HEISLER v. CITY OF BUFFALO (2004)

 Respondents appeal from a judgment finding petitioner to be permanently disabled and not fit to perform either full or light duty for respondent Fire Department of the City of Buffalo and granting petitioner's request for current and retroactive disability benefits pursuant to General Municipal Law § 207-a.   Petitioner cross-appeals from that part of the judgment that denied his application for an order holding respondents in contempt and for counsel fees.   Respondents' contention that a 1994 arbitration award, finding that petitioner was capable of performing light duty, should have precluded the Judicial Hearing Officer (JHO) in the instant case from considering that issue again is without merit.   Following the 1994 arbitration award, respondents ordered petitioner to report for light duty in June 1994 and November 1994, but petitioner failed to appear.   Instead of discontinuing the payment of benefits to petitioner in accordance with section 207-a (3), respondents elected to order that petitioner be examined by a psychiatrist of their choosing;  that psychiatrist concluded that petitioner was “not psychiatrically capable of performing light duty.”

 Respondents consequently paid petitioner section 207-a benefits from 1995 through May 2000, when petitioner appeared as ordered by respondents for an examination by a psychologist to evaluate petitioner's medical status.   Upon receiving a report that petitioner could perform light duty, respondents ordered petitioner to appear for light duty.   Petitioner responded by letter of his attorney, which stated that petitioner remained unable to perform light duty work, submitted medical reports, and requested a due process hearing.   Ultimately, respondents terminated petitioner from employment pursuant to a procedure in the parties' collective bargaining agreement.   Petitioner then commenced this CPLR article 78 proceeding, which was referred to a JHO. We conclude that the JHO's determination that petitioner is permanently disabled and not fit to perform either full or light duty for respondents is supported by substantial evidence (see Matter of Giorgio v. Bucci, 267 A.D.2d 924, 925, 700 N.Y.S.2d 561;  Matter of Curtis v. Hiller, 242 A.D.2d 950, 663 N.Y.S.2d 460, appeal dismissed and lv. denied 91 N.Y.2d 883, 668 N.Y.S.2d 554, 691 N.E.2d 626;  cf. Dembowski v. Hanna, 245 A.D.2d 1039, 678 N.Y.S.2d 174, lv. denied 91 N.Y.2d 813, 674 N.Y.S.2d 278, 697 N.E.2d 179;  see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179-180, 408 N.Y.S.2d 54, 379 N.E.2d 1183).

We reject the contention of respondents that they justly terminated petitioner's employment pursuant to a procedure in the parties' collective bargaining agreement.   Petitioner's section 207-a payments could not be discontinued except in accordance with that statute, including the due process hearing to which petitioner was entitled (see Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v. City of Cohoes, 94 N.Y.2d 686, 693-694, 709 N.Y.S.2d 481, 731 N.E.2d 137;  Matter of Heck v. Keane, 6 A.D.3d 95, 100, 774 N.Y.S.2d 214).

Finally, we conclude that the JHO did not abuse his discretion in denying petitioner's application for an order holding respondents in contempt (see generally Vogt v. Witmeyer, 212 A.D.2d 1013, 1014, 622 N.Y.S.2d 393, affd. 87 N.Y.2d 998, 642 N.Y.S.2d 619, 665 N.E.2d 189;  Matter of MacKnight v. Sutton, 198 A.D.2d 853, 854, 605 N.Y.S.2d 1002, lv. dismissed 84 N.Y.2d 988, 622 N.Y.S.2d 907, 647 N.E.2d 112).   We have examined petitioner's remaining contention and conclude that it is lacking in merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: