Opinion
Index 2020-00005294
10-26-2020
In the Matter of DENNIS SMITH, Petitioner, v. CITY OF NORWICH and LYNN MURRAY, Respondents. For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules,
Unpublished Opinion
PRESENT: HON. BRIAN D. BURNS, Acting Justice
HON. BRIAN D. BURNS ACTING SUPREME COURT JUSTICE
Petitioner filed a Verified Petition on August 19, 2020 pursuant to Article 78 of the CPLR. The petition was made returnable at a term of the court but adjourned at petitioner's request with respondents' consent. Respondents filed a Verified Answer on October 8, 2020, and also filed a cross-motion to dismiss the petition. The court has considered all papers filed electronically as well as applicable law in finding the following.
The following facts, as gleaned from both petitioner's and respondents' papers, do not appear to be disputed. Petitioner was hired by the City of Norwich on March 14, 2018 as a fire assistant. He attended the New York State Fire Academy in Montour Falls New York as an employee of the City, who paid for the academy training. During the first week of training, petitioner injured his left knee and did not complete the training. He had surgery on his injured knee. Petitioner was then hired by the City as a full-time, probationary, firefighter on September 23, 2019. He later attended Binghamton Fire Academy to obtain his "229 Certification"(General Municipal Law § 209-w; 19 NYCRR § 426.6. While practicing for the Candidate Physical Ability Test (19 NYCRR § 426.6(c)(12)), petitioner sustained an injury to his left knee and could not complete the test. Consequently, petitioner could not meet the pre-requisite to become a certified fire fighter. Petitioner applied for GML 207-a benefits, but was denied by the City by letter dated April 27, 2020. The letter stated that the application was denied because the injury did not occur in performance of petitioner's duties. That denial forms the basis of this petition.
At the outset, the court deems it necessary to remind petitioner's counsel of the Rules of Professional Conduct, and specifically Rule 3.3(f)(2) which states that a lawyer shall not "engage in undignified and discourteous conduct". While the court appreciates zealous advocacy, counsel need not refer to an opposing position as "completely untethered" "absurd" or "patently absurd". Future such conduct may result in disciplinary action.
Turning to the merits of the petition, in a proceeding under Article 78 of the Civil Practice Laws and Rules, it is limited to determining whether the actions of the respondents were "arbitrary and capricious and contrary to law" (Matter of Brown v. Goord, 45 A.D.3d 930, 933, 845 N.Y.S.2d 495 [3rd Dept. 2007]; CPLR § 7803(3)). In reviewing the actions of the City, this court is not permitted to substitute its own judgment unless it does find that its actions were arbitrary and unreasonable and constitutes an abuse of discretion (Pell v. Board of Education, 34 N.Y.2d 222, 232, 356 N.Y.S.2d 833 [1974]).
GML § 207-a requires the municipality to pay a firefighter's salary who is "is injured in the performance of his or her duties" until the disability arising from the injury has ceased. Despite the deference which the court is to afford the City, no hearing was held on the application prior to the denial of the application so there is scant evidence of the reasoning for the City's denial. Instead, the City informed petitioner, by letter, that the application was denied because the injury did not occur as a result of the performance of his duties. Petitioner appealed the decision as required.
Petitioner was hired by the City and was required to attend the training in order to be certified. He was injured while attending mandatory training in a job function that he had a duty to complete. While the court agrees that many of the cases cited by the City are illustrative, they are not analogous. The administrative determinations in question in Matter of Lowther v. County of Rockland. 122 A.D.3d 845, 996 N.Y.S.2d 665 [2nd Dept. 2014]; Matter of Martino v. County of Albany. 47 A.D.3d 1052, 850 N.Y.S.2d 250 [3rd Dept. 2008]; were made after a hearing. While DePoalo v. County of Schenectady. 85 N.Y.2d 527, 626 N.Y.S.2d 737 [1995] does support that proposition that it's the employer, and not the employee, that makes the determination, DePoalo concerned the adequacy of medical proof, which is not an issue in this matter.
On this limited record, the court does not find a sufficient basis to grant the motion to dismiss and it is, therefore, denied. The court does find that the City's bare determination that the injury was not as a result of the performance of petitioner's duties was arbitrary particularly in light of its prior award under similar circumstances. As such, that determination should be vacated. However, the court is not in a position that it can declare, as a matter of law, that petitioner is entitled to back pay and/or benefits pursuant to GML § 207-a and the request for that relief is denied.
Based on the forgoing, it is hereby
ORDERED and ADJUDGED that the petition is granted, in part, consistent with the above decision and order; and it is further
ORDERED that the cross-motion is denied and dismissed.