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In re Massi12/22/2004
ary and capricious, the Court is without power to review the propriety of it because the decision is not final for Article 78 purposes. The law is well-settled that Chief of Police in Westchester County has the authority to suspend a police officer pending the trial on disciplinary charges. (Coscette v. Town of Wallkill, 281 AD2d 479, app. denied, 97 NY2d 602; Matter of Nieves v. Haera, 165 AD2d 201; Matter of the Town of Greenburgh v. Town of Greenburgh, 94 AD2d 771, app. denied, 60 NY2d 551). That suspension is ultimately reviewed by the Village Board of Trustees in connection with the hearing required by Unconsolidated Laws § 5711-q. Thus, pursuant to Unconsolidated Laws § 5711-q(9), a police officer may not be "fined, reprimanded, removed or dismissed until written charges have been made and preferred ... nor until such charges have been investigated, examined, heard and determined by such board of trustees ...." The statute further provides that the police officer is entitled to a public hearing and to be represented by counsel, and the police officer may only be convicted by the affirmative vote of a majority of the board of trustees. Thus, for Article 78 purposes, there has been no final determination concerning the disciplinary charges that have been preferred against petitioner (including Chief Flynn's suspension of him pending the trial on such charges). Therefore, if this matter is viewed purely as a disciplinary issue, Chief Flynn's actions are not subject to review by this Court. (See Schachter v. Tomaselli, 105 AD2d 779; Sherman v. Office of Professional Misconduct of New York State Dept. Of Health, 137 Misc 2d 765; Morritt v. Town of Chester, NYLJ, July 2, 1991 at 28 col. 1; Matter of Prendergast, NYLJ, Nov. 23, 1990 at 26, col. 5 (11/23/90); Axelroad v. Ambach, 126 AD2d 288; D.T. v. Axelroad, 124 AD2d 1066). It follows that, a conviction on the disciplinary charges after a hearing by the Village of Mamaroneck's Board of Trustees would be subject to judicial review pursuant to a CPLR Article 78 proceeding. (Unconsolidated Laws § 5711-q ). It should also be noted that the Court is without the power to issue a mandamus compelling respondents to award petitioner his GML § 207-c benefits. (See, e.g., Olivier v. County of Rockland, 260 AD2d 482).
Although Chief Flynn's suspension of petitioner pursuant to disciplinary charges preferred is not ripe for review, the facts surrounding Chief Flynn's actions are troublesome to this Court. Without dispute, petitioner does have a right a right to a GML § 207-c hearing. In this case, respondents were aware for at least one week before this suspension on disciplinary charges that petitioner wanted to file a GML 207-c application. Indeed, it would appear that respondents anticipated a GML § 207-c hearing when they required petitioner to submit to a fitness for duty medical evaluation, authorized in connection with a GML § 207-c claim. Furthermore, respondents have admitted that currently petitioner's GML § 207-c application is in a state of limbo and this determination must await completion of the department's "investigation", without specifying the nature of the investigation involved. This inordinate delay in providing petitioner with a decision concerning his GML § 207-c claim contravenes the requirement that the Chief of Police render a written determination regarding a GML § 207-c application within 10 days after receipt of all necessary information. (See Village of Mamaroneck's Policies and Procedures Relating to GML § 207-c Benefits, Verified Answer, Exhibit P). Respondents have not asserted that there are outstanding items needed by them to resolve petitioner's eligibility for GML § 207-c benefits. Thus, it would appear that respondents have had all the infor
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