Selected reports issued by the Office of the State Comptroller during the week ending May 21, 2016

Selected reports issued by the Office of the State Comptroller during the week ending May 21, 2016

Click on text highlighted in color to access the entire report

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued:

Metropolitan Transportation Authority -  Paratransit service “Access-A-Ride” accident claims

State Education Department (Center for Disability Services) - Compliance with the Reimbursable Cost Manual

State Education Department (Crossroads Center for Children) -  Compliance with the Reimbursable Cost Manual

State Education Department (Helping Hands School) - Compliance with the Reimbursable Cost Manual

Workers' Compensation Board – Examination of Workers’ Compensation daily payment requests by claimants and medical providers

Retailers agree to increased use of renewable energy

New York State Comptroller Thomas P. DiNapoli announced that Fortune 500 retailers Best Buy and Nordstrom have agreed to the New York State Common Retirement Fund’s request that they increase the use of renewable energy in their operations and supply chain.

http://www.osc.state.ny.us/press/releases/may16/051816.htm?utm_source=weekly+news&utm_medium=email&utm_term=corporate+governance&utm_content=20160522&utm_campaign=pension+fund

State ends fiscal 2015-2016 with strong cash position due to “temporary resources”
 
The state collected $153.3 billion in State Fiscal Year (SFY) 2015-16, an increase of 2.8 percent from a year earlier, and ended the SFY $1.9 billion higher than initial projections, largely because of legal settlements and personal income tax collections, according to a reportreleased by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/may16/051316a.htm?utm_source=weekly+news&utm_medium=email&utm_term=fiscal+report&utm_content=20160522&utm_campaign=fiscal+oversight

State contract and payments – April 2016
 
State Comptroller Thomas P. DiNapoli announced his office approved 990 contracts valued at $750 million and approved nearly 3.9 million payments worth more than $10.4 billion in April. His office also rejected 116 contracts and related transactions valued at $330 million and nearly 6,000 payments valued at more than $10.7 million due to fraud, waste or other improprieties.

http://www.osc.state.ny.us/press/releases/may16/052016.htm?utm_source=weekly+news&utm_medium=email&utm_term=state+operations&utm_content=20160522&utm_campaign=fiscal+oversight

An administrative decision annulled and remanded for a new hearing based on a judicial finding that it is “affected by errors of law”

An administrative decision annulled and remanded for a new hearing based on a judicial finding that it is “affected by errors of law”

DeMaio v DiNapoli, 2016 NY Slip Op 02505, Appellate Division, Third Department

VHB, a correction officer, applied for performance of duty disability retirement benefits alleging that he was injured while escorting an inmate away from an altercation between the inmate and another correction officer. The application was initially denied by the Retirement System and VHB requested a hearing and redetermination.

Following the hearing, the Hearing Officer upheld the initial denial of VHB’s application for duty disability retirement, concluding that VHB had not meet his burden of proof of establishing each and every element necessary to sustain his application and that the initial determination was supported by substantial evidence. The Comptroller accepted the findings and conclusions of the Hearing Officer and VHB initiated a CPLR Article 78 proceeding.

The Appellate Division said that the Hearing Officer's determination, which was adopted by the Comptroller, was affected by errors of law.

The court explained that the Hearing Officer had improperly noted that the applicable standard of review was whether the initial determination was "supported by substantial evidence." Rather than a review of the initial determination, the Appellate Division said that such a hearing is conducted to allow the Comptroller to make a “redetermination” with “the same powers upon such hearing as upon the original application.”

In addition, said the court, “the Hearing Officer's determination misstated the applicable burden.” VHB was required to establish that he is incapacitated from performing his work-related duties “as the natural and proximate result of an injury, sustained in the performance . . . of his or her duties by, or as the natural and proximate result of any act of any inmate” [emphasis supplied by the court].

Further, the Appellate Division said it has repeatedly held that the relevant statute, Retirement and Social Security Law §607-c[a],requires that an applicant for duty disability retirement benefits demonstrate that his or her injuries were “caused by direct interaction with an inmate … and have specified that such injuries must be caused by some ‘affirmative act on the part of the inmate’ … there is no legal support for the Hearing Officer's enhancement of such burden by indicating that VHB was required to demonstrate "an intentional overt act of an inmate” (emphasis supplied by the court).

Accordingly, the court annulled the Comptroller’s determination and remanded the matter to the Comptroller for a new hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02505.htm

An application for retirement benefits must be timely delivered to and received by the retirement system to be operative

An application for retirement benefits must be timely delivered to and received by the retirement system to be operative

Biscardi v New York State and Local Retirement Sys., 2016 NY Slip Op 03238, Appellate Division, Third Department

Valerie J. Biscardi initially applied for disability retirement benefits pursuant to Retirement and Social Security Law Article 15 in February 2012. She, however, withdrew that application in March 2012 and in September 2012 filed an application for “service retirement.”

In May 2013, Biscardi’s attorney, contending that Biscardi had filed an application for disability retirement on September 19, 2012, inquired about the status of Biscardi’s application for “disability retirement.” The New York State and Local Retirement System [SLRS] advised him that there was no record that [Biscardi] had filed a subsequent application for "disability retirement benefits” on September 19, 2012.

Following an administrative hearing, the Hearing Officer determined that Biscardi had not established that she had filed a timely application for disability retirement benefits as required by Retirement and Social Security Law §605.* The Comptroller adopted the ALJ's determination and Biscardi appealed.

The Appellate Division affirmed the Comptroller’s decision.

An application for disability retirement benefits, said the court, “must be filed, as relevant here, ‘within three months from the last date the member was being paid on the payroll.’” Kathleen Nowak, Director of Disability Services for the Retirement System, testified that a search of the Retirement System's records found Biscardi's February 2012 disability retirement application and the March 2012 withdrawal letter, “but no subsequent disability retirement benefits application.”

Although Biscardi contended that her counsel “timely mailed a second application” to the Retirement System in September 2012, the Appellate Division said that "simply mailing an application does not constitute filing; rather, filing only occurs upon actual delivery to and receipt by [the Retirement System]."

Accordingly, said the court, “substantial evidence supports the Comptroller's determination that [Biscardi] failed to file a timely application and it will not be disturbed.”

* In Biscardi’s case, RSSL §605[b][2] required that she file her an application for disability retirement benefits "within three months from the last date the member was being paid on the payroll."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03238.htm

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