[*1]
Matter of Solano v City of Mount Vernon
2007 NY Slip Op 52573(U) [21 Misc 3d 1123(A)]
Decided on May 23, 2007
Supreme Court, Westchester County
DiBella, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through November 25, 2008; it will not be published in the printed Official Reports.


Decided 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