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In re Massi12/22/2004
ployment or from workman's compensation, holding: " hen the issue arose as to the petitioner's physical condition to perform such duties as ordered and his indicated inability and absence therefrom, it was incumbent upon respondents then to determine if such refusal constituted insubordination and misconduct which would justify his removal from the respondent Village payroll and not to conclude that his non-performance of duty permitted respondent a means to summarily remove petitioner from respondent Village payroll without first affording him a meaningful evidentiary hearing within the ambit of procedural due process rights of notice and an opportunity to be heard."
(Matter of Fiorella, 96 Misc 2d at 408-409; see also Hodella v. Chief of Police of the Town of Greenburgh, 71 AD2d 967, app. denied, 49 NY2d 708).
Here, it appears that Sgt. Massi has sustained prima facie showing of entitlement to GML Law §207-c benefits. Respondents should have provided him with a GML § 207-c hearing, rather than the course they chose to take which was to subject him to disciplinary charges while indefinitely deferring their decision on his right to receive GML § 207-c benefits. Thus, the most appropriate remedy is for the Court to issue an order compelling that a GML § 207-c hearing be held. (See Matter of Doolittle v. County of Broome, 220 AD2d 864 [court affirms lower court's issuance of an order requiring respondents to provide petitioner with a GML § 207-c hearing, which respondents had decided to defer pending the outcome of petitioner's workers' compensation claim]). Whether there is any substantive difference between this hearing and the hearing required by Unconsolidated Laws § 5711-q is unclear. The Court agrees with petitioner that his failure to report to the light duty assignment and to the interview was, at least on a prima facie basis, justified given his doctors' diagnoses and orders that he not return to work or attend the Chief Flynn interview. As such, respondent Chief Flynn's decision to subject him to disciplinary action would appear to be a tactic by Chief Flynn to have petitioner's GML § 207-c benefit decision resolved in the context of a disciplinary hearing where petitioner is in a defensive posture, as compared to a GML § 207-c hearing, where petitioner, rather than being charged with disciplinary infractions, is in an offensive position trying to show his entitlement to a statutory benefit.
Based on the foregoing, it seems manifestly unfair to subject petitioner to a disciplinary proceeding pursuant to Unconsolidated Laws § 5711-q, when the real issue is whether he suffered an injury (albeit psychiatric and/or psychological) in the line of duty that has rendered him eligible for GML § 207-c benefits.
Accordingly, this Court grants the petition in part and denies the petition in part, without costs or attorneys' fees. This matter is remanded to respondents in order for them to provide petitioner forthwith with a hearing pursuant to GML § 207-c. The Court further orders that the hearing pursuant to Unconsolidated Laws § 5711-q be stayed pending the determination of petitioner's eligibility for GML § 207-c benefits. At the GML § 207-c hearing, it is petitioner's burden to "prove a direct causal relationship between job duties and the resulting illness or injury .... Pre-existing non-work-related conditions do not bar recovery under section 207-c where petitioner demonstrates that the job duties were a direct cause of the disability." (White v. County of Cortland, 97 NY2d 336,340 [no need to show that the disability is related in a substantial degree to the job duties]). Respondents are reminded that "as a remedial statute, section 207-c should be liberally construed
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