Matter of Park v Kapica
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Matter of Park v Kapica 2003 NY Slip Op 30254(U) October 20, 2003 Sup Ct, Westchester County Docket Number: 03/9929 Judge: Kenneth H. Lange Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] - '' ' FILED AND ENTERED ON SUPREME COURT OF THE STATE COUNTY OF WESTCHESTER -------------------------------------x In the Matter of the Application of JOHN PARK, ¢, Petitioner, '\,., .... For a Judgment Pursuant to Article 7·3 of the Civil Practice Law and Rules '\, DECISION & ORDER Index #03/9929 -againstJOHN A. KAPICA, Police Chief of the Town of Greenburgh and TOWN OF GREENBURGH, Respondents. -------------------------------------x LANGE, J. This is a proceeding pursuant to Article 78 of the Civil Practice Law and Rules wherein the petitioner seeks an order of this Court setting aside and annulling a determination of the respondent, police chief of the Town of Greenburgh, unilaterally appointing a petitioner's continued hearing officer entitlement to to determine salary pursuant the to provisions of General Municipal Law §207-c and directing that such evidentiary hearing be heard and decided by the Town Board of the Town of Greenburgh. Petitioner has been employed as a police officer in the Town of Greenburgh since May 13, 1981. commencement employed as of this action, he was At the time of a police [* 2] I sergeant with the Town of Greenburgh police department. On October 30, 1994 the petitioner sustained an injury to his right shoulder while engaged in the performance of his duty. In May, 1995, petitioner sustained further injury to his right shoulder while restraining a prisoner during transport. On January 15, 1996, petitioner reported that the injury to his right shoulder was exacerbated during a training exercise. On July 23, 1996 the petitioner underwent surgery for repair of a torn rotator cuff. Following the surgery the petitioner was carried as disabled for two weeks after which he performed a light duty assignment for an additional four weeks, before returning to his regular duties. In 2001, the petitioner experienced a worsening of the condition of his right shoulder. On June 14, 2002, the petitioner had additional surgery to his right shoulder, which consisted of an open rotator cuff repair with excision of the distal clavicle and subacromial decompression. surgical procedure, Following the the petitioner was certified as disabled pursuant to the provisions of General Municipal Law §207-c and enrolled in a program of physical therapy. In March 2003, petitioner was examined orthopedist at the request of the respondents. by an The orthopedist found "it is my opinion that Sergeant John Park will never be able to assume full duties as a police officer. It is also my opinion that he is capable of performing work in a sedentary 2 [* 3] capacity with a restriction to avoid any activity requiring overhead use of the upper right extremity and with further restriction to avoid any activity requiring full grip strength on the right. In addition, he should not be in a position where he would be exposed to contact with persons in custody. As per your cover letter, it's my opinion that he would be capable of performing sedentary tasks, conducting interviews such as completing paperwork and within an office at police headquarters ... " By a letter dated April 11, 2003, the petitioner was advised that orthopedist, officer of in accordance with the recommendation of the the petitioner was being assigned as commanding the department's juvenile aid unit, where his responsibilities would be limited to performing administrative tasks associated with assignment of personnel, paperwork. the position of command, such as reviewing case files and associated He was directed to report for duty on Monday, April 21st and given a choice of a tour of duty. The letter also advised the petitioner that should he choose to challenge the order and "the department's position in directing you to report for duty is sustained after a hearing, the Town will seek to recoup the salary paid to you retroactive to the date you were originally directed to return to duty." By letter dated April 18, 2003, the attorney for the petitioner wrote to the respondent Chief of Police stating that based on the opinion of the petitioner's treating orthopedist, 3 [* 4] he was not capable of performing the duties required of him, and requested a due process hearing. The attorney also referred the respondent the Hon. to the decision of Westchester County Supreme Court Francis A. Nicolai, in Hayes v. New Rochelle (Westchester County Index No. 01/112678). , The attorney asserted that the holding of this case was that "a municipality may not 'back charge' a police officer who has received GML §207-c benefits, but is later determined to be capable of returning to a light duty assignment." In a Chief of letter dated April Police, 21, 2003, the respondent, notified the attorney that he was in the process of retaining a hearing officer who will conduct the "due process hearing." The respondent Chief of Police also opined that he did not believe that the decision in Hayes v. New Rochelle precluded the Town from seeking to recoup salary paid to one who refuses to return to duty if, following a due process hearing, is found physically fit to return to duty. Subsequently, a hearing officer was retained to determine if the petitioner was fit to perform the duties of commanding assigned. officer of the juvenile aid unit as he'd been A hearing was scheduled. It is the position of the petitioner that a "due process hearing" must be held before the Town Board of the Town of Greenburgh and the responsibility to conduct such a hearing cannot be delegated. Petitioner further contends hearing officer retained by the respondent's has a 4 that the history of [* 5] ¢· . prejudice and is neither fair nor impartial. Petitioner first requests that the determination of the respondent, appointing a hearing officer to determine petitioner's continued salary entitlement pursuant to General Municipal Law §207-c be annulled. request. The court will deny that The law does not require that a "due process hearing" be conducted before the entire town board as argued by the petitioner. To the contrary, the appointment of an independent hearing examiner has been upheld by the court. See, Curley v. Dilworth, 96 AD2d 903 (Second Dept., 1983). A reading of the petitioner's moving papers suggests that the petitioner is requesting the court to rule that the hearing examiner retained by the respondent was prejudiced, that any determination made by this hearing examiner would have to be arbitrary and capricious and could not be fair and impartial and that, assuming the hearing examiner made a determination the petitioner was physically able to return to duty, that any recoupment of pay, which the petitioner received since the order to return to limited duty would be invalid. The parties agree that at the time of the filing of this Article 78, these issues were not ripe for determination. There is nothing before the court to support the allegation that the determination of the hearing examiner was arbitrary or capricious supported or not by substantial evidence. Furthermore, there is nothing before the court to indicate that respondent, Town of Greenburgh, has even brought any action to 5 [* 6] ~ .. . " recoup any payments made to the petitioner, subsequent to April 21, 2003. The court cannot and will not anticipate any issues which are not before it. The foregoing constitutes the decision and order of this Court. The court considered the following in connection with this application: (1) order to show cause dated June 24, 2003, together with petition verified June 19, 2003, affirmation in support with attached exhibits; (2) answer verified August 8, 2003, together with attached exhibits; dated August 8, 2003; and (4) (3) respondent's reply affirmation of brief Thomas Troetti, Esq., dated September 6, 2003, together with attached exhibits. Dated: White Plains, New York October .;i,O, 2003 ¥ENNETH H. LANGE I Acting J.S.C. THOMAS J. TROETTI, ESQ. Attorney for Petitioner 45 Knollwood Road Elmsford, New York 10523 LAW OFFICES OF VINCENT TOOMEY Attorney for Respondents 3000 Marcus Avenue Lake Success, New York 11042 6
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