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In re Massi12/22/2004
cipalities to continue paying the salary and benefits to police officers who become ill or injured as a result of a line-of-duty illness or injury. Petitioner claims he first contacted respondents concerning his desire to apply for GML § 207-c benefits on June 2, 2004. Respondents suggest that they were unaware of petitioner's desire to apply for GML § 207-c benefits until June 16, 2004, the date on which they received petitioner's GML § 207-c application, and two days after Chief Flynn's imposition of a disciplinary suspension on Sgt. Massi. Thus, Chief Flynn has averred that his assignment of Sgt. Massi to light duty was not related to petitioner's application for GML § 207-c benefits and that " ssignment of a member of the Department to light duty tasks is not limited to situations in which the employee is receiving or has made an application for GML 207-c benefits or status. A light duty assignment may be made based on my determination of the appropriate use of available personnel and equipment to provide police services for residents of the Village." (Flynn Aff. at 32). The Court's acceptance of respondents' characterization is necessary to support respondents' claim that " he at-issue disciplinary action was commenced prior to the submission of a GML 207-c disability application on behalf of Massi. There is nothing in the actions of Respondents to suggest that the disciplinary action is in any manner related to the subsequent GML 207-c application." (Respondents' Memorandum of Law at 5). By contrast, petitioner argues that the disciplinary action is related to his GML § 207-c application and goes so far as to state: "Petitioner accuses Respondents of circumventing Massi's entitlement to 207-c benefits under the guise of a disciplinary suspension." (Affirmation of Andrew C. Quinn, Esq. In Response to Opposition to Verified Petition dated September 22, 2004 "Reply Aff." at 13).
Key, then, is the date when respondents first learned of petitioner's interest in filing for GML § 207-c benefits. Was it on June 2, 2004, when petitioner claims he verbally requested a GML § 207-c form from respondents? Even if the Court were to disbelieve petitioner's assertion, there is evidence that respondents became aware of petitioner's desire to apply for GML § 207-c benefits at least as early as June 8, 2004, since it was on that date that petitioner's counsel wrote to respondent's counsel by facsimile transmission and advised them that respondents had failed to respond to petitioner's requests for a blank GML § 207-c form. Furthermore, another letter from petitioner's counsel dated June 15, 2004, which transmitted petitioner's completed GML § 207-c application dated June 9, 2004, states that because respondents failed to provide petitioner with a blank GML § 207-c form despite repeated requests, petitioner had to "white-out" a previously-used GML § 207-c form. To date, respondents have not provided a formal answer to petitioner's GML § 207-c application. Instead, respondents have asserted that the application is currently under investigation and review by the department as provided by the department's policy and procedure, and that the administrative determination of petitioner's application is pending completion of the "department's investigation." (Verified Answer at 26).
Petitioner seeks to annul the disciplinary suspension on the grounds that he could not have complied with the orders dated May 28, 2004 because he was "medically, physically and mentally unable to appear, or to comply with" those orders." (Verified Petition at 23). Thus, petitioner argues that he cannot be found guilty of insubordination for failing to follow these orders because insubordination requires a "willful refusal to comply wit
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