Petitioner's C.P.L.R. Article 78 petition alleging that Rule 7.3.4 of the New York City Health and Hospitals Corporation's (HHC) Rules and Regulations violates New York City Civil Service Law § 71 and, therefore, violates New York State Unconsolidated Law Chapter 214-A, § 9(1); that the Personnel Review Board's (PRB) failure to afford petitioner a hearing violated New York Civil Service Law Section 71; and declaring the actions of both respondents arbitrary and capricious, is denied and the petition is dismissed.

Petitioner was afforded a leave of absence for at least one year, pursuant to HHC Personnel Rule 7.3.4, following a work-related injury sustained on October 10, 2006. Petitioner was subsequently terminated on September 25, 2008 and filed a notice of appeal to the PRB on February 18, 2011. In her appeal, petitioner submitted two medical reports. The first indicated that petitioner was restricted from pushing or pulling more than twenty pounds and from bending. The second report contradicted the first by stating that petitioner was fit to return to work without any limitations. The PRB instructed petitioner to undergo a medical examination by Benjamin Nachamie, who found that petitioner was [*2]"not capable of returning to all the duties of her job as a nurses' aide." Exhibit I. Upon reviewing all of the medical reports, the PRB adopted Dr. Nachamie's findings and issued a decision on September 29, 2011 denying petitioner's appeal for reinstatement.

On October 13, 2011, petitioner submitted a letter to the PRB requesting a full hearing to contest Dr. Nachamie's findings. Petitioner argued in her letter that HHC Rule 7.3.4 violated Civil Service Law § 71 because it did not guarantee petitioner the right to a hearing. On October 19, 2011, petitioner submitted an addendum to the letter stating that she had mistakenly cited the existence of a statutory right to a hearing from the Summary of New York State Civil Service Laws issued by the New York State Department of Civil Service. Petitioner nonetheless maintained that the PRB decision was in violation of Civil Service Law § 71 based on the fact that it denied petitioner the opportunity to a hearing to challenge medical findings.

The PRB issued a response on February 13, 2012 denying petitioner's request and finding that HHC Rule 7.3.4 did not contradict Civil Service Law § 71, since the latter does not provide an explicit guarantee to a hearing. Petitioner claims, without further explanation, that she did not receive the PRB response until after commencing this Article 78 proceeding.

Petitioner alleges four claims against respondents. First, that HHC Rule 7.3.4 is inconsistent with New York Civil Service Law § 71 and is, therefore, in violation of NY State Unconsolidated Law Ch. 214-A, §9. Second, that PRB's failure to afford petitioner a full hearing to contest the findings of the PRB appointed physician is in violation of Civil Service Law § 71. Third, that HHC's failure to promulgate rules and regulations to administer its personnel consistent with New York Civil Service Law is arbitrary and capricious and contrary to law. Fourth, that PRB's failure to afford petitioner a full hearing to contest the findings of its appointed physician is arbitrary and capricious and contrary to law.

Respondents filed a cross-motion to dismiss in which they argue that petitioner's claims fail as a matter of law, since Civil Service Law § 71 does not explicitly mandate the right to a hearing. Respondents maintain that HHC's rules and regulations are in accordance with the Civil Service Law, as required by HHC's charter, even though HHC is not itself subject to the Civil Service Law. Respondents, therefore, argue that the PRB hearing constitutes sufficient process for the purposes of Civil Service Law § 71 and that the PRB is allowed to rely upon its own medical examiner in cases of conflicting medical reports. Respondents argue further that petitioner's request effectively asks the PRB to promulgate a new rule, which is beyond the scope of its authority. Finally, respondents claim that the PRB decision was not arbitrary and capricious but was, instead, rational, since it was based upon reading all of petitioner's medical reports, the majority of which indicated that she was not fit to return to work.

Regarding petitioner's first claim, NY State Unconsolidated Law Ch. 214-A, §9 [*3]mandates that HHC "promulgate rules and regulations consistent with civil service law." Civil Service Law § 71 provides a minimum of one-year's leave of absence to state employees who suffer work-related injuries. Similarly, HHC Rule 7.3.4 provides that a permanent employee who has been separated from service due to a work-related disability is entitled to a leave of absence for at least one year and may be reinstated upon an appeal to the PRB as long as the PRB medical officer certifies that such person is fit to return to work. Neither Civil Service Law § 71 nor HHC Rule 7.3.4 explicitly afford an employee the right to a hearing. Rule 7.3.4 is, therefore, facially compliant with Civil Service Law § 71.

While Civil Service Law § 71 is silent as to whether a terminated employee is entitled to a full post-termination hearing, petitioner argues that courts have nonetheless favored reading the Civil Service Law to afford terminated employees greater rights based upon legislative intent. In support of this proposition, petitioner relies upon several cases. Petitioner first refers to Matter of House v. New York State Office of Mental Health, 262 AD2d 929 (3rd Dep't 1999), where the court determined that a petitioner who was terminated pursuant to Civil Service Law § 71 after sustaining a work-related injury was entitled to an administrative hearing. The court reasoned that the petitioner did not receive adequate notice of her right to an administrative appeal and was, therefore, deprived of her right to such process. Id. However, the petitioner in the present case was notified of her right to an administrative appeal and exercised such right. Petitioner submitted documents to the PRB and challenged their decision. The fact that the PRB refused to grant petitioner's request for an adversarial proceeding and that petitioner claims she did not receive the PRB decision regarding her request until now, is not proof of insufficient process. Indeed, petitioner's appeal for an adversarial proceeding is proof that she did receive sufficient notice and process. Petitioner's reliance on Matter of House is, therefore, misplaced.

Petitioner next refers to Matter of Cooperman v. Commissioner, Department of Correctional Services, 86 Misc 2d 610 (Sup. Ct. Albany County 1976), where the court found that a petitioner who was judged unfit for duty pursuant to 4 NYCRR § 21.3 (e) was not afforded sufficient due process prior to her termination. The court reasoned that respondent's application of 4 NYCRR § 21.3 (e) contradicted petitioner's right to an administrative hearing as explicitly mandated by Civil Service Law § 75. Id.In contrast, the case at bar involves an employee who was terminated pursuant to Civil Service Law § 71 which, by petitioner's own admission, does not explicitly mandate a post-termination hearing. The decision in Matter of Cooperman is, therefore, inapplicable to the present case since the wording of the two sections is not comparable.

Petitioner also relies upon Sheeran v. New York State Dep't of Transp., 18 NY3d 61 (2011) to show that courts have inferred legislative intent to provide a hearing where it would otherwise be unfair to deny such hearing. The court in Matter of Sheeran was presented with the question of whether the explicit right to a hearing for employees terminated under Civil Service Law § 72 after involuntary sick leave extended to employees terminated following voluntary sick leave and a determination that they were not fit to return to work. Id. The court reasoned that the latter were entitled to the same [*4]protections as the former because "read[ing] the statute otherwise would discourage employees from taking voluntary leave, since they would have greater rights if they remained on the job and waited to be involuntarily removed- a result the Legislature surely did not intend." Id. at 65-66. The court, therefore, applied the same statutory protections to employees terminated following non-work related voluntary leave as it did those terminated following involuntary sick leave. Id.

However, the case at bar does not involve a double standard resulting from the unequal application of an explicit statutory protection. Rather, petitioner asserts that the statutory silence of Civil Service Law § 71 should be read to create a right to a post-termination adversarial hearing for all employees terminated after one year of sustaining work-related injuries. Petitioner bases this assertion on an observation from the court in Matter of Duncan v. New York State Dev. Ctr., 63 NY2d. 128, 135 (1984) stating that "it appears that section 71 has provisions more beneficial to the employee." However, the court's statement was a mere observation that did not address the issue of whether someone is or is not entitled to a hearing. The court's statement in Matter of Duncan is, therefore, of little value in assessing the case at bar.

Petitioner also refers to Matter of Gaines v. New York State Div. for Youth, 213 AD2d 894 (3rd Dep't 1995) to substantiate her claim that statutory silence about a right to a hearing should be read as mandating such a hearing. The court in Matter of Gaines found that a petitioner terminated pursuant to Civil Service Law § 73 was entitled to a hearing where the examining physician sent contradictory letters to the petitioner and respondent, thereby depriving petitioner of fair notice. The court also found that respondent's letter of termination failed to detail or specify the reasons for termination, which further solidified the need for a hearing. Id. While Civil Service Law § 71 and § 73 contain similar language, petitioner does not contest the issue of notification nor does petitioner present evidence that she received medical documents different than those presented to the PRB. Accordingly, the precedent set in Matter of Gaines does not apply to the facts of the case at bar.

Petitioner also claims that even if an adversarial hearing is not required, it should nonetheless be afforded based upon the ruling in Matter of Stearns v. Gilchrist, 84 Misc 2d 519 (Sup. Ct. Orange County 1976) where the court granted such right to a provisional employee even when not required by statute. The court in Matter of Stearns reasoned that "the absence of a statutory right to an adversary hearing is not considered relevant in those circumstances when the reason given for dismissal is such that it might damage an employee's reputation in the community or impose upon him a stigma or other disability that would restrict his ability to obtain other employment." Id. However, petitioner has failed to allege or detail how the reason given for her dismissal will unfairly stigmatize or prejudice her ability to find other employment. This Court, therefore, finds no reason to apply the exception detailed in Matter of Stearns to the present case.

Having determined that Civil Service Law § 71 does not mandate a post-termination [*5]adversarial hearing, that there is no need to infer such a right, and that an exception should not be made in the case at bar, this Court must next examine whether petitioner has presented reason to believe that the PRB decision is nonetheless arbitrary and capricious. Petitioner alleges that the PRB decision was arbitrary and capricious due to the fact that the PRB allegedly failed to consider all of the medical reports, allegedly violated petitioner's right to an adversarial hearing, and because petitioner did not receive the PRB reply until this Article 78 proceeding. However, the original PRB decision mentioned all three medical examinations. Likewise, this Court has already determined that HHC Rule 7.3.4 is in compliance with Civil Service Law § 71. Finally, petitioner does not allege that the PRB failed to notify her of its decision, merely that she never received such decision.

The sole remaining question before this Court is, therefore, whether the PRB had a rational basis for its decision. In Matter of Edwin A. Pell v. Board of Educ. of Union Free School District, 34 NY2d 222 (1974), the Court of Appeals reiterated that "it is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion." (internal quotation marks omitted). This court cannot "substitute its own judgment for that of the agency. Even though the court might have decided differently were it in the agency's position, the court may not upset the agency's determination in the absence of a finding, not supported by the record, that the determination had no rational basis." See Matter of Mid-State Management Corp. v. New York City Conciliation and Appeals Board, 112 A.D2d 72 (1st Dept. 1985); Matter of Sullivan County Harness Racing Assoc., Inc. v. Robert A. Glasser, 30 NY2d 269 (1972).

The PRB decision clearly articulated its reasoning, explicitly mentioned all three medical reports, and formally adopted the findings of Dr. Nachamie. Even if the majority of the reports had not indicated that petitioner was unfit to return to work, the PRB would still have been justified in relying upon its own examiner when presented with conflicting medical evidence, since this would still provide a rational basis for their decision. See Matter of Talamo v. Murphy, 38 NY2d 637; 639-40 (1976). The PRB decision was, therefore, rational rather than arbitrary, capricious, and an abuse of discretion.

Accordingly, it is hereby

ADJUDGED, that the petition is denied and the proceeding is dismissed without costs and disbursements to the respondents.

Date:July 31, 2012J.S.C.