Opinion
November 19, 1997
(Appeal from Judgment of Supreme Court, Chautauqua County, Gerace, J. — CPLR art 78.)
Present — Green, J. P., Lawton, Hayes, Wisner and Boehm, JJ.
Judgment unanimously reversed on the law without costs, motion granted and petition dismissed. Memorandum: Supreme Court should have granted respondents' motion to dismiss the petition on the ground that petitioner failed to exhaust his administrative remedies. The record establishes that petitioner, a firefighter employed by the City of Jamestown Fire Department, was granted performance of duty disability retirement benefits pursuant to Retirement and Social Security Law § 363-c. Petitioner thereafter applied to the City of Jamestown for supplemental wage benefits pursuant to General Municipal Law § 207-a (2), but he commenced this proceeding before respondents determined his application for section 207-a (2) benefits. Thus, the petition must be dismissed ( see, Matter of Hoffman v. City of Yonkers, 231 A.D.2d 520; Matter of D'Onofrio v. City of Mount Vernon, 226 A.D.2d 719, 720; Matter of Putnam v. City of Watertown, 213 A.D.2d 974, 975).
We reject the contention of petitioner that respondents are barred by laches from denying his request for section 207-a (2) benefits. The two-year delay in granting petitioner's application for performance of duty disability retirement benefits is chargeable to the State Retirement System, not respondents.