Matter of Hoover v County of Broome

[*1] Matter of Hoover v County of Broome 2009 NY Slip Op 51563(U) [24 Misc 3d 1223(A)] Decided on July 21, 2009 Supreme Court, Broome County Rumsey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 21, 2009
Supreme Court, Broome County

In the Matter of the Application of Keith Hoover, Petitioner,

against

County of Broome, MICHAEL KLEIN, as personnel director of Broome County, DAVID E. HARDER as Sheriff of Broome County, Respondents.



2008-1102



APPEARANCES:

ENNIO J. CORSI, GENERAL COUNSEL

NEW YORK STATE LAW ENFORCEMENT

OFFICERS UNION, DISTRICT COUNCIL 82,

AFSCME, AFL-CIO

By:Matthew P. Ryan, Associate General Counsel

Attorneys for Petitioner

63 Colvin Avenue

Albany, New York 12206

JOSEPH SLUZAR

BROOME COUNTY ATTORNEY

By: Robert G. Behnke, of counselBroome County Attorney's Office

Edwin L. Crawford County Office Building

P.O. Box 1766

Binghamton, New York 13902

Phillip R. Rumsey, J.

Petitioner commenced this CPLR article 78 proceeding seeking an order annulling respondents' termination of his employment, and compelling reinstatement of his salary and employment benefits. Petitioner's employment was terminated pursuant to Civil Rights Law § 73, which permits an employer to discharge an employee who "has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workmen's compensation law" (Civil Service Law § 73). In this proceeding, petitioner contends that his due process rights were violated by respondents' failure to provide him with a pre-termination opportunity to be heard, or to apprise him of his entitlement to a post-termination hearing to contest his dismissal.

To meet the minimum requirements of Federal due process under Loudermill [470 US 532 (1985)], petitioner must be given some pretermination opportunity to be heard in addition to the posttermination procedures required by [Civil Service Law] section 73 and [the Court of Appeal's] ruling in Economico [50 NY2d 120 (1980)].

Matter of Prue v Hunt, 78 NY2d 364, 369 (1991). In reaching that conclusion, the Court of Appeals noted that the "potential for an erroneous discharge or an inappropriate exercise of discretion conferred under section 73 justifies the minimal burden placed on respondents in requiring them to provide petitioner with some pretermination opportunity to respond." (id. at 368).

Here, it is undisputed that the first notice petitioner received regarding his discharge, pursuant to Civil Service Law § 73, was a letter from respondent Harder dated January 7, 2008 notifying petitioner that his employment with respondent County of Broome would be terminated on January 8, 2008, which petitioner received on the effective date of termination.[FN1] Respondents' complete failure to provide petitioner with any notice of the facts which they believe warranted his dismissal, and an opportunity to respond, prior to termination, violated petitioner's procedural due process rights (id.; Matter of Gaines v New York State Div. for Youth, 213 AD2d 894 [1995], lv denied 86 NY2d 708 [1995]; cf. Matter of Hurwitz v Perales, 81 NY2d 182 [1993], rearg denied 82 NY2d 706 [1993], cert denied 510 US 992 [1993]; Matter of Gooshaw v Massena, 216 AD2d 819 [1995]; Matter of Mari-Headley v County of Westchester, 41 AD3d 600 [2007]; Matter of Fallon v Triborough Bridge & Tunnel Auth., 259 AD2d 377 [1999]).

Respondents' reliance on Matter of Economico v Village of Pelham, 50 NY2d 120 (1980) for the proposition that due process does not require a hearing where there are no issues of disputed fact is misplaced. As noted above, the Court of Appeals has since held that due process always entitles an employee to notice of the relevant facts and an opportunity to respond, prior to termination pursuant to Civil Service Law § 73, and, in any event, there is a disputed issue of material fact in this case — namely, whether petitioner's absence from work was caused by a [*2]work-related disability (Petition, ¶ 7; Affidavit of Keith A. Hoover, sworn to March 11, 2008, attached as Exhibit F to the Affirmation of Matthew P. Ryan, Esq., dated June 11, 2008, and as Exhibit A to the Affirmation of Matthew P. Ryan, Esq., dated June 29, 2009 [Ryan Affirmation]; Ryan Affirmation, Exhibit B; Answer, ¶¶ 3, 12; Affidavit of Robert G. Behnke, Esq., sworn to June 19, 2009, ¶ 13).[FN2]

Respondents' remaining contentions have been examined and found to be without merit.

Respondents' termination of petitioner's employment, pursuant to Civil Service Law § 73 is hereby annulled, without prejudice to the right respondents may have to hereafter seek termination of his employment under that provision of law in accordance with petitioner's due process rights. Respondents are ordered to reinstate petitioner to the position he held as an employee of Broome County on January 7, 2008, and to pay any salary and employment benefits that may be due him.

This decision shall constitute the order and judgment of the court. The mailing of copies of this decision, order and judgment by the court shall not constitute notice of entry.

Dated:July 21, 2009

Cortland, New York

______________________________

Hon. Phillip R. Rumsey

Supreme Court Justice

ENTER Footnotes

Footnote 1: A copy of the letter is attached as Exhibit A to the petition.

Footnote 2: The decision of the Worker's Compensation Board, following a hearing on November 2, 2007, states only that no further action will be taken until petitioner provides medical evidence in support of his claim — it did not deny or dismiss the claim. As such, it is not a decision on the merits that estops petitioner from litigating, in this proceeding, whether his disability is work-related (see generally Aguilar v Jacoby, 34 AD3d 706 [2006] [dismissal of action for plaintiff's failure to provide evidence in response to discovery demands and prior court orders is not a dismissal on the merits]; cf. Boudreau v Broadway Houston Mack Dev., LLC, 21 Misc 3d 1131[A], 2008 NY Slip Op 52291[U], *7 — *8 [collateral estoppel bars reconsideration of issues fully litigated before Worker's Compensation Board]).