New York Public Personnel Law

An individual must be temporarily assigned to perform the duties of an investigator while serving in his position to be so designated pursuant to Civil Service Law §58(4)

2026-05-28T09:00:00.000-04:00

The New York State Legislature had enacted the necessary legislation providing that an individual who performs in an investigatory position in a manner sufficiently satisfactory to the appropriate supervisors and holds such an assignment for a period of eighteen months to be deem having "demonstrated fitness for the position of detective or investigator with the relevant police, correction or sheriffs department at least as sufficiently as could be ascertained by means of a competitive examination".

In the instant CPLR Article 78 proceeding Plaintiff had sought a review a determination of the Under-Sheriff of the County's Sheriff's Department in which he was employed denying his request to be designated an investigator in the County's Sheriff's Department pursuant to Civil Service Law §58(4).

Plaintiff had been employed as a correction sergeant with the Sheriff's Department since 2017 and in November 2019, requested that he be designated an investigator pursuant to Civil Service Law §58(4). The Under-Sheriff denied Plaintiff's request and Plaintiff appealed.

Supreme Court rejected Plaintiff's appeal, which decision the Appellate Division affirmed, holding that Supreme Court properly denied Plaintiff's petition and dismissed the proceeding.

Citing Matter of Wood v Irving, 85 NY2d 238, the Appellate Division noted that Civil Service Law §58(4)(b)(ii) (former [c][ii]) provides, in relevant part, that "any person who has received permanent appointment to the position of ... correction officer of any rank ... and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment ... exceeds eighteen months, be permanently designated as a detective or investigator".

The Appellate Division explained that Plaintiff was not entitled to be designated an investigator pursuant to Civil Service Law §58(4) because he had not temporarily assigned to perform the duties of an investigator while serving in his position as correction sergeant.

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

Audits of various New York State municipal entities posted on the Internet by New York State's Comptroller Thomas P. DiNapoli

2026-05-27T09:00:00.000-04:00

On May 26, 2026, New York State Comptroller DiNapoli announced the following City, Town, Village and Fire District, Fire Department and Fire Company audits had been issued.

Click on the text highlighted in color to access the audit posted on the Internet.

Nota Bene. Later this same date, May 26, 2026, Comptroller DiNapoli announced additional audits were posted on the Internet and these audits have been appended hereto, adding to NYPPL's original posting.

City of Buffalo – Budget Review (Erie County) Auditors completed a review of the city’s proposed 2026-27 budget and determined the general fund will have a projected budget deficit of approximately $103 million. City officials have historically adopted budgets that relied on nonrecurring revenues to fund operations and underestimated expenditures. Therefore, city officials relied on and depleted fund balance to finance budget deficits. As a result, the city no longer has surplus fund balance available to help balance the proposed budget.

Kerhonkson Fire District – Board Oversight (Ulster County) The board did not provide adequate oversight of the district’s financial activities and was not transparent. The district’s required annual financial report (AFR) was last filed in 2007, more than 18 years ago. In addition, the board’s inadequate review of claims led to claims potentially being paid without sufficient budgetary appropriations available.

Midway Fire Department – Disbursements (Albany County) The board did not ensure disbursements had adequate supporting documentation, were for appropriate purposes and were properly approved by the trustees. Officials also were not aware of the proper use of Foreign Fire Insurance tax proceeds and made unauthorized disbursements using those funds.

North Brookfield Fire District – Board Oversight (Madison County) The board did not adequately oversee the district’s financial operations. The board did not require the secretary-treasurer to maintain appropriate accounting records, prepare bank reconciliations, provide adequate monthly financial reports or file AFRs with DiNapoli’s office, as required by state law. As a result, the board had insufficient information to properly oversee the district’s financial operations and make informed financial decisions. Because the board did not provide sufficient oversight of the secretary-treasurer’s duties, there was also an increased risk that funds could be misappropriated.

Schodack Landing Fire District No. 1 – Claims Auditing (Rensselaer County) Auditors reviewed 60 claims totaling $163,940 approved by the board. Except for minor issues auditors discussed with district officials, the claims were mathematically correct, supported and for valid district purposes. There were no recommendations as a result of this audit.Taberg Volunteer Fire Company Inc. – Financial Activities (Oneida

County) The board and treasurers did not ensure financial activities were properly recorded and reported and that funds were safeguarded. Because the treasurers did not maintain adequate financial records and written financial reports, the board and membership lacked the information to effectively oversee the company’s financial activities. In addition, weaknesses in recordkeeping and controls over cash collections and disbursements prevented the board from ensuring that all collections were deposited and that payments were made only for valid company purposes.

Town of Catharine – Transparency of Fiscal Activities (Schuyler County) The board did not conduct an annual audit of the supervisor’s financial records and reports for fiscal year 2024 in accordance with state law. In addition, the supervisor did not file the 2024 AFR with DiNapoli’s office, as required by state law. The supervisor also did not provide the board with complete monthly financial reports.

Town of Fremont – Transparency of Fiscal Activities (Sullivan County) The board did not conduct an annual audit of the supervisor’s financial records and reports for fiscal year 2024 in accordance with state law. In addition, the supervisor did not prepare and file AFRs with DiNapoli’s office for the last eight fiscal years, as required by state law. The supervisor did not provide the board with complete, accurate and reliable monthly financial reports.

Town of Greenville – Transparency of Fiscal Activities (Greene County) The board did not conduct an annual audit of the supervisor’s financial records and reports for fiscal year 2024 in accordance with state law. In addition, the supervisor did not file the 2024 annual AFR with DiNapoli’s office, as required by state law. The supervisor also did not provide the board with complete, accurate and reliable monthly financial reports.

Town of New Hudson – Transparency of Fiscal Activities (Allegany County) The board did not conduct an annual audit of the supervisor’s financial records and reports for fiscal year 2024 in accordance with state law. In addition, the supervisor did not prepare and file the 2020 through 2022, and 2024 AFRs with DiNapoli’s office, as required by state law. The supervisor filed the AFR for fiscal year ending Dec. 31, 2023, on Aug. 28, 2025 – 544 days after the due date. Furthermore, the supervisor provided the board with incomplete monthly financial reports.

Town of Pamelia – Transparency of Fiscal Activities (Jefferson County) The board did not conduct an annual audit of the supervisor’s financial records and reports for fiscal year 2024 in accordance with state law. In addition, the supervisor did not prepare and file the 2022 through 2024 AFRs with DiNapoli’s office, as required by state law. The supervisor did not provide the board with complete monthly financial reports.

Town of Spencer – Procurement (Tioga County) The board and town officials did not always seek competition for purchases. One board member had a prohibited conflict of interest that arose from his paving company providing services to the town totaling approximately $12,911 during the audit period. Because officials did not always solicit competition for goods and services or avoid conflicts of interest, they cannot guarantee that they secured the most favorable terms and conditions.

Village of Churchville – Electric Utility Services Billing and Collections (Monroe County) The board did not provide adequate oversight of electric utility services billing and collections. The board did not request financial or electric utility services use, billing or collection reports or reconciliations to monitor operations. The board also did not review and approve use and billing adjustments or develop and adopt billing and collection policies to provide guidance to officials and employees. As a result, officials and employees developed informal procedures that did not adequately segregate duties or include periodic reviews and reconciliations and significantly impacted the timely identification and correction of billing errors.

Village of Fredonia – Financial Condition (Chautauqua County) Auditors found that trustees did not fully understand the village’s financial condition and relied heavily on the treasurer for guidance. The board did not take appropriate actions to maintain the village’s fiscal stability, such as adopting structurally balanced budgets and written multiyear capital and financial plans and ensuring that the treasurer filed annual statements and AFRs when required. As a result, the village’s financial condition deteriorated over a six-year period from the 2019-20 through 2024-25 fiscal years.

Village of Rhinebeck – Claims Auditing (Dutchess County) The board did not properly audit all claims before payment. Without a thorough review of all claims to be paid, errors and irregularities may continue to occur and remain undetected and uncorrected, unsupported payments could continue to be made, and improper or unnecessary payments may not be detected and corrected. Without evidence of competition attached to claims, taxpayers have less assurance that purchases were made in the most prudent and economical manner.

N.B. Later this same date, May 26, 2026, the Comptroller announced the audits described below were also posted on the Internet.

New York City Department of Social Services – New York City Department of Homeless Services: Oversight of Contract Expenditures of Samaritan Daytop Village, Inc. (Follow-Up) (2025-F-23) The New York City Department of Homeless Services (DHS), an administrative unit of the New York City Department of Social Services, is responsible for providing transitional housing and services for eligible homeless families and individuals in New York City and for providing fiscal oversight of the homeless shelters. In July 2013, DHS contracted with Samaritan Daytop Village, Inc. (Samaritan), a city-based not-for-profit organization, to provide temporary housing, case management, housing referrals, placement services, and on-site medical and mental health services for men with mental illness at its 160-bed Myrtle Avenue Men’s Shelter for the period from August 2013 to June 2018. DHS is responsible for monitoring its contract with Samaritan to ensure reported costs are allowable, supported, and program related. A prior audit, issued in February 2024, found DHS was not effectively monitoring its contract with Samaritan and identified $566,556 of all reported costs that did not comply with requirements. DHS officials made some progress in addressing the issues identified in the initial audit report, partially implementing five recommendations and not implementing one.

New York City Department of Small Business Services: Facilitated Programs to Assist Small Businesses (2022-N-4) The New York City Department of Small Business Services (SBS) contracts with outside entities known as Industrial Business Service Providers and Business Solutions Centers to support programs that assist businesses with identifying the best available financial products, working with lenders to package loans, collecting financial documents and completing forms, submitting final loan applications to lenders, following up to ensure disbursement of funds, providing post-financing advisement, and training. The 76 businesses reviewed obtained facilitated loans of $97,363,816; however, SBS does not collect data on the beneficial effects of this financing, such as the creation of new jobs or strengthening of the businesses’ operations. Additionally, SBS does not verify program performance in terms of the number and amount of the facilitated loans. Instead, the program results are self-reported by the vendors.

Department of Health: Maternal Health (Follow-Up) (2025-F-26) Maternal mortality refers to deaths of pregnant persons during pregnancy or within a year of the end of pregnancy. Severe maternal morbidity is defined as unexpected outcomes of pregnancy, labor, or delivery that result in short- or long-term consequences to a person’s health. To address alarming rates of maternal mortality and morbidity, as well as racial disparities in these rates, New York established the Taskforce on Maternal Mortality and Disparate Racial Outcomes in April 2018, and it produced 10 recommendations. The recommendations required a collaboration between public and private entities, with DOH being a main player in the majority of the recommendations. A prior audit, issued in July 2024, found that while DOH had made progress in addressing the recommendations to improve maternal health, data showed that maternal mortality and morbidity rates in New York State had not decreased since the Taskforce was established in 2018, and the maternal mortality rate had actually increased, along with increasing racial disparities statistics. DOH officials made significant progress in addressing the issues identified in the initial audit report, implementing the report’s one recommendation.

New York City Public Schools: Privacy and Security of Student Data (2023-N-6) New York City Public Schools (NYCPS) uses Automate the Schools as its main student information system, which standardizes and automates the collecting and reporting of student data. NYCPS maintains and uses students’ personally identifiable information for a variety of educational purposes and is responsible for safeguarding student data and ensuring the confidentiality, integrity, and availability of its information systems. Auditors found gaps in and misalignments of policies relating to data privacy and security, data classification, risk assessment, and backup and recovery. Additionally, NYCPS does not always report breaches or notify affected parties within the required time frames or maintain a comprehensive list of all applications used by each school that would help it better understand its environment, the type of information being stored, and the risks associated with the data.

New York City Department of Housing Preservation and Development and New York City Housing Development Corporation: Housing for Seniors (Follow-Up) (2025-F-19) The New York City (NYC) Department of Housing Preservation and Development (HPD) and NYC Housing Development Corporation (HDC) work together to administer several programs to assist in the development and rehabilitation of housing for senior citizens, including the Senior Affordable Rental Apartments Program (SARA Program), federal Section 202 Supportive Housing for the Elderly Program (Section 202 Program), and HPD’s Senior Citizen Homeowner Assistance Program (SCHAP). A prior audit, issued in July 2023, reviewed a sample of four developments assisted through the SARA Program—HANAC Corona Senior Residence in Queens, Serviam Heights LLC in the Bronx, Victory Plaza in Manhattan, and Woodlawn Senior Living in the Bronx—and one development assisted through the Section 202 Program, Bensonhurst Housing for the Elderly in Brooklyn. Despite the scarcity of affordable housing for seniors, the audit found several instances where senior housing units were left vacant for long periods of time, senior housing units were not always awarded to the correct applicants, and SCHAP requirements were not met. HPD and HDC officials made some progress in addressing the problems identified in the initial audit report. Of the initial report’s six audit recommendations, three (addressed to HDC) were implemented, two (addressed to HPD) were partially implemented, and one (also addressed to HPD) was not implemented.

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Should the opinion of employer's medical personnel opinion differs from that of the individual's the appointing authority may rely on its medical professional's opinion

2026-05-26T09:00:00.000-04:00

Candidates for employment as a police officer with the County were required to undergo a background investigation and pass a psychological evaluation, among other things.

A candidate for appointment with the County was not recommended for appointment to the position of police officer based on the results of Candidate's psychological evaluation. The County Civil Service Department [CSD] so notified Candidate. The Candidate appealed the Department's determination, submitting an independent evaluation by a psychologist who disagreed with the conclusion of the CSD's evaluator. Following an appeal interview, the CSD's Appeal Committee concluded that "there was no significant evidence to reverse [Candidate's] disqualification".

Candidate initiated the instant CPLR Article 78 petition challenging CSD's determination. Supreme Court sustained CSD's motion to dismiss Candidate's petition and dismissed the Plaintiff's Article 78 petition. Candidate appealed the Supreme Court's ruling.

The Appellate Division affirmed the Supreme Court's decision explaining that candidates for employment as police officers are required to undergo a background investigation and pass a psychological evaluation and that CSD's medical experts did not recommended Candidate for appointment the position of police officer and that CSD had so notified Candidate.

Citing a number New York State Court decisions, the Appellate Division observed that:

1. "An appointing authority has wide discretion in determining the fitness of candidates, and this discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied", and

2. "So long as the administrative determination is not irrational or arbitrary and capricious, this Court will not disturb it".

The Appellate Division's decision then pointed out that an action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts and that "If a determination is rational it must be sustained even if the court concludes that another result would also have been rational" citing Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, 34 NY3d at 195" [internal quotation marks omitted].

Further, the Appellate Division noted that "[I]n an article 78 proceeding, the reviewing court may not weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative factfinder" and in the instant proceeding the Supreme Court "properly concluded that the Department's determination disqualifying the [Candidate] for appointment to the position of police office was neither irrational nor arbitrary and capricious".

Observing that in determining whether a candidate is medically qualified to serve as a police officer, the appointing agency is "entitled to rely upon the findings of its own medical personnel, even if those findings are contrary to those of professionals retained by the candidate", the Appellate Division opined that "It is not for the courts to choose between the diverse professional opinions. That is the function of the proper department heads and as long as they act reasonably and responsibly, the courts will not interfere".

The Appellate Division concluded that Supreme Court properly granted the CSD's motions pursuant to CPLR 3211(a) and 7804(f) to dismiss the Candidate's petition, denied the petition, and dismissed the proceeding".

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

Some municipalities are required to collective bargain about discipline actions and procedures involving sworn police personnel, and some are not

2026-05-22T09:00:00.000-04:00

This appeal explores the fact that some municipal sworn police officers have the right to collective bargaining about disciplinary actions initiated against them by their employer and some do not, which initiation of such disciplinary action depends on whether there is applicable legislation in effect specifically making a decision to take such disciplinary action against a sworn officer to be exercised by, and at, the discretion of local officials.

In a series of earlier decisions the Court of Appeals addressed the "tension between the strong and sweeping policy of the State to support collective bargaining under the Taylor Law" and a competing policy whereby a strong local authority over police discipline prevailed as the result of the enactment of "a general, special or local law" specifically granting police discipline authority to be exercised at the discretion of local officials.

In the Matter of the Arbitration between City of Albany, Respondent, and Albany Police Benevolent Association et al., Appellants, (And Another Related Proceeding), the Appellate Division considered a dispute between the City of Albany in which the City contended that local law then in effect pursuant to which a local police official may mete out discipline involving sworn police officers controlled while the Police Benevolent Association argued that the City of Albany had relinquished such authority in favor of collective bargaining disciplinary procedures with respect disciplinary action involving sworn police officers as the result of a series of changes to its local laws.

The Appellate Division's decision addressing this issue is set out below in full.

Matter of City of Albany, N.Y. (Albany Police Benevolent Assn.)

2026 NY Slip Op 03038

May 14, 2026

Appellate Division, Third Department

Corcoran, J.

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

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

In the Matter of the Arbitration between City of Albany, New York, Respondent, and Albany Police Benevolent Association et al., Appellants. (And Another Related Proceeding.)

Decided and Entered: May 14, 2026

CV-24-2055

Calendar Date: March 23, 2026

Before: Clark, J.P., Ceresia, Fisher, Powers And Corcoran, JJ.

Gleason, Dunn, Walsh & O'Shea, Albany (Christopher M. Silva of counsel), for Albany Police Benevolent Association and others, appellants.

The Law Offices of John K. Grant, PC, Newburgh (John K. Grant of counsel), for Albany Police Supervisors

Association and others, appellants. Robert Magee, Corporation Counsel, Albany (Linda Keller of counsel), for respondent.

Corcoran, J.

Appeal from a judgment of the Supreme Court (Christina Ryba, J.), entered November 24, 2024 in Albany County, which, in a combined proceeding pursuant to CPLR 7503 and action for declaratory judgment, among other things, (1) granted petitioner's application to permanently stay arbitration, and (2) declared Local Law F of 2022 valid.

In 2022, the Albany Common Council enacted Local Law No. 7-2022 (F-2022) (hereinafter Local Law F), which established a Department of Public Safety, empowered the mayor to appoint the department's Commissioner, and designated the Commissioner as "arbiter of any disciplinary determination that is appealed from within the Albany Police Department." In 2023, disciplinary charges were brought against respondents Leonard Gaspary, Joshua Sears and John Polec, all officers of the Albany Police Department, alleging misconduct in how they worked and accounted for extra-duty shifts for the city housing authority, and against respondent Lieutenant Devin Anderson alleging unprofessional conduct. The Albany police chief served them with notices of alleged violations of rules and general orders and proposed termination of the three officers and less severe sanctions against Anderson. The disciplinary notice offered each officer/lieutenant review via either arbitration under "the Labor Agreement" or a hearing under Civil Service Law §§ 75 and 76 as contemplated by the parties' respective collective bargaining agreements (hereinafter CBAs). The officers and lieutenant denied the disciplinary charges and the parties unsuccessfully sought to settle the dispute. Ultimately, the officers and lieutenant demanded arbitration with the Public Employment Relations Board (hereinafter PERB), citing applicable CBAs between the city and relevant labor unions. In response, petitioner referred the disciplinary proceedings to the Commissioner of Public Safety, bypassing the agreed-upon contractual process for disciplinary determinations.

Claiming that proceedings before the Commissioner of Public Safety, rather than PERB, were mandated by Local Law F, petitioner then commenced this hybrid CPLR article 75 proceeding to stay arbitration and declaratory judgment action to declare Local Law F valid. Respondents Albany Police Supervisors Association, Josiah Jones and Anderson (hereinafter collectively referred to as the PSA respondents) moved to dismiss the petition/complaint, contending that Local Law F was invalid due to conflict with the parties' CBAs, the existing city code and the Taylor Law (see Civil Service Law §§ 75, 76, 200 et seq.), impermissible vagueness and other reasons. Respondents Albany Police Benevolent Association, Michael Delano, Gaspary, Polec and Sears (hereinafter collectively referred to as the PBA respondents) answered and cross-petitioned to dismiss the petition/complaint, declare Local Law F invalid, and compel arbitration pursuant to CPLR 7503. They also contended that Local Law F conflicted with Civil Service Law §§ 75 and 76 and violated Municipal Home Rule Law § 23 because it was enacted without a referendum. Supreme Court (1) granted the petition/complaint, finding Local Law F valid; (2) granted the petition to stay arbitration; (3) denied the PSA respondents' motion to dismiss; and (4) dismissed the PBA respondents' cross-petition. In brief, Supreme Court found that petitioner's uninterrupted history of local laws vesting authority over police discipline with city officials qualified it for the "grandfather[ ]" provisions of Civil Service Law § 76 (4), rendered police discipline a prohibited subject of collective bargaining and vitiated the CBA provisions governing arbitration of police discipline. Supreme Court did not reach the merits of the PSA respondents' alternative claim that Local Law F was void for vagueness and lacked due process procedures. The PSA respondents and PBA respondents appeal, and we modify.

The first issue on appeal is whether the parties must submit the pending police disciplinary charges to a mayoral appointee for determination under Local Law F of 2022, in apparent contravention of the Taylor Law, which generally commits public employee discipline to a forum and procedures established by statute or determined through collective bargaining (see Civil Service Law §§ 74, 75, 200 et seq.). "To put it simply, some municipalities have the right to bargain about police discipline, and some do not, and the difference depends upon whether there is applicable legislation specifically committing police discipline to the discretion of local officials in force" (Matter of Rochester Police Locust Club, Inc. v City of Rochester, 41 NY3d 156, 163 [2023] [internal quotation marks, brackets, ellipsis and citations omitted]). In a series of cases, the Court of Appeals has explained when police discipline determinations must be made by local officials and when they are subject to collective bargaining (see id.; Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 30 NY3d 109 [2017]; Matter of Town of Wallkill v Civil Serv. Empl. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 19 NY3d 1066 [2012]; Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 [2006]; see also New York State Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO, Local 3471 v City of Geneva, N.Y., 75 Misc 3d 677 [Sup Ct, Ontario County 2022], affd 221 AD3d 1456 [4th Dept 2023], lv dismissed 42 NY3d 961 [2024]; City of Syracuse v Syracuse Police Benevolent Assn., Inc., 68 Misc 3d 412 [Sup Ct, Onondaga County 2020], affd 198 AD3d 1322 [4th Dept 2021]), lv granted 38 NY3d 904 [2022]). In general, Civil Service Law §§ 75 and 76 govern police disciplinary procedures, but Civil Service Law § 76 (4) " 'grandfather[s]' " a locality's preexisting law, enacted before 1958, that vests police discipline in local officials, such that nothing in Civil Service Law §§ 75 and 76 " 'shall be construed to repeal or modify any general, special or local' laws or charters" (Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 30 NY3d at 114, quoting Civil Service Law § 76 [4]; accord Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d at 573). Only when the municipality's legislation clearly applies Civil Service Law §§ 75 and 76 to police discipline may it be the proper subject of collective bargaining (see Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d at 573). Conversely, absent valid legislation specifically committing police discipline to local officials, the Taylor Law applies (see Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 30 NY3d at 115).

The Court of Appeals has resolved the "tension between the strong and sweeping policy of the State to support collective bargaining under the Taylor Law and a competing policy — here, the policy favoring strong disciplinary authority for those in charge of police forces" (Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d at 571 [internal quotation marks and citation omitted]) — by holding that strong local authority over police discipline prevails when an extant general, special or local law specifically commits police discipline to local officials' discretion (see Matter of Rochester Police Locust Club, Inc. v City of Rochester, 41 NY3d at 163; Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d at 571). When such legislation remains " 'in force,' " the municipality may not bargain about police discipline (Matter of Rochester Police Locust Club, Inc. v City of Rochester, 41 NY3d at 163-164, quoting Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d at 572). This rule has been applied to municipalities that claimed local control even after signing labor agreements that addressed police discipline (see Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 30 NY3d at 115-116; Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 19 NY3d at 1069). Courts examine the legislative enactment for "plain and clear" evidence that a municipality deliberately ceded the right of local control over police discipline in favor of collective bargaining (Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d at 573 [internal quotation marks and citations omitted]; see City of Syracuse v Syracuse Police Benevolent Assn., Inc., 68 Misc 3d at 423). In contrast, after a municipality with local control over police discipline enacts a local law clearly delegating police discipline to collective bargaining or the Civil Service Law, the Taylor Law prevails and the municipality may not through later legislation reclaim that authority for local police leaders (see Matter of Rochester Police Locust Club, Inc. v City of Rochester, 41 NY3d at 165). The parties dispute whether petitioner has a local law "in force" under which a local police official may mete out discipline or whether petitioner relinquished that authority in favor of collective bargaining through a series of changes to its local laws. We therefore examine the origin of petitioner's disciplinary authority and relevant changes to its laws after the Legislature adopted Civil Service Law procedures to discipline officers and created the right of public employees, including police officers, to bargain over discipline.

The parties agree that Albany was, and still is, a city of the second class. "In 1906, the [L]egislature enacted the Second Class Cities Law, which provided a standard charter for all cities of the second class" (Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 30 NY3d at 113). The statute prescribed procedures for police discipline, including that " 'the commissioner of public safety shall have cognizance, jurisdiction, supervision and control of the government, administration, disposition and discipline of the police department' " (id. [brackets omitted],quoting Second Class Cities Law § 131). The Legislature authorized the commissioner to make and enforce reasonable rules for the discipline of police officers and for the hearing, trial and determination of charges (see id.). The statute empowered the commissioner to punish any officer found guilty of charges following " 'due trial before said commissioner' " after affording the officer with reasonable notice of specific written charges (id. at 113-114, quoting Second Class Cities Law § 133; see also Second Class Cities Law §§ 135, 137). The statute also directed the commissioner to "make all appointments, promotions and changes of status of the officers and members of the police . . . department[ ] in accordance with the provisions of the civil service law of the state, except as otherwise provided herein" (Second Class Cities Law § 135). Thus, the Second Class Cities Law applied the Civil Service Law to police appointments, promotions and changes of status except disciplinary proceedings and trials.

In 1910, petitioner incorporated the foregoing provisions of the Second Class Cities Law into its municipal code. Throughout later changes to its local laws, petitioner consistently retained the essential structure under which the Civil Service Law applied to police officer appointments, promotions and changes of status except discipline. For instance, in 1936, petitioner ostensibly superseded the Second Class Cities Law when it enacted Local Law Nos. 1 and 2, which abolished the department of public safety, established in its place a department of police, and transferred the powers of the former public safety commissioner to the newly created police commissioner. Like the original Second Class Cities Law and the previous city code, Local Law No. 2 of 1936 empowered the police commissioner to conduct "due trial" of disciplinary charges and directed that appointments, promotions and changes of status shall be made in accordance with the Civil Service Law "except as otherwise provided herein."FN1

In 1958, the Legislature enacted Civil Service Law §§ 75 and 76, which generally govern discipline and removal of public employees, including police officers. According to Civil Service Law § 76 (4), nothing contained in §§ 75 or 76 "shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers." In 1967, the Legislature enacted the Public Employees' Fair Employment Act, commonly known as the Taylor Law (see L 1967, ch 392, adding Civil Service Law § 200 et seq.), creating PERB and authorizing it to establish procedures for collective bargaining and prevention of improper practices, among other things. Significantly, Local Law No. 1 of 1936 remained in force in 1958, thereby qualifying it for the "grandfather" protection afforded by Civil Service Law § 76 (4).

Petitioner's law governing police discipline remained essentially unchanged between 1936 and 1969, when petitioner enacted Local Law No. 1 of 1969, its first legislation relating to police discipline following the state's enactment of Civil Service Law §§ 75, 76, 200 et seq. Through Local Law No. 1 of 1969, petitioner created a department of public safety led by a commissioner empowered, like his predecessor, to preside over discipline of police officers. This local law also superseded prior iterations that conflicted with it, transferred police discipline powers from the obsolete police commissioner to the revived public safety commissioner, and retained the same directive that nondisciplinary "changes of status" shall be executed in accordance with the Civil Service Law. Between 1969 and 2001, petitioner adopted local laws alternating between a department of public safety, led by a commissioner, and a department of police, led by a chief. These enactments superseded prior inconsistent versions and transferred powers from commissioner to chief and back again. Notably, each local law, including Local Law No. 1 of 1969, Local Law No. 2 of 1986 and Local Law No. 1 of 2001 committed to the commissioner or chief of police the exclusive authority to control police discipline, including by presiding over trials of disciplinary charges; these powers remained vested in the chief of police through another local law enacted in 2013. The same local laws consistently directed that nondisciplinary changes of status, like appointments and promotions, shall follow Civil Service Law provisions. Finally, in 2022, the Common Council enacted Local Law F, which established a Department of Public Safety and created the position of Commissioner of Public Safety, who would serve as the "designated arbiter of any disciplinary determination that is appealed from within the Albany Police Department." This local law did not otherwise alter the structure of the police department or chief. Instead, it left intact the existing power of the police chief to preside over disciplinary trials pursuant to Code of the City of Albany § 42-6 (B) and created a new Commissioner of Public Safety to review determinations "appealed from within" the department.

Unlike RochesterandSyracuse, Albany never enacted legislation that plainly and clearly relinquished local control over police discipline in favor of Civil Service Law §§ 75 and 76 procedures or collective bargaining. Rather, as in Matter of Patrolmen's Benevolent Assn. of City of N.Y., Matter of Town of Wallkill and Matter of City of Schenectady, Albany's local laws consistently reserved police disciplinary powers for local officials; the city's shifting authority between a police chief and a commissioner is "irrelevant for the purpose of our decision in this case" because these alterations never disturbed municipal disciplinary authority (Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 30 NY3d at 115 n 1).FN2 Nothing in Albany's local laws resembles the explicit, dispositive legislative prerogative manifested in Matter of Rochester Police Locust Club, where that city enacted a local law in 1985 that specified that "the Civil Service Law" would thereafter govern police discipline (Matter of Rochester Police Locust Club, Inc. v City of Rochester, 41 NY3d at 164 [internal quotation marks and citation omitted]) or in City of Syracuse, where the 1960 city charter was amended to specifically commit police discipline to the ambit of the Civil Service Law (see City of Syracuse v Syracuse Police Benevolent Assn., Inc., 68 Misc 3d at 425; see also New York State Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO, Local 3471 v City of Geneva, N.Y., 75 Misc 3d at 690-692). As in PBA, Wallkill and Schenectady, Albany retained local control over police discipline through local laws that continued to vest disciplinary authority in local officials and never clearly committed that subject to the province of the Civil Service Law or collective bargaining. Simply put, petitioner's local laws "state the policy favoring management authority over police disciplinary matters in clear terms" (Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d at 576).

Nor are we persuaded that petitioner waived local control by assigning a disciplinary role to an official who does not direct the day-to-day operation of the police department. Although the state policy favoring local control over police discipline was rooted in a desire to maintain control over the "quasi-military nature of a police force" (id.), other local officials, including town boards, may be vested with disciplinary authority, even where another executive official manages the department's daily operations, without offending public policy (see Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 19 NY3d at 1069; Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d at 574). Accordingly, the mere fact that Local Law F assigns a disciplinary review function to a mayoral appointee outside the police department's immediate chain of command does not constitute surrender of local control.

Next, we reject respondents' contention that Albany's bargaining history and course of conduct estop petitioner from arguing that police discipline constitutes a prohibited subject of bargaining. The parties seemingly agree that petitioner and police unions entered into CBAs that addressed police discipline even though petitioner now claims it was a prohibited topic of bargaining, as evidenced by their current contract under which officers could elect arbitration under their CBA or the Civil Service Law. Additionally, the police department's general orders acknowledge applicable CBAs and Civil Service Law provisions. However, a municipality's course of dealing, including entering into CBAs with police unions, does not judicially estop it from arguing it retains local control over police discipline under an extant "grandfathered" local law (see Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 30 NY3d at 117; Matter of Town of Wallkill v Civil Serv. Empl. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 19 NY3d at 1069). Because petitioner retained local control over police discipline via local law, it could only commit discipline to collective bargaining by a legislative enactment, not by a series of contracts or department practices. To support their course-of-dealing argument, the PBA respondents cite our decisions sustaining police disciplinary determinations under Civil Service Law § 75 or after arbitration (see Matter of De Paulo [City of Albany], 72 AD2d 662 [3d Dept 1979], affd 49 NY2d 994 [1980]; Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v Helsby, 62 AD2d 12 [3d Dept 1978], affd 46 NY2d 1034 [1979]; Matter of Marsh v Hanley, 50 AD2d 687 [3d Dept 1975]). However, those decisions preceded Schenectady and Wallkill, where the Court of Appeals held that a municipality's past practice shall not abrogate an "in force" law committing police discipline to local officials (see Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 30 NY3d at 117; Matter of Town of Wallkill v Civil Serv. Empl. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 19 NY3d at 1069). Thus, those cases are inapposite because the municipal employers there did not assert the same prohibition on collective bargaining.

Accordingly, we find that Supreme Court properly determined that police discipline is a prohibited subject of collective bargaining between these parties. In light of that conclusion, we next consider whether Supreme Court properly granted petitioner's application to permanently stay arbitration. To determine the parties' competing claims about the propriety of arbitration, we apply the two-step analysis set forth in Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807 (8 NY3d 513 [2007]). We must first determine whether any statutory, constitutional or public policy prohibition bars arbitration of the grievance (see id. at 519). "If there is a prohibition, our inquiry ends and an arbitrator cannot act" (id. [citations omitted]). "[A] court must stay arbitration where it can conclude, upon examining the parties' contract and the implicated statute on their face, that the granting of any relief would violate public policy" (id. [internal quotation marks and citation omitted]). Here, Supreme Court properly concluded that arbitration is barred by a preexisting local law that specifically committed police disciplinary authority to local officials. Notably, the only issue raised by the parties on the question of arbitrability relates to whether discipline was a prohibited or permissible subject of bargaining. Since a prohibition exists, our inquiry ends because granting any relief under the CBA would violate public policy.

We next address respondents' alternative procedural arguments that Local Law F is invalid, beginning with the PBA respondents' contention that enactment of Local Law F required a referendum. A referendum is required only where a local law abolished, transferred or curtailed the power of an elective officer (see Hoehmann v Town of Clarkstown, 40 NY3d 1, 6 [2023]; see also Municipal Home Rule Law § 23 [2] [f]). Local Law F did not curtail the mayor's power of appointment; rather, it created a department of public safety headed by a commissioner appointed by the mayor. As such, Local Law F operates consistently with the mayor's charter-based appointment authority, rather than in abrogation of it (see Mayor of City of N.Y. v Council of City of N.Y., 9 NY3d 23, 33 [2007]; New York State Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO, Local 3471 v City of Geneva, N.Y., 75 Misc 3d at 685-686).

Finally, we address the PSA respondents' argument that the city code, as amended by Local Law F, is void because it is vague, ambiguous and internally inconsistent.FN3 This argument is not foreclosed by our determination that discipline is a prohibited subject of bargaining. "[C]ivil as well as penal statutes can be tested for vagueness under the due process clause" (Matter of Kaur v New York State Urban Dev. Corp., 15 NY3d 235, 256 [2010] [internal quotation marks and citations omitted], cert denied 562 US 1108 [2010]; see e.g. Ahmed v Inc. Vil. of Scarsdale, 244 AD3d 913, 917 [2d Dept 2025]; Matter of Morrissey v Apostol, 75 AD3d 993, 996 [3d Dept 2010]). "Courts use a two-part test to determine whether a statute or regulation is unconstitutionally vague. First, to ensure that no person is punished for conduct not reasonably understood to be prohibited, the court must determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that the person's contemplated conduct is forbidden. Second, the court must determine whether the enactment provides officials with clear standards for enforcement so as to avoid resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application" (Matter of Independent Ins. Agents & Brokers of N.Y., Inc. v New York State Dept. of Fin. Servs., 39 NY3d 56, 64 [2022] [internal quotation marks, brackets and citations omitted]; see Matter of Town of Copake v New York State Off. of Renewable Energy Siting, 216 AD3d 93, 106 [3d Dept 2023], appeal dismissed 41 NY3d 990 [2024]; Matter of Carpinelli v City of Kingston, 175 AD2d 509, 510 [3d Dept 1991]). Petitioner did not specifically address this argument in its brief nor cite any evidence that Local Law F has been materially amended or augmented by another enactment, such that we analyze only the city code as amended by this new local law.

Local Law F designates the Commissioner of Public Safety as "arbiter of any disciplinary determination that is appealed from within the Albany Police Department" and empowers him or her to "hold hearings, and issue final binding discipline in such matters." However, the existing city code still empowers the chief of police to discipline officers in the first instance for enumerated misconduct after giving notice of the specific charges in writing and upon due trial in the "manner prescribed by law and the rules and regulations of the [d]epartment" (Code of the City of Albany § 42-6 [B]). Though Local Law F contemplates that the Commissioner of Public Safety shall have other powers and duties as prescribed by local law or ordinance, the record is bereft of any evidence of subsequent legislation clarifying the Commissioner's powers or duties or defining when and how the commissioner conducts hearings or issues final decisions (compare Matter of Town of Tonawanda Police Club, Inc. v Town of Tonawanda, 194 AD3d 1462, 1463 [4th Dept 2021]). Because the police chief's authority to conduct disciplinary trials was unchanged by Local Law F, the text suggests that the Commissioner of Public Safety performs appellate review of the police chief's decisions. The parties previously resolved police discipline disputes through methods with clearly defined rights, responsibilities and procedures. However, unlike the parties' CBAs or Civil Service Law §§ 75 and 76, Local Law F does not define any procedures, deadlines, standards for review, criteria for determining whether or how a hearing will be conducted, or other explicit standards to prevent ad hoc, subjective application. The ambiguous impact of Local Law F on the existing structure is exemplified by petitioner's initial invitation to resolve the dispute by arbitration under the CBA or by a hearing under Civil Service Law §§ 75 and 76 before petitioner referred the pending disciplinary charges directly to the Commissioner for a "pre-hearing conference." Under these circumstances, we grant that part of the cross-petition by the PSA respondents that seeks to declare Local Law F void for vagueness. To be clear, invalidation of Local Law F on this basis does not render police discipline a negotiable subject; rather, the parties remain governed by the local law "in force," which continues to commit police discipline to local officials (see Carver v County of Nassau, 135 AD3d 888, 889 [2d Dept 2016], lv dismissed & denied 27 NY3d 1032 [2016]), but petitioner must articulate procedures which afford the officers due process (see Matter of Nassau County Sheriff's Corr. Officers Benevolent Assn., Inc. v Nassau County,137 AD3d 1145, 1147 [2d Dept 2016]). For the reasons explained above, petitioner was authorized to devise a procedure for appellate review by the newly created Commissioner of Public Safety utilizing procedures that withstand due process scrutiny. However, Local Law F, in its present form, lacks sufficient particulars to guarantee objective, predictable administration of the disciplinary appeals process.

Accordingly, we agree with Supreme Court that petitioner demonstrated its uninterrupted retention of local control over police discipline through a "grandfathered" local law "in force," such that police discipline constitutes a prohibited subject of collective bargaining until and unless petitioner plainly commits it to bargaining by another enactment. Supreme Court therefore properly granted a permanent stay of arbitration of the pending disciplinary charges under CPLR 7503 (b). However, because we find that Local Law F is impermissibly ambiguous, it was error to deny the PSA respondents' motion to dismiss, which we treat as a request for a declaration in its favor, on the limited basis that Local Law F is void for vagueness.

Clark, J.P., Ceresia, Fisher and Powers, JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as found Local Law F of 2022 valid and denied that part of the motion of respondents Albany Police Supervisors Association, Josiah Jones and Devin Anderson seeking a declaration that Local Law F of 2022 is unconstitutionally vague; it is declared that Local Law F of 2022 is void for vagueness; and, as so modified, affirmed.

Footnotes

Footnote 1

We reject respondents' proposed statutory construction that disciplinary terminations constitute "changes of status." Each time the drafters composed an enactment, they defined certain procedures for "appointments, promotions and changes of status" while simultaneously prescribing different procedures for "discipline" in the same law. Respondents thus overlook basic tenets of statutory construction (seeMatter of Perlbinder Holdings, LLC v Srinivasan, 27 NY3d 1, 9 [2016], citing McKinney's Cons Laws of NY, Book 1, Statutes § 238; see also General Construction Law § 95).

Footnote 2

This conclusion comports with Civil Service Law § 76 (4), which expressly provides that nothing in Civil Service Law §§ 75 or 76 shall be construed to repeal or modify local laws relating to police discipline. Civil Service Law § 76 (4) thus reflects a legislative judgment that the general policy favoring collective bargaining does not displace a local law that commits police discipline to local officials (see Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 30 NY3d at 114).

Footnote 3

Because no questions of fact are presented by the controversy, we treat this motion to dismiss for failure to state a cause of action as a motion for a declaration in respondents' favor (see 306 Wall St. Owners, LLC v City of Kingston, 241 AD3d 1692, 1694 [3d Dept 2025]; Grand S. Point, LLC v Bassett, 230 AD3d 49, 58-59 [3d Dept 2024], appeal dismissed 42 NY3d 1025 [2024], lv denied 43 NY3d 907 [2025]).

Judicial review of an arbitration award

2026-05-21T09:00:00.000-04:00

An individual [Employee] employed by Petitioner [Employer] was suspended without pay following an investigation and shortly thereafter was served with a notice of discipline [NOD]. The Employer's NOD's recommended the Employee's termination as the disciplinary penalty to be imposed.

Pursuant to the collective bargaining agreement [CBA] and an incorporated separate memorandum of agreement [MOA] between the State of New York and Employee's collective bargaining unit representative, the New York State Public Employees Federation, AFL-CIO [PEF], PEF and Employee filed a grievance seeking judicial review of the NOD disciplinary arbitrator's [DA] decision. Employee also exercised his contractual right to challenge his immediate suspension without pay by Employer before a "triage" arbitrator [TA]*.

A multiday virtual NOD hearing was held and the DA thereafter issued a decision denying Employee's grievance after finding Employee guilty of one of the three misconduct charges served upon him. The disciplinary penalty imposed: a three-month suspension without compensation and restitution of funds for Employee's "time theft".

Employee then commenced the instant CPLR Article 75 proceeding seeking a court order vacating the arbitration award, alleging that the DA exceeded his authority under the MOA by considering the TA's determination in fashioning the penalty imposed. Supreme Court agreed and granted the Employee's petition, in part, by vacating the penalty and remitting the matter to the same DA to reconsider the disciplinary penalty imposed in light of the Supreme Court's rulings. Supreme Court also stayed the deduction of restitution payments from Employee's paychecks pending the DA's reconsideration of the penalty imposed. Employer appealed.

Citing Matter of Falzone [New York Cent. Mut. Ins. Co.], 15 NY3d 530 and other decisions, the Appellate Division observed that:

1. "It is well settled that a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power"; and

2. "Aside from those circumstances, courts may not vacate an award based on their disagreement with the reasoning or outcome, even if the arbitrator made errors of law or fact.

The Appellate Division's decision then noted that "... although an arbitrator's interpretation of contract language is generally beyond the scope of judicial review, where a benefit not recognized under the governing [collective bargaining agreement] is granted, the arbitrator will be deemed to have exceeded his or her authority".

The Appellate Division explained that "without passing on the appropriateness of the penalty" imposed on Employee, it agreed with Supreme Court that the DA "consider[ed]" the TA's finding "in determining an appropriate penalty," thus exceeding an enumerated limitation on the TA's authority.

The Appellate Division said it found no error in Supreme Court's decision to partially vacate the arbitration award and remit the matter to the DA for a redetermination of the penalty to be imposed, ordering that Supreme Court's ruling "modified, on the law, without costs, by reversing so much thereof as stayed paycheck deductions related to restitution" and vacated the penalty imposed by the DA "in all respects".

* A negotiated procedure between PEF and the State of New York as the employer provided for an independent "triage arbitrator" [TA] examining such a pending suspension without pay before it can be implemented and should the TA determines that such a suspension without pay is not warranted, then one cannot be imposed at that time. In the instant appeal such an examination was held and the TA found that a suspension without pay was not warranted.

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

Appellate Division reverses Supreme Court's dismissal of Petitioner's complaint alleging racial discrimination within the meaning of New York City's Human Rights Law

2026-05-20T09:00:00.000-04:00

Supreme Court granted City of New York's [City] and another named defendant's, a police sergeant [Sergeant], post-answer motion to dismiss Plaintiff's complaint of unlawful discrimination, dismissing the Plaintiff's complaint alleging racial discrimination within the meaning of New York City' Human Rights Law (City HRL).

The Appellate Division unanimously reversed, on the law, without costs, the City's and the Sergeant's motions and reinstated the Plaintiff's complaint.

The Appellate Division held that Plaintiff had stated a cause of action for racial discrimination under the City HRL, noting that Sergeant had made many statements, both in the office of the NYPD Auto Crimes Unit and on a text thread with his subordinates including Plaintiff, criticizing racial justice protests in the National Football League [NFL] by Colin Kaepernick and other NFL players. On one occasion, Plaintiff, who is Black, told Sergeant "that the players had a constitutional right to protest" Sergeant responded "yeah, . . .but it's my right . . . if I want to like [B]lack people." Sergeant also shared articles about Black NFL players committing crimes and described them as "perps."

Citing Golston-Green v City of New York, 184 AD3d 24, the Appellate Division opined that viewing the record in the light most favorable to Plaintiff, it cannot be said as a matter of law "that the [Sergeant's] conduct of the [Plaintiff] complained of was truly insubstantial" or amounted to "a petty slight or trivial inconvenience". In the words of the Appellate Division, Sergeant's remark that he has a "right [whether] to like [B]lack people," directed at Plaintiff "was facially discriminatory and is alone sufficient to defeat summary judgment".

Noting under the City's HRL Sergeant had a "right to express his . . . views" on matters of public concern, provided, however, that in so doing "he [did] not discriminate against his [subordinates] employees based on a protected characteristic."

Concluding that Plaintiff's hostile work environment claim was timely as the record contains text messages Sergeant had sent concerning Black NFL players through January 26, 2019, and the complaint was filed on December 13, 2021, within the period allowed under the statute of limitations, the Appellate Division noted that Sergeant's "earlier comments are actionable because they were 'part of a single continuing pattern . . . extending into the [limitations] period'".

The Appellate Division also held that to "the extent [Plaintiff] claims that the assignment to the potentially dangerous arrest was unlawful because of his restricted duty status, that claim was untimely as the result of Plaintiff's failure to comply with the requirements of General Municipal Law §205-e. The Appellate Division then opined that the arrest assignment at issue may be have "amounted to unequal treatment based on race".

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

The State of New Jersey's Consumer Fraud Act held not applicable to attorneys and arbitral tribunals performing professional services

2026-05-19T09:00:00.000-04:00

The Appellate Division, noting that Plaintiffs in this action never identified the legal theory being asserted in their instant action, opined that "Supreme Court properly dismissed [Plaintiffs'] third cause of action", which referenced the State of New Jersey's Consumer Fraud Act [NJCFA].*

Noting that that the Defendants in the instant action were acting as arbitrators, the Appellate Division opined that "putting aside the impropriety of Plaintiffs' post hoc effort to recast the cause of action as an NJCFA claim", the State of New Jersey's "NJCFA does not apply to learned professionals such as attorneys and arbitral tribunals when they are performing professional services".

Citing Pollak v Moore, 85 AD3d 578, the Appellate Division also found that Plaintiffs provided no basis for either Supreme Court or the Appellate Division to grant leave to serve a second amended complaint on Defendants, explaining that Plaintiff's "provided no proposed pleading, nor did they allege any new facts that would overcome the deficiencies in [their earlier] amended complaint."

* See NJ Stat Ann 56:8-2.

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

New York State's Comptroller posts municipal audits on the Internet

2026-05-18T06:30:00.000-04:00

On May 14, 2026, New York State Comptroller Thomas P. DiNapoli posted audits of the municipalities listed below on the Internet.

Click on the text highlighted in COLOR to access the audit

Village of Coxsackie – Treasurers’ Records and Reports (Greene County) The treasurers did not maintain complete, accurate and timely records and reports or adhere to generally accepted accounting principles. Auditors identified transactions totaling $420,215 that were not recorded, $236,921 that were incorrectly recorded and $91,741 that were recorded twice in the accounting records. As a result, the board’s ability to properly and effectively monitor and manage the village’s financial operations was reduced. Additionally, the board did not annually audit the treasurers’ records to ensure they were accurate, complete and maintained in a timely manner.

Midway Fire District – Claims Auditing (Albany County) Although required, the board did not thoroughly and deliberately audit all claims during the audit period. Auditors reviewed 71 claims (57 disbursements) totaling $542,613 and determined that 26 claims totaling $123,874 were not always adequately supported; included sales tax that should not have been paid, unnecessary charges including potentially inappropriate gift cards; or were not audited and approved by the entire board prior to payment. The lack of a proper audit of claims increased the risk that claims for inappropriate purposes could be paid, or that irregularities could go undetected and uncorrected.

Town of Morehouse – Transparency of Fiscal Activities (Hamilton County) The board did not conduct or provide for an annual audit of the supervisor’s financial records and reports for fiscal year 2024 in accordance with state law. In addition, although the supervisor prepared and filed the 2024 annual financial report (AFR) with the Comptroller’s Office, as required by state law, the supervisor did not provide the board with complete monthly financial reports.

Saranac Fire District – Board Oversight (Clinton County) The board did not adequately oversee the district’s financial operations related to maintaining accounting records, preparing bank reconciliations, submitting monthly and annual financial reports, performing annual audits, receiving state contract pricing for purchases and auditing and approving claims. As a result, the board’s ability to effectively manage the District’s financial condition, make sound financial decisions and ensure that the district only incurred necessary costs and paid for goods and services that were for appropriate district purposes were impaired. In addition, the district faced an increased risk of theft, waste and abuse of district resources.

Town of Steuben – Transparency of Fiscal Activities (Oneida County) The board did not conduct or provide for an annual audit of the supervisor’s financial records and reports for fiscal year 2024 in accordance with state law. In addition, the supervisor did not file the 2022 through 2024 AFRs with the Comptroller’s Office within 60 days after the fiscal years’ end, as required by law. Furthermore, the supervisor did not properly maintain financial information recorded in the accounting records, provide the board with all necessary monthly financial reports, and ensure town employees were paid in accordance with board-approved pay rates.

South Butler Fire District – Audit Follow-Up (Wayne County) An audit released in April 2021 determined that the board did not provide adequate oversight of the district’s financial operations and did not adopt or enforce key financial policies. In a follow-up, auditors found that of the audit report’s 14 recommendations, the board implemented five, partially implemented one and did not implement eight.

Quaker Street Fire District – Audit Follow-Up (Schenectady County) An audit released in December 2021 found that the board did not provide oversight to ensure purchases complied with the district’s procurement policy, claims were adequately reviewed, and financial reports were filed. Of the audit report’s seven recommendations, the board partially implemented one and did not implement six.

Caledonia Joint Fire District – Audit Follow-Up (Livingston County) An audit released in November 2024 determined that the board and district officials did not properly plan for long-term financial and capital needs. Of the audit report’s two recommendations, the board and district officials fully implemented one recommendation and partially implemented one recommendation.

###

New York State Comptroller DiNapoli, CalPERS CEO Marcie Frost and NYC Comptroller Mark Levine Raise Alarm on Reports of Proposed SpaceX IPO Governance

2026-05-16T09:32:51.114-04:00

Press release: Immediately Contact: Mark Johnson, 518-474-4015

NEW YORK STATE COMPTROLLER DiNAPOLI, CalPERS CEO MARCIE FROST AND NYC COMPTROLLER MARK LEVINE RAISE ALARM ON REPORTS OF PROPOSED SPACEX IPO GOVERNANCE

Warn That Reported Novel and Extreme Governance Structure Would be the Most Management-Favorable Ever Brought to U.S. Public Markets at this Scale

New York State Comptroller Thomas P. DiNapoli, on behalf of the New York State Common Retirement Fund, along with California Public Employees’ Retirement System CEO Marcie Frost and New York City Comptroller Mark Levine, in a joint letter to SpaceX executives, raise objections to the reported proposed governance structures of SpaceX, which is preparing for its initial public offering, DiNapoli announced today. The investors hold combined assets under management exceeding $1 trillion for millions of working and retired public servants, including teachers, firefighters, police officers, nurses, and their beneficiaries [Emphasis supplied].

The letter follows press reports detailing a novel and extreme governance structure within SpaceX’s confidential draft registration statement. While the registration statement has not yet been made publicly available, as reported, the proposed structure would strip away fundamental investor protections by combining perpetual super-voting shares concentrated in Elon Musk, with a CEO removal provision that would insulate Musk with an effective veto over his own firing. The reported governance plan also would shield management from accountability through mandatory shareholder arbitration, controlled-company status, and restrictive Texas-based legal barriers to derivative litigation, while allowing one executive to maintain unprecedented control as CEO, CTO, and chair despite significant outside commitments.

“The reported governance structure for SpaceX presents significant risks to long term-investors,” DiNapoli said. “As reported, these provisions include super voting shares for a select few, mandatory arbitration of shareholder claims, nearly insurmountable barriers to executive accountability, and limits on shareholder legal actions. This structure would leave shareholders with virtually no recourse over how the company conducts business. This is anathema to the transparency and legitimate board oversight required for a major publicly traded corporation. As SpaceX is poised to occupy a position of systemic importance in the public markets, its governance must at the bare minimum adhere to the baseline protections upon which long-term institutional capital depends.”

“Sound governance is fundamental to a company’s long-term success, and we are concerned about the many glaring governance red flags including a lack of genuine checks and balances for Elon Musk as CEO,” Levine said. “The current proposed structure makes it nearly impossible to ensure strong safeguards are in place to preserve the company’s financial and reputational value, limits transparency, thwarts the opportunity for accountability, and overall dangerously undermines investor rights. If SpaceX is committed to starting off on the right foot, and earning the trust of potential shareholders, they will adopt governance practices that support their sustainable and long-term growth in earnest.”

The letter urges SpaceX to revise its proposed structure before its final Form S-1 is filed. Specifically, the investors are seeking reforms, including: a one-share, one-vote structure or a time based sunset on super-voting shares; a majority-independent board with a separation of the chair and CEO roles; withdrawal of mandatory arbitration clauses for shareholder claims; and an independent-committee process to review related-party transactions across Musk’s affiliated entities.

The investors requested a meeting with SpaceX management to discuss these reforms.

“We are not merely seeking a seat at the table to discuss these concerns; we are seeking the fundamental rights that protect shareholders to be upheld by SpaceX management,” DiNapoli said.

The full text of the letter is available at:

https://www.osc.ny.gov/files/press/pdf/spacex-ipo-letter.pdf

###

The New York State Common Retirement Fund is one of the largest public pension funds in the United States and has consistently been ranked as one of the best managed and best funded plans in the nation.

Selected Internet blog posts during the week ending May 15, 2026

2026-05-16T09:17:27.932-04:00

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Earning Constituent Trust as Payments Evolve A practical guide for local governments to build trust in digital payments by improving security, accessibility, and user experience. DOWNLOAD

92% of Households Can Access a Discounted Broadband Program Low-cost broadband programs help more families stay connected to essential services, opportunity, and daily life. Preserving affordable internet, TV, and mobile access matters in every district. Learn more.

How Local Governments Can Fix PDF Accessibility Fast Most agencies rely on PDFs to deliver agendas, forms, notices, and reports, but many of those documents remain inaccessible to residents using assistive technologies. This guide explains what the DOJ’s updated ADA rule means for local governments, where PDF accessibility gaps commonly appear, and how teams can prioritize remediation without creating more manual work. DOWNLOAD

Appellate Division decision address initiating disciplinary action involving law enforcement personnel pursuant to a negotiated collective bargaining agreement and a competing statute vesting such disciplinary authority in the appointing authority

2026-05-15T09:00:00.000-04:00

A Supreme Court (1) granted the City of Albany's [Petitioner] application to permanently stay a pending arbitration, and (2) declared the City of Albany's Local Law F of 2022 valid.

The Albany Police Supervisors Association, Josiah Jones and others [collectively referred to as "PSA"] had moved to dismiss the City's petition/complaint, contending that Local Law F was invalid due to certain alleged conflicts with the parties' Collective Bargaining Agreements [CBAs], the existing city code and the Taylor Law (Civil Service Law §§ 75, 76, 200 et seq.) and for "impermissible vagueness and other reasons".

In addition, the Albany Police Benevolent Association, including Michael Delano, and other unit members [collectively referred to as "PBA"] answered and cross-petitioned to dismiss the City's petition/complaint, declare Local Law F invalid, and compel arbitration pursuant to CPLR 7503. PBA also contended that Local Law F conflicted with Civil Service Laws §§75 and 76 and violated New York State's Municipal Home Rule Law §23 because it was enacted without a referendum.

Supreme Court (1) granted the City's petition/complaint, finding Local Law F valid; (2) granted the petition to stay arbitration; (3) denied the PSA respondents' motion to dismiss; and (4) dismissed the PBA respondents' cross-petition., noting In brief, Supreme Court found that Petitioner's "uninterrupted history of local laws vesting authority over police discipline with city officials qualified it for the 'grandfather[ ]' provisions of Civil Service Law § 76 (4), rendered police discipline a prohibited subject of collective bargaining and vitiated the CBA provisions governing arbitration of police discipline".

The Appellate Division, noting that Supreme Court did not reach the merits of the PSA respondents' alternative claim that Local Law F was void for vagueness and lacked due process procedures, indicating that the PSA respondents and PBA respondents appealed the Supreme Court decision, modified that ruling, addressing a number of issues concerning processing "police disciplinary charges" in an apparent contravention of the Taylor Law, which generally commits public employee discipline to a forum and procedures established by statute or determined through collective bargaining.

Considering the number and variety of issues presented in this appeal to the Appellate Division, the Court said "To put it simply, some municipalities have the right to bargain about police discipline, and some do not, and the difference depends upon whether there is applicable legislation specifically committing police discipline to the discretion of local officials in force".

The Appellate Division then noting that Court of Appeals has resolved the "tension between the strong and sweeping policy of the State to support collective bargaining under the Taylor Law and a competing policy — here, the policy favoring strong disciplinary authority for those in charge of police forces", pointed out that strong local authority over police discipline prevails when an extant general, special or local law specifically commits police discipline to local officials' discretion" and that "[t]his rule has been applied to municipalities that claimed local control even after signing labor agreements that addressed police discipline".

Further, courts examine the legislative enactment for "plain and clear" evidence that a municipality deliberately ceded the right of local control over police discipline in favor of collective bargaining. In contrast, it was noted that "after a municipality with local control over police discipline enacts a local law clearly delegating police discipline to collective bargaining or the Civil Service Law, the Taylor Law prevails and the municipality may not through later legislation reclaim that authority for local police leaders".

The parties disputed whether Petitioner had a local law "in force" under which a local police official may initiate disciplinary action or had Petitioner relinquished such authority in favor of negotiating disciplinary procedures through collective bargaining pursuant to Article 14 of the State's Civil Service Laws.

Faced with the variety and complexity of the arguments and issues raised by the parties, the Appellate Division said it must examine the origin of Petitioner's disciplinary authority and relevant changes to its laws after the Legislature adopted Civil Service Law procedures to discipline police officers and created the right of public employees, including police officers, to collectively bargain over disciplinary procedures.

Accordingly, NYPPL has elected to set out the Appellate Division's decision in full below rather than attempt to summarize the many and varied issues considered by the Appellate Division raised or argued by the parties addressed in its rulings.

Matter of City of Albany, N.Y. (Albany Police Benevolent Assn.)

2026 NY Slip Op 03038

May 14, 2026

Appellate Division, Third Department

Corcoran, J.

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

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

In the Matter of the Arbitration between City of Albany, New York, Respondent, and Albany Police Benevolent Association et al., Appellants. (And Another Related Proceeding.)

Decided and Entered:May 14, 2026

CV-24-2055

Calendar Date: March 23, 2026

Before: Clark, J.P., Ceresia, Fisher, Powers And Corcoran, JJ.

Gleason, Dunn, Walsh & O'Shea, Albany (Christopher M. Silva of counsel), for Albany Police Benevolent Association and others, appellants.

The Law Offices of John K. Grant, PC, Newburgh (John K. Grant of counsel), for Albany Police Supervisors Association and others, appellants.

Robert Magee, Corporation Counsel, Albany (Linda Keller of counsel), for respondent.

Corcoran, J.

Clark, J.P., Ceresia, Fisher and Powers, JJ., concur.

Footnotes

Footnote 1

Footnote 2

Footnote 3

Isolated remarks or occasional episodes of harassment found judicially insufficient to support employee's hostile or abusive work environment complaint

2026-05-14T09:00:00.000-04:00

The New York State Division of Human Rights [DHR] adopted the recommended order of an Administrative Law Judge to dismiss Petitioner's familial status discrimination and retaliation complaint. Petitioner appealed DHR's dismissal of Petitioner's complaint.

The Appellate Division, however, unanimously confirmed DHR's determination, opining that DHR's determination that Petitioner did not experience a hostile work environment was supported by substantial evidence.

Noting that the record contained evidence that Petitioner's supervisor made negative comments about Petitioner's prioritization of childcare responsibilities over work, the Appellate Division said that isolated remarks or occasional episodes of harassment do not support a finding of a hostile or abusive work environment under the pre-2019 standard, citing Ferrer v New York State Div. of Human Rights, 82 AD3d 431 and other New York State court decisions.

Concluding that DHR's dismissal of Petitioner's retaliation claim was rational and noting that Petitioner's employer did not take any adverse employment action against Petitioner following his submitting a discrimination complaint to the Bronx Borough President's Office, the Appellate Division also observed that "... in the nine months after [Plaintiff] filed his discrimination complaint, he received better evaluations than he had previously and received two raises".

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

New York State's Commissioner of Education lacks jurisdiction to adjudicate a decision issued by the Department's Chief Privacy Officer alleged to be arbitrary and capricious

2026-05-13T09:00:00.000-04:00

New York State's Commissioner of Education Dr. Betty A. Rosa dismissed the Petitioner's appeal challenging a decision by the Chief Privacy Officer of the New York State Education Department explaining that she lacked jurisdiction to consider the matter.

Citing a number of earlier rulings by New York State Commissioners of Education, Commissioner Rosa explained that "[it] is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by employees or officers of the New York State Department of Education.

Dr. Rosa noted that such actions may be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of New York State's Civil Practice Law and Rules. Accordingly, Commissioner Rosa opined that she lacked jurisdiction to consider the Petitioner’s request for a declaratory judgment that NYSED’s Chief Privacy Officer’s decision was arbitrary and capricious.

The Commissioner also observed that the Petitioner’s request for declaratory relief with respect to Chief Privacy Officer decision was likewise outside the scope of an appeal pursuant to Education Law §310, citing Appeal of M.C. and T.H., 64 Ed Dept Rep, Decision No. 18,550; Appeal of M.E., 62 id., Decision No. 18,245; Appeal of He, 57 id., Decision No. 17,299.

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

Employee's terminated after being found guilty of "time theft" and "time fraud"

2026-05-12T09:00:00.000-04:00

Supreme Court denied the Plaintiff's petition to seeking to annul a determination of the New York City Department of Education [DOE] terminating Plaintiff's employment with DOE and granted DOE's cross-motion to dismiss the Plaintiff's petition. Supreme Court granted DOE's motion and dismissed Plaintiff's petition filed pursuant to CPLR Article 78. Plaintiff appealed.

Citing Matter of Royal Realty Co. v New York State Division of Housing & Community Renewal, 161 AD2d 404, the Appellate Division's decision noted that DOE terminated Plaintiff following an investigation by DOE's Office of Special Investigations that substantiated allegations that Plaintiff had committed "time theft and time fraud" over a period of nearly two years. The Appellate Division opined that DOE's determination was "rationally based on the record" and was not arbitrary and capricious.

The Appellate Division, citing Matter of 333 E. 49th Partnership, LP v New York State Division of Housing & Community Renewal, 165 AD3d 93, leave to appeal denied, 33 NY3d 908, pointed out that Plaintiff's submissions, including affidavits from her former colleagues and New York Post newspaper articles about the investigation, were not properly before the Court and a Court's review is limited to consideration of evidence and arguments raised by a party before the employer's administrative determination was rendered.

As to the penalty imposed on Plaintiff by DOE, termination, the Appellate Division found that "Plaintiff's contention that the penalty of termination shocks the conscience" was unpreserved, as it was not raised in the Plaintiff petition.

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

Appellate Division finds Petitioner failed to demonstrate that circumstances existed that would give rise to an inference of unlawful discrimination on the basis of age, disability, or sex

2026-05-11T09:00:00.000-04:00

Petitioner, a former firefighter, filed an administrative complaint with the New York State Division of Human Rights [SDHR] charging his former employer [Respondent] with employment discrimination on the basis of age, disability, and sex. After a hearing, an administrative law judge [ALJ] made certain findings and a recommendation that the administrative complaint be dismissed. The Commissioner of the SDHR adopted the ALJ's findings and recommendation and dismissed the administrative complaint. Petitioner commenced the instant proceeding pursuant to Executive Law §298 and CPLR Article 78 to review the SDHR's determination. Supreme Court transferred the proceeding to the Appellate Division.

Observing that judicial review of SDHR's] determination made after a hearing is limited to consideration of whether substantial evidence supports the agency determination", explained that "Courts may not weigh the evidence or reject [the SDHR's] determination where the evidence is conflicting and room for a choice exists" and found that there was substantial evidence in the record to support the SDHR's determination that the Petitioner failed to establish, prima facie, that he was discriminated against on the basis of age, disability, and sex.

In the words of the Appellate Division, Petitioner "failed to demonstrate that similarly situated people who did not share his age, disability, or sex were treated more favorably than he was treated". Further, opined the Appellate Division, Petitioner also failed to demonstrate "that circumstances existed that would give rise to an inference of discrimination on the basis of age, disability, or sex", noting that although the Petitioner was served with three notices of disciplinary charges ... the record contains substantial evidence that the charges were based wholly upon [Petitioner's] misconduct rather than discriminatory animus.

Addressing Petitioner's claim that he was subjected to a hostile work environment, Appellate Division said "A hostile work environment exists where the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment". Citing La Marca-Pagano v Dr. Steven Phillips, P.C., 129 AD3d 918, the Appellate Division observed that there was substantial evidence in the record to support the SDHR's determination that the Petitioner failed to establish a prima facie case with respect to his claim that he was subjected to a hostile work environment.

Turning to Petitioner's claim of "retaliation" the court said that a retaliation claim is analyzed under "a burden-shifting framework" and the employee bears the burden to establish a prima facie retaliation claim. Then the burden shifts to the employer to rebut the presumption of discrimination "by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision".

If the employer meets its burden, then the burden shifts back to the employee "to prove that the legitimate reasons proffered by [the employer] were merely a pretext for discrimination".

Although SDHR found that Petitioner established a prima facie case of retaliation by showing that he received a notice of disciplinary charges just five days after filing an unlawful discrimination charge with the Equal Employment Opportunity Commission [EEOC], SDHR's had determination that Petitioner's employer had rebutted Petitioner's prima facie case of retaliation with a legitimate, nondiscriminatory, or nonretaliatory reason for its challenged actions with substantial evidence.

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

Selected posts from the Internet during the week ending May 8, 2026

2026-05-10T08:20:58.342-04:00

2026 AI Risk and Readiness Report Most organizations are making decisions about AI security without a full picture of how it’s being used across their environment. Based on new data from over 1,200 cybersecurity professionals, this report highlights where those visibility gaps commonly exist and what they mean for managing data and risk. DOWNLOAD

The H.R. 1 Mandate: Modernizing Medicaid and SNAP H.R. 1 adds substantial administrative obligations to Medicaid and food assistance programs. Learn why automation is essential to handle growing workloads and complexity. DOWNLOAD

How Public-Private Partnerships Help Governments Keep Promises Tight budgets meet rising expectations — partnerships offer a path forward. READ NOW

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Payment of back salary upon reinstated from a disciplinary suspension without pay

2026-05-08T09:00:00.000-04:00

Supreme Court granted a petition brought pursuant to CPLR Article 78 seeking to vacate or annul the determination of the Employer discharging Plaintiff from his employment and directed that the Employer conduct a hearing pursuant to Civil Service Law §75(1)(c). Employer appealed.

The Appellate Division unanimously affirmed the Supreme Court's decision, which had denied that portion of Plaintiff's petition seeking a judgment that Petitioner be immediately awarded "full back pay."

The Appellate Division explained that although Plaintiff may ultimately be found to be entitled to backpay starting 30 days after his suspension without pay, the amount of such backpay, if any, and the application of any offsets to any amount awarded in consideration of other employment or from unemployment benefits, "is a matter that should be addressed in the first instance at the hearing 0rdered by the court".

It should be noted that in 1985 §§76 and 77 of the New York State Civil Service Law*, which apply to certain employees in the classified service of a public employer, were amended by Chapter 851, Laws of 1985. §§76 and 77 currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The amendment did not include the clause providing for a "reduction" in the amount to be paid for any such compensation the individual earned in other employment or occupation during during such period of the employee's suspension without pay.

* See https://publicpersonnellaw.blogspot.com/search?q=back+pay.

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

New York State's Commissioner of Education directs the respondent school districts to allow all students to access the school districts' facilities that most closely align with their gender identity

2026-05-07T08:00:00.000-04:00

Petitioners in this administrative appeal to New York State's Commissioner of Education, Dr. Betty A. Rosa, the parents of transgender students attending the Respondent New York State public school districts, contended that:

[1] Certain resolutions adopted by the two Respondent school districts were "arbitrary and capricious because [of their reliance] upon an erroneous interpretation of federal law"; and

[2] Certain resolutions adopted by the two Respondent school districts "prohibiting transgender and gender nonconforming students from using facilities that align with their gender identity are contrary to State law, including [New York State's] Dignity for All Students Act".

The Petitioners sought annulment of the Respondents' resolutions and that the Commissioner direct the Respondent school districts to permit their transgender children "to access school facilities, including bathrooms and locker rooms, that align with their gender identity".

Commissioner Rosa sustained the Petitioners' appeals.

In consideration of the scope of Commissioner Rosa's decision, rather than attempt to summarize the Commissioner's comprehensive ruling, NYPPL has elected to recommend that the reader click on Decision No. 18,726 | Office of Counsel to access the Commissioner's decision posted on the Internet.

Appellate Division affirms Supreme Court's denial of Plaintiff's motions seeking a writ of mandamus and the recusal of the presiding justice in a CPLR Article 78 proceeding

2026-05-06T09:00:00.000-04:00

Supreme Court granted

[1] the City of New York's cross-motion to dismiss Plaintiff's petition seeking to compel the City's Department of Investigation [DOI] to investigate alleged criminal activity targeting Plaintiff while she was employed by the New York City Public Advocate's Office; and

[2] the City's motion dismissing Plaintiff's CPLR Article 78 action; but

[3] rejected the Plaintiff's efforts seeking the designated Justice's voluntary "recusal" in the Article 78 matter. Plaintiff appealed.

The Appellate Division unanimously affirmed Plaintiff lack of success in obtaining a writ of mandamus in Supreme Court, explaining that a writ of mandamus may be sought "to enforce the performance of a ministerial duty", but a writ of mandamus cannot be used "to compel an act in respect to which a public officer may exercise judgment or discretion".

Observing that DOI's decision not to investigate the matter was neither arbitrary and nor capricious, the Appellate Division directed the Public Advocate's Office to have [Plaintiff] report the alleged criminal conduct to the police.

Addressing Plaintiff's efforts seeking the "self-recusal" of the assigned Justice in the CPLR Article 78 action, the Appellate Division opined that Supreme Court providently rejected Plaintiff's efforts concerning the recusal of the assigned Justice as the assigned Justice was not a party to and had not been an attorney or counsel "in this proceeding".

Nor, said the Appellate Division, did Plaintiff contend that the assigned Justice "had 'an interest' in the proceeding or was related to the parties" and in the absence "of any statutorily mandated disqualification and any legitimate suggestions of bias or impartiality" which Plaintiff could have demonstrated, the assigned Justice's decision "not to recuse" was appropriate as a matter of personal conscience.

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

OATH Administrative Law Judge recommends the Appointing Authority suspend the employee for 30-day without pay rather than terminate the employee found guilty of misconduct

2026-05-05T09:00:00.000-04:00

New York City's Office of Administrative Trials and Hearing [OATH] Administrative Law Judge [ALJ] Michael D. Turilli recommended that a 30-day suspension without pay be imposed as the disciplinary penalty on the Respondent, an Office of the Chief Medical Examiner (“OCME”) motor vehicle operator, rather that terminating the employee from the position as proposed by the appointing authority.

OCME alleged that Respondent acted negligently by entering a decedent’s home unaccompanied by the police officer who waited outside and brought OCME into disrepute when the New York Post reported that he was criminally charged with stealing a handbag from the decedent.

The ALJ granted Respondent’s motion to preclude footage from the officer’s body worn camera after finding that such footage was sealed by New York State's Criminal Procedural Law as official records relating to Respondent’s arrest and prosecution, but permitted the introduction of surveillance video because recordings made in a private building in the regular course of business are not official records.

Relying on the recordings, OCME employee testimony, and documentary evidence, the ALJ found that Respondent inefficiently, negligently, or carelessly performed his duties by entering decedent’s apartment without police supervision in violation of an unambiguous agency directive and OCME’s common practice.

However, the ALJ found that OCME failed to prove Respondent brought the agency into disrepute, finding that while the New York Post article may have brought OCME negative attention, it focused on the theft of the bag, a criminal charge of which Respondent was acquitted, and which was neither alleged nor proven at Petitioner's OATH trial.

Accordingly, the ALJ found that the 30-day suspension, rather than termination from the position, was the appropriate penalty to impose on Respondent under the circumstances.

Click HERE to access Judge Turilli findings and recommended penalty.

Recent New York State audits of municipalities posted on the Internet

2026-05-04T09:00:00.000-04:00

On May 1, 2026 New York State Comptroller Thomas P. DiNapoli announced that the following local government audits were issued.

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

Town of Alexander – Town Clerk/Tax Collector (Genesee County) The former clerk did not properly record, deposit, report or remit collections, and did not process transactions in a timely manner. The former clerk was arrested in July 2024 and arraigned on charges of grand larceny, falsifying business records, forgery and corrupting the government. In January 2025, the former clerk pleaded guilty to petit larceny, resigned from the position and made restitution to the town. Auditors also found that annual collections recorded decreased by approximately $17,000 (43%) from 2018, the year prior to the former clerk taking office, to 2022.

Town of Davenport – Transparency of Fiscal Activities (Delaware County) The board did not conduct, or provide for, an annual audit of the supervisor’s financial records and reports for fiscal year 2024, as required by law. The supervisor filed the 2024 annual financial report with DiNapoli’s office 152 days past the statutory deadline. The supervisor also did not properly maintain financial information for liabilities and fund equity in the balance sheet reports, hindering the board’s ability to monitor the town’s financial operations throughout the year.

Town of Sodus – Transparency of Fiscal Activities (Wayne County) The board did not conduct, or provide for, an annual audit of the supervisor’s financial records and reports for fiscal year 2024, as required by law. The supervisor also failed to prepare or file annual financial reports for fiscal years 2021 through 2024. Lastly, the supervisor did not perform monthly bank reconciliations, provide the board with financial reports or ensure that seven highway department employees were paid the correct overtime wages.

Howard Public Library – Board Oversight (Steuben County) The board did not provide adequate oversight of financial operations. As a result, the board lacked the necessary financial information to manage the library’s financial condition and could not ensure its financial activities were adequately accounted for, recorded and reported. Consequently, the library had an increased risk of budgetary issues and services impact as well as increased risk of theft, waste and abuse of resources.

Cuylerville Volunteer Fire Department Inc. – Financial Oversight (Livingston County) Department officials and membership did not provide adequate oversight of financial operations because they did not adopt a code of ethics, detailed bylaws or financial policies or enforce the limited financial provisions in the bylaws. They also did not adequately segregate financial duties, implement compensating controls or provide guidance related to recording and reporting financial transactions to the treasurer.

Town of Knox – Transparency of Fiscal Activities (Albany County) The board did not conduct, or provide for, an annual audit of the supervisor’s financial records and reports for fiscal year 2024, as required by law. The supervisor also did not prepare or file annual financial reports for fiscal years 2021 through 2024. In addition, the supervisor did not provide the board with complete, accurate and reliable monthly financial reports.

###

Selected items from Blogs posted during the week ending May 2, 2026

2026-05-02T09:05:00.000-04:00

The Tech Helping Teams Get Work Done Explore how public sector leaders are adopting AI, automation, and safety technologies to solve today’s workforce challenges. This new research highlights what’s working, what workers want, and where public agencies are seeing real ROI across operations, training, and service delivery. DOWNLOAD

Inside the 2026 ISAC Annual Summit: Cybersecurity Priorities for the Decade Ahead Three days. Nine tracks. Real solutions for modern cybersecurity challenges. Learn More and Register Now

What’s Next for Your PeopleSoft Environment? See how organizations are planning the future of their PeopleSoft environments in Washington, DC on May 12. Reserve your spot

AI Fraud: Can Your Agency's Defenses Keep Up? This thought leadership paper covers common misconceptions about AI in identity verification and the technology components agencies need to combat to prevent AI-driven fraud. Read more to learn how your agency can enhance its approach to identity verification. DOWNLOAD

AI Is Reshaping Criminal Justice. The Real Question Is How We Govern It AI can improve efficiency and fairness — but only with strong oversight and accountability. READ NOW

From Buzz to Benefit: Making AI Mission-Relevant Public sector leaders are under pressure to turn AI from a promising concept into measurable impact, but many initiatives stall at the pilot stage. This paper explores how agencies can move beyond experimentation by aligning AI investments with mission-driven priorities and address common barriers like cost and governance. DOWNLOAD

Local Data Protections in Automated Enforcement Explore how cities protect data privacy while using automated enforcement systems responsibly. READ NOW

The 2026 State of Digital Government Report Government teams aren’t short on data, they’re short on clarity. This report breaks down how leading agencies are turning fragmented insights into faster services, higher participation, and measurable outcomes. Backed by benchmarks from nearly 1,300 public sector professionals, it outlines what’s working right now and where gaps are quietly costing time, trust, and resources. DOWNLOAD

Navigating H.R. 1 SNAP Challenges It’s no secret that stricter work and income requirements may increase your administrative burden. Download Checklist

Securing the Reset: How Idaho Strengthened Security and Governance This case study explores how transitioning to a FedRAMP-authorized environment enabled greater accountability, streamlined operations and enhanced protection of sensitive data, while reducing the burden of legacy systems. DOWNLOAD

Balancing Security, Staffing, and System Demands Join IT leaders in Washington, DC on May 12 to learn how agencies are balancing security demands with limited resources. Learn More

Second Circuit Court of Appeals held that New York's Volunteer Firefighters’ Benefit Law is not a firefighter's exclusive remedy for an injury suffered while traveling to a reported boat fire aboard a ship owned by the Fire District

2026-05-01T09:00:00.000-04:00

A former volunteer firefighter [Firefighter] with the Fire District [District] appealed the grant of the District's motion for summary judgment by a United States District Court for the Southern District of New York. Firefighter had suffered injury to his foot while traveling aboard a ship owned by the District to the reported site of a boat fire on the Hudson River when Firefighter extended his leg to fend off a collision with another vessel.

Having previously obtained compensation under New York State’s Volunteer Firefighters’ Benefit Law, Firefighter filed the instant claim in response to the District’s petition in the United States District Court seeking to limit its liability to the value of the vessel pursuant to the Limitation of Liability Act of 1851, 46 U.S.C. §30523, and Rule F of the Supplemental Rules for Admiralty and Maritime Claims.

Firefighter's claim alleged (i) negligence and unseaworthiness pursuant to the Jones Act, 46 U.S.C. § 30104; (ii) unseaworthiness under Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); and (iii) negligence under general maritime law.

A Federal District Court had granted the District's motion for summary judgment, holding that the Firefighter was not eligible to bring claims pursuant to the Jones Act or Sieracki, and that Firefighter's exclusive remedy were those provided by New York’s Volunteer Firefighters’ Benefit Law, and that Firefighter was prohibited to bring a general maritime law claim. Firefighter appealed the District Court’s ruling, with the exception of the District's Court's denial of the Firefighter's Jones Act claim.

The Second Circuit held that the District Court erred in granting the District's motion for summary judgment after finding that Firefighter was not entitled to the warranty of seaworthiness extended to a Sieracki seaman and in ruling that New York’s Volunteer Firefighters’ Benefit Law barred Firefighter's federal negligence claim under general maritime law.

In the words of the Second Circuit, "Although only a small part of [Firefighter's] employment took place on the navigable waters, and he therefore was not a seaman under the Jones Act, on the occasions when he was engaged in a firefighting mission on the waters aboard the [District's ship] his work was distinctly maritime. This case is unlike the cases of injuries to land workers, whose presence on a ship was only for transportation to their land-based jobs". "If [Firefighter's] job, when joining a firefighting mission on [the District's vessel] was to do waterborne firefighting and rescue, that job was no less maritime while he was doing it than it would have been if he had been permanent crew to a firefighting vessel. [Firefighter] asserts that he was in the bow preparing to secure the vessel and that when he extended his foot, his purpose was to avoid a collision, both tasks being seaman’s jobs carrying seaman’s risks. Neither the Fire District nor the [District Court] has advanced a persuasive reason for granting summary judgment dismissing [Firefighter's] claims."

The Second Circuit said it concluded that the reasons giving effect to the State’s exclusive remedy provision so as to deprive Firefighter of whatever maritime remedies he can prove would “work material prejudice to the characteristic features of the general maritime law, [and] interfere with the proper harmony and uniformity of that law in its international and interstate relations.”

While the Second Circuit said it disavowed any automatic conclusion that “wherever a maritime interest is involved, no matter how slight or marginal, it must displace a local interest, no matter how pressing and significant,” the Circuit Court said it read the Supreme Court precedents "as protecting the applicability of maritime remedies, as against conflicting state law, when, federal maritime tort policy engages sufficiently with the facts, so that displacement of the federal remedy because of a state’s exclusivity provision would impair uniformity of the federal maritime law".

The Court of Appeals vacated the District Court's judgment and remanded the matter to the District Court for further consideration, stating that "We leave it to the proceedings in the district court on remand to determine whether this evidence should be believed and whether [Firefighter] was doing seaman’s work and incurring a seaman’s hazards".

Click HERE to access the Second Circuit's ruling posted on the Internet.

The intra-military immunity doctrine bars certain lawsuits if the alleged injuries arise out of or are experienced the course of an activity with the State

2026-04-30T08:12:12.145-04:00

Plaintiff in this CPLR Article 78 challenging his discharge from the New York Guard [NYG]* and New York Division of Military Affairs' [DMNA] alleged failure to respond to his FOIL request. Plaintiff sought, among other things, records related to the charges he had attempted to file.

Plaintiff had served as a noncommissioned officer with the NYG. During his service, he was counseled over a series of months regarding various disciplinary incidents, most relevant here allegations that Plaintiff had made unauthorized inquiries into the number and identities of NYG service members who had been awarded State Guard Association of the United States [SGAUS] honors.

After Plaintiff attempted to initiate court martial proceedings by purporting to file formal charges with the New York State Division of Military and Naval Affairs [DMNA] against several officers involved in disciplinary incident in which he had been involved, he was honorably discharged from the NYG.

DMNA cross-moved to dismiss the Plaintiff's Article 78 petition on the grounds that Plaintiff's "challenge to his discharge was nonjusticiable and ... that he had failed to exhaust his administrative remedies as to his FOIL claims". Supreme Court granted DNMA's cross-motion and dismissed the proceeding explaining that Plaintiff's challenge to his discharge was barred by the intra-military immunity doctrine and Plaintiff's FOIL challenge was moot. Plaintiff appealed the Supreme Court's ruling.

Addressing the doctrine of intra-military immunity, which applies to both the federal armed forces and a state organized militia, the Appellate Division noted that the doctrine "bars a lawsuit if 'the injuries [for which a plaintiff seeks to recover] arise out of or are in the course of activity incident' involving the plaintiff's military service". However, opined the court, civilian judicial review of internal personnel matters of the military "are subject always to the civilian control" and that of the legislative and the executive branches of State government.

Finding that Plaintiff's challenge was nonjusticiable under the intra-military immunity doctrine, the Appellate Division held Plaintiff's "unsupported assertion that his discharge was retaliatory does not necessitate a contrary conclusion" and, contrary to Plaintiff's contentions, the status of SGAUS as a nonmilitary organization is of no moment inasmuch as Plaintiff's misconduct underlying his honorable discharge stems from his actions related to his service with the NYG.

The Appellate Division then held that Supreme Court properly dismissed Plaintiff FOIL claims as moot, inasmuch as the record reflects that he received responses to his requests.

Addressing Plaintiff's claim that the disclosures were inadequate, the Appellate Division found that Plaintiff had failed to exhaust his administrative remedies by first pursuing an administrative appeal.

* Akin to the New York National Guard, the New York Guard is authorized by Article VIII of New York State's Military Law and maintained at the Governor's discretion (See Military Law §165 [1]). The New York Guard is made up of unpaid volunteers and "augments and supports the New York National Guard," but they "are not federal military reservists as are members of New York State's Army National Guard, the State's Air National Guard" and the State's "Naval Militia".

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

Courts do not choose between differing professional opinions as that is the function of the administrative authority as long as it acts reasonably and responsibly

2026-04-29T09:00:00.000-04:00

In a proceeding pursuant to CPLR Article 78 filed by a candidate for appointment as a police officer [Plaintiff] seeking judicial review of the determination of the Suffolk County Department of Civil Service [Department], affirming its earlier determination, that the Plaintiff was not qualified for employment as a police officer, Supreme Court dismiss the Plaintiff's petition. Plaintiff appealed. The Appellate Division affirmed the Supreme Court ruling, with costs.

Plaintiff had sought employment as a police officer with the Suffolk County Police Department. Candidates for such employment are required to undergo a background investigation and pass a psychological evaluation, among other things. Petitioner was not recommended for the position and the Civil Service Department notified Plaintiff that he had not been found qualified for the appointment.

Plaintiff appealed the Department's determination, submitting an independent evaluation by a psychologist who disagreed with the conclusion of the Department's evaluator. Ultimately the Department concluded that there was no significant evidence to support reversing its disqualification of Plaintiff and affirmed its prior determination that the Petitioner was not qualified for employment as a police officer.

Petitioner commenced the instant CPLR Article 78 proceeding seeing judicial review of the Department's determination. Suffolk County, pursuant to CPLR 3211(a) and 7804(f), moved to dismiss the Plaintiff's petition. In an order and judgment, Supreme Court, in effect, granted the County's motion, denied the Plaintiff's petition, and dismissed the proceeding. The Plaintiff appealed the Supreme Court's ruling.

The Appellate Division found that Supreme Court had properly granted the County's motion to dismiss Plaintiff's petition, explaining that "An appointing authority has wide discretion in determining the fitness of candidates, and this discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied". The court also observed that "So long as the administrative determination is not irrational or arbitrary and capricious, this Court will not disturb it".

Further, opined the Appellate Division, "If a determination is rational it must be sustained even if the court concludes that another result would also have been rational" and noted that in an Article 78 proceeding, "the reviewing court may not weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative factfinder".

Determining that the Supreme Court had properly concluded that the Department's decision disqualifying the Petitioner appoint to the position of police office was neither irrational nor arbitrary and capricious, the Appellate Division stated that "In determining whether a candidate is medically qualified to serve as a police officer, the appointing agency is 'entitled to rely upon the findings of its own medical personnel, even if those findings are contrary to those of professionals retained by the candidate'".

In the words of the Appellate Division, "It is not for the courts to choose between the diverse professional opinions. That is the function of the proper department heads and as long as they act reasonably and responsibly, the courts will not interfere".

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