BRZOSTEK v. CITY OF SYRACUSE (1999)

We previously held that petitioner was entitled to a determination on the merits of his request for General Municipal Law § 207-a (2) benefits (Matter of Brzostek v. City of Syracuse, 238 A.D.2d 947, 948, 661 N.Y.S.2d 142, lv. dismissed 92 N.Y.2d 1026, 684 N.Y.S.2d 490, 707 N.E.2d 445).   The parties did not, however, create an administrative record for judicial review, but instead submitted a set of stipulated facts to Supreme Court, allowing the court to review the matter de novo.   That was error.   The administrative determination must be made by the appropriate agency in the first instance, with the burden on petitioner to establish that he is eligible for benefits.   That determination is then subject to judicial review in a CPLR article 78 proceeding.   We therefore reverse the judgment, grant the amended petition insofar as it seeks to compel respondents to determine the merits of petitioner's application and remit the matter to respondents for an initial determination of petitioner's application for General Municipal Law § 207-a (2) benefits.

Judgment unanimously reversed on the law without costs, amended petition granted in part and matter remitted to respondents for further proceedings.

MEMORANDUM: