Zervos v City of Binghamton

[*1] Zervos v City of Binghamton 2010 NY Slip Op 50661(U) [27 Misc 3d 1209(A)] Decided on April 13, 2010 Supreme Court, Broome County Lebous, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2010
Supreme Court, Broome County

Spero Zervos, Petitioner,

against

City of Binghamton, Respondent.



2009-2154



APPEARANCES:

COUNSEL FOR PETITIONER:

HINMAN, HOWARD & KATTELL, LLP

BY:PAUL T. SHEPPARD, ESQ., OF COUNSEL

700 SECURITY MUTUAL BUILDING

BINGHAMTON, NY 13901

COUNSEL FOR RESPONDENT:

KENNETH J. FRANK, ESQ.

CORPORATION COUNSEL

CITY HALL, 38 HAWLEY STREET

BINGHAMTON, NY 13901

Ferris D. Lebous, J.

Petitioner, Spero Zervos, moves for an order granting permission to reargue and/or renew his petition previously made and dismissed by this court in a Decision dated December 8, 2009 and, upon such reargument and/or renewal, granting the relief set forth in the petition reversing respondent's termination of his General Municipal Law § 207-a benefits and retroactively restoring said benefits.

BACKGROUND

The sequence of events is not disputed and a brief recitation of the pertinent facts will be helpful in placing this discussion into context. On February 26, 2007, petitioner was injured in the course of his duties as a firefighter for the respondent City of Binghamton (hereinafter "the City"). On March 12, 2007, the City granted petitioner's initial application for GML § 207-a benefits. On March 25, 2008, unbeknownst to petitioner, his physician, Thomas R. Van Gorder, informed the workers compensation carrier that petitioner was totally disabled through January 30, 2008. On May 9, 2008, based upon this information, the City directed petitioner to report for light duty on May 12, 2008. On June 18, 2008, the City approved petitioner for GML § 207-a benefits from March 26, 2007 through December 31, 2007. On July 8, 2008, the City issued an amended award approving petitioner for GML § 207-a benefits from March 14, 2007 through December 31, 2007.

On July 14, 2008, the City further approved petitioner for GML § 207-a benefits from January 1, 2008 but ending January 30, 2008. On September 5, 2008, petitioner requested a hearing with respect to the City's July 14, 2008 determination.[FN1] All parties agree that petitioner's GML § 207-a benefits resumed as of September 16, 2008.

In February 2009, a hearing was held with both parties represented by counsel before Hearing Officer Olmstead. On April 22, 2009, Hearing Officer Olmstead issued a decision concluding that the January 30, 2008 termination date for petitioner's GML § 207-a benefits was proper.

Petitioner commenced an Article 78 proceeding challenging the City's letter determination dated July 14, 2008 which terminated his GML § 207-a benefits after January 30, 2008. On December 8, 2009, this court issued a Decision upholding Hearing Officer Olmstead's decision and dismissing the petition.

By way of this motion, petitioner seeks to reargue and/or renew his petition and, upon [*2]such reargument and/or renewal, granting the relief set forth in the petition reversing the City's termination of his GML § 207-a benefits and retroactively restoring said benefits.

DISCUSSION

It is well-settled that success on a motion to reargue requires a demonstration that in arriving at its earlier decision, the court either overlooked or misapprehended the facts or the law or, somehow mistakenly arrived at its conclusion (CPLR § 2221[d][2]). By comparison, "[a] motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted [citations omitted]" (Wahl v Grippen, 305 AD2d 707, 707 [3rd Dept 2003]; JPMorgan Chase Bank, N.A. v Malarkey, 65 AD3d 718, 719-720 [3rd Dept 2009]; CPLR § 2221[e]).

In the first instance, petitioner argues that the court misapprehended and/or misapplied the distinction between the "pre-determination hearing" as compared to a "pre-termination hearing". The court finds that reargument is warranted and will address the merits of the petition again.

It is agreed that petitioner was not entitled to a pre-determination hearing. The determination that a person is not entitled to GML § 207-a benefits is the triggering event for the right to a pre-termination hearing. However, petitioner argues that the City may not use its July 14, 2008 determination letter to retroactively terminate benefits, prospectively discontinue benefits, or suspend in any manner benefits that are being received.

Petitioner argues that although the City had a right to determine that petitioner was able to return to light duty, it was not permitted to retroactively terminate benefits he was already receiving without holding a pre-termination hearing. As such, petitioner argues that the City's determination letter of July 14, 2008 improperly terminated benefits retroactively to January 30, 2008 (because it was done prior to the holding of the pre-termination hearing ultimately held in February 2009). The court agrees that although the City had the right to issue a determination that petitioner was able to return to light duty, it did not have the right to retroactively (going back to January 30, 2008 through July 14, 2008) or prospectively (from July 14, 2008 forward through September 16, 2008) terminate his benefits prior to holding a pre-termination hearing.

Consequently, the court finds that the City's determination letter of July 14, 2008 was improper. Quite simply, in its zeal to save the taxpayers money, the City skipped a step by terminating petitioner's GML §207-a benefits before affording petitioner his due process rights by conducting his pre-termination hearing. For this reason alone, the court finds that petitioner is entitled to complete relief, namely recovery of his full salary and benefits from January 30, 2008 through September 16, 2008 and that his petition should have been granted in the first instance.

Additionally, the court finds that it misapprehended the application of Matter of Raymond v Walsh, 63 AD3d 1715 [4th Dept 2009] to the case at bar. In Raymond, the Fourth Department found the express terms of the CBA at issue waived the union member's right to a hearing prior [*3]to the termination of GML § 207-c benefits. Here, the court agrees that the CBA does not contain such an express statement waiving benefits pending a hearing. Stated another way, the court finds that the Union here never waived the due process right of its members regarding the continuation of benefits pending a hearing as did the Union in Raymond and, as such, Raymond is not controlling here.

Parenthetically, the court rejects petitioner's arguments that the grounds for the City's determination of July 14, 2008 differed from the grounds underlying the Hearing Officer's Decision. The court certainly agrees that due process involves two components, notice and an opportunity to be heard. The City's determination letter dated July 14, 2008 stated that "[a]s of January 30, 2008, [petitioner] was released for light duty, but failed to forward this information to the City of Binghamton (emphasis added)." In this court's view, this correspondence put petitioner on notice that two separate issues were involved, namely the "light duty" issue and that he "failed to forward this information" (which has also been referred to herein as the "paperwork" issue and/or failure to comply with the Physician Report requirements of the Guidelines). Thus, in and of itself, the court finds that the City's determination letter dated July 14, 2008 provided petitioner with sufficient notice satisfying due process requirements because it contained references to the separate issues of light duty and his failure to forward information to the City. Moreover, the court notes that these issues (both light duty and failure to forward information) had both been the basis of discussions between the parties throughout the summer of 2008 until the date of the hearing in February 2009. For instance, petitioner's counsel's letter to the City dated October 2, 2008 references the allegation that petitioner "failed to advise the City that he had been released to light duty" (emphasis added). In sum, the court finds that petitioner's hearing was not beyond the scope of the City's determination letter dated July 14, 2008 which provided notice to petitioner of the same.

Finally, to the extent petitioner also sought permission to renew, such motion is granted as well. Quite frankly, the City has not adequately explained to this court's satisfaction how the so-called Guidelines co-exist with the "Firefighter's and Police Officer's Disability Policy (FPODFP)" produced in another unrelated case.[FN2] Neither the court nor petitioner should be left wondering which procedure, if any, governs the matter at hand.

CONCLUSION

Accordingly, it hereby is ORDERED and ADJUDGED that petitioner's motion for an order granting permission to reargue and renew his petition previously made and dismissed by this court in a Decision dated December 8, 2009 is GRANTED and, upon such reargument and renewal, the relief set forth in the petition reversing respondent's termination of his GML § 207-a benefits and retroactively restoring said benefits is GRANTED.

This constitutes the decision, order and judgment of the court. [*4]

Dated: April 13, 2010

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1:Petitioner's request for a hearing was contained in a letter from Eugene D. Faughnan, Esq. dated September 5, 2008 and stated, in part: "[i]t is not entirely clear that the Decision of 07/14/08 denies benefits on and after January of 2008, but to the extent that it does, we are hereby appealing that Decision and request that a hearing be scheduled."

Footnote 2:James Richards vs. City of Binghamton, Index No. 2009-2927; RJI No. 2009-1503-M.