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In re Massi12/22/2004
h the proper directives from superior officers." (See Reply Aff. at 11; citing Martin v. Town Board, 249 AD2d 54). Petitioner further argues that "an enforcement of disciplinary actions against a Village employee, while that employee has a medical illness, is a violation of the Collective Bargaining Agreement ("CBA") between the Village of Mamaroneck and the Police Benevolent Association of the Village of Mamaroneck ("PBA"), Section 207-c of the General Municipal Law, and the 'Westchester County Police Act' enumerated at Unconsolidated Law § 5711-q." (Affidavit of Guy Massi, sworn to July 7, 2004 at 1). In conclusion, petitioner claims that absent a hearing, "Respondents suspension of Petitioner for willful insubordination without considering the medical diagnosis of Dr. Kaitz is arbitrary and capricious. As such, Respondents actions constitute an illegal suspension of Petitioner, a permanent employee, pursuant to Civil Service Law § 75(2)." (Petitioner's Memorandum of Law at 2).
Respondents have submitted a Verified Answer and have moved to dismiss this proceeding on the grounds that the suspension of petitioner is not a final determination. Respondents argue that " here has been no trial on the charges preferred against Petitioner ... and no determination of the charges by the Board. Thus, there has been no final administrative determination of the disciplinary charges." (See Respondents' Memorandum of Law at 3). Accordingly, respondents assert that Chief Flynn's decision to suspend petitioner pending the trial on his disciplinary charges is not a final determination subject to judicial review pursuant to Article 78 of the CPLR. (Verified Answer at 29).
Legal Discussion
In his petition, petitioner requests that the Court issue an order: (1) annulling Chief Flynn's disciplinary decisions as arbitrary and capricious; (2) restoring him to his active duty status (on sick leave with reinstated pay); and (3) requiring that respondents pay him his salary and benefits that have accrued since June 14, 2004 the date of his suspension. Thus, petitioner seeks relief in the form of certiorari reviewing Chief Flynn's suspension and his preferring of disciplinary charges against petitioner, as well as a mandamus to compel respondents to pay him the salary and benefits he claims are owed pursuant to GML § 207-c. However, the totality of petitioner's other submissions shows that petitioner is also aggrieved by what he views as respondents' failure to provide him with hearing on his GML § 207-c claim. Thus, it appears that petitioner is also seeking a mandamus to compel respondents to perform a task petitioner claims is required by law.
This Court's power to review this petition turns on one issue: Was Chief Flynn's decision to suspend Sgt. Massi without pay a purely disciplinary action (in which case the Court would have to defer to the Village of Mamaroneck's Board of Trustees for their determination following an evidentiary hearing on the disciplinary charges pursuant to Unconsolidated Laws § 5711-q); or, was Chief Flynn's decision instead a thinly-veiled preemptive strike against petitioner's GML § 207-c claim, which, indeed, de facto, denied him a right to a hearing on that claim (or an indefinite postponement of that claim without the benefit of a GML § 207-c hearing), triggering review by this Court. (See Stewart v. County of Albany, 300 AD2d 984, app. denied, 100 NY2d 505; Matter of Cole-Hatchard v. Sherwood, 309 AD2d 933, app. dismissed, 1 NY3d 593, app. denied, 2 NY3d 707; Matter of Curley v. Dilworth, 96 AD2d 903, app. dismissed, 63 NY2d 770).
With regard to petitioner's request for this Court's annulment of Chief Flynn's suspension of petitioner as arbitr
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