Matter of Solano v City of Mount Vernon
Annotate this CaseDecided on May 23, 2007
Supreme Court, Westchester County
In the Matter of the Application of Dennis M. Solano, Jr., petitioner.
against
City of Mount Vernon and City of Mount Vernon Fire Dept., respondents.
4460-07
Bartlett, McDonough, Bastone & Monaghan, LLP
Coughlin & Gerhart, LLP
Robert DiBella, J.
In this Article 78 proceeding, petitioner seeks an Order granting him
post-retirement benefits under General Municipal Law § 207a-(2) and enjoining
respondents from requiring him to participate in administrative hearings to acquire such benefits.
The respondents oppose the petition. The petition is denied and the proceeding is dismissed.
In 1988, petitioner began working for the City of Mount Vernon as a firefighter. On
August 16. 2002, he was apparently injured at work while he and two coworkers were lifting a
woman in a wheelchair up a flight of stairs. As a result of the injury, petitioner was placed on
leave and began receiving benefits under GML § 207a-(1).
In 2004, Fire Commissioner Nicholas Cicchetti had Dr. Michael Panio examine
petitioner for the purpose of reviewing petitioner's eligibility to continue receiving GML §
207a-(1) benefits. In a report dated March 24, 2004, Dr. Panio stated that his examination
revealed "multiple inconsistencies" and that there was nothing indicating that petitioner was
suffering from the lower-back injury diagnosed in 2002. He recommended that petitioner get a
new MRI and consult with a neurosurgeon to ensure that petitioner did not have a correctable
condition. Accordingly, Commissioner Cicchetti directed petitioner to undergo another MRI and
began the process of obtaining petitioner's medical records in order to further review petitioner's
disability status.
Approximately three weeks later, on April 14, 2004, petitioner applied to the New
York State Retirement System for Performance of Duty Disability Retirement. See New
York Retirement and Social Security Law § 363-c. Such application was approved on
December 27, 2005.
[*2]
Shortly thereafter, petitioner filed an Application
for GML § 207a-(2) benefits. On August 31, 2006, while the application was
pending, Dr. Warren Silverman examined petitioner. Dr. Silverman found no objective
evidence of an ongoing disability related to petitioner's 2002 injury and concluded that petitioner
was capable of performing his duties as a firefighter.
In November 2006, respondents denied petitioner's application for GML §
207a-(2) benefits. Petitioner appealed the denial and requested a hearing. A hearing was
scheduled for April 24, 2007. [FN1]
FN1. The record before this court contains no evidence about the status of the
appeals hearing.
Petitioner commenced this proceeding on March 16,
2007. He claims that after the New York State Retirement System awarded him a performance of
duty disability retirement pursuant to Section 363-c of the New York Retirement and Social
Security Law, respondents lacked the statutory authority to reassess his disability or the issue of
whether his current injuries were the product of a job related injury. Thus, he asserts that the
respondents acted illegally in denying his application for GML § 207a-(2) benefits.
Respondents move to dismiss the instant proceeding on the grounds that: (1)
petitioner failed to exhaust his administrative remedies; and (2) the proceeding was not timely
commenced. They also oppose the petition on the merits.
CPLR 7801(1) provides that an Article 78 proceeding may not be brought "to
challenge a determination which is not final or can be adequately reviewed by appeal ... to some
other body or officer." Consequently, an agency determination must be final and a petitioner
must exhaust all administrative remedies prior to seeking Article 78 relief. See Watergate II
Apts. v. Buffalo Sewer Auth., 46 NY2d 52, 57 (1978); Sabatini v. Village of
Kensington, 284 AD2d 320 (2d Dept. 2001).
Petitioner has appealed respondents' determination denying him GML §
207a-(2) benefits. He commenced this proceeding while his administrative appeal was pending
and has not established the futility of participating in the appeals hearing process. See
Watergate 11 Apts. v. Buffalo Sewer Auth., supra; Segalla v Town of Amenia,
309 AD2d 997 (2d Dept. 2003); See generally McGowan v. Fairview Fire District, 14 Misc 3d 270 (Sup. Ct West.
Co. 2006) (prior to commencing Article 78 proceeding petitioner raised an objection at his
administrative hearing and the hearing officer rendered a decision as to the authority of a
municipality to review his medical status). Accordingly, petitioner failed to exhaust his
administrative remedies and his claims are not properly before this court. See Hoffman v.
City of Yonkers, 231 AD2d 520 (2d Dept.1996); D'Onofrio v. City of Mount
Vernon, 226 AD2d 719 (2d Dept 1996) Lefford v. City of Jamestown, 244 AD2d
895 (4th Dept.1997).
Even assuming the futility of requiring petitioner to exhaust his administrative
remedies, his claims [*3]are deficient on the merits. The fact that
petitioner was awarded an accident disability retirement pursuant to Retirement and Social
Security Law § 363 does not automatically entitle him to disability differential payments
pursuant to GML § 207-a(2). See Matter of Cook v. City of Utica, 88 NY2d 833
(1995); D'Onofrio v. City of Mount Vernon, supra. The Retirement and Social Security
Law and the General Municipal Law are separate and distinct statutes with different eligibility
requirements. See Sutka v. Conners, 73 NY2d 395 (1989). Hence, respondents are
entitled to make an independent determination as to whether petitioner is entitled to benefits
tinder GML § 207-a(2). See In the Matter of Dearmon, 237 AD2d 603 (2d Dept.
1997); Brzostek v. City of Syracuse, 238 AD2d 947 (4th Dept. 1997). The mere fact that
respondents made certain findings when deciding to award GML § 207-a(1) benefits does
not preclude them from reassessing those findings in making their independent GML §
207-a(2) determination. See Viscomi v.
Village of Herkimer, 23 AD3d 1049 (4th Dept. 2005) (rejecting a collateral estoppel
claim based on the separate requirements for each of the two subdivisions).
Moreover, Dr Silverman examined petitioner as part of respondents' ongoing review
of petitioner's entitlement to GML § 207-a(1) benefits. Hence, petitioner's reliance on McGowan v Fairview Fire District, 14
Misc 3d 270 (Sup. Ct. West. Co. 2006) is misplaced. [FN2] Respondents had the statutory
right, if not obligation, to review petitioner's entitlement to GML § 207-a(1) benefits. After
petitioner was granted accident disability retirement pursuant to Retirement and Social Security
Law § 363, respondents had the right to make an independent determination about
petitioner's eligibility for GML § 207-a(2) benefits. See Matter of Cook v. City of
Utica, supra; In the Matter of Dearmon. supra. Hence, petitioner's claim that the
respondents are legally barred from relying on Dr. Silverman's examination to deny him GML
§ 207-a(2) benefits has no merit. The court further rejects petitioner's claim that a
municipality is limited in the scope of its review in determinating whether to award GML §
207a-(2) benefits.
FN2. In that case, the municipal respondent awarded the petitioner GML § 207-a(2)
benefits after finding that he was permanently disabled as the result of an injury sustained in the
line of duty. The municipality then attempted to revisit that determination. The court held that the
interests of finality and the clear language of GML § 207-a(2) barred the municipality from
reconsidering the petitioner's condition after it had already decided to award GML §
207-a(2) benefits. Here, petitioner is challenging respondents' initial GML § 207-a(2)
determination, not a later decision to rescind previously granted GML § 207-a(2) benefits.
In light of the above, this court need not reach the respondents' contention that the
instant action was not timely filed.
This constitutes the Decision and Order of the court.
The following papers were considered:
1) Notice of Petition dated March 15, 2007; Petition dated March 15. 2007 and
annexed Exhibits "A" through "H";
[*4]
2) Respondents' Answer dated April 9, 2007;
3) Respondents' Memorandum of Law dated April 9, 2007;
4) Affidavit of Mary Louise Conrow dated April 9, 2007 with annexed Exhibits "A"
through "N";
5) Affidavit of Nicholas Cicchetti dated April 7, 2007;
6) Petitioner's Reply Affirmation dated April 12, 2007 with annexed Exhibit "A";
7) Letter of Mary Louise Conrow dated April 20, 2007; and
8) Letter of John Leifert dated April 20, 2007.
Dated: White Plains, New York
May 23, 2007
HON. ROBERT DIBELLA, A.J.S.C.
To: Bartlett, McDonough, Bastone & Monaghan L.L.P.
Attorneys for Petitioner
81 Main Street, Suite 401
White Plains, New York 10601-1711
Coughlin & Gerhart L.L.P.
Attorneys for Respondents
20 Hawley Street
P.O. Box 2039
Binghamton, NY 13902-2039
NCAS
Solano v. The City of Mount Vernon
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