Selected Reports issued by the Office of the State Comptroller during the week ending November 7, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending November 7, 2015

Click on text highlighted in color to access the full report 

Guilty plea of the theft of $78,000 of NYSERS pension benefits

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Terence Fitzpatrick, 53, of Monmouth County, New Jersey, to the crime of Attempted Grand Larceny in the Second Degree, a class D felony, in Albany County Court. Fitzpatrick faces a maximum penalty of 2 and 1/3 to 7 years in prison.

http://www.osc.state.ny.us/press/releases/nov15/110515a.htm?utm_source=weeklynews20151108&utm_medium=email&utm_campaign=110515arelease 

New York State Comptroller Thomas P. DiNapoli”s office completed the following audits of political subdivisions of the State:

Village of Clayville – Board Oversight

The clerk-treasurer did not provide the board with comprehensive financial reports so that it could properly oversee the village’s financial activities. In addition, the board did not ensure that the clerk-treasurer filed the village’s annual financial reports in a timely manner.

http://www.osc.state.ny.us/localgov/audits/villages/2015/clayville.pdf

Cortland Housing Authority – Financial Condition

Housing authority officials have worked effectively to maintain a strong financial position by controlling expenditures.

http://www.osc.state.ny.us/localgov/audits/publicauth/2015/cortlandhousing.pdf

Essex Fire District #2 – Cash Disbursements

The board does not provide adequate oversight of the district’s cash disbursements. The treasurer did not prepare monthly bank reconciliations or reports, or prepare and file the district’s annual reports with the Office of State Comptroller for the past two years.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/essex2.pdf

Lockport Public Library – Claims Processing

The board did not routinely audit and approve claims prior to payment. Instead, claims were audited and approved for payment by the director, who also signed the disbursement checks to pay the claims.

http://www.osc.state.ny.us/localgov/audits/libraries/2015/lockport.pdf

Port WashingtonFire Department – Budgeting

The board’s adopted budgets have not accurately portrayed expected department operating costs to the companies and the public. Furthermore, by relying on net assets to fund budget shortfalls, the department is not adopting structurally balanced budgets and is instead funding recurring expenditures with one-shot uses of accumulated net assets.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/portwashington.pdf

Roosevelt Fire District – Fire Station Project

Auditors reviewed the process used to construct a new fire station as well as construction-related expenditures and found that the expenditures were within the board-approved amount. However, the board did not enter into written agreements with four contractors that provided services during the project.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/roosevelt.pdf

Town of Sidney – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The town took appropriate action to implement or resolve recommendations contained in the 2014 budget review report issued in November 2014. The town’s proposed budget complies with the property tax levy limit.

http://www.osc.state.ny.us/localgov/audits/towns/2015/sidney_br.pdf

Stony Creek Volunteer Fire Company – Cash Disbursements

The board did not establish effective internal controls to address a lack of segregation in the treasurer’s cash disbursement duties. The board did not establish policies or implement any procedures governing debit card use or review or approve any card-related transactions.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/stonycreek.pdf

Western Sullivan Public Library – Library Operations

The library’s fixed costs for operating its three buildings are high, and officials did not perform any comparative cost analysis of operations or segregate cost information by building.

http://www.osc.state.ny.us/localgov/audits/libraries/2015/westernsullivan.pdf

Recent appointments in the Executive Chamber and by State departments and agencies

Recent appointments to the Executive Chamber and by State departments and agencies

Source: Office of the Governor

On November 5, 2015, Governor Andrew M. Cuomo announced the following  appointments to his administration and to State departments and agencies:

Joanne Choi has been appointed Assistant Director of Constituencies for Asian American Affairs for the Executive Chamber. Ms. Choi is currently the Queens Community Liaison for the New York City Department of Health and Mental Hygiene. Previously, she served as a constituent liaison for Congresswoman Grace Meng, and also has experience in community and constituency relations from the Congresswoman’s 2012 campaign and previously-held Assembly office. Ms. Choi earned a B.A. in political science and an M.A. in public policy from Stony Brook University.

Ruth Noemí Colón has been appointed Vice President of Corporate Shared Services for the New York Power Authority (NYPA). Ms. Colon has worked for NYPA since 2011, most recently as Director of Administration and Environmental Justice. Prior to her work with NYPA, she served in various roles at the New York State Department of State, most recently as Acting Secretary of State from 2010 to 2011, as well as the New York City Housing Authority. She holds both a B.A. and an M.A. from the University of Puerto Rico – San Juan, as well as a J.D. and International Law Certificate from the Pace University School of Law.

Lisa Bova-Hiatt has been appointed Executive Director of the Governor’s Office of Storm Recovery. Ms. Bova-Hiatt has served with the Office of Storm Recovery since January 2014, first as General Counsel, then Acting Chief Operating Officer and most recently as its Acting Executive Director. Previously, she served in the administration of New York City Mayor Michael Bloomberg doing legislative affairs. She also held a variety of senior positions with the New York City Law Department between 1995 and 2014. Ms. Bova-Hiatt received her B.S in business administration from Villanova University, and her J.D. from Brooklyn Law School.

Kitty Kay Chan has been appointed New York State Chief Data Analytics Officer. She is currently the Chief Economist at the Department of Financial Services. Previously Dr. Chan served as the Chief Economist and Director of Audit and Review for the New York State Joint Commission on Public Ethics, and as a Deputy Inspector General for the New York State Inspector General’s Office. Before that, she served as the Director of Economics for the New York State Office of the Attorney General and held positions at the US Federal Communication Commission, the US Department of Agriculture, and a private economic consulting firm. Dr. Chan has taught at New York University, and currently teaches at Columbia. She was a National Science Foundation Fellow and holds a Ph.D. in Economics and a Doctoral Certificate in Environmental Sciences, Policy, and Engineering from the University of Southern California.

Norma Ramos has been appointed Deputy Secretary for Civil Rights. Ms. Ramos has served as the Executive Director of the Coalition Against Trafficking of Women, and previously was the Executive Director of the South Bronx Clean Air Coalition. In addition, she has held positions at the New York City Department of Environmental Protection and the U.S. Environmental Protection Agency. Ms. Ramos has a B.A. From Fordham University, and a J.D. From Temple University School of Law.

Caroline Griffin has been appointed Chief of Staff for DASNY where she is responsible for overseeing intergovernmental relations and managing the Communications + Marketing Department, as well as coordinating policy and operations across DASNY’s multiple business lines. Ms. Griffin has served in the Executive Chamber for Governor Cuomo since 2011, most recently as his Director of Intergovernmental Affairs. Previously, she served in the Office of Intergovernmental Affairs for the administrations of both Governor David Paterson and Governor Eliot Spitzer. Ms. Griffin holds a B.A. in Communications from Boston College.

Kim Nadeau has been appointed Chief Financial Officer and Treasurer of the Dormitory Authority of the State of New York. Ms. Nadeau is currently Vice President for Accounting and Controller at US Light Energy (USLE). Prior to her work with USLE, she served as a Vice President of Accounting and Controller for CH Energy Group, Inc. from 2006 to 2014, and previously held various positions for Northeast Utilities for 1995 to 2006, as well as Coopers and Lybrand LLP from 1989 to 1995. Ms. Nadeau holds a B.S. in Accounting, an M.B.A. and a J.D. from the University of Connecticut.

Emily Saltzman has been appointed Assistant Vice President/Director, Office of Economic Opportunity and Partnership Development, at NYS Homes & Community Renewal. Ms. Saltzman has served as the Director of Community Affairs to Governor Andrew M. Cuomo since 2011. Before joining the Executive Chamber of the State of New York, Ms. Saltzman represented a range of nonprofits, corporations and associations as Government Relations Manager at Brown and Weinraub PLLC. She also held positions at Manhattanville College, Ticketmaster/Citysearch and the New York City Council and served as Assistant Director of Intergovernmental and Constituency Affairs under former Governor Mario M. Cuomo. Ms. Saltzman holds a B.A. from Dartmouth College and an M.P.A. from Columbia University School of International and Public Affairs.

Recent decisions by New York City's Office of Administrative Trials and Hearing Administrative Law Judges

Recent decisions by New York City's Office of Administrative Trials and Hearing  Administrative Law Judges

Employee’s conduct on the job found guilty of creating a risk to others at the workplace

OATH Index No. 1236/14

OATH Administrative Law Judge Kara J. Miller found an employee threatened a stationary engineer on two occasions, improperly lowered medical air pressure, failed to follow a directive to put oil in the air compressor, and left his post and created a potentially hazardous situation by failing to tighten the feed valve on the regulator for one of the boilers.

Judge Miller credited the engineer's testimony that after an alarm sounded in the boiler room, the employee stormed into the engineer's room, asked what was going on, picked up the engineer's computer monitor and lifted it in the air while threatening the engineer. The ALJ also credited the engineer's testimony that the employee had approached him in the parking lot as he was walking to his car and threatened him in a loud and profane manner.

ALJ Miller recommended termination of the employee be terminated from his position, finding that his conduct created a risk to others working at the facility. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1236.pdf

Correction officer found guilty of violating a number of his agency’s rules

OATH Index No. 1962/15

A New York City correction officer [CO] was found to have been absent from his residence without authorization while on sick leave and was given instructions to report to the Department’s Health Management Division [HMD] with his shield, his identification [ID] and his personal firearms.

When he reported to HMD, he was placed on immediate suspension because it was his fourth violation. He surrendered his shield and ID but not his firearm, stating that the weapon was at his other residence in Pennsylvania. Although directed to await an escort to accompany him to the Pennsylvania residence to retrieve the firearm, the CO left the facility. The CO then claimed to have found the weapon at his Brooklyn residence on the following day.

OATH Administrative Law Judge Ingrid M. Addison found the CO insubordinate for being out of residence without authorization, failing to surrender his firearm when requested, disobeying the order to remain at HMD, and failing to promptly notify the Department that he had legally changed his name.

Judge Addison recommended that the CO be termination from his position.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1962.pdf

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An applicant for §207-c of the General Municipal Law disability benefits must show that the disability was directly caused by a job-related illness or injury

An applicant for §207-c of the General Municipal Law disability benefits must show that the disability was directly caused by a job-related illness or injury
Caulkins v Town of Pound Ridge, 2015 NY Slip Op 07655, Appellate Division, Second Department

§207-c of the General Municipal Law provides for the payment of “salary, wages, medical and hospital expenses” of law enforcement personnel disabled as the result of injuries or illness incurred in the performance of their official duties. In order to be eligible for disability benefits pursuant to §207-c, however, the employee must "prove a direct causal relationship between job duties and the resulting illness or injury."*

Tammy Caulkins, a Town employee, was receiving §207-c disability benefits. A hearing officer found that Caulkins' disability was not related to a line-of-duty injury that Caulkins had suffered in October 2008. The Town Board of the Town of Pound Ridge adopted the findings of the hearing officer, made after a hearing, and discontinued Caulkins §207-c disability benefits.

Caulkins sued the Town seeking a court order directing the Town Board to reinstate her §207-c benefits. Supreme Court denied her petition, which ruling was affirmed by the Appellate Division.

The Appellate Division said that judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence, explaining that substantial evidence consists of "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

In this instance the Appellate Division found that Caulkins did not sustain her burden of demonstrating that her disability was the direct result of her October 2008 “on-the-job” injury and substantial evidence supported the hearing officer's determination that her current disability was not causally related to the on-the-job injuries she had suffered October 2008.

* A firefighter seeking benefits pursuant to §207-a of the General Municipal Law must also "prove a direct causal relationship between job duties and the resulting illness or injury" in order to be eligible for such disability benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07655.htm

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An employee who alleged she was subjected to retaliation because she testified before a grand jury was not engaged in “protected activity” within the meaning of the State’s Human Rights Law

An employee who alleged she was subjected to retaliation because she testified before a grand jury was not engaged in “protected activity” within the meaning of the State’s Human Rights Law

Clarson v City of Long Beach, 2015 NY Slip Op 07614, Appellate Division, Second Department

Sandra Yu Clarson, an Asian-American woman, served as the City Comptroller for the City of Long Beach [City]. Alleging that the City had terminated her employment in retaliation against her because "she cooperated and provided testimony to a grand jury regarding alleged criminal activity of a city councilperson, and that the City subsequently hired a less qualified, white male to fill her former position," Clarson sued the City to recover damages for unlawful retaliation in violation of Executive Law §296, New York State’s Human Rights Law.

The City moved to dismiss the complaint for failure to state a cause of action but Supreme Court denied the City's motion. The Appellate Division reversed the lower court’s decision.

The Appellate Division explained that when considering a motion to dismiss the complaint for failure to state a cause of action, the court must accept the plaintiff's allegations as true, afford the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

In this instance, said the court, Clarson failed to state a cause of action alleging retaliation in violation of Executive Law §296(1)(e), which section provides that “it is unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices."

In order to make a prima facie showing of retaliation within the meaning of Executive Law §296, a plaintiff is required to show that:

(1) he or she was engaged in protected activity;

(2) his or her employer was aware that he or she participated in such activity;

(3) he or she  suffered an adverse employment action based upon his or her activity; and

(4) there was a causal connection between the protected activity and the adverse action."

The Appellate Division said that an employee engages in a "protected activity" by "opposing or complaining about unlawful discrimination."

However, the court found that Clarson’s testimony before the grand jury “was unrelated to opposing or complaining about statutorily prohibited discrimination,” and, therefore, “was not ‘protected activity' as contemplated by the [the State's Human Rights Law].”

Further, notwithstanding Clarson’s contention to the contrary, the court said that her complaint does not allege a cause of action for retaliation based on whistle-blowing activities in violation of Civil Service Law §75-b.

The Appellate Division reversed the Supreme Court’s decision “on the law,” and granted the City’s motion to dismiss the complaint is granted.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07614.htm

Educators are ineligible for unemployment insurance between academic terms only if given timely assurance of reemployment for the next academic term

Educators are ineligible for unemployment insurance between academic terms only if given timely assurance of reemployment for the next academic term

Upham (Dutchess Community Coll.--Commissioner of Labor), 2015 NY Slip Op 07898, Appellate Division, Third Department

Labor Law §590(10) prohibits a professional employed by an educational institution from receiving unemployment insurance benefits during the period between two successive academic terms if the educational institution has given the professional a reasonable assurance of continued employment.

In cases where educational institutions have failed to set forth the terms or conditions of continued employment or have made such employment contingent upon certain conditions, courts have found that a reasonable assurance of reemployment was lacking and thus the individual was eligible for unemployment insurance benefits.

Paul Upham served as an adjunct instructor at a community college and, during the fall 2013 semester, he taught three courses in history and government. Prior to the end of that semester, the chair of his department asked Upham if he wanted to teach potentially four courses during the spring 2014 semester and he expressed an interest in doing so.

After the semester ended, the college sent Upham a letter "anticipat[ing] that [he would] be invited to return to teach," during the spring 2014 semester "subject to enrollment and/or budget constraints."

Upham had applied for unemployment insurance benefits before receiving this letter.  Following a hearing, an Administrative Law Judge concluded that Upham was, in fact, eligible to receive benefits because the college had not given him a reasonable assurance of continued employment within the meaning of Labor Law §590(10).

The Unemployment Insurance Appeal Board sustained the administrative law judge’s decision and the college appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling, explaining that while Labor Law §590(10) makes a professional employed by an educational institution ineligible for unemployment insurance benefits during the period between two successive academic terms, such ineligibility is triggered by the claimant having been given a reasonable assurance of continued employment by the institution.

A "reasonable assurance," in turn, is a representation by the educational institution "that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period." Whether the claimant has been given a “reasonable assurance” is a factual question for the Board to resolve and its determination will be upheld if supported by substantial evidence.

While the department chair mentioned that Upham could teach potentially four courses during the spring 2014 semester, which exceeded the number that he taught during the fall 2013 semester, this was never confirmed during any subsequent conversations nor in the letter sent to Upham.

Significantly, the Appellate Division noted that the letter did not specify the details of the spring 2014 semester teaching assignment and conditioned Upham’s further employment upon "enrollment and/or budget constraints."

Accordingly, said the court substantial evidence supports the Board's finding that Upham was entitled to receive unemployment insurance benefits.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07898.htm

A governmental entity’s liability for alleged negligence is limited

A governmental entity’s liability for alleged negligence is limited
Guerrieri v New York City Dept./Bd. of Educ., 2015 NY Slip Op 07816, Appellate Division, Second Department

As a general rule, a governmental entity’s liability for alleged negligence may arise where the entity has a special duty or a special relationship to the plaintiff. Such a special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition. Further, the plaintiff has the burden of proving that the government defendant owed a special duty of care to the injured party because such a duty is an essential element of the negligence claim itself and in situations where the plaintiff fails to meet this burden, liability may not be imputed to the municipality that acted in a governmental capacity.

Thomas Guerrieri was employed as a school bus driver by an independent contractor that contracted with the New York City Department/Board of Education [BOE] to provide student transportation services.

Guerrieri was allegedly assaulted by one of the students he was transporting and sued BOE, among others, for damages for personal injury. Supreme Court granted BOE’s motion for summary judgment dismissing the complaint insofar as asserted against it and Guerrieri appealed.

Citing Garrett v Holiday Inns, 58 NY2d 253, the Appellate Division sustained the lower court’s ruling, explaining that "Liability for a claim that a municipality negligently exercised a governmental function turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public." In contrast to a school district having a special duty to its students to adequately supervise them to prevent foreseeable injuries to fellow students, the court said that such a duty does not extend to adults.

Holding that BOE “demonstrated its prima facie entitlement to judgment as a matter of law” by establishing that it did not owe Guerrieri a special duty and Guerrieri’s failing to raise a triable issue of fact, the Appellate Division said that Supreme Court properly granted BOE’s motion for summary judgment “dismissing the complaint insofar as asserted against it.”

Dinardo v City of New York, 13 NY3d 872, provides another illustration of the proof of a “special duty” that a plaintiff is required to demonstrate.

Zelinda Dinardo, a special education teacher at a New York City public school, was injured when she tried to restrain one student from attacking another. The student had been orally and physically aggressive for several months and Dinardo had repeatedly expressed concerns to her supervisors about her safety in the classroom. The school's supervisor of special education and the principal had both told Dinardo that "things were being worked on, things were happening" and urged Dinardo to "hang in there because something was being done" to have the student removed.

Following her injury, Dinardo commenced an action alleging, among other things, that by the assurances given to her by her supervisor and her principal, the Board of Education of the City of New York had assumed an affirmative duty to take action with respect to the removal of the student and that she justifiably relied upon those assurances. When the student was not removed in a timely fashion, Dinardo alleged, the altercation which led to her injury resulted.

In the words of the Dinardo court, “Affording Dinardo every inference that may properly be drawn from the evidence presented and considering the evidence in a light most favorable to her (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), we conclude that there is no rational process by which the jury could have reached a finding that [Dinardo] justifiably relied on assurances by the Board of Education. The vaguely worded statements by Dinardo's supervisor and principal that 'something' was being done to have the student removed, without any indication of when, or if, such relief would come, do not, as a matter of law, constitute an action that would lull a plaintiff into a false sense of security or otherwise generate justifiable reliance. Indeed, [Dinardo] was aware that the administrative process for determining whether a student should transfer to a different program or school could take up to 60 days and was still ongoing when the incident occurred. There was therefore no "special relationship" between the Board of Education and [Dinardo] (see Cuffy, 69 NY2d at 259), upon which a cause of action for negligence could be based, and the Board of Education is entitled to judgment as a matter of law.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07816.htm