Former town supervisor pleads guilty to jobbery

As noted in previous NYPPL reports of misconduct involving a public employee stealing public funds, such breaches of the public trust are frequently referred to as "jobbery." Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain". 

On February 16, 2024, State Comptroller Thomas P. DiNapoli, Attorney General Letitia James, and the New York State Police announced a former Town of Throop Supervisor, William Tarby, paid full restitution as part of his sentencing after pleading guilty to stealing $11,000 from the town. The former town supervisor pleaded guilty to grand larceny and official misconduct in January, 2024, and as part of his plea agreement, cannot seek public office again.

Comptroller DiNapoli said “William Tarby scammed town residents by abusing his position for personal gain.” DiNapoli thanked Attorney General James and the New York State Police for their work in partnering with him to bring Tarby to justice and said "My office will continue to work with law enforcement agencies across the state and country to protect taxpayers from corruption."

“Every New Yorker should be able to trust that the officials elected to serve them are operating in the public’s interest, not using their office to enrich themselves,” noted James. “William Tarby exploited his position to steal thousands of dollars from the town he was supposed to be serving. Today, we are ensuring that he will be held accountable. I thank Comptroller DiNapoli and our partners in law enforcement for their support in bringing Mr. Tarby to justice.” 

The press release issued by the Office of the New York State Comptroller reported that "Tarby, 58, was the town supervisor of Throop from 2004 through 2019. In 2020, based upon concerns from the town, DiNapoli’s office commenced an audit of the town, which found financial irregularities. A subsequent investigation found that from January 2017 to December 2019, Tarby pocketed almost $11,000 from the town. 

"Investigators determined Tarby made unauthorized cash withdrawals from town bank accounts, took cash back on checks made out to the town, and kept for himself cash paid to the town for scrap metal, fines, and the sale of equipment, among other things. Following the audit and investigation, the Office of the State Comptroller referred the case to the Office of the Attorney General for criminal prosecution.

"Tarby was sentenced in Cayuga County Court by Judge Thomas G. Leone.

"Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236."

 

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Claims for workers' compensation benefits based on COVIS-19 must be supported by substantial evidence of a nexus to the claimant's employment

Recent court decisions* make clear "the contraction of COVID-19 in the workplace may qualify as an unusual hazard, not the natural and unavoidable result of employment and, thus, is compensable under the Workers' Compensation Law". 

In the instant matter, however, the Workers' Compensation Board [Board] ruled that Claimant's spouse's [Decedent] COVID-19 related death was not causally-related to his employment and denied Claimant's application for workers' compensation death benefits.

Claimant's spouse had filed a claim for workers' compensation benefits, alleging he had suffered a COVID-19 work-related injury or disease. Claimant subsequently filed a claim for death benefits upon the passing of the Decedent. Following a hearing and the consideration of depositions of certain medical providers, a Workers' Compensation Law Judge found, among other things, that Decedent had sustained a COVID-19 work-related injury. The Board, however, ultimately denied the claim. Claimant appealed the Board's determination.

The Appellate Division explained:

1. Whether a compensable accident has occurred is a question of fact for the Board to resolve, and its determination in this regard, if supported by substantial evidence in the record as a whole, will not be disturbed;

2. A claimant "bears the burden of establishing that the subject injury arose out of and in the course of his or her employment";

3. A claimant may meet his or her burden to show that an injury arose in the course of employment by demonstrating either a specific exposure to COVID-19 or prevalence of COVID-19 in the work environment so as to present an elevated risk of exposure constituting an extraordinary event; for example, workers with significant contact with the public in communities with high rates of infection or workers in a workplace experiencing high rates of infection"; and

4. "Although Workers' Compensation Law §21(1) provides a presumption that an accident that occurs in the course of employment also arises out of that employment, the statutory presumption cannot be used to establish that an accident occurred in the first instance, and it does not wholly relieve a claimant of the burden of demonstrating that the accident occurred in the course of, and arose out of, his or her employment."

Here Claimant testified that a number of Decedent's coworkers tested positive for COVID-19 at some undetermined point, but she was unable to provide any names, dates or other details from which it reasonably could be inferred that Decedent contracted COVID-19 from one or more coworkers.

Although Claimant also testified that Decedent provided his own masks, gloves and hand sanitizer, the Appellate Division opined "the record is devoid of any evidence that Decedent's job as a subway track inspector required him to work in a contained environment that, in turn, brought him into regular contact with the public at large".

Under the circumstances, the Appellate Division held that "substantial evidence supports the Board's finding that Claimant failed to meet her burden of demonstrating that Decedent contracted COVID-19 in the course of his employment" and affirmed the Board's decision.

* See Matter of Pierre v ABF Frgt., 211 AD3d 1284; accord Matter of Leroy v Brookdale Hosp. Med. Ctr., 222 AD3d 1160; Matter of Aungst v Family Dollar, 221 AD3d 1222; and Matter of Holder v Office for People with Dev. Disabilities, 215 AD3d 1201.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Son who stole $194,000 in NYS pension and social security payments by impersonating his deceased father sentenced to five years in prison

On February 14, 2024, New York State Comptroller Thomas P. DiNapoli, the United States Attorney for the Eastern District of Pennsylvania Jacqueline C. Romero, the Inspector General for the Social Security Administration Gail S. Ennis, the United States Postal Inspection Service and the Federal Bureau of Investigation announced that the son of a deceased retiree of the New York State Employees' Retirement Plan who stole $194,000 of New York State retirement benefits paid to his deceased father was sentenced to five years in prison and ordered to pay full restitution.

Comptroller DiNapoli said “Timothy Gritman shamelessly hid his own father’s death, going so far as to attempt to disguise himself as him in order to collect his pension and Social Security payments for more than four years” and “Thanks to the work of my investigative team and our partners in law enforcement, he has been held accountable. My office will continue to bring anyone who seeks to defraud the pension system to justice.”

“Timothy Gritman chose dollars and cents over a dignified death for his dad,” said U.S. Attorney Romero and “He had been living off of his father Ralph’s retirement benefits for years, even before his father’s passing — and after it, went to significant lengths to keep that money coming in. With today’s sentence, he’s finally being made to answer for his criminal greed.”

“Timothy Gritman schemed to obtain the Social Security retirement benefits intended for his deceased father. His behavior is unacceptable, and this sentence holds him accountable for his criminal actions,” said Social Security Inspector General Ennis. “I thank our law enforcement partners and the New York State Comptroller’s Office for their efforts in investigating, and the U.S. Attorney’s Office, and Special Assistant U.S. Attorney Megan Curran for prosecuting this case.”

New York state pensioner Ralph Gritman retired from the Nassau County Clerk’s Office in 1992 and moved to Wyoming from Pennsylvania with his son, Timothy Gritman, in August 2017. In September 2017, Medicare records showed he went to a hospital emergency room in Wyoming. This was the last existing record of the father.

The father and son shared a joint bank account where Ralph’s retirement benefits were electronically deposited. Both Ralph Gritman’s pension and Social Security benefits were to cease upon his death, but Timothy Gritman concealed his father’s death in order to continue to receive his retirement benefits. In his attempts to impersonate his deceased father, he used makeup to whiten his hair and eyebrows.

In 2019, Timothy Gritman told a family member that his father had died several years earlier but would not say where he was buried or what had happened to his body. Ralph Gritman’s body still has not been located.

A call to DiNapoli’s Fraud Hotline led to a joint investigation and the suspension of Ralph Gritman’s pension payments and the investigation that led to his son’s arrest.

Gritman was sentenced by U.S. District Court Judge Cynthia M. Rufe in Philadelphia.

###

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be reported by calling the Retirement Systems toll-free Fraud Hotline at 1-888-672-4555, or by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236, or filing online at https://www.osc.state.ny.us/investigations.

 

Applying the doctrine of forum non conveniens

New York State has codified the doctrine of forum non conveniens as CPLR 327.*

In Employees Retirement System for the City of Providence v Rohner, in which Credit Suisse Group AG, was named as a "Nominal Defendant", the Appellate Division opined  "There is no credible argument that a substantial nexus between this action and New York is lacking". Noting the parties agree that this case involves the application of Swiss substantive law, the Appellate Division said "New York courts routinely find that there is no inordinate burden involved in applying the substantive laws of foreign jurisdictions, including Swiss law".

Citing Di Lella v. Lehigh Val. R. Co., D.C.N.Y., 7 F.R.D. 192, 193, the Appellate Division indicated that "In determining whether doctrine should be applied, courts typically "consider relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of view of premises, and all other practical problems that make trial easy, expeditious and inexpensive". 

* See https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvpny-cplr-rule-327/

The Appellate Division's decision in this appeal of a ruling by a New York State Supreme Court is set out below:

 

Employees Retirement Sys. for the City of Providence v Rohner

2024 NY Slip Op 00674

Decided on February 08, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 08, 2024
Before: Manzanet-Daniels, J.P., Kern, Friedman, O'Neill Levy, Michael, JJ.

Index No. 651657/22 Appeal No. 1610 Case No. 2023-01215

Employees Retirement System for the City of Providence, etc., Plaintiff-Respondent,
v
Urs Rohner et al., Defendants, Eric Varvel et al., Defendants-Appellants, Credit Suisse Group AG, Nominal Defendant.

Cahill Gordon & Reindel LLP, New York (Jason M. Hall of counsel), for appellants.

Bernstein Litowitz Berger & Grossmann LLP, New York (Jeroen van Kwawegen of counsel), for respondent.

Order, Supreme Court, New York County (Andrea Masley, J.), entered January 31, 2023, which denied the motion of defendants Eric Varvel, Brian Chin, and Radhka Venkatraman to dismiss the complaint pursuant to CPLR 327 and 3211(a)(7), unanimously affirmed, with costs.

The doctrine of forum non conveniens, codified in CPLR 327, permits a court to stay or dismiss an action where it finds "that in the interest of substantial justice the action should be heard in another forum." CPLR 327 requires that "balancing of many factors," and the decision to retain jurisdiction over a dispute is within the motion court's discretion (Al Rushaid v Pictet & Cie, 28 NY3d 316, 332 [2016]; see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied 469 US 1108 [1985]). Here, defendants have not met their "heavy burden" of establishing that the complaint should have been dismissed on forum non conveniens grounds (see Elmaliach v Bank of China Ltd., 110 AD3d 192, 208 [1st Dept 2013]).

There is no credible argument that a substantial nexus between this action and New York is lacking (Islamic Republic of Iran, 62 NY2d at 478-479). Virtually every aspect of the subject matter underlying this action occurred in New York, and this Court has found a substantial nexus to exist in New York under less compelling circumstances (see e.g. Elmaliach, 110 AD3d at 208-209).

The court also properly found that New York, as a preeminent commercial center, has a significant interest in adjudicating this dispute. While Switzerland also has an interest in adjudicating this action and regulating its banks, this is only "one factor to be weighed," and does not compel dismissal (id. at 209 [internal quotation marks omitted]). Nor is there any parallel litigation pending in Switzerland that might weigh in favor of adjudicating the dispute there.

Defendants also failed to meet their heavy burden of establishing that the Commercial Division is unduly burdened or incapable of handling this case. While the parties agree that this case involves the application of Swiss substantive law, this is not dispositive. New York courts routinely find that there is no inordinate burden involved in applying the substantive laws of foreign jurisdictions, including Swiss law (see e.g. Wormwood Capital LLC v Mulleady, 203 AD3d 500 [1st Dept 2022]).

The court properly determined that the heightened pleading standard of CPLR 3016(b) does not apply to plaintiff's negligence-based breach of fiduciary duty claims under Swiss law.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 8, 2024