February 10, 2020

New York State Comptroller releases audits of various public entities

On February 10, 2020, New York State Comptroller Thomas P. DiNapoli issued the following audits.

Click on the text in blue to access the full report.

Auditors found an estimated $13 million has not been billed or collected from commercial casinos for oversight costs. The commission also did not have policies regarding dispute resolution procedures when a casino disagrees with oversight cost charges, leaving the commission unprepared to address disputes that may arise.

OGS has made progress in reducing leased warehouse space, having evaluated 29 leased warehouses, resulting in: the consolidation of 14, liquidation of nine, square footage reduction for three, and no changes in the remaining three. The initiative realized cost savings of $1,699,020 during the audit scope and a reduction of 434,266 square feet. However, auditors could not determine the initiative’s overall success, as an inventory of all state warehouses – leased and state owned – did not exist.

Under the Public Authorities Law, the MTA is required to issue an annual report on its mission statement, measurements, and performance indicators. One of the goals the MTA cites in its annual report is to provide on-time and reliable service to customers. Auditors found Transit’s new customer-focused measures do not appear to meet the plan’s goals. For a metric to be relevant, it should be closely connected to the goals, easily understood, and straightforward.

For two key performance measures – mean distance between failures and ridership – auditors identified deficiencies and inconsistencies in MTA’s methodology and calculations that may result in misleading or inaccurate results. 

An audit issued in June 2017, found that the Staten Island Railroad (SIR) documented its inspections of facilities where safety-related incidents occurred and the actions taken to remediate conditions that might have contributed to such incidents. However, in certain instances, responses to safety-related incidents were not documented. In a follow-up, auditors found that SIR officials made progress in addressing the problems identified in the initial audit.

An audit issued in July 2017 found that DOF's Property Division did not conduct necessary inspections for over half of the parcels reviewed and assessors frequently did not document the basis for assessment changes. In a follow-up, auditors found that DOF made progress in addressing the problems identified in the initial report. 

An audit issued in July 2018 found that, while Health and Hospitals generally complied with its policies for the screening of its direct hire and temporary nurses, it had not taken action to ensure that direct hire nurses who began before 2002 or any of its temporary nurses were fingerprinted. Auditors also identified numerous instances of deficient screening and monitoring. In a follow-up, auditors found that of the four recommendations from the initial report, two had been implemented and two had been partially implemented.

For the period Jan. 1, 2016 through Dec. 31, 2016, auditors determined 42 claims (47 percent of the 90 claims sampled) totaling $28,731 were unsupported for the higher level of care billed. United’s method for monitoring out-of-network providers who billed for higher-level services needed improvements. In a follow-up, auditors found United made progress in addressing the problems identified in the initial audit. In particular, United saved the Empire Plan $862,334 through reviews of claims from three of nine providers identified in the initial audit.

The Research Foundation has taken steps to protect SUNY’s interest in the transfer of technology and royalties for projects developed at SUNY schools. The Research Foundation has not developed routine monitoring mechanisms to determine whether a licensee is paying the full royalty owed. Since 1992, Downstate Health Sciences University has accumulated $1,019,390 in campus royalty revenue, none of which has been used to support SUNY research programs.

St. Anne is an SED-approved, not-for-profit private school located in Albany that provides preschool special education services to children with developmental disabilities. Auditor identified $14,204 in in ineligible costs that St. Anne reported for state reimbursement.

Located in Jamestown, CES is a for-profit special education provider that services children with disabilities between three and four years of age. Auditors identified $2,509 in other than personal service costs reported by CES on its for the fiscal year ended June 30, 2015 that were ineligible for reimbursement.

MIM is a for-profit special education provider located in Newburgh. MIM provides preschool special education services to children with disabilities between three and four years of age. Auditors identified $27,970 in costs reported by MIM that were ineligible for reimbursement.

February 09, 2020

Contaminants of Emergent Concern discussed at New York State Bar Association meeting

Dr. Robert A. Michaels, NYPER's Environmental Science Consultant, made an invited presentation to the New York State Bar Association, Energy and Environmental Law Section on January 31, 2020.  

The presentation, titled Contaminants of Emergent Concern, is available for viewing and/or download at no charge, at the following URL: 

The Focus of Dr. Michaels' Presentation

Concern about historic (‘legacy’) contaminants may be emerging as information about their toxic effects and toxic potency increases, and with discovery of their presence at toxic levels in various environmental media. 

Two classes of substances exemplify such concerns: lead (Pb) and its compounds, and perfluorinated compounds (PFAs). PFAs have been termed ‘forever chemicals’, but Pb qualifies as well. 

Concern about these contaminants is emerging because of at least three issues: failures of environmental justice, the need for international agreements regarding globe-trotting contaminants, and the conflict between protecting science and public health exemplified by inadequately probative study designs for identifying cancer clusters.

Click here for summaries of selected articles by Dr. Michaels posted on NYPPL:

You may contact Dr. Michaels at .

February 07, 2020

Employee found to have acted unprofessionally terminated from the position

A Triborough Bridge and Tunnel Authority Bridge and Tunnel Officer (“BTO”) served with disciplinary charges was found to have acted unprofessionally when she yelled profanities at a motorist and had to be restrained by colleagues. 

The BTO also was found to have failed to safeguard her Authority-issued radio, which wound up in the motorist’s vehicle. The charge that the BTO threw her radio at the motorist, however, was dismissed by OATH Administrative Law Judge Ingrid M. Addison as "not proved."

Judge Addison recommended that BTO be terminated from her position or, in the alternative, be suspended without pay for 60 days provided the BTO enroll in, and complete, an anger management program. 

The appointing authority elected to terminate the BTO.

The decision is posted on the Internet at:

February 06, 2020

New York - New Jersey Port Authority subject to New York State's Labor Law

The Appellate Division sustained a Supreme Court ruling that rejected the New York-New Jersey Port Authority's arguments that as a bi-state entity created by a federally approved compact it cannot be held liable under Labor Law §§240(1) or 241(6) for injuries plaintiff allegedly sustained while working in a building owned by the Authority.
The court explained that the Compact Clause of the United States Constitution 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, citing Cuyler v Adams, 449 US 433.
The decision is posted on the Internet at:

February 05, 2020

A retired member is required to repay pension benefits mistakenly paid to him by the New York State Employees Retirement System

The Petitioner in this CPLR Article 78 action began working as an engineer for the New York Power Authority in March 1980. In order increased the pension benefits payable to him by the New York State and Local Retirement System [NYSERS] upon retirement, in January 2001 Petitioner submitted an application to NYSERS in an effort to purchase "military service credit" based on his service as a Naval Reserve Officer from June 1966 until April 1969, during which period he served on merchant ships recommissioned to transport supplies to support the Vietnam war effort pursuant to a Naval Training and Service Agreement. Following such service Petitioner joined a naval reserve unit and was honorably discharged in February 1979.

Although his application was initially denied, NYSERS subsequently advised Petitioner that his application had been approved.Petitioner retired in January 2003 and began receiving NYSERS pension benefits that included the value of the approved military service credit.

In October 2017, however, NYSERS advised Petitioner that it had made an error in granting him military service credit toward his pension benefits. Specifically, he was informed that his service aboard the merchant marine ships did not qualify as military duty within the meaning of the State's Military Law §243 and, consequently, military service credit was not available to him.

In addition, Petitioner was told that [1] his pension benefits would be reduced; [2] his payment of $5,088.10 for the member service credit he purchased would be refunded to him with interest; and [3] he was required to repay NYSERS the amount of the overpayment of benefits that he had already received.

Petitioner sought administrative review and, following a hearing, the Hearing Officer sustained NYSERS' determination. The Comptroller adopted the Hearing Officer's decision and thereupon Petitioner commenced this CPLR article 78 proceeding challenging the Comptroller's decision.

The Appellate Division sustained the Comptroller's decision, explaining:

1. A member of NYSERS, upon application, "may obtain a total not to exceed three years of service credit for up to three years of military duty, as defined in New York State's Military Law §243 if the member was honorably discharged from the military; and

2. §243(1)(b) of the Military Law provides, in relevant part, that military duty includes "service in the merchant marine which shall consist of service as an officer or member of the crew on or in connection with a vessel . . . owned by, chartered to, or operated by or for the account or use of the government of the United States . . . and who served satisfactorily as a crew member during the period of armed conflict [December 17, 1941]to August 15, 1945] aboard merchant vessels."**

Clearly, said the court, "Petitioner's service in the merchant marine from 1966 to 1969 did not fall within the time parameters set forth in the statute." Further, the court opined that Petitioner failed to establish that his service aboard merchant vessels constituted active military duty as a Naval Reserve officer. Citing Matter of McMorrow v Hevesi, 6 AD3d 925, the Appellate Division said that it has only recognized "active duty, which excludes temporary and intermittent . . . service in any reserve . . . force,"  for purposes of claiming member service credit pursuant to Retirement and Social Security Law §1000 and Military Law §243(1)(b).***

Noting that there was evidence in the record that could lead to a different result, the Appellate Division opined that "because substantial evidence supports the Comptroller's determination that [Petitioner] was not entitled to military credit under the governing statutes, [it would] not disturb it."

Addressing Petitioner argument that he was erroneously directed to repay the pension benefits mistakenly paid to him, the court said that the Comptroller "had no choice but to seek recoupment of such benefits, as the Comptroller has a duty to correct errors in order to ensure the integrity of the public retirement system", citing Matter of Mowry v DiNapoli, 111 AD3d 1117. Further, said the Appellate Division, the Comptroller "is not estopped from doing so because of errors committed by [NYSERS] officials."

* In exchange for a nonrefundable payment of $5,088.10, Petitioner was awarded 1.53 years of additional member service credit toward his pension benefits.

** §85 of the Civil Service Law defines "qualifying" military service" for the purposes of eligibility for additional credit allowed veterans in competitive examinations and preference in retention upon the abolition of positions in the public service. [See, also, §85.7(5).]

*** Petitioner conceded that he did not qualify for veteran's benefits as a result of his service on merchant ships during the period June 1966 through April 1969.

The decision is posted on the Internet at:


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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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