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January 22, 2020

Employer's evidence in disciplinary hearing found to have failed to prove the alleged misconduct


Three correction officers and a captain, [Respondents], wearing with helmets which had visors and side flaps, responded to an incident between another correction officer and an inmate. The appointing authority, relying on a video of the incident, alleged one of the Respondents punched the inmate "in retaliation for being spat upon," and charged the Respondents of having filed false reports concerning the incident by not reporting a "use of force."

At the disciplinary hearing Respondents testified that as they were escorting the inmate, he turned and spat at an officer. Two individuals who were beside the inmate "immediately took him down," causing the inmate's face to hit a row of chairs.

Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison recommended dismissal of the disciplinary  charges, finding that appointing authority’s evidence neither established that the inmate was struck by the other officer nor that Respondents witnessed a use of force which they failed to report.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2526.pdf 




January 21, 2020

Searching for abandoned property being held by the New York State Comptroller


The State’s Abandoned Property Law requires banks, insurance companies, utilities, and other businesses to turn dormant savings accounts, unclaimed insurance and stock dividends, and other inactive holdings over to the State. If there has been no activity in the account for a set period of time, usually between two and five years, the money or property is considered unclaimed or abandoned. Although Section 1402 of the Abandoned Property Law has a $20 threshold for such listing, the Comptroller uses a "$50 threshold” for the listings on his Internet website.

Periodically NYPPL provides a sample listing of abandoned property being held by the New York State Comptroller. Below are some randomly selected “New York State” governmental entities currently listed on the Comptroller’s “abandoned property” website. Searching the site requires some “detective skills,” however, as the name of the property owner is not always accurately identified by the entity depositing the property with the Comptroller.

For example, the entity may be reported merely as:

FLEET BANK N A

 However, more often the names are more accurately reported, such as:

CONAGRA FOODS LAMB WESTON INC
NIAGARA MOHAWK POWER CORP
NCS PEARSON INC
ADVISORY SERVICES CORP

PEARSON EDUCATION INC
STERLING LIFE INSURANCE CO
NEW YORK TELEPHONE CO
CDW LLC
OFFIC


UBS SECURITIES LLC
EXAMINATION MGMT SERVICES INC

SABRE HOLDINGS CORP
DELL USA LP
ONONDAGA COUNTY DEPT OF FINANCE
NATIONWIDE MUTUAL INSURANCE CO
RELX INC & AFFILIATES
FASTENAL COMPANY
ACUITY SPECIALITY PRODUCTS INC
COCA COLA REFRESHMENTS USA INC
SYSTEMAX INC

OFFICE EQUIPMENT SOURCE INC
SAFETY KLEEN SYSTEMS INC
AMBIT HOLDINGS LLC
AMBIT HOLDINGS LLC
AFLAC OF NEW YORK
FIRST AMERICAN TITLE CO
  
Interested entities [including individuals] may begin searches via  http://www.osc.state.ny.us/ouf/index.htm

New York's workplace safety statutes control with respect to work-related injuries suffered working in a building owned by the NY NJ Port Authority


Supreme Court denied the motion of  Port Authority of New York and New Jersey [Authority] to dismiss the New York State's Labor Law §§240(1) and 241(6) claims as against it.

In response to the Authority's appeal, the Appellate Division unanimously affirmed the lower court's ruling, explaining that the lower court had properly rejected the Authority's arguments that as "a bistate entity created by a federally approved compact cannot be held liable under Labor Law §§240(1) or 241(6) for injuries the plaintiff allegedly sustained while working in a building owned by the Authority.

The Compact Clause of the United States Constitution, said the court, is not implicated by the application of such New York workplace safety statutes to the Port Authority work site located in New York, which does not encroach on federal supremacy (see Cuyler v Adams, 449 US 433,

The decision is posted on the Internet at:


Seeking a court order limiting the scope of a public official's inquiry


The Nassau County Comptroller' issued a press release announcing the audit of the "finances and operation" of the Town of Hempstead's  animal shelter. The press release indicated that the audit was "precipitated after receiving alarming complaints" alleging "animal neglect, unnecessary deaths, unsanitary conditions, and unqualified staff."

In a proceeding pursuant to CPLR Article 78 characterized as being in the "nature of prohibition,"the Town's counsel had argued that "any authority of the County Attorney to audit the Town or its departments was limited to an examination of financial affairs." The County Comptroller, on the other hand, contended that he was authorized to undertake not only financial audits, but also "performance audits" as well.

Supreme Court's ruling prohibited the Comptroller him from "acting in excess of his jurisdiction" and quashed certain subpoenas issued by him served on the Town of Hempstead Animal Shelter.

Finding that the County Comptroller's authority to audit the Animal Shelter was limited to "a fiscal examination only," and that the subpoenas, to the extent they sought information beyond "an examination of [the animal shelter's] balance sheets/budget evidencing its income and expenditures," fell outside the scope of his authority, ruled that the County Comptroller's authority to audit the animal shelter was limited to "a fiscal examination only" and quashed the subpoenas that sought information beyond "an examination of [the animal shelter's] balance sheets/budget evidencing its income and expenditures."

The Comptroller appealed and the Appellate Division said that it disagreed with the Supreme Court's conclusion that certain of the materials which were the subject of the subpoenas fell outside of the County Comptroller's subpoena and audit authority.

The court explained that the Nassau County Charter provides that the County Comptroller shall "examine and audit of his own motion or when directed to do so by resolution of the County Legislature, the accounts and records of any town or special district and make reports from time to time when requested by the County Executive or County Legislature on the financial condition of the county or any [and] all of its political subdivisions."

Further, the Appellate Division noted that the Charter provided that several County officials, including the County Comptroller, "shall have the power to . . . compel the attendance of witnesses and the production of books and papers." Notwithstanding the Town's contentions to the contrary, the Appellate Division said that "under the plain language of the Charter, the County Comptroller's general authority to "examine and audit . . . accounts and records," citing Charter §402[6], "which may be exercised sua sponte, is not restricted by the subsequently stated authority to make reports on financial conditions upon request."

The court opined that "the broad language of the Charter" signifies that the powers and duties conferred upon the County Comptroller "go beyond the verification of financial records and internal controls" and, citing McCall v Barrios-Paoli, 93 NY2d 99, concluded that the Town "failed to demonstrate that the County Comptroller was proceeding in excess of his authority or jurisdiction."

* The writ of prohibition is one of number of the ancient “common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."  Other such ancients writs include the writ of injunction - a judicial order preventing a public official from performing an act; the writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform; "the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:


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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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