Petitioner, James Richards, commenced this Article 78 proceeding challenging the City of Binghamton's termination of his General Municipal Law § 207-a benefits, refusal to afford him a hearing prior to said termination, as well as its refusal to continue to pay said benefits pending such a hearing. Respondent, the City of Binghamton, opposes the petition in all respects.

Petitioner, James Richards, is a firefighter employed by the City of Binghamton. Petitioner was injured in the course of his duties on January 2, 2002. Petitioner was out of work as a result of said injury from February 24, 2002 through January 2004 when he was ordered back to light duty. Petitioner attempted light duty until May 2004 when he was again removed from work due to his work-related disability. As the result of a prior Article 78 proceeding, the details of which are not pertinent here, petitioner submitted a new application for 207-a benefits which was approved by the City.

By letter dated April 22, 2009, the City ordered petitioner to submit to an independent medical examination. On May 7, 2009, petitioner was examined by Charles Totero, M.D. Dr. Totero issued a report opining that petitioner was capable of light duty work, but should undergo a MRI and Electromyogram and Nerve Conduction Studies ("EMG/NCS") testing. Initially, a copy of Dr. Totero's report was sent to the City, but not petitioner.

On July 23, 2009, Fire Chief Daniel Thomas sent a letter to petitioner's home address, by first class mail and certified mail, return receipt requested, directing him to report for light duty work and advising him that he had ten days to appeal said determination. Chief Thomas' letter dated July 23, 2009 warrants a verbatim recitation:

The City of Binghamton is in receipt of a medical report from Dr. Charles Totero dated May 7, 2009, indicating that you can return to work light duty, at a position of an administrative nature on a full time basis, with the following medical restrictions: no lifting, pushing or pulling of weight greater than 20 pounds, no climbing and the ability to sit and stand as your condition requires.

Based upon this medical report, you are hereby ordered to report for light duty on Wednesday, July 29, 2009 at 9:00 a.m. Please report to the Sullivan Training Center for your assignment.

In addition to the above, as indicated in the report of Dr. Totero, an updated MRI with gadolinium is needed as well as Electromyogram and Nerve Conduction Studies. You are hereby ordered to obtain the MRI and studies within 30 days of the date of this letter.

Failure to comply with the above orders may result in the termination of your General Municipal Law Section 207-a benefits. [*2]

You have the right to appeal these orders by submitting a written request for an appeal, within ten (10) days of the mailing of this order, to the Commissioner of Public Safety, Mayor Matthew Ryan. You must enclose medical documentation with your notice of appeal stating that you are not able to return to light duty with the above restrictions.

(Petition, Exhibit K).

Chief Thomas' letter was addressed to and delivered to petitioner's home address, but petitioner was on vacation at the time of its delivery.

On August 5, 2009, corporation counsel sent a letter directly to petitioner stating, in its entirety, that "[y]ou have failed to report for duty and have not appealed the order of July 23, 2009. As a result, your GML 207-a benefits are hereby terminated effective August 15, 2009" (Petition, Exhibit L).

It was on or about August 5, 2009 when petitioner returned from vacation and received Chief Thomas' (ten day) letter dated July 23, 2009. Petitioner received the letter that had been sent via regular mail, but the certified mail version had been returned to the City by the postal office as unclaimed. In any event, the deadlines contained in the ten day letter had already passed upon petitioner's receipt thereof, namely the return to work date (July 29, 2009) and ten day deadline to request an appeal (August 2, 2009). Thereafter, there were some communications between petitioner, his counsel, Chief Thomas, and/or corporation counsel, which will be addressed below.

On August 12, 2009, petitioner's counsel sent a letter to corporation counsel stating, in part, "[p]lease be advised that if it remains your intent to deny ongoing benefits pursuant to General Municipal Law § 207-a, we are hereby demanding a hearing to address the obvious due process flaws to date in this process" (Petition, Exhibit O). Additionally, petitioner's counsel objected to the fact that the City did not send either Chief Thomas' letter dated July 29, 2009 or corporation counsel's letter dated August 5, 2009 to counsel.

On August 19, 2009, petitioner spoke to Chief Thomas to explain that his deadlines had passed while he was on vacation and he needed additional time to consult with his own physician, Dr. Seybold, to confirm he was physically able to return to light duty. Petitioner claims that Chief Thomas gave him five days to consult with his physician, while Chief Thomas indicates he gave petitioner until August 24, 2009 (Thomas Affidavit, ¶10). In any event, petitioner encountered difficulties in obtaining the City's consent in obtaining the MRI and EMG/NCS tests requested by Dr. Totero. Dr. Seybold also indicated that he would not release petitioner to work without an MRI. On August 25, 2009, petitioner reported his efforts to Chief Thomas and explained his inability to secure authorization for the MRI. Throughout this time period, petitioner avers that he stated his willingness to return to work once he obtained his physician's approval. [*3]

On August 26, 2009, Chief Thomas sent another letter to petitioner's home address - not his counsel - stating in its entirety:

[a]s a follow-up to our telephone conversation on Tuesday, August 25, 2009, you had been ordered back to work in a light duty capacity and were provided with a copy of the IME report. You were given ten days to produce contrary medical which was never provided. Your benefits will be terminated as of August 24, 2009. Any testing that you obtain should be put through your insurance.

(Petition, Exhibit P).

On November 9, 2009, petitioner commenced this proceeding upon the filing of a Notice of Petition and Petition. Respondent interposed an answer on December 7, 2009.

Ultimately, on December 9, 2009, Dr. Seybold examined petitioner and found he was "[u]nable to work in any capacity until after the requested MRI and EMG tests are performed. Until such time, it is my opinion that he is 100% temporarily totally disabled" (Seybold Affidavit, ¶ 7).

The court heard oral argument of counsel on January 15, 2010.

The right of a disabled firefighter to receive GML § 207-a benefits constitutes "[a] property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated [citations omitted]" (Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, 691 [2000]). Quite simply, this means that once a disabled firefighter begins receiving 207-a benefits, those benefits cannot be terminated without a hearing (Meehan v County of Tompkins, 219 AD2d 774 [3rd Dept 1995]; Matter of Schenectady County Sheriff's Benevolent Assn. v McEvoy, 124 AD2d 911 [3rd Dept 1986]). The municipality may discontinue benefits if the firefighter "shall refuse to perform such light duty", but if the fire-fighter produces contrary medical he is entitled to a continuation of benefits pending a hearing (Matter of Park v Kapica, 8 NY3d 302, 312 [2007]). Additionally, a municipality is entitled to adopt reasonable rules governing the claims for GML § 207-a benefits (Elliott v City of Binghamton, 94 AD2d 887 [3rd Dept 1983], affd 61 NY2d 920 [1984]).

Petitioner contends that the City's refusal to afford him a hearing prior to the termination of his GML § 207-a benefits, as well as its refusal to continue to pay said benefits pending such a hearing, was a violation of the parties' CBA.

The City argues that petitioner was not entitled to a hearing prior to the termination of his GML § 207-a benefits. More specifically, City argues that petitioner never returned to work, never disagreed with the return to light duty order, never produced contrary medical records, and never requested a hearing on the issue of timeliness (as opposed to due process violations). [*4]

The court's analysis will start with a review of the parties' Collective Bargaining Agreement. In November 2007, Binghamton Firefighters Local 729 and the City entered into a Collective Bargaining Agreement which, among other things, outlines the procedures applicable for the initial determination and subsequent determinations of benefits under General Municipal Law § 207-a. Disputes involving initial determinations are submitted to final and binding arbitration through AAA. However, disputes involving subsequent determinations "[w]ill be resolved in accordance with the current City procedure using an impartial hearing officer appointed by or on behalf of the Mayor, with disputes and disagreements related to the hearing officer's determination on such matters resolved in accordance with Article 78 of the CPLR" (Petition, Exhibit A, p 21; emphasis added).

The court will first address the CBA reference to "the current City procedure" which is not defined within the CBA itself. Petitioner avers that it was his understanding that "the current City procedure" was a reference to the standard procedure under the General Municipal Law (Faughnan Reply Affidavit, ¶ 6 [a]). However, recently in an unrelated case before this court, the City defined the "the current City procedure" as referencing either the Fire Department's Department Standard Administration Procedures (hereinafter "Procedures"), effective prior to February 22, 2008, or the Fire Department's Standard Administration Guidelines (hereinafter "Guidelines"), effective February 22, 2008.^[FN1] Then, in this proceeding, the City cites to yet another option, namely the Firefighter's and Police Officer's Disability Procedure (hereinafter "FPODP").

Petitioner argues that there are questions of fact regarding what the current City procedure would be given the apparent inconsistencies by the City in relying upon different so-called procedures, namely the Procedures, Guidelines, or the FPODP. However, since the CBA was executed in November 2007, the Guidelines (effective February 2008) can not be the "current City procedure" incorporated thereunder. The court finds that the City's actions were invalid whether the Procedures or FPODP were deemed applicable for the reasons set forth below.

Assuming the applicability of the Procedures, the court finds no provision within the Procedures which sets forth a "10 day from mailing" time limit as imposed by the City in this case (Faughnan Reply Affidavit, Exhibit D). Thus, to the extent that the Procedures were to be deemed the current City procedure under the CBA, the court finds that the City improperly imposed a ten day limit on petitioner.

If the court assumes the applicability of the FPODP as the current City procedure under the CBA, the court finds the City failed to comply with various provisions of the FPODP.

First, FPODP section 301, addressing modified duty assignments states that "[t]he Commissioner shall order the individual to report for such available modified duty on a date [*5]certain by mailing said notice to the individual at the address provided in the application" (O'Hara Affidavit, Exhibit A; emphasis added). Here, the address provided on petitioner's 207 application was "Eugene D. Faughnan, Esq., Hinman, Howard & Kattell, LLP." As such, the City's mailing of Chief Thomas' July 23, 2009 letter - and all subsequent letters - to petitioner's home address, not counsel's address, was a violation of the FPODP.

Second, FPODP section 301 also requires that the modified duty assignment determinations should be issued by "the Commissioner" which in this case is Mayor Ryan.^[FN2] There is no proof that Chief Thomas was ever designated as the Mayor's agent. As such, Chief Thomas' July 23, 2009 return to work order letter was not issued by the Commissioner and thus was a violation of the FPODP.

Third, FPODP section 302, sets forth a "10 days from mailing" deadline within which to challenge subsequent determinations stating: "[i]f the individual disagrees with the determination of the Commissioner with respect to the modified duty assignment, the individual shall serve upon the Commissioner, within ten (10) days of the mailing of the order, a demand for a hearing" (O'Hara Affidavit, Exhibit A). In and of itself, Chief Thomas' July 23, 2009 letter directing petitioner to return to work six days later on July 29, 2009 was a violation of the FPODP. Moreover, petitioner argues that the calculation of the ten day period from mailing, rather than from receipt, is a violation of his due process rights. The court agrees. Due process is afforded an individual by providing notice and opportunity. Here, by calculating such a short deadline from the date of mailing, rather than receipt, the City failed to provide petitioner with due process regarding this determination.

Fourth, also with respect to the quoted FPODP section 302 set forth above, there is no requirement that the demand for a hearing be accompanied by contrary medical evidence. Even if there were, the court finds the City's position on this subject to be disingenuous since the City refused to authorize petitioner's efforts to obtain an MRI.^[FN3]

Fifth, the court acknowledges that FPODP section 303 provides that the City may discontinue payments pending a hearing by stating: "[i]f an individual receiving 207 benefits refuses or fails to appear for available modified duty assignment, in contravention of the Commissioner's orders, payment of the full amount of his regular salary or wages shall be discontinued as of the date specified in said order for the individual to return to work" (O'Hara [*6]Affidavit, Exhibit A). However, to the extent that FPODP section 303 divests firefighters of their rights to benefits pending a hearing it is contrary to established case law (Matter of Giorgio v Bucci, 246 AD2d 711 [3rd Dept 1998], lv denied 91 NY2d 814 [1998]).^[FN4] The City argues it was within its rights to terminate the benefits prior to a hearing under authority of Raymond v Walsh, 63 AD3d 1715 [4th Dept 2009], rearg denied 66 AD3d 1503 [4th Dept 2009]). Petitioner distinguishes Raymond because the CBA here does not expressly incorporate the FPODP provisions regarding a purported waiver of a hearing.^[FN5] The court agrees that the CBA here, under any scenario, does not contain such an express waiver. Consequently, the court finds that Raymond is distinguishable from the facts of this case and that FPODP section 303 can not effect a waiver of the right to a hearing in the absence of an express waiver contained in the parties' CBA. As such, the court finds FPODP section 303 unenforceable.

In view of the foregoing, under either the Procedures or the FPODP, the court finds that Chief Thomas' letter dated July 23, 2009 is invalid and cannot provide the basis for any termination of petitioner's GML § 207-a benefits.

In view of the foregoing, the court finds that Chief Thomas' letter dated July 23, 2009 is invalid; the City's termination of petitioner's GML § 207-a benefits should be annulled; that petitioner is entitled to a termination hearing on issues including, but not limited to, petitioner's fitness for modified duty; and pending such a hearing, petitioner is entitled to the payment of his full salary and benefits from August 24, 2009 and forward pursuant to GML § 207-a.

This constitutes the order and judgment of the court.

Dated:February 4, 2010

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court