Parker v Village of Johnson City
Annotate this CaseDecided on May 26, 2010
Supreme Court, Broome County
Rudy Parker, Petitioner,
against
Village of Johnson City and DENNIS HANNON, MAYOR OF JOHNSON CITY, Respondents.
2010-0490
COUNSEL FOR PETITIONER:
MARILYN D. BERSON, ESQ.
1 SPRING SQUARE BUSINESS PARK
NEWBURGH, NY 12550
COUNSEL FOR RESPONDENTS:
COUGHLIN & GERHART, LLP
BY:PAUL J. SWEENEY, ESQ., OF COUNSEL
19 CHENANGO STREET
P.O. BOX 2039
BINGHAMTON, NY 13902
Ferris D. Lebous, J.
Petitioner, Rudy Parker, filed this Article 78 proceeding seeking an order: (1)annulling and setting aside respondents' denial of his General Municipal Law § 207-c benefits as arbitrary and capricious, an abuse of discretion and affected by error of law and fact;(2)directing respondents to award petitioner §207-c status commencing January 25, 2009;(3)directing respondents pay to petitioner the salary with longevity that he is entitled to for absences commencing January 25, 2009 without charging his accrued leave time;(4)directing respondents to reinstate all paid leave time charged for petitioner's absences since January 25, 2009;(5)directing respondents to issue to petitioner a written statement of taxable income for 2009, excluding from his taxable income salary paid to him during all absences on leave pursuant to GML § 207-c;(6)directing respondents to reimburse to petitioner the medicare and social security contributions withheld from salary paid to him during his absences on GML § 207-c leave in 2009.
Respondents, Village of Johnson City
and Dennis Hannon, Mayor of Johnson City (hereinafter sometimes collectively "the Village"),
oppose the petition in all respects.
BACKGROUND
A. The Accident
Petitioner, Rudy Parker, has been a full-time police officer
for the Village for the past seventeen years. On January 24, 2009, petitioner was working the day
shift from 6:00 a.m. to 2:00 p.m. and was acting as the "senior officer" on duty. At
approximately 11:30 a.m., petitioner
directed fellow Officer Viengkham to cover the desk to enable him to go out for a
snack. Petitioner took supervisor car No.712 which was parked in the east parking lot. Petitioner
went to a nearby store, picked up a snack and drink and returned directly to police headquarters.
Upon his return, petitioner drove the police vehicle into the rear west parking lot.[FN1]
Petitioner noticed the garage door open and a retired police officer, David Kelley,
washing police vehicles. Petitioner pulled the vehicle into the garage to be washed and exited the
vehicle. [*2]Officer Kelley then told petitioner that supervisor's
vehicles would not be washed until later in day and asked that he move the vehicle back outside
due to limited space inside the garage. Petitioner moved the vehicle back outside.
Simultaneously, petitioner overheard a radio call to Officer Viengkahm who was covering the
desk. Petitioner realized he needed to return to the desk to allow Officer Viengkahm to respond
to said call. Petitioner finished parking the vehicle, exited the vehicle and walked around the
front end when he slipped and fell on ice. Petitioner finished his shift on the date of the accident,
but thereafter was out of work until he returned to light duty on September 1, 2009.[FN2]
B.The Proceedings
On March 9, 2009, then Mayor Harry Lewis issued an initial letter determination denying petitioner's application for GML § 207-c benefits stating, in pertinent part, that "[t]he claimed injury and/or disability did not occur as the result of the performance of your duties" (hereinafter "Initial Determination"; emphasis added).
On March 13, 2009, petitioner requested a hearing regarding the Village's Initial Determination denying his GML § 207-c application.
On June 11, 2009, a hearing was held before Hearing Officer Dennis J. Campagna.
On September 30, 2009, Hearing Officer Campagna issued a written "Report and
Recommendation" finding the Initial Determination to have been issued in error and
recommending the Mayor reverse the Initial Determination and pay petitioner retroactive to the
date of injury.
On October 26, 2009, Mayor Lewis issued a Final Determination in which he rejected the Hearing Officer's Report and Recommendation and deemed petitioner ineligible for GML § 207-c benefits for the reasons set forth in the Initial Determination.
On February 19, 2010, petitioner commenced this Article 78 proceeding upon the filing of a
Notice of Petition and Petition. The Village interposed a Verified Answer on or about March 15,
2010.
The court heard oral argument from counsel on April 16,
2010.
DISCUSSION
A court must confirm an administrative decision if there exists a rational basis for the determination, i.e., it was not arbitrary and capricious (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]). In Pell, the Court of Appeals stated that "[t]he arbitrary and capricious test chiefly 'relates to whether a particular action should have been taken or is justified...and whether the [*3]administrative action is without foundation in fact' [citation omitted]. Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (Pell, 34 NY2d at 231). Further, it is well-settled that the court should not substitute its judgment so long as the interpretation is legally permissible, but rather merely ascertain whether there is a rational basis for the decision or whether it is arbitrary and capricious (Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363 [1987]; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 50 [1974]).
GML § 207-c (1) provides that any member of a police force "[w]ho is injured in the performance of his duties...so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality...the full amount of his regular salary or wages from such employer until his disability arising therefrom has ceased...." As set forth in the Village's "Police Officer Municipal Disability Benefit Procedure", the burden of proof with respect to initial entitlement to GML § 207-c benefits was on petitioner to show a direct causal relationship between the job duties and the claimed injuries (Matter of White v County of Cortland, 97 NY2d 336, 340 [2002]; Matter of De Poalo v County of Schenectady, 200 AD2d 277, 279 [3rd Dept 1994], affd 85 NY2d 527 [1995]; Village's Ex E, pp 5-6). The Initial Determination found petitioner had failed to meet his burden of proof, the Hearing Officer disagreed and found petitioner had met his burden of proof, and the Village's Final Determination rejected the Hearing Officer's findings and adhered to the Initial Determination.
There are several components to the Village's Final Determination, but the primary focus therein is an analysis and interpretation of case law involving GML § 207-c benefits as applied to the facts of this case, as well as a credibility assessment of witnesses and review of factual evidence in the record. Essentially, the Village's Final Determination denied petitioner his GML § 207-c benefits because of his choice of parking lots, his movement of the supervisor's police vehicle in response to a request from a third party, and the fact that petitioner was returning from a paid meal break.
This court finds that the Village's Final Determination contains error of law and fact. It is well-settled that GML § 207-c is a remedial statute enacted for the benefit of law enforcement personnel injury in the performance of duty and, as such, should be liberally construed (Matter of Theroux v Reilly, 1 NY3d 232 [2003]). It is further undisputed that the Court of Appeals has stated that a qualifying injury does not have to be sustained performing any heightened risk duties (Id.).
With respect to petitioner's choice of parking lots, the Village's Final Determination
concluded "[t]hat substantial evidence supports the finding that the east parking lot
was the location where the supervisor's vehicle should have been kept and returned to"
(Final Determination, p 1). The Final Determination further found that "[s]ubstantial evidence
supports the finding that there is no policy, regulation, directive or order of the Village Police
Department which required that you personally park the supervisor's vehicle in the rear parking
lot" (Final Determination, p 4). Stated another way, the Final Determination denied petitioner's
GML § [*4]207-c benefits because it deemed that petitioner
should not have parked the supervisor's police vehicle in the rear west parking lot where he
ultimately slipped and fell.
Initially, the court finds the Village's denial of benefits due to petitioner's choice of parking lots to be arbitrary and capricious. Where petitioner parked the car is of no moment as he was acting within the scope of his duties at the time and had every right, indeed obligation, to be using the supervisor's vehicle at that time as demonstrated by the record.
Moreover, to the extent that the Village's conclusion is based upon the Mayor's finding that the hearing testimony of Chief Potts was credible, the court finds that the Village's Final Determination improperly reached a credibility determination which is within the purview of the hearing officer. A Hearing Officer's factual findings including issues of credibility are entitled to great weight (Matter of Board of Educ. for City School Dist. of City of Buffalo v Buffalo Teachers Fedn., 191 AD2d 985 [4th Dept 1993], lv denied 82 NY2d 656 [1993]; Matter of McGrew v Dillon, 188 AD2d 1060 [4th Dept 1992]). Here, the Hearing Officer found the record to establish that the Police Department maintained two parking lots for police vehicles, an east parking lot and the rear west parking lot. Petitioner testified that in 2000, the former Chief of Police issued a standing order that police vehicles not in use should be parked in the rear west parking lot. The record reflects that although Chief Potts may have issued a subsequent contrary order such order was never communicated to petitioner. To the extent the Final Determination credits Chief Potts' testimony to support the finding that petitioner improperly parked the police vehicle in the rear west parking lot, it is without a rational basis in the record.
Next, the Village's Final Determination found "[s]ubstantial evidence supports the finding that you were injured after volunteering to assist a third party in an activity that was not associated with the performance of your duties" (Final Determination, p 4). This finding lacks a rational basis in light of the evidence presented at the hearing. The record reflects that petitioner never washed this police vehicle nor was he injured while washing the vehicle. To the extent that the Final Determination equates petitioner's action of moving the supervisor's vehicle as "assisting Mr. Kelley in the performance of his car-cleaning duties" the court finds that conclusion to be without a rational basis.
The Final Determination also found "[s]ubstantial evidence supports the finding that you were not injured while performing any police duties or rushing to perform such duties....For example, there is no evidence that you were sprinting or hurrying to relieve Police Officer Viengkham from desk-duty" (Final Determination, p 4; emphasis added). In this court's view, accepting the Village's rationale would reinstate the heightened standard of proof for eligibility for GML benefits that has been rejected by the courts (Matter of White, 97 NY2d 336).
With respect to petitioner's meal break, the record was undisputed that officers are required to work straight 8 hour shifts during which time they are to remain in service at all times and use police vehicles during breaks. The Final Determination relies on Matter of Marino v Regan, 117 AD2d 845 [3rd Dept 1986], to establish that benefits should not be extended to [*5]someone returning to work after a lunch break. This court finds Marino clearly distinguishable as the aide in that case was not in service, whereas petitioner here was required by the Village to remain in service throughout his shift even during meal breaks.
In sum, the record establishes that petitioner established a direct causal relationship between
his job duties and the resulting injury (Walters v City of New York, 23 Misc 3d 1127(A)
[2009]; Matter of Martino v County of
Albany, 47 AD3d 1052 [3rd Dept 2008]). In view of the foregoing, this court finds that
the interpretation of case law contained in the Village's Final Determination is in direct
contradiction to the Court of Appeals decision of Theroux v Reilly, 1 NY3d 232 (2003), and GML § 207-c.
Consequently, the court finds that the Village's Final Determination is based upon an error of law
and thus lacks a rational basis and is arbitrary and capricious.
CONCLUSION
Accordingly, it hereby is ORDERED and ADJUDGED that the petition is granted in its entirety.
This constitutes the decision, order and judgment of the court.
Dated:May 26, 2010
Binghamton, New York
s/ Ferris D. Lebous
Hon. Ferris D. Lebous
Justice, Supreme Court
Footnotes
Footnote 1:The hearing testimony
established that the Police Department maintained two parking lots, an east parking lot and a rear
west parking lot.
Footnote 2:Petitioner informed the Chief of
Police of his accident by e-mail on the same date of his accident and filed an Employee Accident
Report.
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