Matter of Massi v Flynn

[*1] Matter of Massi v Flynn 2004 NY Slip Op 51678(U) Decided on December 22, 2004 Supreme Court, Westchester County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2004
Supreme Court, Westchester County

In the Matter of GUY MASSI, POLICE SERGEANT FOR THE VILLAGE OF MAMARONECK POLICE DEPARTMENT, Petitioner,

against

EDWARD FLYNN, CHIEF OF POLICE OF THE MAMARONECK POLICE DEPARTMENT AND THE VILLAGE OF MAMARONECK, Respondents.



10950-04



Andrew C. Quinn, Esq.

Quinn, Ferrante & Mellea, LLP

Attorneys for Petitioner

399 Knollwood Road, Suite 220

White Plains, New York 10603

John F. O'Reilly, Esq.

Hitsman, Hoffman & O'Reilly, LLC

Attorneys for Respondents

570 Taxter Road

Elmsford, NY 10523

Mary H. Smith, J.

Factual Background

This is a CPLR Article 78 proceeding in which petitioner, Guy Massi, challenges as unlawful his departmental suspension ordered by respondent Chief of Police of the Village of Mamaroneck, Edward Flynn (hereinafter "Chief Flynn") for petitioner's failure to follow two orders that had been issued to petitioner (i.e., that petitioner report for a light duty assignment and that petitioner attend an interview with Chief Flynn). Petitioner contends that his failure to follow Chief Flynn's orders was the result of his work-related illness Acute Stress Disorder ("ASD").

This Article 78 is set against a backdrop of well-publicized and serious police discord within the Village of Mamaroneck's Police Department (the "department"), which involves police officers' charges of misconduct by Chief Flynn, subsequent secret taping of conversations among members of the department, as well as a resultant federal lawsuit that has been brought against the Village of Mamaroneck and/or Village authorities.[FN1] This longstanding discord, while apparently not targeting petitioner as a participant, serves as the stage setting for the sources of stress and emotional problems petitioner herein describes. As detailed more fully below, central to this Court's decision is the timing of Chief Flynn's decision to prefer disciplinary charges against petitioner i.e., while petitioner was out on sick leave and within approximately one week of petitioner's request for an application to receive disability benefits under General Municipal Law ("GML") § 207-c.

Most of the facts underlying this petition are largely uncontested. Petitioner, Guy Massi, is a Police Sergeant with the department. He has been a member of the department since 1994, and has held the title of Sergeant since June, 2001. On April 14, 2004, Chief Flynn had ordered petitioner to appear at a meeting with him scheduled to take place on April 16, 2004 (the "April 16th meeting or interview") to discuss his written responses to Chief Flynn's questions on the inter-department taping.[FN2] But on April 15, 2004, petitioner was rushed to the Putnam Hospital Emergency Center with what petitioner has described as severe chest pains. (See Verified Petition and hospital records annexed thereto at Exhibit A). The tests performed on petitioner revealed that he had suffered an anxiety attack. The hospital records indicate that petitioner was advised to follow-up with a psychiatrist, and was further advised not to return to work for one week. (Verified Petition, Exhibit A). Citing [*2]stress-related illness, petitioner did not attend the April 16th meeting; moreover, petitioner called in sick for his tours of duty scheduled for April 16 and 17, 2004. (See Verified Answer, Exhibits D and E).

By letter dated April 19, 2004, respondents wrote to Sgt. Massi and directed that he attend a "Fitness for Duty" evaluation scheduled for 4/22/04. However, the Fitness for Duty evaluation did not occur on 4/22/04, and was rescheduled so that respondents could retain the services of a psychiatrist and psychologist to evaluate petitioner.

On April 23, 2004, petitioner's psychologist, Dr. Raymond Griffin, CASAC, wrote to respondents to advise them of his diagnosis of petitioner namely, that petitioner was suffering from DSM IV Axis I DX: 308.3 Acute Stress Disorder ("ASD") and that petitioner was unable to perform his police responsibilities. Petitioner was also diagnosed by a clinical psychiatrist, Dr. Ronald Kaitz, as suffering from Post Traumatic Stress Disorder ("PTSD"). Apparently, Dr. Kaitz attributed the PTSD to petitioner's on the job stress.[FN3] Petitioner asserts that Dr. Kaitz's written diagnosis was forwarded to respondents, but respondents deny that they received a written diagnosis from Dr. Kaitz.

On May 5, 2004 and again on May 19, 2004, petitioner attended his rescheduled Fitness for Duty medical evaluations, and the results of the evaluations are set forth in respondents' doctors (Dr. Klahr and Dr. Dubro) reports. Dr. Dubro "gave [petitioner] a diagnostic impression of adjustment disorder with depressed and anxious mood." (See Verified Answer, Exhibit G at 6). Dr. Klahr provided a diagnostic impression of "Adjustment disorder with mixed emotional features." (Id.). In the report, Dr. Klahr opined that while Mr. Massi was not a danger to himself or others, he "is not psychiatrically fit to perform full police duties or carry a weapon." (Id.). Dr. Klahr nevertheless expressed his view that he thought petitioner could "perform light duties, and this may be beneficial for him." (Id.; emphasis added).[FN4]

Apparently, on or about May 25, 2004, petitioner was ordered to attend the April 16th meeting with Chief Flynn now rescheduled for June 2, 2004. Petitioner's doctor, Dr. Kaitz, however, responded by letter dated May 26, 2004 (which was sent via facsimile transmission), wherein Dr. Kaitz advised respondents that "Guy Massi is medically ill and he is not fit to participate in an interview. It is hard to determine when and if he would be fit." (Verified Petition, Exhibit C). Thereafter on May 28, 2004, despite Dr. Kaitz's letter detailing why petitioner would not be attending the interview on June 2, 2004, Chief Flynn issued two written orders to petitioner, one which required that he return to work for light duty assignment starting on June 7, 2004, and one which required that he attend the interview with Chief Flynn on June 2, 2004. (Verified Petition, Exhibit D). In both orders, Chief Flynn stated that "[f]ollowing consultation with the Police Department's medical consultant, the Department has determined that" Sgt. Massi was able to appear for the interview and was fit to perform the light duty assignment. (Id.). Dr. Kaitz responded to Chief Flynn's orders by letter dated June 1, 2004. In that letter, Dr. Kaitz again explained that based on his diagnosis, petitioner was unable to participate in any work-related [*3]activities because of his illness.

It appears that because of his ASD, petitioner did not appear for the interview on June 2, 2004 (although his lawyer did attend the interview),[FN5] nor did petitioner report for his light duty assignment on June 7, 2004. On June 14, 2004, Chief Flynn imposed a disciplinary suspension against petitioner and also issued a Notice of Discipline, which preferred disciplinary charges against him. According to Chief Flynn, the suspension and Notice of Discipline was based on petitioner's "outrageous" conduct in failing to attend the June 2, 2004 interview, and in failing to report for his light duty assignment on June 7, 2004.[FN6] (See Affidavit of Chief of Police Edward E. Flynn, sworn to August 3, 2004 ("Flynn Aff.") at ¶¶ 18-21). In a letter dated June 21, 2004, petitioner formally denied the charges, demanded that the suspension be lifted and that he be restored to active duty status (paid and on sick leave), and also demanded a hearing pursuant to Unconsolidated Laws § 5711-q.[FN7] It appears that since the filing of this petition, petitioner remains suspended without pay, and that the trial on petitioner's disciplinary charges has not yet occurred.

During this same time period early June, 2004 petitioner began the formal process of applying for GML § 207-c benefits. GML § 207-c requires municipalities to continue paying the salary and benefits to police officers who become ill or injured as a result of a line-of-duty illness or injury. Petitioner claims he first contacted respondents concerning his desire to apply for GML § 207-c benefits on June 2, 2004. Respondents suggest that they were unaware of petitioner's desire to apply for GML § 207-c benefits until June 16, 2004, the date on which they received petitioner's GML § 207-c application, and two days after Chief Flynn's imposition of a disciplinary suspension on Sgt. Massi. Thus, Chief Flynn has averred that his assignment of Sgt. Massi to light duty was not related to petitioner's application for GML § 207-c benefits and that "[a]ssignment of a member of the Department to light duty tasks is not limited to situations in which the employee is receiving or has made an application for GML 207-c benefits or status. A light duty assignment may be made based on my determination of the appropriate use of available personnel and equipment to provide police services for residents of the Village." (Flynn Aff. at ¶ 32). The Court's acceptance of respondents' characterization is necessary to support respondents' [*4]claim that "[t]he at-issue disciplinary action was commenced prior to the submission of a GML 207-c disability application on behalf of Massi. There is nothing in the actions of Respondents to suggest that the disciplinary action is in any manner related to the subsequent GML 207-c application." (Respondents' Memorandum of Law at 5). By contrast, petitioner argues that the disciplinary action is related to his GML § 207-c application and goes so far as to state: "Petitioner accuses Respondents of circumventing Massi's entitlement to 207-c benefits under the guise of a disciplinary suspension." (Affirmation of Andrew C. Quinn, Esq. In Response to Opposition to Verified Petition dated September 22, 2004 "Reply Aff." at ¶ 13).

Key, then, is the date when respondents first learned of petitioner's interest in filing for GML § 207-c benefits. Was it on June 2, 2004, when petitioner claims he verbally requested a GML § 207-c form from respondents? Even if the Court were to disbelieve petitioner's assertion, there is evidence that respondents became aware of petitioner's desire to apply for GML § 207-c benefits at least as early as June 8, 2004, since it was on that date that petitioner's counsel wrote to respondent's counsel by facsimile transmission and advised them that respondents had failed to respond to petitioner's requests for a blank GML § 207-c form. Furthermore, another letter from petitioner's counsel dated June 15, 2004, which transmitted petitioner's completed GML § 207-c application dated June 9, 2004, states that because respondents failed to provide petitioner with a blank GML § 207-c form despite repeated requests, petitioner had to "white-out" a previously-used GML § 207-c form. To date, respondents have not provided a formal answer to petitioner's GML § 207-c application. Instead, respondents have asserted that the application is currently under investigation and review by the department as provided by the department's policy and procedure, and that the administrative determination of petitioner's application is pending completion of the "department's investigation." (Verified Answer at ¶ 26).

Petitioner seeks to annul the disciplinary suspension on the grounds that he could not have complied with the orders dated May 28, 2004 because he was "medically, physically and mentally unable to appear, or to comply with" those orders." (Verified Petition at ¶ 23). Thus, petitioner argues that he cannot be found guilty of insubordination for failing to follow these orders because insubordination requires a "willful refusal to comply with the proper directives from superior officers." (See Reply Aff. at ¶ 11; citing Matter of Marden v Town Bd., 249 AD2d 547.) Petitioner further argues that "an enforcement of disciplinary actions against a Village employee, while that employee has a medical illness, is a violation of the Collective Bargaining Agreement ("CBA") between the Village of Mamaroneck and the Police Benevolent Association of the Village of Mamaroneck ("PBA"), Section 207-c of the General Municipal Law, and the 'Westchester County Police Act' enumerated at Unconsolidated Law § 5711-q." (Affidavit of Guy Massi, sworn to July 7, 2004 at ¶ 1). In conclusion, petitioner claims that absent a hearing, "Respondents suspension of Petitioner for willful insubordination without considering the medical diagnosis of Dr. Kaitz is arbitrary and capricious. As such, Respondents actions constitute an illegal suspension of Petitioner, a permanent employee, pursuant to Civil Service Law § 75(2)." (Petitioner's Memorandum of Law at 2).

Respondents have submitted a Verified Answer and have moved to dismiss this proceeding on the grounds that the suspension of petitioner is not a final determination. Respondents argue that "[t]here has been no trial on the charges preferred against Petitioner ... and no determination of the charges by the Board. Thus, there has been no final administrative determination of the disciplinary charges." (See Respondents' Memorandum of Law at 3). Accordingly, respondents assert that Chief Flynn's decision to suspend petitioner pending the trial on his disciplinary charges is not a final determination subject to judicial review pursuant to Article 78 of the CPLR. (Verified Answer at ¶ 29).

[*5]Legal Discussion

In his petition, petitioner requests that the Court issue an order: (1) annulling Chief Flynn's disciplinary decisions as arbitrary and capricious; (2) restoring him to his active duty status (on sick leave with reinstated pay); and (3) requiring that respondents pay him his salary and benefits that have accrued since June 14, 2004 the date of his suspension. Thus, petitioner seeks relief in the form of certiorari reviewing Chief Flynn's suspension and his preferring of disciplinary charges against petitioner, as well as a mandamus to compel respondents to pay him the salary and benefits he claims are owed pursuant to GML § 207-c.[FN8] However, the totality of petitioner's other submissions shows that petitioner is also aggrieved by what he views as respondents' failure to provide him with hearing on his GML § 207-c claim.[FN9] Thus, it appears that petitioner is also seeking a mandamus to compel respondents to perform a task petitioner claims is required by law.

This Court's power to review this petition turns on one issue: Was Chief Flynn's decision to suspend Sgt. Massi without pay a purely disciplinary action (in which case the Court would have to defer to the Village of Mamaroneck's Board of Trustees for their determination following an evidentiary hearing on the disciplinary charges pursuant to Unconsolidated Laws § 5711-q); or, was Chief Flynn's decision [FN10] instead a thinly-veiled preemptive strike against petitioner's GML § 207-c claim, which, indeed, de facto, denied him a right to a hearing on that claim (or an indefinite postponement of that claim without the benefit of a GML § 207-c hearing), triggering review by this Court. (See Stewart v. County of Albany, 300 AD2d 984, app. denied, 100 NY2d 505; Matter of Cole-Hatchard v. Sherwood, 309 AD2d 933, app. dismissed, 1 NY3d 593, app. denied, 2 NY3d 707; Matter of Curley v. Dilworth, 96 AD2d 903, app. dismissed, 63 NY2d 770).

With regard to petitioner's request for this Court's annulment of Chief Flynn's suspension of petitioner as arbitrary and capricious, the Court is without power to review the propriety of it because the decision is not final for Article 78 purposes.[FN11] The law is well-[*6]settled that Chief of Police in Westchester County has the authority to suspend a police officer pending the trial on disciplinary charges. (Coscette v. Town of Wallkill, 281 AD2d 479, app. denied, 97 NY2d 602; Matter of Nieves v. Haera, 165 AD2d 201; Matter of the Town of Greenburgh v. Town of Greenburgh, 94 AD2d 771, app. denied, 60 NY2d 551). That suspension is ultimately reviewed by the Village Board of Trustees in connection with the hearing required by Unconsolidated Laws § 5711-q. Thus, pursuant to Unconsolidated Laws § 5711-q(9), a police officer may not be "fined, reprimanded, removed or dismissed until written charges have been made and preferred ... nor until such charges have been investigated, examined, heard and determined by such board of trustees ...." The statute further provides that the police officer is entitled to a public hearing and to be represented by counsel, and the police officer may only be convicted by the affirmative vote of a majority of the board of trustees. Thus, for Article 78 purposes, there has been no final determination concerning the disciplinary charges that have been preferred against petitioner (including Chief Flynn's suspension of him pending the trial on such charges). Therefore, if this matter is viewed purely as a disciplinary issue, Chief Flynn's actions are not subject to review by this Court. (See Schachter v. Tomaselli, 105 AD2d 779; Sherman v. Office of Professional Misconduct of New York State Dept. Of Health, 137 Misc 2d 765; Morritt v. Town of Chester, NYLJ, July 2, 1991 at 28 col. 1; Matter of Prendergast, NYLJ, Nov. 23, 1990 at 26, col. 5 (11/23/90); Axelroad v. Ambach, 126 AD2d 288; D.T. v. Axelroad, 124 AD2d 1066). It follows that, a conviction on the disciplinary charges after a hearing by the Village of Mamaroneck's Board of Trustees would be subject to judicial review pursuant to a CPLR Article 78 proceeding. (Unconsolidated Laws § 5711-q[10]). It should also be noted that the Court is without the power to issue a mandamus compelling respondents to award petitioner his GML § 207-c benefits. (See, e.g., Olivier v. County of Rockland, 260 AD2d 482).

Although Chief Flynn's suspension of petitioner pursuant to disciplinary charges preferred is not ripe for review, the facts surrounding Chief Flynn's actions are troublesome to this Court. Without dispute, petitioner does have a right a right to a GML § 207-c hearing. In this case, respondents were aware for at least one week before this suspension on disciplinary charges that petitioner wanted to file a GML 207-c application. Indeed, it [*7]would appear that respondents anticipated a GML § 207-c hearing when they required petitioner to submit to a fitness for duty medical evaluation, authorized in connection with a GML § 207-c claim. Furthermore, respondents have admitted that currently petitioner's GML § 207-c application is in a state of limbo and this determination must await completion of the department's "investigation", without specifying the nature of the investigation involved.[FN12] This inordinate delay in providing petitioner with a decision concerning his GML § 207-c claim contravenes the requirement that the Chief of Police render a written determination regarding a GML § 207-c application within 10 days after receipt of all necessary information. (See Village of Mamaroneck's Policies and Procedures Relating to GML § 207-c Benefits, Verified Answer, Exhibit P). Respondents have not asserted that there are outstanding items needed by them to resolve petitioner's eligibility for GML § 207-c benefits. Thus, it would appear that respondents have had all the information they needed with regard to petitioner's GML § 207-c claim since May when their doctors issued their reports concerning petitioner's mental health. Thus, the Court is left to conclude that the delay in deciding whether petitioner is eligible for GML § 207-c benefits is intentional, and was done so that Chief Flynn could use his disciplinary authority to turn petitioner's apparent illness into a means of suspending (and possibly terminating) him for failing to follow the two orders at issue.

Chief Flynn's opinion of Sgt. Massi's performance and his desire to terminate him from the department is evident from the documents submitted. Chief Flynn not only issued the Notice of Discipline regarding petitioner's failure to follow the two orders at issue in this case, but Chief Flynn has also hedged his bets by issuing another Notice of Discipline preferring additional charges against petitioner in case the charges at issue here are not substantiated at the future disciplinary hearing.

Here, petitioner was not awarded GML § 207-c benefits prior to Chief Flynn's suspension of him on disciplinary charges on June 14, 2004.[FN13] In this regard, respondents are correct in distinguishing some of the cases petitioner cites as controlling the outcome of this proceeding since in those cases, there had already been an award of GML § 207-c benefits. It is well settled that an award of GML § 207-c benefits is a property right, such that any attempt to terminate the benefits (even a temporary suspension) requires that a due process hearing be held prior to termination. (Curley v. Dilworth, 96 AD2d 903, app. dismissed, 63 NY2d 770; Matter of Uniform Firefighters of Cohoes Local 2562, IAFF, AFL-CIO v. City of Cohoes, 94 NY2d 686; Crawford v. Sheriff's Department, Putnam County, 152 AD2d 382, app. denied, 76 NY2d 704).[FN14] Accordingly, courts have [*8]annulled suspensions of police officers for their failure to report to a light duty assignment because the suspensions/terminations had occurred without the benefit of a due process hearing. (See, e.g., Goglia v. Sardino, 119 Misc 2d 907, aff'd,101 AD2d 1013, aff'd, 64 NY2d 1084). However, if after the hearing, the police officer is found guilty of insubordination for failing to follow a lawful order, the municipality is vested with the authority to terminate the previously awarded GML § 207-c benefits. (Matter of Dacey v. County of Dutchess, 121 AD2d 536 ["'[S]ection 207-c of the General Municipal Law must be read in conjunction with Civil Service Law The former section was not intended to limit the sanctions authorized to be imposed in disciplinary proceedings under section 75 of the Civil Service Law.""]).

Based on the sequence of events in this case, it would appear that respondents were preparing for Sgt. Massi's filing of a GML § 207-c application and may have even been trying to delay the application by failing to respond to petitioner's requests for a blank form. Furthermore, it is apparent that respondents were aware of petitioner's intention to file a GML § 207-c application from at least the first week in June, 2004: Even prior to June, respondents were preparing their side of the argument concerning petitioner's GML § 207-c eligibility by using their statutory right to require that Sgt. Massi submit to an independent medical examination prior to respondents' "determination of eligibility for receipt of benefits under the statute." (De Poala v. County of Schenectady, 85 NY2d 527, 532 [FN15]; Olivier v. County of Rockland, 260 AD2d 482, 483 ["County was not required to award benefits based on a prima facie showing of entitlement, but was permitted to order an independent medical examination before making a determination"]; see also General Municipal Law § 207-c[1]). Pursuant to GML § 207-c(3), if a municipalities' doctors determine that a police officer is "unable to perform his regular duties as a result of such injury or sickness but is able, in their opinion, to perform specified types of light police duty, payment of the full amount of regular salary or wages, as provided by subdivision one of this section shall be discontinued with respect to such policeman if he shall refuse to perform such light police duty ....." (GML § 207-c[3]). Here, Dr. Klahr's report was obviously written with this statute in mind when he opined that he thought light police duty might be beneficial for petitioner.

Petitioner argues that the case of Matter of Curley v. Dilworth, 96 AD2d 903, app. dismissed, 63 NY2d 770, controls the disposition of this proceeding. In that case, petitioner injured his back as a result of three car accidents, which occurred while he was on duty as a police officer. As a result of his back injury, petitioner stopped reporting to work as of December, 1980. As in the case at bar, petitioner's doctor had advised respondents that petitioner was not fit for duty whereas respondents' doctors examined petitioner and found that he was suffering from a mild partial disability and was capable of returning to work and performing light duty. After two additional examinations of petitioner by respondents' doctors, which allegedly substantiated the prior finding that petitioner was capable of performing light duty, petitioner was directed by respondents to return to work on April 6, 1981. During this time period, petitioner was receiving his salary because of the department's characterization of petitioner's illness as ordinary sick time rather than line of [*9]duty injury.

In Curley, the Appellate Division, Second Department, affirmed the Supreme Court's holding that petitioner was entitled to an evidentiary hearing. However, the Appellate Division made clear that the hearing was not to be held pursuant to Civil Service Law § 75(2)[FN16] (which was the ruling of the trial court), but rather, petitioner had to be afforded a hearing pursuant to GML Law § 207-c.[FN17] In that case, the Appellate Division, Second Department followed the rule established by other courts that once a police officer has established prima facie entitlement to GML § 207-c benefits, a municipality should provide the police officer with an adversarial hearing prior to denying benefits. (Matter of Curley v. Dilworth, 96 AD2d at 904, app. dismissed, 63 NY2d 770; Matter of Schenectady County Sheriff's Benevolent Association v. McEvoy, 124 AD2d 911 [FN18]). During such a GML § 207-c [*10]hearing, it is also an appropriate line of inquiry to determine whether or not petitioner is fit for limited duty. (Matter of Curley v. Dilworth, 96 AD2d 903, app. dismissed, 63 NY2d 770). Indeed, there are cases which suggest that a court would find highly suspect respondents' decision to assert disciplinary charges against petitioner for his failure to follow orders he claims he was medically unable to follow. For example, in Fasanaro v. County of Rockland, 166 Misc 2d 152, aff'd, 237 AD2d 436, a corrections officer was seen by a doctor and diagnosed with adjustment disorder with mixed mood-anger and depression. The corrections officer's doctors, by letter dated November 17, 1994, wrote to the Superintendent of the Jail and stated that based upon their professional opinion, petitioner should be placed on medical leave for job related stress.

The Superintendent, prior to receiving the November 17, 1994 letter, had determined that petitioner was not suffering from job related stress and ordered petitioner to submit to a medical exam to determine his fitness to resume duties. The Superintendent's doctor found that petitioner was suffering from a serious mental disorder requiring ongoing psychiatric treatment, and further found that petitioner was not capable of returning to work. The Superintendent's doctor, however, advised the Superintendent that petitioner had refused to consent to the release of his medical records. The Superintendent used that as evidence that petitioner's illness was not job-related.

The corrections officer commenced an Article 78 proceeding and the court annulled the determination denying petitioner GML § 207-c benefits. Thereafter, the Superintendent sought renewal of the court's determination by providing a new letter from the Superintendent's doctor wherein he stated that he did not believe that petitioner's illness was directly caused by his employment at the Rockland County Correction Facility. The Court granted renewal and set the matter down for a hearing. In the interim, petitioner was denied GML § 207-c benefits and placed on an involuntary leave of absence. The court held a hearing on July 13, 1995, and at the end of the hearing, the court found that "[p]etitioner had sustained his burden of proving a causal relationship between his illness and his employment" i.e., that "petitioner, regardless of any predisposition to a personality disorder, was caused to and did suffer from a mental disorder directly caused by events occurring in the workplace." (Fasanaro, 166 Misc 2d at 155-156).

Thus, the court awarded judgment to petitioner on his Article 78 petition and annulled the respondents' determination denying benefits. The court directed respondents to classify petitioner's disability as work related, and held that "where stress is produced on the job, stress-related anxiety disorders are considered to arise out of and in the course of employment, and the resultant disability is causally related thereto ...." (Id. at 156).

Similarly, in Matter of Fiorella v. Village of Scarsdale, 96 Misc 2d 406, petitioner was removed from the Village of Scarsdale's payroll for failing to abide by the Village's order, which required that he perform limited duty work. In that case, as in this one, petitioner's doctor had stated in a letter to the Village that petitioner was unable to perform any work. The Village responded that it was the opinion of the Village's doctor that petitioner was physically fit to perform limited duties, and that if he failed to report for limited duties, he would be removed from the payroll. When petitioner failed to report for such limited duty work on the grounds that he was unfit for duty, respondent Village notified petitioner that he had been removed from the payroll. Furthermore, the Village refused to grant petitioner a hearing. [*11]

The Village argued that because it had been advised that petitioner was physically fit to perform limited duty, and because petitioner refused to do so, the Village had no alternative but to remove him based upon non performance of duty pursuant to GML § 207-c(3). In that case, because it was an actual termination rather than a suspension, the Court found that petitioner was a permanent member of the police force and was entitled to the procedural protections afforded by Section 8-804 of the Village Law and Section 5711-q(9) of the Unconsolidated Laws.

The court found that it was undisputed that petitioner's injuries were job related, which, according to the court, afforded petitioner a property right to uninterrupted payments pursuant to GML § 207-c. Because respondent had removed petitioner from the payroll without having been afforded the right to a hearing, the court reinstated petitioner with back pay and any other benefits, less the amount of compensation he had earned in any other employment or from workman's compensation, holding:

"[w]hen the issue arose as to the petitioner's physical condition to perform such duties as ordered and his indicated inability and absence therefrom, it was incumbent upon respondents then to determine if such refusal constituted insubordination and misconduct which would justify his removal from the respondent Village payroll and not to conclude that his non-performance of duty permitted respondent a means to summarily remove petitioner from respondent Village payroll without first affording him a meaningful evidentiary hearing within the ambit of procedural due process rights of notice and an opportunity to be heard."

(Matter of Fiorella, 96 Misc 2d at 408-409; see also Hodella v. Chief of Police of the Town of Greenburgh, 71 AD2d 967, app. denied, 49 NY2d 708).

Here, it appears that Sgt. Massi has sustained prima facie showing of entitlement to GML Law §207-c benefits. Respondents should have provided him with a GML § 207-c hearing, rather than the course they chose to take which was to subject him to disciplinary charges while indefinitely deferring their decision on his right to receive GML § 207-c benefits. Thus, the most appropriate remedy is for the Court to issue an order compelling that a GML § 207-c hearing be held. (See Matter of Doolittle v. County of Broome, 220 AD2d 864 [court affirms lower court's issuance of an order requiring respondents to provide petitioner with a GML § 207-c hearing, which respondents had decided to defer pending the outcome of petitioner's workers' compensation claim]).[FN19] Whether there is any substantive difference between this hearing and the hearing required by Unconsolidated Laws § 5711-q is unclear. The Court agrees with petitioner that his failure to report to the light duty assignment and to the interview was, at least on a prima facie basis, justified given his doctors' diagnoses and orders that he not return to work or attend the Chief Flynn interview. As such, respondent Chief Flynn's decision to subject him to disciplinary action would appear to be a tactic by Chief Flynn to have petitioner's GML § 207-c benefit decision resolved in the context of a disciplinary hearing where petitioner is in a defensive posture, as compared to a GML § 207-c hearing, where petitioner, rather than being charged with disciplinary infractions, is in an offensive position trying to show his entitlement to a statutory benefit.

Based on the foregoing, it seems manifestly unfair to subject petitioner to a disciplinary proceeding pursuant to Unconsolidated Laws § 5711-q, when the real issue is whether he suffered an injury (albeit psychiatric and/or psychological) in the line of duty [*12]that has rendered him eligible for GML § 207-c benefits.

Accordingly, this Court grants the petition in part and denies the petition in part, without costs or attorneys' fees. This matter is remanded to respondents in order for them to provide petitioner forthwith with a hearing pursuant to GML § 207-c. The Court further orders that the hearing pursuant to Unconsolidated Laws § 5711-q be stayed pending the determination of petitioner's eligibility for GML § 207-c benefits.[FN20] At the GML § 207-c hearing, it is petitioner's burden to "prove a direct causal relationship between job duties and the resulting illness or injury .... Preexisting non-work-related conditions do not bar recovery under section 207-c where petitioner demonstrates that the job duties were a direct cause of the disability." (White v. County of Cortland, 97 NY2d 336,340 [no need to show that the disability is related in a substantial degree to the job duties]). Respondents are reminded that "as a remedial statute, section 207-c should be liberally construed in favor of the injured employees the statute was designed to protect ...." (Id. at 339). Obviously, a critical determination to be made by the hearing officer will be whether or not petitioner is fit for limited police duty. A determination that petitioner is fit for limited police duty (and fit to attend the Chief Flynn interview) would resolve the issue; continued refusal to cooperate by petitioner would justify respondents' pursual of further disciplinary actions, which could result in petitioner's termination.

The foregoing constitutes the Decision, Order and Judgment of the Court.

Dated: White Plains, New York__________________________

December 22, 2004 Honorable Mary H. Smith, J.S.C.

Andrew C. Quinn, Esq.

Quinn, Ferrante & Mellea, LLP

Attorneys for Petitioner

399 Knollwood Road, Suite 220

White Plains, New York 10603

John F. O'Reilly, Esq.

Hitsman, Hoffman & O'Reilly, LLC

Attorneys for Respondents

570 Taxter Road

Elmsford, NY 10523 Footnotes

Footnote 1:The Court has not been advised of the nature of the federal lawsuit, but surmises that it may involve claims of retaliation against whistle blowers in the department.

Footnote 2:A Department Order dated April 8, 2004 required that Sgt. Massi respond in writing to questions concerning his knowledge and/or involvement in alleged unauthorized tape recordings of members of the department. (See Department Order from Chief Edward Flynn to Sgt. Guy Massi dated April 8, 2004, Verified Answer, Exhibit A). Sgt. Massi responded to the questions in a Memorandum dated April 13, 2004. In that Memorandum, Sgt. Massi stated that he had learned "[d]uring the publicly televised departmental hearings or sometime in the course thereof" that he may have been tape recorded by other members of the department (i.e., that P.O. Skehan and P.O. Micalizzi tape recorded him at some point in time). Sgt. Massi further stated that he had heard a rumor that there may have been a videotape of Sgt. Webber, but he did not recall who had advised him of this. Finally, Sgt. Massi stated that he had "not heard the alleged tape recordings, nor had he viewed any alleged videotape" and that he had not tape recorded anyone, nor had he "been solicited to tape record anyone." (See Memorandum dated April 13, 2004 from Sgt. Massi to Chief Flynn, Verified Answer, Exhibit B).

Footnote 3:It is unclear whether the job stress relates to the incident petitioner experienced in June, 2000, where guns were drawn against an alleged rapist with a rifle, or whether the job stress is related to the investigation concerning the alleged unauthorized tape recordings of members of the department.

Footnote 4:Dr. Klahr also stated that petitioner "may have some difficulty completing work related responsibilities and consequently may require assignment to light duty until his current symptoms subside to some extent." (Verified Answer, Exhibit G at 6).

Footnote 5:Petitioner claims that he tried to attend the interview, but on his way there, he suffered another anxiety attack and was again admitted to the hospital's emergency room. Respondents denied this fact since there had been no documentation provided to them regarding this hospital admission. In his reply papers, petitioner has supplied the Court with the hospital records for June 2, 2004 which show that petitioner was admitted to the hospital on that day. However, because this issue is not critical to the disposition, the Court will not resolve it for the purposes of this proceeding.

Footnote 6:Chief Flynn issued another departmental order to petitioner on July 9, 2004, which required that he submit written reports by no later than Friday July 23, 2004 at 4 p.m. regarding issues surrounding a federal litigation between the department and other police officers. Petitioner was warned that his failure to obey that order would constitute a violation of the Department's rules and could result in additional disciplinary action. (Verified Petition, Exhibit J). On July 19, 2004, respondents issued another Notice of Discipline, which charged petitioner with various infractions concerning his supervision of another police officer. (Verified Answer, Exhibit Q).

Footnote 7:Unconsolidated Laws § 5711-q (9) provides the procedures a municipality must follow (which include, inter alia, notice of the charges being preferred and a hearing) prior to fining, reprimanding, removing or dismissing a police officer.

Footnote 8:"Certiorari is a proceeding to review a determination made by a public body or officer. Mandamus is a proceeding to compel a public body or officer to act in accordance with law. Prohibition is a proceeding to enjoin a court, tribunal or officer from exceeding its jurisdiction." (Gore v. Corwin, 185 Misc 3d 825, 826).

Footnote 9:The court is not aware of all the differences between a GML § 207-c hearing and an evidentiary hearing on disciplinary charges pursuant to Unconsolidated Laws § 5711-q. It appears that in a GML §207-c hearing, the Village Manager appoints a hearing officer who reviews the evidence and makes a recommendation to the Village Board. The Village Board must then render a decision within 14 days of its receipt of the hearing officer's report. By contrast, a hearing pursuant to Unconsolidated Laws § 5711-q must be heard by the full Board of Trustees and could not be referred to a hearing officer. (Compare Verified Answer, Exhibit P, ¶¶ 24-27 with Verified Answer, Exhibit R, Appendix A).

Footnote 10:Here, Chief Flynn's decision suspending Sgt. Massi may be deemed either a denial of GML § 207-c benefits, or at least an indefinite deferral of the decision concerning GML § 207-c eligibility (presumably until after the trial on petitioner's disciplinary charges).

Footnote 11:If the court had the authority to review Chief Massi's decision suspending petitioner, the petition would be granted and the suspension would be annulled as arbitrary and capricious. It is well settled that "a police force is a quasi-military organization demanding strict discipline." (MacFarlane v. Village of Scotia, 241 AD2d 574, app. dismissed, 95 NY2d 930). However, there must be evidentiary support that Sgt. Massi willfully or intentionally disregarded a lawful order. (Id.). Here, Chief Flynn's orders were in direct contravention of Sgt. Massi's own doctors' orders that he refrain from any employment activities, even if they only entailed light police duty and an interview with Chief Flynn. Furthermore, not only did petitioner's doctors decide that petitioner was unable to perform a light duty assignment and participate in the department interview that had been ordered by Chief Flynn, respondent's doctor was not overly committal when he opined that petitioner "might" benefit from light duty assignment. This was hardly a ringing endorsement, let alone a definitive commitment by respondent's doctor that petitioner was fit for light duty assignment such that his failure to report to his light duty assignment could be viewed as a wilful refusal to abide by a lawfully-issued order. Furthermore, there is evidence to suggest that the Notices of Discipline against petitioner may have been made in retaliation against petitioner because the department believed he was involved in the tape recording of fellow officers, which may be a part of a larger whistle blowing endeavor and which may be the basis of the lawsuit currently pending in federal court. Both under state and federal law, claims may be brought asserting that disciplinary actions were taken against civil service employees in retaliation of their efforts to report violations or other illegalities they viewed to be happening within their departments. (See Civil Service Law 75-B and 42 U.S.C. § 1983; see also Delbene v Alesio, 2001 WL 170801; Kalb v. Wood, 38 FSupp2d 260).

Footnote 12:It is unclear whether the "investigation" refers to the conclusion of the hearing on the disciplinary charges, or to the investigation concerning the alleged unauthorized tape recordings of fellow officers, or to the department's investigation of the validity of petitioner's doctors' diagnoses?

Footnote 13:If there were a basis for a finding of a de facto grant of 207-c benefits to Sgt. Massi, a hearing would have had to have been held prior to Chief Flynn's suspension of Sgt. Massi. (See Crawford v. Sheriff's Department, Putnam County, 152 AD2d 382, app. denied, 76 NY2d 704).

Footnote 14:"[E]ntitlement to benefits under General Municipal Law § 207-c prior to her termination constitutes a property right protected by the constitutional guarantees of due process, which may not be summarily discontinued or suspended without a prior evidentiary hearing, with notice and opportunity afforded to the beneficiary to be heard ...." (Dacey v. County of Dutchess, 121 AD2d 536, 538; citing Pease v. Colliucci, 59 AD2d 233; Matter of Fiorela v. Village of Scarsdale, 96 Misc 2d 406).

Footnote 15:In De Poalo v. County of Schnectady, 200 AD2d 277, the Appellate Division, Second Department, explained "[a]n applicant for benefits under General Municipal Law Sec. 207-c must establish both a disability and a causal connection between the injury or illness and the performance of the applicant's work duties, and that the applicant may be directed to submit to a predetermination examination to resolve uncertainty concerning either element." (Id. at 279).

Footnote 16:The interaction of Civil Service Law 75 and GML § 207-c is explained in Matter of Hodella v. Chief of Police of the Town of Greenburgh, 73 AD2d 967, app. denied, 49 NY2d 708. In that case, petitioner sustained a back injury in the performance of his duties as a police officer and had performed sedentary light work at full salary pursuant to GML § 207-c(3). Respondents asserted that petitioner was frequently absent from work and on April 21, 1978, respondents advised petitioner that "in the event he refused to perform the work assigned to him, his salary would be discontinued." (Matter of Hodella, 73 AD2d at 968). On July 27, 1978, the Chief of Police had advised petitioner that the department had deducted his pay for June 11, 1978 since he was absent from the ordered duty due to a previously reported disability. On appeal, the Court affirmed the lower court's holding that "absent an evidentiary hearing pursuant to section 75 of the Civil Service Law, [respondents] could not legally dock petitioner a day's pay. Although subdivision 3 of section 207-c of the General Municipal Law grants municipalities the right to discontinue the salary of partially injured police officers who refuse to perform assigned light work, this great power may not be exercised summarily where, as here, the officer has received a permanent appointment. Rather, subdivision 3 should be read in conjunction with section 75 of the Civil Service Law and the constitutional guaranties of due process, which require that petitioner, as a permanent civil service appointee, be granted an evidentiary hearing, with notice and an opportunity to be heard, where removal or other disciplinary action is sought ...." (Id.)

Footnote 17:It is clearly the municipality's decision in the first instance on whether or not to award GML § 207-c benefits. However, once an applicant makes out a prima facie case for benefits, it appears that a hearing is required. (See Matter of Schenectady County Sheriff's Benevolent Association v. McEvoy, 124 AD2d 911; see also Maresco v. Rozzi, 162 AD2d 534).

Footnote 18:In Matter of Schenectady County Sheriff's Benevolent Association v. McEvoy, 128 Misc 2d 80, the lower court explained the procedure as follows: "the employee would have the burden of first coming forward with acceptable medical evidence of a workrelated disability before even being considered for section 207-c benefits. If the municipality agrees to the payment of benefits, it may not thereafter discontinue the payment of benefits without a hearing. If the municipality refuses to pay benefits, the employee may request an evidentiary hearing (see, Matter of Hodella v. Chief of Police of the Town of Greenburgh, supra). Upon either the denial of the payment of benefits after a hearing or the refusal of the municipality to conduct a hearing, there may be review under article 78. In the latter case, the issue will be whether the initial proof of disability was sufficient to entitle the employee to a hearing." (Id. at 83).

Footnote 19:The Village of Mamaroneck Police Department Policy and Procedures specifically provide petitioner with the right to a hearing concerning the department's determination concerning his GML § 207-c status. (Verified Answer, Exhibit P at ¶¶ 24-27).

Footnote 20: Indeed, there is a chance that the determination regarding petitioner's eligibility for GML § 207-c benefits will render the disciplinary hearing moot.