The following papers numbered 1 to 4 read on this motion:Papers Numbered:

Notice of Petition/Verified Petition/Affidavits (Affirmations)___1

Verified Answer and Affidavits (Affirmations)2

Memoranda of Law____________________________________3, 4

_____________________________________________________________ ___________

Petitioner ALPHONSE SICIGNANO (SICIGNANO), a terminated New York City Firefighter, in this CPLR Article 78 proceeding, moves to compel respondents SALVATORE CASSANO (CASSANO), Commissioner of the Fire Department of the City of New York (FDNY), and the CITY OF NEW YORK (CITY) to: annul the decision of respondent CASSANO which terminated petitioner SICIGNANO's employment as an FDNY Firefighter; direct that petitioner SICIGNANO is reinstated as an FDNY member, so he can seek a disability pension; award back pay to petitioner SICIGNANO for the period during which he was not employed; and, compel respondent CASSANO to rescind petitioner SICIGNANO's penalty of termination and impose a lesser penalty consistent with this decision.

Respondents oppose the petition arguing, among other things, that CPLR §§ 7803 and 7804 mandate transfer to the Appellate Division because petitioner SICIGNANO's challenge to respondent CASSANO's termination of petitioner SICIGNANO is based upon the sufficiency of the evidence presented at a disciplinary hearing, conducted by Administrative Law Judge (ALJ) Alessandra F. Zorgniotti of the New York City Office of Administrative Trial and Hearings (OATH). The sufficiency of the evidence question is rejected because the facts are not in dispute.

However, respondent CASSANO's decision to terminate petitioner SICIGNANO is arbitrary, capricious and an abuse of discretion because it shocks the conscience. Therefore, in light of the unique facts in this Article 78 proceeding, the Court grants petitioner SICIGNANO's petition for reinstatement as an FDNY Firefighter and related relief, to allow him to pursue a line-of-duty disability pension. Petitioner SICIGNANO was suspended after testing positive for cocaine. While petitioner SICIGNANO was on limited duty because of pending disciplinary charges against him, the FDNY restored petitioner SICIGNANO to full duty as a firefighter. Petitioner SICIGNANO obeyed orders and while working at a fire location as a member of Ladder Company 20, petitioner SICIGNANO sustained a line-of-duty shoulder injury. This injury should have equitably estopped respondent CASSANO from terminating petitioner SICIGNANO, but it did not.

Petitioner SICIGNANO joined the FDNY in 1996. Immediately after graduating from probationary fire school, he was assigned to Engine Company 6, located on Beekman Street in lower Manhattan, a few blocks from the site of the World Trade Center (WTC).

Petitioner was scheduled to work on September 10 and 11, 2001. However, on September 9, 2011, he was informed that his aunt died. He arranged for a fellow firefighter to cover his shifts. Petitioner, on the morning of September 11, 2001, was at his summer home in Pennsylvania and saw on television the first plane strike the WTC. Immediately, he decided to return to Engine 6, not realizing the full scope of the disaster. Petitioner rushed at high speed to get to the WTC. When he reached the Holland Tunnel, WTC Building 1 collapsed.

According to the findings of ALJ Zorgniotti, when petitioner emerged on the New York side of the tunnel, he saw a "war zone." Petitioner described the site as a "snow globe of horror," where he observed people running and screaming as dust and burning paper filled the air. He was unable to get to Engine 6's firehouse and went to a nearby firehouse to obtain a breathing tank. Then, he proceeded to the WTC on foot.

Upon his arrival at the WTC, petitioner saw the Engine 6 fire truck buried under the rubble of a collapsed bridge. He unsuccessfully attempted to dig through the rubble to check for survivors, but couldn't get through the debris. A superior officer then directed him to search the then still standing WTC Building 6. He and other firefighters only found the bodies of people who had jumped from the twin towers to the roof of Building 6. They were then ordered to search the parking garage, five stories down, in pitch darkness. After an electrical transformer exploded, the firefighters, including petitioner exited the garage. At this time, petitioner observed WTC Building 7 engulfed in flames, shortly before it collapsed.

Petitioner then returned to Engine 6's firehouse to get tools and learned that four Engine 6 firefighters, including one of best friends, Firefighter Thomas Holahan, were missing. Petitioner, to help locate the missing Engine 6 firefighters, worked on the "pile" at "ground zero" for four straight days, with limited breaks. During these four days he observed mutilated bodies, but was unable to locate any Engine 6 members. The remains of Firefighter Holahan were recovered from the rubble two weeks after 9/11. Petitioner viewed Holahan's disfigured face and corpse, realizing that but for his switching shifts that could have been him.

Petitioner personally knew approximately 37 firefighters who gave their lives on September 11, 2001. In the days and months after September 11, 2001, petitioner took a leading role in speaking with family members of deceased fire fighters to console and comfort them. He attended about 300 wakes and/or funerals in the ensuing months. He personally responded to each letter that came to his firehouse.Petitioner even traveled to Kansas to speak at a 2002 high school graduation at the request of the school. Moreover, he was the subject of a documentary film, "Collateral Damages," about the experience of 9/11 and the resulting trauma to himself and other firefighters.

While engaged in these grizzly and often emotionally devastating tasks, petitioner ignored the necessities of his personal life. He began drinking to excess and neglecting many of his family duties. Finally, in 2004, petitioner sought professional counseling help. He saw Amy Stack, a counselor in the FDNY counseling unit. After 6 - 8 sessions with Ms. Stack, petitioner requested to see a psychiatrist, but none was provided by FDNY. Finding the sessions unfruitful, petitioner stopped going to Ms. Stack. [*3]

In 2005, petitioner's life began to spiral out of control from his alcohol use. He had periods where he experienced blackouts and became aware that he sometimes took cocaine, which he got at parties and bars. Thereafter, petitioner checked himself into a facility known as Marworth, a treatment center for alcohol dependency, where he was treated for alcohol dependency, but not for drug use. This treatment lasted approximately 25 days. At Marworth, petitioner saw Dr. Silver, who prescribed medication for his post traumatic stress disorder (PTSD). This was the first time petitioner received that diagnosis and any medication for PTSD.

Upon his return to the FDNY, he began seeing another counselor, Ashley Taheri. Despite never being provided with a psychiatrist or refills for his PTSD medication, petitioner remained sober for the next 2 ½ years. However, in 2008 various unfortunate events ended petitioner's sobriety. In early 2008, petitioner's mother passed away. In November 2008, one of petitioner's closest friends, Lieutenant Bobby Ryan, died in a fire. This crushed petitioner and he began drinking to excess again. Ryan's death brought back to petitioner all of his terrible 9/11 memories. As a result he would get drunk, blackout and on occasion use cocaine to keep drinking more.

On June 28, 2009, petitioner was the subject of a random FDNY drug test. He was unaware that he had ingested cocaine several nights earlier. Petitioner tested positive for cocaine and was suspended for 30 days. Afterwards, he reported to the FDNY counseling unit and began seeing: Dr. Inwood, a psychiatrist; Dr. Spielberg, a psychologist; and, James Destri, an addiction counselor. On August 3, 2009, petitioner was charged with violating § 25.1.5 of the Rules of Regulations for the FDNY Uniformed Force and All Units Circular (AUC) 202 § 4.1, for the positive June 28, 2009-cocaine test.

At petitioner's OATH hearing, Mr. Destri testified that petitioner used cocaine to keep drinking as an escape from his 9/11 PTSD. Dr. Richard Kreuger, a board certified addiction psychiatrist, testified that petitioner's alcohol dependence, chronic depression, panic disorder and PTSD were directly attributable to the horrors of 9/11. Moreover, Dr. Kreuger determined that petitioner's cocaine use was "episodic" rather than "addictive." ALJ Zorgniotti, at p. 14 of her Report and Recommendation, observed that "[t]here is no evidence to suggest that [petitioner] used cocaine prior to 9/11 or that he used it when not drinking. Based on the record, it is reasonable to conclude that there is a causal link between [petitioner's] cocaine use and his PTSD and alcoholism."

After his suspension, petitioner was placed on light duty at the FDNY counseling unit. In February 2010, petitioner was directed by the FDNY to report for a "duty determination" to see if was fit to return to full duty. When petitioner was sent for his "duty determination" the FDNY was fully aware that petitioner was facing disciplinary charges. Petitioner reported for his "duty determination" as directed on February 12, 2010. An FDNY doctor examined him and asked if he wanted to return to full duty. He responded yes. Petitioner was found fit for duty and ordered to report to Ladder Company 20 for full duty on February 16, 2010.

On that day Ladder 20 had five subway fire calls. While responding to the last call, petitioner injured his right shoulder when ascending a staircase in a subway station. Petitioner grabbed a hand railing, which dislodged from the wall, causing petitioner to sustain a right rotator cuff tear and fall to the floor. Ultimately, this required two surgeries to repair the injury. [*4]

Subsequent to his accident, petitioner was examined by the FDNY medical office, which found him unfit for firefighting duties due to his shoulder injury and PTSD. Under normal circumstances, petitioner would likely have been awarded a disability pension for either of these conditions. Meanwhile, petitioner was placed on light duty during the pendency of the disciplinary charges against him.

At petitioner's OATH hearing, two chiefs and a retired lieutenant testified on petitioner's behalf. Their testimony demonstrated that petitioner was an excellent firefighter. Petitioner was described as an "exemplary employee" and "indispensable to a commanding officer" by Battalion Chief James Fody. Petitioner was called the best firefighter in Engine Co. 6 and a "stand up guy" by Deputy Chief Roger Sakowich. Retired Lieutenant Henry Porcero referred to petitioner as "heroic."

Fellow firefighters also appeared at the OATH hearing to support petitioner. Retired firefighter William Green lauded petitioner as a "great firefighter." Firefighter Kenneth King stated that he would want no other person in a fire with him, describing petitioner as a "fireman's fireman" and how each firehouse should have a person like him.

As a result of having tested positive for the presence of cocaine in his urine

on June 28, 2009, petitioner faced three charges from the Fire Department. Briefly stated, they were: (1) use of a prohibited substance; (2) conduct unbecoming a firefighter; and (3) a violation of his oath of office. The OATH hearing was held on March 16 and 22, 2011. The record was held open until May 27, 2011 for the filing of post-hearing briefs.

ALJ Zorgniotti, in her June 30, 2011 decision, discussed petitioner's severe PTSD and its possible effect upon his culpability for use of cocaine and alcohol. She summarized many of the incidents that caused petitioner's severe PTSD. Her findings made clear that petitioner genuinely suffered from PTSD. Despite the above acknowledged disability, Judge Zorgniotti did not find that petitioner's cocaine use was involuntary or unconscious. Therefore, she found that petitioner could be subject to discipline. She also concluded that the line-of-duty shoulder injury to petitioner prevented him from returning to duty as an active firefighter. The ALJ declined to rule on petitioner's argument the FDNY is equitably estopped from disciplining petitioner because, in reliance upon OATH decisions, equitable estoppel is unavailable in administrative hearings.

In her recommendations, at p. 17 of her report, ALJ Zorgniotti concluded:

There is no question that [petitioner's] use of illegal drugs

constitutes a serious violation of the Department's rules. Moreover, all

agree that [petitioner] is unfit to return to duty as a firefighter. Thus, the

question is whether [petitioner] should be terminated or allowed to seek

a disability pension. I recommend that [petitioner] be separated from

service, but that he be given the opportunity to pursue a disability

pension prior to separation.

While the AUC 202 calls for termination for a first-time offense

of testing positive for an illegal drug . . . the guidelines are not absolute . . .

There have been a number of cases involving drug use by

firefighters where this tribunal has recommended that the fairest outcome

was to permit the firefighter to apply for a retirement or disability pension

prior to imposing termination. [*5]

Further, at p. 19, ALJ Zorgniotti held:

After [petitioner] tested positive for cocaine and was served with

disciplinary charges, the Department directed him to appear for a fitness

exam and asked him to return to full duty. Although skeptical about

returning while charges were pending, [petitioner] talked to various

officers who told him to go back if given the opportunity. The first day

on full duty, [petitioner] fell, through no apparent fault of his own, and

sustained a shoulder injury that rendered him unfit for full duty. It is

uncontested that [petitioner] was injured on the job and that he is

permanently disabled. Here as in McDougall [McDougall v Scopetta,

76 AD3d 338 (2d Dept 2010), lv app granted, 16 NY3d 704 (2011),

appeal withdrawn, 17 NY3d 902 (2011)] [FDNY] seeks not only to

terminate [petitioner] but to impose an enormous financial penalty for

[a] single positive drug test.

At this juncture it would be shocking for the Department, having

sent [petitioner] to fight a fire even after testing positive for cocaine, to

deny him the opportunity to apply for a disability pension as a result of

injuries sustained in the line of duty. Having asked [petitioner] to risk

his life and limb to protect the public safety, the Department should

permit him, as it would any other firefighter, the chance to pursue a

disability retirement as provided by law

Moreover, ALJ Zorgniotti found that stripping petitioner of a disability pension would be unduly harsh. If petitioner were terminated by respondent CASSANO he would potentially be deprived of a disability pension of $82,560.00 per year for the rest of his life. Because his life expectancy is about 30 years, he and his family would lose almost $2.5 million.

Respondent CASSANO, on May 31, 2012, rendered his decision. He agreed with the ALJ's determination that petitioner SICIGNANO violated Department regulations but rejected ALJ Zorgniotti's penalty recommendation. Respondent CASSANO ignored the uncontested testimony by petitioner's psychiatrist, Dr. Kreuger, that petitioner's severe PTSD was causally connected to his drug use, that it prompted petitioner to engage in alcohol abuse, and that the cocaine use was merely a method of enhancing his ability to consume alcohol. Instead, respondent CASSANO simply focused on the testimony that petitioner SICIGNANO's PTSD did not "force" petitioner SICIGNANO to ingest cocaine. Respondent CASSANO cites to petitioner's "similar bout with cocaine abuse in 2005," which is in direct contradiction to the evidence presented at the OATH hearing. There is no evidence to support a contention that SICIGNANO ever was addicted to cocaine use, but rather his issues stemmed from alcohol abuse. Additionally, respondent CASSANO found that petitioner worked in late June 2009 while under the influence of cocaine. ALJ Zorgniotti held, at p. 20 of her decision "that there is insufficient evidence to conclude that [SICIGNANO] was under the influence of alcohol or drugs that day." Further, respondent CASSANO'S decision omits any reference to the 9/11 horror petitioner SICIGNANO experienced, the subsequent PTSD diagnosis and the obvious destructive force of PTSD on petitioner SICIGNANO's life. Similarly, respondent CASSANO's decision failed to address FDNY's error in returning petitioner SICIGNANO to full active duty, while [*6]disciplinary charges were pending, resulting in petitioner SICIGNANO's injury in the line-of-duty.

Petitioner then commenced the instant CPLR Article 78 action on September 21, 2012.

First, there is no dispute as to the facts in this proceeding. Therefore, there is no need to transfer this matter to the Appellate Division for a determination of whether respondent CASSANO's decision to terminate petitioner SICIGNANO is supported by "substantial evidence," pursuant to CPLR § 7803 (4). (Sunrise Manor Center for Nursing and Rehabilitation ex. rel. Gronert v Novelo, 19 AD3d 426 [2d Dept 2005]). "The merefact that the petition alleges the lack of substantial evidence supporting the determination is not dispositive, for the question of whether an article 78 proceeding must be transferred to the Appellate Division is one to be decided by [Supreme Court], not by petitioners." (Bonded Concrete, Inc. v Town Bd. of Town of Rotterdam, 176 AD2d 1137, 1137 [3d Dept 1991], quoting Matter of Save the Pine Bush, Inc. v Planning Bd. of the City of Albany, 83 AD2d 741 [3d Dept 1981]). (See Cornelius v City of Oneonta, 71 AD3d 1282 [3d Dept 2011]). "Here, there is no substantial evidence question as the facts are not in controversy and the only question is whether the agency exercised its authority in an arbitrary and capricious manner. Thus, a transfer to the Appellate Division is not warranted." (McAtee v Environmental Control Board, 34 Misc 3d 547, 549 [Sup Ct, Kings County 2011]).

Next, the Court has to determine whether the action of respondent CASSANO had a rational basis or was arbitrary and capricious (see Pell v Board of Educ. of Union School District No.1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974] ). "Arbitrary action is without sound basis in reason and is generally taken without regard to the fact." (Pell at 231). A rational basis exists where the

determination is "[supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination" (Ador Realty, LLC v Division of Housing and Community Renewal, 25 AD3d 128, 139-140 [2d Dept 2005]), quoting Pell at 231.

A reviewing court will not substitute its judgment for that of the agency unless the agency's determination is arbitrary, capricious, or contrary to law (see Pell at 231; Matter of Brockport Cent. School Dist. v New York State & Local Employees' Retirement System, 270 AD2d 706, 707-708 [3d Dept 2000]). Pursuant to CPLR § 7803 (3), "judicial review is limited to the question whether the measure or mode of penalty or discipline imposed' constitutes an abuse of discretion," (Featherstone v Franco, 95 NY2d 550, 554 [2000]). Further, the Court of Appeals (Featherstone at 554) instructed that in an Article 78 review of administrative sanctions, "the sanction must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law."

Citing Featherstone, the Court of Appeals, in Kelly v Safir (96 NY2d 32, 38 [2001]), held that weighing whether a sanction shocks the judicial conscience, "involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general (Pell, supra at 234)." The unique facts in this proceeding, viewed in light of this standard, demonstrate why petitioner SICIGNANO should have been permitted to retire and retain his pension after paying a [*7]substantial fine.

It is uncontroverted, as outlined above, that petitioner, who began his FDNY career in 1996 was an exemplary firefighter, respected by his peers and a very valuable asset to his assigned fire company. He was a hero at and after the tragic events of 9/11/01. Moreover, as a result of his February 16, 2010 shoulder injury, if permitted to remain as an FDNY firefighter, he would clearly be eligible for a line-of-duty pension.

Whether petitioner should receive his pension is of substantial import to him and his family. The disability pension that petitioner would be entitled to amounts to more than $82,500.00 per year. With a life expectancy of almost 30 years, petitioner SICIGNANO and his family would suffer an economic loss in excess of $2,000,000.00 if he were denied this benefit.

If SICIGNANO were denied the chance to obtain a line-of-duty disability pension, but allowed to receive a "vested" retirement, he would have to wait approximately three more years (his 20th anniversary as a firefighter), but would still collect an annual pension of approximately $36,000.00 per year. Thus, based upon his life expectancy, his loss and the loss to his family would be more than $1,000,000.00 over the actuarial course of his lifetime. Such losses, as verified by the OATH testimony of both petitioner and his wife, would be devastating to the Sicignano family. The family needs the money to pay for college tuition, car payments and a mortgage. Due to his shoulder injury, petitioner is now unable to work as a carpenter, the one profession besides firefighting, for which he is qualified. Further, according to Mrs. Sicignano, the pension represents the family's "entire future." Without it, they will have no healthcare coverage, no financial security and no way to educate their children. Given these facts, the termination of petitioner SICIGNANO for his use of cocaine is shocking to anyone's sense of fairness.

The Appellate Division, Second Department, considered the penalty issue in McDougall v Scoppetta (76 AD3d 338 [2d Dept 2010], lv app granted, 16 NY3d 704 [2011], appeal withdrawn, 17 NY3d 902 [2011]), involving cocaine use by a 25-year FDNY veteran. The ALJ in that case recommended termination and the Fire Commissioner followed that recommendation. However, the Appellate Division reversed the penalty of termination. The Court focused on McDougall's single positive drug test, the fact that he could have retired after 20 years and, what is most important, the financial devastation that McDougall's family would suffer if he lost his pension. The Court noted, at 342-343:

This Court recognizes that the petitioner committed a serious

infraction which militates against his continued employment as a firefighter. However, this incident was isolated. When coupled with the significant

loss of benefits, termination of the petitioner's employment so that he

forfeits all of his retirement benefits cannot be sustained. Indeed, we have

held that the dismissal of a long-term employee with an unblemished

record following a singular positive drug test to be so shocking to our sense

of fairness that annulment of the administrative agency's determination

and the imposition of a lesser penalty was required (see Matter of Sequist v

County of Putnam, 40 AD3d 1003 [2d Dept 2007]).

The Court annulled McDougall's termination and allowed him to retire, while levying a fine of $80,000.00. [*8]

More recently, the Appellate Division, First Department, came to a similar conclusion in Matter of Vecchio v Kelly (94 AD3d 545 [ld Dept 2012] lv. to app den'd,

20 NY3d 855 [2013]). In this case, petitioner Vecchio, an NYPD detective, who, like SICIGNANO had less than 20 years on the job, took and kept nude photos of a rape victim and her assailant. The Appellate Division overturned the decision to terminate the petitioner and deprive him of his pension. The Court noted petitioner's exemplary prior service and stated, at 546, that "[a]lso similar to the situation in McDougall is the fact that termination would work an extreme hardship on petitioner's innocent family." Further, the Court held, at 546, that "even in light of the repellant behavior exhibited by petitioner, the deprivation of his retirement benefits is shocking to one's sense of fairness," citing Pell, at 233.

In the instant proceeding, petitioner SICIGNANO is a long-term employee and termination would have a similar devastating financial effect on his family. Moreover, petitioner SICIGNANO's misconduct was far less abhorrent than that of Vecchio. In this proceeding we have the additional mitigating circumstances of SICIGNANO's proven PTSD leading to excessive alcohol use and ultimate use of cocaine. Further, petitioner sustained a disabling line-of-duty injury after FDNY restored him to "full duty" in February 2010. In ¶ 83 of respondents' verified answer, the Corporation Counsel presents the unavailing argument that "Petitioner should have been placed in a restricted assignment that would not involve the performance of firefighting duties. Due to an administrative error [emphasis added], Petitioner reported to his assigned fire company."

Present also is the undeniable fact that petitioner is a firefighter whose exemplary service

on 9/11/01 and after is inspiring.

The unique and extenuating circumstances of this proceeding mandate that the Court annul the decision by respondent CASSANO and permit petitioner SICIGNANO to leave the FDNY with dignity and a line-of-duty pension. It would shock the conscience to deprive petitioner SICIGNANO and his family of its livelihood because of one positive drug test.

Further, by restoring petitioner SICIGNANO to full duty while disciplinary charges were pending against him and petitioner sustaining a line-of-duty injury, the FDNY is equitably estopped from denying SICIGNANO an opportunity to obtain a disability pension. The FDNY has to live with what the Corporation Counsel refers to as "an administrative error." SICIGNANO's disability occurred after the FDNY was fully aware of his misconduct, had formally charged him with misconduct and was seeking to terminate him for that misconduct. FDNY's Medical Office, mistakenly or otherwise, designated SICIGNANO as eligible to resume full duty in February 2010. In doing this, the FDNY ordered SICIGNANO to risk life and limb by responding to emergencies. Now the FDNY takes the blatantly unfair position that even if SICIGNANO was permanently disabled while performing full duty, they can still deprive him of his pension by terminating him for prior misconduct. Respondents' position ignores that SICIGNANO's full duty injury occurred after the discovery of his misconduct and directly as a result of the full duty status he was ordered to resume.

The Court of Appeals in Matter of Shondel J. v Mark D (7 NY3d 320, 326 [2006]). explained:

The purpose of equitable estoppel is to preclude a person from

asserting a right after having led another to form the reasonable belief [*9]

that the right would not be asserted, and loss or prejudice to the other

would result if the right were asserted. The law imposes the doctrine

as a matter of fairness. Its purpose is to prevent someone from enforcing

rights that would work injustice on the person against whom enforcement

is sought and who, while justifiably relying on the opposing party's

actions, has been misled into a detrimental change of position (see

generally Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d

175, 184 [1982].

The Court, in Charles v Charles (296 AD2d 546 [2d Dept 2002]), held at 549, that "an equitable estoppel may be imposed to prevent injustice suffered by a person who, in justifiable reliance upon the words or conduct of another, is induced to act or forbear (see Matter of Multari v Sorrell, 287 AD2d 764 [3d Dept 2001])."

It is clear that petitioner SICIGNANO was induced to return to full duty in February 2010 by FDNY's medical staff and by higher ranking uniformed personnel that he consulted. SICIGNANO had the right to believe and rely on the fact that if was seriously injured on full duty status, he would be allowed to pursue a disability pension.

Thus, this case falls within the category of matters in which a governmental entity is estopped from taking a position that would result in a serious miscarriage of justice. "Where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice, that subdivision should be estopped from asserting a right or defense which it otherwise could have raised." (Bender v New York City Health and Hosps. Corp., 38 NY2d 662, 668 [1976]). Further, "estoppel may be invoked against a municipality acting in a governmental capacity only in exceptional circumstances, where a manifest injustice would otherwise result." (Donohue v State of New York, 63 ad2D 859, 860 [4d Dept 1978]).

The decision to prevent SICIGNANO from receiving a pension is discretionary with the Fire Commissioner. "Equitable estoppel is available against the Department with

respect to its discretionary actions, i.e., matters over which it has the power to decide."

(Walter v City of New York Police Dept., 256 AD2d 8 [1d Dept 1998]).

SICIGNANO returned to full duty in justifiable reliance upon the decision of the FDNY's Medical Office. He had every right to rely upon the propriety of that duty status. This case is clearly different from matters involving firefighters who committed disciplinary violations after sustaining disabling injuries. The FDNY, knowing full well that it was seeking the termination of petitioner SICIGNANO, restored SICIGNANO to full duty and allowed him to respond to emergencies. In these circumstances, it would be manifestly unjust to allow the FDNY to deprive SICIGNANO of his pension rights for a disability resulting from his performance while on full duty status.

Petitioner SICIGNANO also argues that the Human Rights Law (Executive Law, § 292 [21]) precludes terminating him as a person who suffers from a qualifying disability, alcoholism and PTSD. In light of respondent CASSANO's determination which shocks the conscience and equitable estoppel applying to the actions of respondents, the Court does not need to address this [*10]argument.

Accordingly, it is hereby

ORDERED that the instant CPLR Article 78 petition of ALPHONSE SICIGNANO is granted to the extent that: the May 31, 2012 decision of respondent SALVATORE CASSANO, as Commissioner of the Fire Department of the City of New

York, to terminate ALPHONSE SICIGNANO as a Firefighter of the Fire Department of the City of New York is annulled; petitioner ALPHONSE SICIGNANO is reinstated as a Firefighter of the Fire Department of the City of New York and awarded back pay from his termination to his restoration; respondent SALVATORE CASSANO, as Commissioner of the Fire Department of the City of New York, may impose a fine upon petitioner ALPHONSE SICIGNANO consistent with the fine imposed by the Commissioner of the Fire Department of the City of New York in McDougall v Scoppetta (76 AD3d 338 [2d Dept 2010], lv app granted, 16 NY3d 704 [2011], appeal withdrawn, 17 NY3d 902 [2011]); and, petitioner ALPHONSE SICIGNANO is to apply forthwith for a line-of-duty disability pension.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACKJ. S. C.