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Sawyer v. City of Oneonta (N.Y.App.Div. 06/22/2000)
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Supreme Court6/22/2000
Calendar Date: May 2, 2000
Appeal from a judgment of the Supreme Court (Dowd, J.), entered December 2, 1999 in Otsego County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondents terminating petitioner's benefits under General Municipal Law § 207-a.
MEMORANDUM AND ORDER
Petitioner became a paid firefighter for respondent City of Oneonta in February 1971. He suffered a back injury on the job and was disabled from working from December 27, 1992 to December 31, 1992 and from January 24, 1993 to June 28, 1993, when he returned to full duty without restrictions. During these periods of disability petitioner was paid his wages and benefits pursuant to the provisions of General Municipal Law § 207-a (1). Petitioner reinjured his back in the performance of his duties on February 21, 1994 and has been disabled since. He was paid his full wages and benefits pursuant to General Municipal Law § 207-a (1) until June 28, 1996, when his application for disability retirement was approved. At the commencement of his disability retirement, petitioner requested that the City pay him the difference between his regular salary and his disability retirement benefit as required by General Municipal Law § 207-a (2). The City refused to pay the General Municipal Law § 207-a benefit claiming that petitioner had engaged in disqualifying employment (see, General Municipal Law § 207-a ) during his periods of disability in 1992 and 1993.
After an administrative hearing, it was determined that petitioner was disqualified from receiving General Municipal Law § 207-a benefits as a result of his employment in and receipt of a full salary from his family-run dry cleaning business during his December 1992 and January 1993 to June 1993 periods of disability. The Hearing Officer's recommendation that petitioner be deemed ineligible for benefits under General Municipal Law § 207-a on or after December 27, 1992 and that the City recover prior paid benefits was duly accepted by the City's common council.
Petitioner commenced this CPLR article 78 proceeding seeking an order directing the City to pay him General Municipal Law § 207-a (2) benefits and declaring the termination of his General Municipal Law § 207-a (1) benefits to be arbitrary and capricious, in violation of law based on errors of law and procedural and constitutional violations, and unsupported by substantial evidence. Supreme Court found the evidence before the Hearing Officer to be clear and uncontradicted, creating no substantial evidence issue, and based on this court's holdings in Matter of Faliveno v. City of Gloversville (215 AD2d 71, appeal dismissed 87 NY2d 896, lv denied 87 NY2d 1055) and Matter of Faliveno v. City of Gloversville (228 AD2d 19, lv denied, 89 NY2d 816), determined that the City's action was not arbitrary and capricious, an abuse of discretion or erroneous as a matter of law, and dismissed the petition. Petitioner now appeals.
Petitioner does not dispute that he was the sole officer and shareholder in the dry cleaning business when he received General Municipal Law § 207-a (1) benefits during his periods of disability in 1992 and 1993, but claims that he only received sick pay benefits and was not actively working at that time. General Municipal Law former § 207-a (6), in effect at the time, provided:
Any fireman receiving payments or benefits pursuant to this section, who engages in any employment other than as provided in subdivision three or five of this section shall on the commencement of such employment, forfeit his entitlement to any payments and benefits hereunder, and an
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