IN RE: the Application of Joseph Dalo (2026)

Petitioner, Joseph Dalo ("Petitioner"), moves for relief pursuant to Civil Practice Law and Rules ("CPLR") Article 78 seeking to annul and vacate the determination of the City of Mount Vernon, City of Mount Vernon Fire Department, and Fire Commissioner Kevin B. Holt ("Respondents") to deny Petitioner's application for supplemental disability benefits under General Municipal Law ("GML") § 207-a(2), and to order an award of such benefits. Petitioner further seeks an award of costs and disbursements. In the alternative, Petitioner requests that the Court transfer this proceeding to the Appellate Division, Second Judicial Department, for a determination of substantial evidence. Respondents have answered and asserted affirmative defenses. For the reasons set forth below, the Court now transfers this proceeding to the Appellate Division, Second Judicial Department, for disposition.

The Court read and considered the following papers electronically filed via NYSCEF in making its decision:

• Notice of Petition, Verified Petition,¹ Request for Judicial Intervention, and Affirmation of Service (NYSCEF Doc. Nos. 1-6).

• Verified Answer, Affirmation of Nicholas S. Cortese, Esq., Index to Certified Record of Proceedings, Exhibits A-CC. and Memorandum of Law (NYSCEF Doc. Nos. 9-44).

Relevant Facts

Petitioner is a retired Fire Lieutenant, previously employed by the City of Mount Vernon Fire Department (see Petition [NYSCEF Doc. No. 1], ¶ 6). On December 22, 2017, Petitioner sustained an injury to his right shoulder and arm while performing firefighting duties (see id., ¶ 33).

On December 23, 2017, Petitioner applied for line-of-duty injury disability benefits under GML § 207-a(1) (see Ex. M [NYSCEF Doc. No. 24]). The City of Mount Vernon Fire Department ("MVFD") approved Petitioner's application on December 26, 2017 (see Ex. T [NYSCEF Doc. No. 33]). Petitioner was subsequently diagnosed with right shoulder rotator cuff and bicep tendon tears (see Ex. O [NYSCEF Doc. No. 27]); the MRI report reflected a total and temporary disability (id.). As a result, Petitioner underwent right shoulder arthroscopic surgery on January 29, 2018 (see Ex. P [NYSCEF Doc. No. 28]). Petitioner was eventually approved to return to light work duty (see Ex. Q [NYSCEF Doc. No. 29]).

On August 11, 2020, the New York State and Local Police and Fire Retirement System approved Petitioner for Performance of Duty Disability Retirement (see Ex. U [NYSCEF Doc. No. 34]).

On August 28, 2020, Petitioner applied to MVFD for supplemental disability benefits under GML § 207-a(2).²

By letter dated September 23, 2024, MVFD denied Petitioner's application for GML § 207-a(2) supplemental benefits (see Ex. W [NYSCEF Doc. No. 37]). The denial decision was based upon an independent medical examination ("IME") that found that Petitioner's disabilities are not causally related to the injury sustained during his performance of firefighting duties (id.). The physician who performed the IME, Dr. Harvey L. Seigel, opined that the findings in the emergency room on the date of injury and by the orthopedic surgeon shortly thereafter were incompatible with an acute rotator cuff tear or biceps tendon rupture (see Ex. H [NYSCEF Doc. No. 19]). Dr. Seigel opined that Petitioner's injuries causing his disability were preexisting and not causally related (id.).

On October 21, 2024, Petitioner submitted an appeal of the denial of GML § 207-a(2) benefits (see Ex. J [NYSCEF Doc. NO. 21]). MVFD thereafter appointed a hearing officer, Kenneth M. Bernstein, Esq., to conduct a hearing in connection with Petitioner's appeal (see Ex. E [NYSCEF Doc. No. 16]). MVFD directed the hearing officer that "[t]he scope of the hearing will be limited to whether the City's initial determination was supported by substantial evidence. De novo review is not authorized. To the extent possible, please conduct your hearing consistent with the procedures set forth in the Administrative Procedures Act" (id.).

The hearing took place on April 28, 2025, July 23, 2025, and August 5, 2025 (see Exs. B-D [NYSCEF Doc. Nos. 13-15]). Testimony was taken from three witnesses: Petitioner; Dr. Richard Seldes, an orthopedic surgeon who testified for Petitioner; and Dr. Seigel, who testified for MVFD consistent with his opinion set forth in the aforementioned IME report (see id.). Following the hearing, counsel for MVFD and for Petitioner each submitted post-hearing briefs (see Exs. AA-BB [NYSCEF Doc. Nos. 41-42]).

On November 9, 2025, Hearing Officer Bernstein issued a six-page Report of Findings of Fact and Recommendation (see Ex. A [NYSCEF Doc. No. 12]). The report summarized the evidence and witness testimony and set forth Hearing Officer Bernstein's findings and conclusions. In brief, Hearing Officer Bernstein fully credited Dr. Seigel's testimony and medical opinion, finding that it was supported by uncontroverted medical evidence and by his examination of Petitioner (see id. at p. 5). With respect to Dr. Seldes, Hearing Officer Bernstein found Dr. Seldes' opinion that Petitioner was permanently disabled as a result of his work-related injury to be questionable as it did not address the issue of causation and was not based on medical facts in the record (see id.). According to Hearing Officer Bernstein, "Dr. Seldes did not testify about any medical facts in the record or from his own physical examination which would support his opinion that Lt. Dalo had a causally related disability" (id. at pp. 5-6). Hearing Officer Bernstein concluded, "I have ascribed no weight to Dr. Seldes' testimony. I resolve all disputed issues of fact regarding a causal relationship between the December 2017 event and Lt. Dalo's disabilities in favor of the City of Mount Vernon" (id.). Hearing Officer Bernstein found that MVFD's determination denying Petitioner's application for GML § 207-a(2) benefits was supported by substantial evidence, and he recommended that Petitioner's appeal be denied (id.).

On November 25, 2025, Fire Commissioner Holt issued a Final Determination, fully adopting Hearing Officer Bernstein's Report of Findings of Fact and Recommendation and upholding MVFD's denial of GML § 207-a(2) benefits (see Ex. CC [NYSCEF Doc. No. 43]).

Discussion

In an Article 78 proceeding for judicial review of a determination made after a hearing held pursuant to the direction of law, and at which evidence was taken, the appropriate standard of review is whether the determination is supported by substantial evidence (see CPLR § 7803[4]; Matter of Solano v City of Mount Vernon, 108 AD3d 676, 676-677 [2d Dept 2013]). Where this substantial evidence issue is raised, a court must, after deciding any threshold matters that could dispose of the proceeding, order that the proceeding be transferred to the appropriate department of the Appellate Division for disposition (see CPLR § 7804[g]).

Here, Petitioner has raised the substantial evidence issue, arguing, among other things, that the testimony of an economically interested witness, relied upon by Hearing Officer Bernstein, cannot constitute substantial evidence (see Petition, p. 7). Further, Petitioner has requested, as alternative relief, that the Court transfer this proceeding to the Appellate Division, Second Judicial Department, pursuant to CPLR § 7804(g).³

Respondents object to the application of the substantial evidence standard, arguing that the hearing held in this case was not the type of hearing contemplated under CPLR § 7803(4) as it was not held "pursuant to direction by law." Rather, Respondents contend that the hearing in this case was conducted pursuant to procedures established by a collective bargaining agreement ("CBA"). Accordingly, Respondents' position is that the "arbitrary and capricious" standard specified in CPLR § 7803(3) is the appropriate standard of review.

The threshold question for the Court to address, therefore, is whether the evidentiary hearing in this case can be deemed to have been held "pursuant to direction by law." The term "direction by law," as used in CPLR § 7803(4), includes "hearings required either by constitutional due process or by statute and accompanying regulations" (Doe 1 v Trustees of Columbia Univ. In the City of New York, — Misc 3d —, 2026 NY Slip Op 26034, *6 [Sup Ct, NY County 2026] [internal citation and quotation marks omitted]).

Although the language of GML § 207-a does not expressly include a legally mandated hearing procedure that must be followed when making disability benefits determinations, "courts have long recognized the appropriateness of administrative hearings for that purpose . . . and the Legislature has specifically provided for a substantial evidence review of determinations made by reason of such hearings" (Matter of Giorgio v Bucci, 267 AD2d 924, 924-925 [3d Dept 1999] [internal citations omitted]. See also Matter of Wiley v Hiller, 277 AD2d 1024, 1025 [4th Dept 2000]). Indeed, Article 78 proceedings for review of GML § 207-a benefits determinations—including those involving, as in the instant matter, City of Mount Vernon firefighters—have consistently been held to the substantial evidence standard and transferred to the Appellate Division, Second Judicial Department (see, e.g., Matter of Masullo v City of Mount Vernon, 141 AD3d 95, 100 [2d Dept 2016] ["since the petitioner raised a substantial evidence question . . . the Supreme Court should have transferred the entire proceeding to this Court"]; Matter of Solano, 108 AD3d at 676; Matter of Gross v City of Mount Vernon, 107 AD3d 891, 891 [2d Dept 2013]; Matter of Miserendino v City of Mount Vernon, 96 AD3d 946, 947-948 [2d Dept 2012]).

Based upon the foregoing, the Court finds that review of the determination, made as a result of the hearing at issue in this case, is subject to the substantial evidence standard specified in CPLR § 7803(4). Accordingly, pursuant to CPLR § 7804(g), this proceeding is subject to transfer to the Appellate Division, Second Judicial Department, for disposition. Further, as the Court is not presented with other threshold objections such that could terminate this proceeding, the proceeding shall be transferred in its entirety (see CPLR § 7804[g]; Matter of Pantina-Bott v Incorporated Vil. of Freeport, 29 AD3d 592, 592-593 [2d Dept 2006]).

The parties' remaining contentions, to the extent not rendered academic or explicitly addressed herein, have been considered and found to be unavailing.

Accordingly, for all the foregoing reasons, it is hereby

ORDERED that the petition (motion sequence #1) is granted in part and only to the extent that this proceeding is transferred to the Appellate Division, Second Judicial Department, for disposition, pursuant to CPLR § 7804(g); and it is further

ORDERED that the Clerk of the County of Westchester shall forthwith transfer all papers filed in this proceeding to the Clerk of the Supreme Court, Appellate Division, Second Judicial Department, and shall mark his records to reflect such transfer.

This constitutes the Decision and Order of the Court.

Dated: July 24, 2026

White Plains, New York

HON. SHERALYN PULVER

Acting Supreme Court Justice

FOOTNOTES

1.   The Verified Petition notes that seven exhibits are annexed thereto (see Petition [NYSCEF Doc. No. 1], p. 7). However, no such exhibits were attached to the petition nor filed by Petitioner as separate documents. In any event, it appears that the intended exhibits are included as part of the administrative record filed by Respondents.

2.   GML § 207-a(2) provides that after a firefighter is granted line-of-duty disability retirement, he or she is entitled to continue receiving payment to cover the difference between the disability pension amount and the amount of their regular salary or wages. Such supplemental benefits are available until the firefighter attains the applicable mandatory service retirement age or otherwise reaches the maximum age or performs the period of service applicable for termination of service (see GML § 207-a[2]).

3.   Though not included under the prayer for relief in the petition, this alternative relief requested by Petitioner is listed in the Notice of Petition (NYSCEF Doc. No. 2).

Sheralyn Pulver, J.