CONNER v. SYRACUSE FIRE DEPARTMENT

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Bruce CONNER, Appellant, v. SYRACUSE FIRE DEPARTMENT and City of Syracuse, Respondents.  (Appeal No. 2.)

Decided: December 31, 1997

Before DENMAN, P.J., and LAWTON, HAYES, BALIO and BOEHM, JJ. Aaron Mark Zimmerman, Syracuse, for Plaintiff-Appellant. Terri Conti York, Syracuse, for Defendant-Respondents.

 Supreme Court properly dismissed the petition for a writ of mandamus compelling respondents to provide General Municipal Law § 207-a(1) benefits to petitioner from July 11, 1995 to date.  General Municipal Law § 207-a(6) provides:  “Any fireman receiving payments or benefits pursuant to this section, who engages in any employment other than as provided in subdivision three or five of this section shall on the commencement of such employment, forfeit his entitlement to any payments and benefits hereunder”.   The record establishes that, during part of the period for which petitioner claims benefits, he was working as the operator of a car wash, as a security guard and as a locksmith.   He, therefore, forfeited his entitlement to all payments and benefits under General Municipal Law § 207-a(1) (see, Matter of Faliveno v. City of Gloversville, 215 A.D.2d 71, 74, 632 N.Y.S.2d 272, appeal dismissed 87 N.Y.2d 896, 640 N.Y.S.2d 880, 663 N.E.2d 922, lv. dismissed 87 N.Y.2d 1055, 644 N.Y.S.2d 147, 666 N.E.2d 1061;  see also, Matter of Klonowski v. Department of Fire of City of Auburn, 58 N.Y.2d 398, 405, 461 N.Y.S.2d 756, 448 N.E.2d 423).   The fact that petitioner was not actually “receiving payments or benefits” when he was engaged in such employment does not entitle him to benefits;  by statute, such benefits are restricted to those who are disabled from all employment (General Municipal Law § 207-a[6] ).   The fact that petitioner is no longer engaged in other employment does not restore the section 207-a benefits that were forfeited (see, Matter of Faliveno v. City of Gloversville, 228 A.D.2d 19, 21-22, 653 N.Y.S.2d 202, lv. denied 89 N.Y.2d 816, 659 N.Y.S.2d 856, 681 N.E.2d 1303).

In light of our determination, we do not address the remaining contention of petitioner.

Judgment unanimously affirmed without costs.

MEMORANDUM: