Opinion
Argued September 26, 1972
Decided November 2, 1972
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JACOB MARKOWITZ, J.
Norman Redlich, Corporation Counsel ( Eric J. Byrne and Stanley Buchsbaum of counsel), for appellants.
Murray A. Gordon, P.C., for respondents.
MEMORANDUM. The procedures outlined by the board of trustees in its letter of November 6, 1970 affording petitioners an opportunity to present evidence are proper and sufficient. In the procedures so formulated we find implicit the additional and essential right of petitioners to be advised of the evidence against them and of the board of trustees' final determination, in such form as to permit adequate judicial review. Petitioners' reliance upon Goldberg v. Kelly ( 397 U.S. 254) is mistaken. There, the court dealt with the "desperate" situation of an "eligible" welfare recipient (emphasis as in original) whose assistance had been cut off without a hearing (p. 264). Here, there is no such "desperate" exigency in respect of one enjoying an established status (see Matter of Sumpter v. White Plains Housing Auth., 29 N.Y.2d 420); neither has it been demonstrated that petitioners are prima facie or presumptively "eligible" for benefits beyond the ordinary pension benefits guaranteed by the Administrative Code and heretofore allowed them by the board of trustees. The contention that the medical board's findings have given rise to vested or property rights entitling them to a complete adversary proceeding seems to be a bootstrap argument for which no persuasive authority is advanced. Further, although Goldberg ( 397 U.S. 254, supra) did, indeed, find the welfare recipient entitled to a complete adversarial proceeding, the machinery therefore had been provided posttermination and the effect of the court's decision was to require utilization of that procedure pretermination.
The order of the Appellate Division should be modified, without costs, and the matter remitted to the Fire Department Pension Board of Trustees for further proceedings in accordance with this memorandum.
Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur. Chief Judge FULD dissents and votes to affirm on the opinion at the Appellate Division.
Order modified, without costs, and the matter remitted to Special Term for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.