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In re Massi12/22/2004
mation they needed with regard to petitioner's GML § 207-c claim since May when their doctors issued their reports concerning petitioner's mental health. Thus, the Court is left to conclude that the delay in deciding whether petitioner is eligible for GML § 207-c benefits is intentional, and was done so that Chief Flynn could use his disciplinary authority to turn petitioner's apparent illness into a means of suspending (and possibly terminating) him for failing to follow the two orders at issue.
Chief Flynn's opinion of Sgt. Massi's performance and his desire to terminate him from the department is evident from the documents submitted. Chief Flynn not only issued the Notice of Discipline regarding petitioner's failure to follow the two orders at issue in this case, but Chief Flynn has also hedged his bets by issuing another Notice of Discipline preferring additional charges against petitioner in case the charges at issue here are not substantiated at the future disciplinary hearing.
Here, petitioner was not awarded GML § 207-c benefits prior to Chief Flynn's suspension of him on disciplinary charges on June 14, 2004. In this regard, respondents are correct in distinguishing some of the cases petitioner cites as controlling the outcome of this proceeding since in those cases, there had already been an award of GML § 207-c benefits. It is well settled that an award of GML § 207-c benefits is a property right, such that any attempt to terminate the benefits (even a temporary suspension) requires that a due process hearing be held prior to termination. (Curley v. Dilworth, 96 AD2d 903, app. dismissed, 63 NY2d 770; Matter of Uniform Firefighters of Cohoes Local 2562, IAFF, AFL-CIO v. City of Cohoes, 94 NY2d 86, cert. denied, 529 US 1108; Crawford v. Sheriff's Department, Putnam County, 152 AD2d 382, app. denied, 76 NY2d 704). Accordingly, courts have annulled suspensions of police officers for their failure to report to a light duty assignment because the suspensions/terminations had occurred without the benefit of a due process hearing. (See, e.g., Goglia v. Sardino, 119 Misc 2d 907, aff'd,101 AD2d 1013, aff'd, 64 NY2d 1084). However, if after the hearing, the police officer is found guilty of insubordination for failing to follow a lawful order, the municipality is vested with the authority to terminate the previously awarded GML § 207-c benefits. (Matter of Dacey v. County of Dutchess, 121 AD2d 536 ["' section 207-c of the General Municipal Law must be read in conjunction with Civil Service Law The former section was not intended to limit the sanctions authorized to be imposed in disciplinary proceedings under section 75 of the Civil Service Law.""]).
Based on the sequence of events in this case, it would appear that respondents were preparing for Sgt. Massi's filing of a GML § 207-c application and may have even been trying to delay the application by failing to respond to petitioner's requests for a blank form. Furthermore, it is apparent that respondents were aware of petitioner's intention to file a GML § 207-c application from at least the first week in June, 2004: Even prior to June, respondents were preparing their side of the argument concerning petitioner's GML § 207-c eligibility by using their statutory right to require that Sgt. Massi submit to an independent medical examination prior to respondents' "determination of eligibility for receipt of benefits under the statute." (De Poala v. County of Schenectady, 85 NY2d 527, 532; Olivier v. County of Rockland, 260 AD2d 482, 483 ["County was not required to award benefits based on a prima facie showing of entitlement, but was permitted to order an independent medical examination before making a determination"]; see also General Mu
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