| Matter of Solano v City of Mount Vernon |
| 2008 NY Slip Op 02604 [49 AD3d 762] |
| March 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Dennis M. Solano, Jr., Appellant, v City ofMount Vernon et al., Respondents. |
—[*1] Coughlin & Gerhart, LLP, Binghamton, N.Y. (Keith A. O'Hara of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit therespondents from conducting any administrative proceedings in connection with the issue ofwhether the petitioner is permanently disabled, in the nature of mandamus to compel the City ofMount Vernon to award the petitioner benefits under General Municipal Law § 207-a (2)and, in effect, to review a determination of the City of Mount Vernon Fire Department datedNovember 17, 2006, which denied the petitioner's application for benefits pursuant to GeneralMunicipal Law § 207-a (2), the petitioner appeals from a judgment of the Supreme Court,Westchester County (DiBella, J.), entered May 29, 2007, which denied the petition and dismissedthe proceeding.
Ordered that the judgment is affirmed, with costs.
The petitioner sustained a lower back injury on August 16, 2002 while in the performance ofhis duties as a firefighter for the City of Mount Vernon. The petitioner continued to receive hisregular salary pursuant to General Municipal Law § 207-a (1) while he was disabled as aresult of his injury. The City commenced a review of the petitioner's medical status in March2004 in conjunction with a general review of the disability status of a number of firefighters.Prior to the completion of the City's review of the petitioner's status, the petitioner applied forand was granted a retirement disability allowance by the New York State Comptroller, pursuantto Retirement and Social Security Law § 363-c.
Upon receipt of a favorable determination from the State Comptroller, the petitioner appliedto the City for the payment of the supplemental benefits provided for in General Municipal Law§ 207-a (2). The City required the petitioner to undergo a medical examination and, basedon the report [*2]of the examining physician that the petitionerdid not currently suffer from a work-related disability, the City Fire Commissioner, on behalf ofthe City of Mount Vernon Fire Department (hereinafter the Fire Department), denied thepetitioner's request for benefits pursuant to General Municipal Law § 207-a (2). Thepetitioner requested an administrative hearing to review that determination. A hearing officer wasselected, and a mutually-agreeable date was chosen for the hearing. Prior to the commencementof that administrative hearing, the petitioner commenced the instant proceeding for reliefpursuant to CPLR article 78.
As the petitioner acknowledges in his brief, notwithstanding the retirement disabilityallowance determination made by the State Comptroller, the City is entitled to make a separatedetermination as to whether he was permanently disabled as a result of an injury incurred in theperformance of his duties as a firefighter (see Matter of Cook v City of Utica, 88 NY2d833 [1996]; Matter of Sutka v Conners, 73 NY2d 395 [1989]). Contrary to thepetitioner's assertion that, following his receipt of benefits pursuant to General Municipal Law§ 207-a (1), the City's review is limited solely to the question of whether he wasdisqualified from the receipt of benefits due to other gainful employment (see GeneralMunicipal Law § 207-a [6]), the City's determination pursuant to General Municipal Law§ 207-a (2) necessarily may include both the question of causal relationship and permanentdisability. In this case, there is no dispute with respect to causal relationship. Rather, the denial ofbenefits was properly premised on a physician's report concluding that the petitioner was nolonger under a disability from that injury.
Thus, the petitioner failed to establish a clear legal right to prohibit the respondents fromconsidering whether he remains disabled or to compel them to pay him benefits, and thus failedto establish entitlement to either of the extraordinary remedies of prohibition or mandamus tocompel (see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12[1981]; Matter of Bediner v Firetog,31 AD3d 634 [2006]).
To the extent that the petition, in effect, seeks to review the denial by the Fire Department ofthe petitioner's application for benefits pursuant to General Municipal Law § 207-a (2), thepetitioner failed to exhaust his administrative remedies (see Watergate II Apts. v BuffaloSewer Auth., 46 NY2d 52, 57 [1978]), and failed to establish that an exception to thedoctrine of exhaustion of administrative remedies applies in this proceeding (see Matter of Brunjes v Nocella, 40AD3d 1088 [2007]; Matter ofTasadfoy v Town of Wappinger, 22 AD3d 592 [2005]). Spolzino, J.P., Florio,Angiolillo and Dickerson, JJ., concur.