ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

April 27, 2021

Defendants seeking summary judgment have the initial burden of demonstrating that the motion should be granted

A New York City police detective [Plaintiff] serving in the Police Department's Emergency Services Unit severely injured his eye while attempting to change the carbon dioxide cartridge of an animal tranquilizer gun. Plaintiff sought to recover damages for personal injuries against, among others, the City of New York and its Police Department, [City Defendants] under color of General Municipal Law §205-e,* and against NASCO, the distributor of the gun, alleging negligence and strict products liability predicated upon defective design and failure to provide adequate warnings.

The NASCO and the City Defendants appealed Supreme Court rejecting, in whole or in part, their various motions seeking summary judgment dismissing Plaintiff's claims. 

Addressing NASCO's and the City Defendants' respective appeals of Supreme Court's denial of their respective motions for summary judgment, the Appellate Division, after sustaining various elements of the Supreme Court's decision, noted the several failures of the defendants to meet their respective "initial burdens" that might otherwise have resulted in Supreme Court's granting all, or some, of their respective motions seeking summary judgment.

The Appellate Division decision provides a number of examples of the defendants failing to meet their respective "initial burdens" in its decision such as noting "NASCO's expert ... opined in mere conclusory fashion that the tranquilizer gun was 'appropriately designed' and 'did not ... contain any explanation of the gun's design, or any discussion of industry standards or costs.'" This, said the court, "was insufficient to affirmatively demonstrate, prima facie, that the gun was reasonably safe for its intended use."

The Appellate Division's decision is instructive as it identifies various elements that, if presented by NASCO and the City Defendants in their pleadings before the Supreme Court, might have had a different result, in whole or in part, with respect to their respective motions for summary judgment. 

* Subdivision 3 of §205-e provides "This section shall be deemed to provide a right of action regardless of whether the injury or death is caused by the violation of a provision which codifies a common-law duty and regardless of whether the injury or death is caused by the violation of a provision prohibiting activities or conditions which increase the dangers inherent in the work of any officer, member, agent or employee of any police department."

Click HERE to access full text of the Appellate Division's decision in this appeal.

 

April 26, 2021

Public official sued for allegedly unlawfully blocking an individual from accessing the Official's public Facebook page

A public official [Official] used his Facebook's "Public Page" in his official capacity to communicate information to, and receive comments from, the public on various issues of local and state politics and policy.

Official, however, blocked an individual's [Plaintiff] access to his Public Page after Plaintiff posted accusations it condoned allegedly “flagrant racism” and “ugly comments” posted by other Facebook users on Official's Public Page. Plaintiff then initiated an action in federal district court against Official seeking "declaratory and injunctive reliefand for monetary damages."  

The United States Circuit Court of Appeals affirmed a federal district court's dismissal of Plaintiff's action as moot as Official had expressly represented in two sworn declarations before the district court that “he does not intend to ban or block [Plaintiff's] access" to his Public Page again at any time in the future and had, in fact, "unblocked [Plaintiff] ... 'long before' [Official] moved to dismiss [Plaintiff's] claims."

Citing Lamar Advert. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365, the Circuit Court explained "[w]hen a defendant voluntarily ceases conduct that a plaintiff alleges to be unlawful, the plaintiff’s case usually becomes moot if  'the defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.'"  

Agreeing with the district court that on this record "it cannot reasonably be expected that [Official] will attempt to block [Plaintiff] from [his] Public Page in the future" as Official had filed two sworn declarations before the district court that “he does not intend to ban or block [Plaintiff's] access to the [Official's] Facebook page again at any time in the future,” the Circuit Court affirmed the district court's judgment.  

Click HERE to access the text of the Circuit Court's decision.


April 24, 2021

Audits and reports released by the New York State Comptroller during the week ending April 23, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 23, 2021.

Click on the text highlighted in color to access the complete report.

State and New York City Departments and Agencies

Department of Health (DOH): Patient Safety Center Activities and Handling of Revenues (2019-S-15) 

DOH has generally met the primary objectives of the Patient Safety Center (PSC) regarding data reporting, collection, and analysis and the dissemination of health care information, including public access to such information. However, auditors found a lack of formal guidance governing certain enforcement and recordkeeping practices. DOH also needs to improve its oversight of PSC revenues and related activities to ensure that the PSC account is receiving all revenue due.

 

Department of Labor (DOL) : Selected Wage Investigation Procedures (2019-S-6) 

Auditors reviewed wage investigation activities for a sample of 150 cases opened between April 1, 2016 and November 29, 2019). For 69 of the 150 cases, investigators did not make contact with the employer within 60 days of creating a wage investigation case, as recommended in its procedures. In 55 of the 69 cases, the first contact did not occur for more than 120 days, including 13 cases for which contact didn’t occur until after more than 360 days had passed. Auditors identified 24 cases with no documented investigation activities for significant periods of time, including two cases with gaps of more than two years. For nine of 56 cases reviewed that DOL’s system indicated were closed and paid, auditors could not determine whether the 976 claimants in these cases received recovered wages totaling $413,582.

 

New York City Department of Education (DOE): Health, Safety, and Accessibility in District 75 Schools (2019-N-7) 

DOE could improve its oversight to ensure that children attending some District 75 schools are not exposed to unsafe and unhealthy conditions. Conditions identified included: peeling paint in certain areas, including classrooms; lack of the required supply of epinephrine pens to be used in case of allergic reaction emergencies: disabled door alarms; unsafe conditions on playgrounds; and potentially toxic cleaning materials in unlocked cabinets in classrooms and hallways.

 

New York City Department of Finance (DOF): Selected Aspects of Collecting Outstanding Amounts Due for Parking Violations (2019-N-2)

Auditors determined that DOF did not maximize collection of fines and fees owed for parking violations, especially for vehicle owners residing outside NYC. The city has large outstanding balances due from summonses for parking violations, and DOF has not always taken timely action to collect the fines and fees.

 

Metropolitan Transportation Authority Capital Construction: All-Agency Contract Evaluation System (2019-S-14) 

MTA Capital Construction did not always follow proper procedures when monitoring and evaluating contractor and consultant performance to uniformly obtain and record reliable information on performance. As a result, it did not fully benefit from the established processes. Documentation was not consistently maintained to support projects rated as satisfactory, and, in some cases, either the work performed or the information in the file did not appear to support or contradicted the ratings.

 

Office for People With Developmental Disabilities (OPWDD): Compliance With Jonathan’s Law (Follow-Up) (2020-F-26) 

An audit issued in November 2019 found OPWDD did not implement processes to effectively monitor whether facilities are complying with Jonathan’s Law, enacted to expand parents’, guardians’, and other qualified persons’ access to records relating to incidents involving family members residing in facilities operated, licensed, or certified by OPWDD and other state agencies. While facilities established practices for notifying qualified persons within the required time frame, 11 percent of the incidents reviewed lacked support that the requisite notification was made within the required time frames and 7 percent lacked support that a report had been issued within the required time frames. Facilities did not always provide records to qualified persons when requested or did not provide them within 21 days of the request or the conclusion of an investigation. In a follow-up, auditors found OPWDD officials made limited progress in addressing the problems identified in the initial audit report.

 

MUNICIPAL AUDITS

Town of Orange – Former Highway Superintendent’s Records (Schuyler County)  

Auditors found the former superintendent intentionally destroyed highway records. Auditors determined the former superintendent submitted five inaccurate claims to the New York State Consolidated Local Street and Highway Improvement Program that resulted in the town receiving $86,000 more than it was entitled to. Based on the audit and investigation, the former superintendent was arrested and charged with second degree obstructing governmental administration for destroying town records. In December 2020, the superintendent pled guilty to attempted obstruction of governmental administration and was sentenced to a conditional discharge and given a $500 fine.

 

Plattekill Public Library – Procurement and Investment of Funds (Ulster County)  

The board did not always comply with its procurement and investment policies, or with statutory requirements relating to investments. The board did not ensure required quotes were obtained for the purchase of security cameras. The board also did not adopt a procurement policy that included professional services. As a result, officials did not seek competition for six professional service providers receiving payments totaling $24,009. In addition, the board did not adhere to its investment policy by limiting the investment decisions to the library’s committee and by ensuring funds were properly invested.

 

Village of Suffern – Budget Review (Rockland County)  

Auditors found that the significant revenue and expenditure projections in the proposed budget are reasonable. However, auditors estimated the total 2021-22 collections for sewer rent revenue will be approximately $2.25 million, which is $572,000 less than budgeted. The village’s tentative budget includes a tax levy of $12,238,192, which is $40,928 above the limit established by law.

Town of Tully – Justice Court Operations (Onondaga County) The justices generally provided adequate oversight of court financial activities and ensured collections were deposited timely and intact and were properly reported and remitted. However, the clerks did not ensure that some missing or deleted cashbook entries had a proper audit trail and documentation. In addition, the town board did not perform an annual audit of the justices’ records, as required.

 

SCHOOL DISTRICT AUDITS

Phelps-Clifton Springs Central School District – Fuel Purchasing (Seneca County and Wayne County)  

During the 30-month audit period, auditors found the district could have reduced its fuel expenditures by at least $124,428. The savings would have covered the district’s average gasoline and diesel fuel purchases for almost 11 months. Auditors determined the district could have saved at least $49,448 by using the Office of General Services contract price. In addition, officials should not have paid $74,980 to a local gas station. The erroneous payments comprised $57,415 in taxes and $17,565 in finance charges and other fees.

OTHER REPORTS

LOCAL SALES TAX COLLECTIONS

Despite decline compared to 2020, collections show improvement over the past three quarters.

Sales tax revenue for local governments in New York State declined by 3.9 percentin the first quarter compared to the same period last year, according to State Comptroller Thomas P. DiNapoli. Sales tax collections from January through March totaled $4.3 billion, which was $173 million less than the first quarter of 2020.

“Although collections remain down compared to last year, there are signs of improvement as the state continues to recover from the economic devastation caused by the COVID-19 pandemic,” DiNapoli said. “Local officials are cautioned to monitor their budgets closely because the pandemic’s trajectory and its effect on our state’s fiscal recovery remain uncertain.”

This is the fourth quarter in a row that overall collections have dropped statewide year-over-year. From April 2020 through March 2021, statewide local collections are down by 11.8 percent or $2.2 billion.

Despite the first-quarter decline, collections have shown a gradual improvement over the past three quarters, especially compared with the 27.1 percent decline seen from April to June 2020, when many businesses were shut down during the first wave of the COVID-19 pandemic and many people stayed home to avoid infection.

Collections for the first quarter of 2021 increased compared to the first quarter of 2020 in every region outside of New York City, with increases ranging from 2.4 percent in the Southern Tier to 9.8 percent in the North Country. Four regions – the Capital District, Central New York, Long Island and the North Country – experienced stronger growth than they did in the first quarter of last year, which predated the pandemic.

Sales tax collections in New York City during the first three months of 2021 were down 13.2 percent from the same period in 2020, which was still better than the previous three quarters.

Outside of New York City, all but two counties – Albany and Schuyler – experienced an increase in collections in the first quarter of 2021 compared the same three-month period in 2020. 

Table

Monthly and Quarterly Local Sales Tax Collections by Region

Report

First Quarter 2021 Local Sales Taxes Down 3.9 Percent; New York City’s Declines Soften While the Rest of the State Sees Growth

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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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