortage of $465. http://www.osc.state.ny.us/localgov/audits/towns/2015/cayuta.pdf

Commack Public Library District
District officials did not adopt a procurement policy as required by state law. The board did not ensure disbursements from the discretionary fund were made in accordance with district bylaws. In addition, the board appointed an independent contractor as treasurer.
http://www.osc.state.ny.us/localgov/audits/libraries/2015/commack.pdf

Galen-Clyde Joint Fire District
The board could not appropriately monitor the district budget because it did not receive budget status reports. Auditors found the district routinely overspent its budget for the three-year period from 2011 through 2013. In addition, the board did not implement appropriate policies to protect information technology assets. http://www.osc.state.ny.us/localgov/audits/firedists/2015/galenclyde.pdf

City of Geneva
The city adopted unrealistic budgets from 2012-2014 because the manager did not use historical trends or prior year amounts when producing budgets. During this same time, fund balance was appropriated to finance operations and overall fund balance levels decreased significantly. http://www.osc.state.ny.us/localgov/audits/cities/2015/geneva.pdf

Town of Malone
The justices did not properly segregate cash receipt duties and did not provide oversight for receiving, depositing, recording and reporting cash receipts. In addition, accurate and complete bail records were not maintained and bank reconciliations and accountability analyses were not performed for all court bank accounts. The town also lacked comprehensive policies and procedures for preparing and processing payroll and maintaining leave time accruals for highway department employees. http://www.osc.state.ny.us/localgov/audits/towns/2015/malonejc.pdf

Village of Nelliston
The board did not establish policies and procedures to provide guidance to village employees or implement sufficient controls over leave accruals and payroll timekeeping to ensure that leave time was accurately accounted for. http://www.osc.state.ny.us/localgov/audits/villages/2015/nelliston.pdf

Town of Tuscarora
The town supervisor signed checks and reviewed monthly reports, but did not review bank reconciliations to ensure information recorded and reported was accurate. The board has not received any monthly financial reports since February 2015. http://www.osc.state.ny.us/localgov/audits/towns/2015/tuscarora.pdf

Central Valley School District
The treasurer does not oversee the application of her signature on checks or compare checks to the warrant prior to issuance. Consequently, there is an increased risk that improper disbursements or payment errors could occur. http://www.osc.state.ny.us/localgov/audits/schools/2015/centralvalley.pdf

Cornwall Central School District
District officials enacted budgets with planned operating deficits and used approximately $1.9 million of fund balance to finance district operations in fiscal years 2011-12 through 2013-14. http://www.osc.state.ny.us/localgov/audits/schools/2015/cornwall.pdf 

Cuba-Rushford Central School District
District officials overestimated expenditures by a total of $8.5 million over a four-year period ranging from 7 to 14 percent more than actual expenditures. In addition, unrestricted fund balance annually exceeded statutory limits and reserves are overfunded by approximately $3.2 million. 
http://www.osc.state.ny.us/localgov/audits/schools/2015/cubarushford.pdf

DeRuyter Central School District
In the past three fiscal years the board appropriated $675,000, $525,000 and $376,626 in fund balance to finance operations. In addition, the district has used general fund money to help subsidize the school lunch fund operations over the past several years. http://www.osc.state.ny.us/localgov/audits/schools/2015/deruyter.pdf

Margaretville Central School District
The board did not effectively manage the fund balance of the general fund. As a result, the district had unrestricted fund balance in the general fund totaling $670,000 (6.2 percent) of the following year’s appropriations as of June 30, 2014 and reserve fund balances that increased by almost $2 million (131 percent) over a five-year period. http://www.osc.state.ny.us/localgov/audits/schools/2015/margaretville.pdf

Newburgh Preparatory Charter High School
The board did not receive adequate monthly financial records, did not establish a sound budget process and did not obtain a required independent audit of the school’s financial records. Without accurate financial reports, the board had no assurance that expenditures did not exceed budgeted amounts and could not take proper timely actions when more than $26,000 in cash shortages occurred. http://www.osc.state.ny.us/localgov/audits/schools/2015/newburghprep.pdf

Trumansburg Central School District
The district’s menus were certified as being compliant with the new federal meal pattern requirements. However, district meals cost more to prepare than the revenue generated by sales. http://www.osc.state.ny.us/localgov/audits/schools/2015/trumansburg.pdf

and

Wappingers Central School District
Despite the use of a fuel management system, district officials do not review system activity reports to identify anomalies regarding quantities dispensed, fueling times and the odometer readings entered by employees. As a result, the district cannot properly account for how much fuel is pumped into specific vehicles and by whom. http://www.osc.state.ny.us/localgov/audits/schools/2015/wappingers.pdf

Proper and timely service of an action critical to going forward with the lawsuit

Proper and timely service of an action critical to going forward with the lawsuit

Angletti v Morreale, 2015 NY Slip Op 06647, Court of Appeals

Marcus Morreale initially declined to be designated as a candidate for the County Legislature, Niagara County, thereby creating a vacancy. Subsequently Morreale consented to be designated as the substitute candidate to fill the vacancy created by his own declination of the earlier designation and the Committee to Fill Vacancies filed a certificate of substitution, purporting to designate Morreale as the candidate for the office.

Frances J. Angletti filed a formal objection to Morreale’s nomination with the County Boardof Elections but his objection was rejected by the Board.

The Court of Appeal’s decision notes that Angletti next commenced a proceeding in Supreme Court seeking to invalidate the Morreale “designating petition” and to enjoin the Board from placing Morreale's name on the ballot. Supreme Court signed an order to show cause dated the same day, July 22, 2015, authorizing service on Morreale by one of ten methods permitted.

Angletti utilized "nail and mail" service under the order to show cause, was required to affix the papers to the door of Morreale's residence "AND [enclose] the same in a securely sealed and duly prepaid wrapper addressed to [Morreale] at the address set forth in his . . . designating petition, and depositing the same with a depository of the United States Postal Service via Express Mail on or before the 23rd day of July, 2015."

Morreale answer to Angletti’s action raising several affirmative defenses, including the representation that Angletti’s action was not timely commenced.**

Supreme Court granted Angletti’s petition and ordered the Board to strike Morreale's name from the ballot. The Appellate Division affirmed, concluding that the proceeding had been timely commenced. However, the Court of Appeals, for reasons explained in its decision, elected to address with specificity only the issue upon which the dissent in the Appellate Division was grounded,*** inasmuch as it held that Morreale's other arguments were “without merit.”

The court explained that under Election Law §16-116, a petitioner is required to provide notice "as the court or justice shall direct," and "this requirement calls for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced."

Agreeing with the courts below that this proceeding was properly commenced in a timely manner, the Court of Appeals said that here “there is no dispute that [Angletti] complied with the terms of the order to show cause by nailing the papers to the door of Morreale's residence on July 22, 2015 and mailing the papers to that residence by express mail on July 23.”

Although Morreale argued that mailing on the last day of the statutory period was jurisdictionally defective since delivery inevitably would occur outside of the statutory period, the court disagreed, noting that “where the instrument of notice has been delivered by another prescribed method within the statutory period,” it has rejected such contentions concerning mailing, citing Serri v Heffernan , 298 NY 629.

As to “nailing” the papers, the Court of Appeals said that a decision that Morreale cited involving “nail and mail,” the papers [1] “were nailed to the outside wall of the residence instead of the door” and [2] the attempted service by mail on the final day "was inadequate and ineffectual to institute the proceeding."

In contrast, the Court of Appeals found that in Angletti’s situation, the instrument of notice had been properly nailed to Morreale’s door and delivered prior to the deadline.

Thus, said the court, the order of the Appellate Division should be affirmed.

* Nail and mail service requires the posting of the action on the door of the person's home and mailing a copy of the papers to the appropriate mailing address.

** July 23, 2015 was the last day to commence the proceeding under the 14-day period authorized by Election Law (see Election Law §16-102 [2]).

*** Two Appellate Division Justices dissented and would have reversed on the basis that the mailing had to have been made at an earlier time when receipt could reasonably be expected to occur within the statutory period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06647.htm

The five most read NYPPL cases summaries as of August 31, 2015