Matter of David Casselman v Village of Lowville

Matter of Casselman v Village of Lowville 2006 NY Slip Op 04535 [30 AD3d 975] June 9, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 23, 2006

In the Matter of David Casselman, Appellant, v Village of Lowville, Respondent.

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Appeal from a judgment (denominated order) of the Supreme Court, Jefferson County (Hugh A. Gilbert, J.), entered October 21, 2004 in a proceeding pursuant to CPLR article 78. The judgment, among other things, granted in part petitioner's motion to compel respondent to pay benefits to petitioner pursuant to General Municipal Law § 207-c.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly determined that respondent was required to pay benefits to petitioner pursuant to General Municipal Law § 207-c only until petitioner was granted an ordinary disability retirement pursuant to Retirement and Social Security Law § 362 (see generally Matter of Theroux v Reilly, 1 NY3d 232, 239 [2003]). "[B]y filing an application for disability retirement benefits, petitioner chose to retire and upon the granting of such benefits, was no longer entitled to payment of his full salary" pursuant to General Municipal Law § 207-c (1) (Matter of Meyers v Loughren, 228 AD2d 927, 928 [1996]; see Matter of Bruno v City of Poughkeepsie, 121 AD2d 629, 630 [1986], lv denied 69 NY2d 602 [1986]; cf. Matter of County of Erie v Hevesi, 17 AD3d 967, 968-969 [2005]). Present—Gorski, J.P., Martoche, Smith, Green and Pine, JJ.