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Saturday, July 04, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 4, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 4, 2015
[Click on the material highlighted in blue to access the full report] 

State Comptroller seeks to returns lost or forgotten money held the Department of Audit and Control's unclaimed fund account to it rightful owners

Staff from New York State Comptroller Thomas P. DiNapoli’s office will attend community events around the state this month to help residents search for lost and forgotten money, also known as unclaimed funds. DiNapoli oversees 33 million unclaimed funds accounts until the money can be returned to its rightful owners.

“I encourage everyone to come out to the community events to search for money that may be waiting for you,” DiNapoli said. “We return more than a million dollars a day to residents across the state, but we want to do more. It’s your money, we want to give it back.”

Unclaimed funds is more than $14 billion in lost and forgotten money dating back to the 1940s. The money comes from old bank accounts, utility deposits, uncashed checks, insurance claims, stocks and other sources that have been dormant for a number of years.

Residents who cannot make it to the events can search for and claim their money by using the online claiming system or by calling 1-800-221-9311.

View a map of unclaimed funds owed to New Yorkers by county and region. Learn more about Unclaimed Funds.

Southern Tier Region
July 13-18
Allegany County Fair
15 North Street
Angelica, New York

Finger Lakes Region
July 11
July 12
Corn Hill Arts Festival
11 Atkinson Street
Rochester, New York

Central New York
July 10
July 11
Boilermaker Health & Fitness Expo
Mohawk Valley Community College
1101 Sherman Drive
Utica, New York

Western New York
July 18
July 19
Oatka Festival
Trigon Park
Wolcott Street
Leroy, New York

Adirondack Mountains
July 24
July 25
July 26
Great American Irish Festival
Herkimer County Fairgrounds
198 Cemetery Street
Frankfort, New York

Agriculture and Market – Uncollected Penalties
An initial report issued in July 2013 found that outstanding penalties routinely had no collection activity for two years or more and were often deemed uncollectible. This audit also found that there was a lack of a separation of duties associated with the collection of payments. The system used to track outstanding penalties was incomplete and often inaccurate and there was a lack of communication and information flow in the department. In a follow-up, auditors found department officials have made progress in addressing the problems identified in the initial audit. Of the eight prior audit recommendations, six were implemented and two were not implemented.

NYC Adminsitration for Children’s Services – Limited Competition Contracts

Auditors found ACS officials did not always comply with the Procurement Rules and document their justification for awarding certain non-competitive and limited-competition contracts. ACS officials did not provide sufficient oversight of contractor performance. Officials renewed or extended contracts with some vendors that had poor performance. In fact, 12 sampled contract vendors received less-than-satisfactory performance ratings. For 9 of the 12 vendors, children in their care were abused by employees or foster parents. Consequently, in some cases, the health and safety of children were placed at risk.

Education Department – Compliance with Reimbursement Cost Manual
Whispering Pines, a for-profit special education provider of center- and home-based services to infants, toddlers, and preschool-age children in nine counties, claimed $146,972 in ineligible costs for three rate-based programs for the two years covered in the audit. The ineligible costs included: $71,397 in personal service costs consisting of salary and fringe benefits paid to the director’s husband and bonuses paid to some personnel; and $75,575 in non-personal service costs, including $33,688 in ineligible or unnecessary vehicle and equipment costs, $25,644 in ineligible interest expense, $3,798 in unnecessary contracted services, and $12,445 in other non-reimbursable costs.

Department of Health – Facility Structure
DOH waiver practices do not effectively ensure that safety and structural risks related to physical plant standards at health care facilities are appropriately addressed. DOH’s internal controls, including monitoring and internal communications efforts, were lacking and led to a backlog of at least 179 unprocessed waiver requests at the time of the audit. DOH lacked formal written policies and procedures governing the waiver process, and did not maintain sufficient collective documentation supporting waiver applications, approvals, and monitoring efforts.
Department of Health – Medicad payments
DOH officials have made minimal progress in recovering the $7.3 million in Medicaid overpayments auditors identified in a report issued in July 2013. At the time of the follow-up audit, $3,125 was recovered, but more than $1 million in potential recoveries were likely lost due to the inaction on overpayments for claims that are now more than six years old.

Clifton Park-Halfmoon Fire District #1
The district’s Length of Service Awards Program (LOSAP) point system is not consistent with state law. Some firefighters did not receive all of the LOSAP points to which they were entitled.

Clifton Park Volunteer Fire Department
Overall, auditors found that the department has good controls over financial activity. However, officials have not adopted written procedures to provide specific guidance to the department treasurer.

Town of Fishkill
The town has made progress implementing corrective action. Of the six previous audit recommendations, two recommendations were fully implemented and four recommendations were partially implemented.

Hamburg Industrial Development Agency
IDA officials developed a uniform tax exemption policy for project selection, but the method of determining the benefits to be provided is not well defined. The board did not implement an adequate system to monitor approved projects and did not develop an adequate recapture policy to allow for the recovery of previously granted benefits if job creation, economic goals or other terms of the agreements are not met.

Town of
The supervisor did not provide the board with adequate monthly financial reports, and the town’s procedures for auditing claims and signing checks were not in compliance with town law.

Pultneyville Fire District
The board generally provides adequate oversight of the district’s financial activities, but should make certain improvements. For example, the board did not complete, or contract with an independent accountant to complete, an annual audit of the district’s records.
Waterford Volunteer Fire District
The board ensured that the controls over the cash disbursement process were adequate and auditors did not find any questionable bank withdrawals or payments.

Friday, July 03, 2015

Determining the effective date of a “9-11 related” accidental disability retirement allowance established by "reclassification"

Determining the effective date of a “9-11 related” accidental disability retirement allowance established by "reclassification"
2015 NY Slip Op 05584, Appellate Division, First Department

When a retiree’s [Retiree] retirement status was reclassified to “accidental disability retirement” [ADR] he asked that the change in his retirement allowance be made retroactive and his disability retirement allowance be adjusted accordingly. Citing New York City’s Administrative Code §13-252.1[2][b],* the New York City Police Pension Fund [NYCPPF] denied Retiree's request.

Retiree filed a petition pursuant to CPLR Article 78 seeking a court order directing NYCPPF to recalculated his ADR s benefits based on it having being made “retroactive” rather than being based on the date of NYCPPF's decision to reclassify his retirement status to ADR.

The Appellate Division sustained the denial of Retiree’s request for retroactive benefits. The court explained that the statute prohibited the retirement system from providing such relief, observing that the “remedy, if any, lies with legislative action.”

§13-252.1[2][b] provides that “The NYCPPF board of trustees shall consider a reclassification of the member's retirement as an accidental disability retirement effective as of the date of such reclassification” [emphasis supplied].

* New York City’s Administrative Code §13-252.1[2][b] addresses “Accidental disability retirement; World Trade Center presumption.”

The decision is posted on the Internet at:

An independent contractor ruled ineligible for membership in the New York State Employees’ Retirement System

An independent contractor ruled ineligible for membership in the New York State Employees’ Retirement System
2015 NY Slip Op 04554, Appellate Division, Third Department

A registered nurse [Nurse] worked for Clinton County from 1989 to 2012 as an in-service educator for its public health program pursuant to a series of annual employment contracts that were subject to the approval of the County Legislature.

These contracts stated that Nurse “was an independent contractor  and that she was not eligible for any benefits, including sick leave, vacation pay, pension or retirement benefits” that might be otherwise available to County employees. Further, the record indicated that Nurse:

1. was responsible for providing her own health insurance and malpractice insurance;

2. was paid an hourly wage by voucher upon her submission of a weekly time sheet and no payroll deductions were taken out of her base pay;

3. had no set hours and it was up to Nurse to determine how, when and where she completed the projects.

4. was permitted to hire others to complete the projects; and

5. she could perform services for others at any time.

After Nurse’s job ended, she filed an application for membership in New York State and Local Retirement System [ERS]. ERS denied the application, finding that Nurse was an independent contractor and not an employee of the County and, accordingly, was not eligible for membership in ERS.

Nurse commenced a CPLR Article 78 proceeding challenging the denial of her application for membership in ERS. The Appellate Division sustained ERS’s decision to reject Nurse’s application for membership explaining that in light of the information in the record “substantial evidence supports the Comptroller's determination that [Nurse] was an independent contractor, despite the evidence in the record that could support a contrary result.”

The decision is posted on the Internet at:

Thursday, July 02, 2015

New York City’s Office of Administrative Trials and Hearings is seeking individuals to serve on its Contract Dispute Resolution Board panels

New York City’s  Office of Administrative Trials and Hearings is seeking individuals to serve on its Contract Dispute Resolution Board panels

New York City’s  Office of Administrative Trials and Hearings [OATH} is accepting applications from qualified persons who would like to serve on Contract Dispute Resolution Board (CDRB) panels.

Each CDRB panel consists of an OATH ALJ, as chair, a representative of the Mayor’s Office of Contract Services, and a third member selected from a pre-qualified roster of individuals, established and administered by OATH, who has appropriate expertise and is unaffiliated with the City.

Individuals having a background and experience in government contracting, construction, engineering or related law are invited to apply.

However, OATH requests that otherwise qualified individuals currently employed by the City; individuals having a contract or dispute with the City; and individuals regularly representing persons, companies or organizations having disputes with the City not apply.

For more information go to: CDRB Notice 2015

For an application form go to: CDRB Panelist Application 2015.

Certain compensation paid to employees may be excluded in determine unemployment insurance benefits

Certain compensation paid to employees may be excluded in determine unemployment insurance benefits
2015 NY Slip Op 04552, Appellate Division, Third Department

A claimant [Worker] for unemployment insurance benefits challenged a decision of the Unemployment Insurance Appeals Board [Labor] holding that certain remuneration that claimant earned could not be used to establish entitlement to unemployment insurance benefits.

Worker, who had worked for multiple employers, filed for unemployment insurance benefits. During her base period, Worker’s employment included services performed as an election poll worker for the New York City Board of Elections.

Labor determined that Worker was entitled to unemployment insurance benefits, but that the remuneration received from the Board of Elections could not be considered in establishing her benefit rate because it did not constitute “covered employment.”

Worker had testified that she had responded to a card received in the mail from the Board of Elections asking if she was available to work on Election Day. She responded that she was available and subsequently received training. Worker was subsequently assigned to a polling place, where she worked as a poll worker or inspector on Election Day performing such duties as setting up and overseeing tables, signing in voters and instructing them on the use of the voting machines, keeping track of voting cards and printing a tally of votes at the end of the day, which were then reported to the Board of Elections.

The Appellate Division sustained the Board’s determination, noting that poll clerks, like election inspectors, are appointed, trained, compensated and perform duties as mandated by statute and overseen by the New York State Board of Elections.

Such individuals serving at polling places in New York City are compensated at a per diem rate established by the Mayor. Although the Board of Elections may have exercised some supervision over the poll workers and their training pursuant to the relevant, the Appellate Division said that “this is insufficient, by itself, to establish an employer-employee relationship, and the record is devoid of any proof that any such supervision exercised exceeded that required by law, or that additional duties or requirements were imposed beyond those provided by statute.”

The court also rejected Worker’s contention that she should have been deemed to be an employee “because taxes were withheld from her paycheck pursuant to a ruling by the Internal Revenue Service [IRS] that poll workers are considered employees for federal tax purposes” as such rulings by the IRS are not binding on the Board.

Finding that substantial evidence supported the Board's determination, the Appellate Division said that it would not be disturbed.

The decision is posted on the Internet at:

Adding parties to the litigation pursuant to the “relation-back" doctrine

Adding parties to the litigation pursuant to the “relation-back" doctrine
Crawford v City of New York, 2015 NY Slip Op 05267, Appellate Division, First Department

Barry E. Crawford initiated a lawsuit naming the City of New York and certain “John Does” as defendants. He later filed a motion to amend his complaint to substitute certain named New York City police officers in the place of the “John Does” initially named in his complaint relying on the "relation-back doctrine".*

Supreme Court granted Crawford’s motion; the Appellate Division reversed the lower court’s action “on the law.”

The Appellate Division ruled that Supreme Court “improvidently granted” Crawford’s motion to amend his complaint to add the individually named defendants in lieu of the "John Doe" defendants he had initially listed in his complaint after the statute of limitations expired under color of the relation-back doctrine. The court noted that Crawford did not deny that he was aware of the proper identity of these “John Doe” defendants four-and-one-half months prior to the expiration of the statute of limitations but waited another two years to move to amend his complaint after filing “a note of issue.”

The court explained that  there was no "mistake" by Crawford as to the proper identity of the parties within the meaning of the relation-back doctrine and that the “John Doe defendants" had every reason to believe that Crawford did not intend to sue them and that the matter had been laid to rest as far as these “John Doe” defendants were concerned.

* Essentially the application of the “relations back doctrine” permits something done “today” to be treated as if it were done at an “earlier” time, i.e., permitting a “later identified” individual to be sued in his or her own name rather than as an earlier named “John Doe” defendant.

The decision is posted on the Internet at:

Wednesday, July 01, 2015

Establishing a prima facie case of unlawful discrimination and, or, retaliation requires the complaints to set out the "protected activity" alleged to have been violated

Establishing a prima facie case of unlawful discrimination and, or, retaliation requires the complaints to set out the "protected activity" alleged to have been violated
2015 NY Slip Op 04937, Appellate Division, First Department

Supreme Court granted agency’s' motion for summary judgment dismissing the probationary employee’s [Probationer] complaint alleging gender discrimination in violation of the New York City Human Rights Law (Administrative Code of City of NY § 8-107[1][a]). The court ruled that Probationer failed to establish a prima facie case that she suffered an adverse employment action and that that action was taken under circumstances giving rise to an inference of discrimination. 

The Appellate Division affirmed the Supreme Court’s ruling.

The Appellate Division said that with the exception of her termination from her probationary employment, her complaints amounts to no more than "petty slights and trivial inconveniences" from which not harm resulted rather than her having suffered adverse employment action. The court explained that “While termination is indisputably an adverse action,” Probationer’s conclusory claim that her termination was motivated by a gender-related bias is insufficient to establish acts of unlawful discrimination as “stray derogatory remarks” without more, does not constitute evidence of unlawful discrimination.

Probationer also failed to raise an issue of fact whether the employer’s evidence of a legitimate, independent, and nondiscriminatory reason for her termination was pretextual and the real reason was gender discrimination. In the words of the Appellate Division, Probationer “does not dispute that she kept a departmental vehicle for nine consecutive days, during which time she used it only once for the authorized purpose of driving to a facility being audited, and that she inaccurately reported, in a daily log, the vehicle's use and overnight location.”

As to Probationer’s allegations of “retaliation,” the court said that Probationer failed to establish a prima facie case of retaliation.

The decision is posted on the Internet at:

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees
Source: Federal, State and Local Government Newsletter [IRS]

Webinar to be held on July 30, 2015; 2 p.m. (Eastern)

Topics to be addressed:

Determining when accumulated sick and vacation pay are subject to federal employment taxes

Determining when taxation can be deferred to a later year

Defining an elective employee contribution

Defining a non-elective employer contribution

Click here to Register for this event.

NOTE: You will use the same link to attend the event.

If you have any questions or comments, click her to send us an e-mail.

Another free Webinar:: Don’t forget to register for the webinar, Taxability of Fringe Benefits Part Three: Other Compensation and Payments to Employees on July 9, 2015; 2 p.m. (Eastern) Click here to Register

Expunging materials from an employee’s personnel file

Expunging materials from an employee’s personnel file
2015 NY Slip Op 05257, Appellate Division, First Department

In 2011 a New York City firefighter [Firefighter] and the New York City Fire Department [FDNY] entered into an agreement settling disciplinary charges filed against him.

Firefighter subsequently initiated an Article 78 action in Supreme Court seeking to compel FDNY “to expunge all materials placed in [Firefighter's] personnel file concerning a finding that he violated [FDNY’s] Equal Employment Opportunity policy” or, in the alternative, a court order compelling FDNY to grant Firefighter “a full and fair opportunity to challenge the allegations that he violated the policy.”

Supreme Court dismissed Firefighter’s petition, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that Firefighter had waived any rights to the relief he now sought, the expungement of the certain materials from his personnel file or an opportunity to be heard on the allegations, when he and FDNY entered into the agreement settling the disciplinary charges that had been filed against him. Further, said the Appellate Division, Firefighter’s argument that the waiver provisions set out in the settlement agreement were inapplicable was improperly raised for the first time in a reply brief submitted by Firefighter.

Although Firefighter cited D’Angelo v Coppetta, 19 NY3d 663, in support of his claims for relief, the Appellate Division noted that his reliance on D’Angelo was misplaced “as there was no waiver [issue] in that case.” In D’Angelo the Court of Appeals concluded that “that the letter issued to [D’Angelo and placed in his file] constitutes a formal reprimand under [New York City’s] Administrative Code §15-113.” The D'Angelo court then ruled that because the appointing authority denied D’Angelo his right to due process by placing the letter in his file without conducting a hearing, “the letter was properly expunged from D’Angelo’s permanent EEO file.”

The decision is posted on the Internet at:

The 2015 edition of The Discipline Book, a concise guide to disciplinary actions involving public officers and employees in New York State, is now available in two formats - as a paperback print edition and in an electronic [e-book] edition.For more information click on

Tuesday, June 30, 2015

An employer may be required to provide an individual with a name clearing hearing if it has publicly disclosed stigmatizing material concerning the individual

An employer may be required to provide an individual with a name clearing hearing if it has publicly disclosed stigmatizing material concerning the individual
2015 NY Slip Op 04890, Appellate Division, Third Department

After a probationary teacher [Probationer] was terminated from her employment by the School District she commenced an action against a number of school administrators and board members [Defendants] alleging that Defendants had maliciously published defamatory statements about her and that her due process rights were violated by Defendants' failure to provide her with a name-clearing hearing.

Supreme Court granted Probationer's application to annul the School Board's determination denying her a name-clearing hearing and ordered such hearing to be provided.

Addressing Probationer’s due process claim, the Appellate Division said that Supreme Court erred in annulling the Board's determination and granting plaintiff a name-clearing hearing. The court explained that where "a government employee is dismissed for stigmatizing reasons that seriously imperil the opportunity to acquire future employment, the employee is entitled to an opportunity to refute the charge [or charges]" at a name-clearing hearing if the employer publicly disclosed the stigmatizing reasons or if there is a likelihood of future dissemination of such reasons.”  

Probationer had requested a name-clearing hearing “to specifically defend against and address the assertions” by school officials concerning her termination or her relations with students that had been made part of her personnel file. However, said the court, Probationer’s allegations as to the stigmatizing content of such material did not include any further allegations that Defendants and the Board had publicly disclosed those letters or their contents.

Further, said the Appellate Division, Probationer’s assertion that she was seeking relief in the form of removal of the statement of reasons letter from her personnel file was sufficient to apprise the Board of an allegation that there was a likelihood that such a letter or its content might disseminated. Members of the Board, however, said that, before deciding to deny Probationer’s request for a name-clearing hearing the Board determined that the statement of reasons set out in the letter had been and would remain confidential.

Thus, the court concluded, “given that [Probationer] did not allege that Defendants and the Board had publicly disseminated any stigmatizing materials and considering the evidence supporting the conclusion that [Probationer’s] allegation that the statement of reasons letter was in [Probationer's]  personnel file was factually incorrect, there is no basis to disturb the Board's denial of a name-clearing hearing.

Turning to Probationer's action alleging statements made by certain school officials had subjected her to "ostracism and rejection" in the community, the Appellate Division, after explaining the relevant law, held that “Given that defendants do not challenge the jury's determinations that [certain school officials] made the respective statements and that they were defamatory” and remanded the case for a new trial to determine damages, if any, “based upon proof of harms limited to those that can be linked by proximate cause to the two slanderous statements.”

The decision is posted on the Internet at:

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on

The Layoff, Preferred List and Reinstatement Manual - a 435 page handbook reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on


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