DEMBOWSKI v. HANNA

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

Matter of Raymond DEMBOWSKI, Petitioner, v. Edward A. HANNA, Mayor and Public Safety Commissioner for City of Utica, and City of Utica, Respondents.

Decided: December 31, 1997

Before DENMAN, P.J., and GREEN, PINE, CALLAHAN and BOEHM, JJ. Gleason, Dunn, Walsh & O'Shea by Raymond Dembowski, Albany, for Petitioner. Corporation Counsel's Office (Charles N. Brown, of counsel), Utica, for Respondent.

Petitioner, who was formerly employed as a firefighter with the City of Utica, commenced this CPLR article 78 proceeding to annul a determination by respondents that denied his application for supplementary benefits under General Municipal Law § 207-a.   Following a prior appeal in this matter (Matter of Dembowski v. La Polla, 213 A.D.2d 972, 625 N.Y.S.2d 382, lv. dismissed 86 N.Y.2d 855, 634 N.Y.S.2d 439, 658 N.E.2d 217), a hearing was held pursuant to the Utica City Code to determine whether petitioner is entitled to those benefits.   The only witness to testify at that hearing was petitioner.   In addition, medical records and reports from four doctors who examined petitioner were introduced into evidence without objection.

 We agree with petitioner that respondents' determination denying his application for benefits under section 207-a of the General Municipal Law is not supported by substantial evidence (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 379 N.E.2d 1183;  Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321).   The unrebutted medical evidence, including the opinions of two doctors who examined petitioner on behalf of respondents, established that petitioner is suffering from posttraumatic stress disorder, which was directly related to or aggravated by his work as a firefighter.   When a disability is attributable to both a line-of-duty injury and a preexisting non-work-related condition, section 207-a benefits must be provided if the job caused or contributed to the disability “in a substantial degree” (Matter of McNamara v. City of Syracuse, 60 A.D.2d 753, 400 N.Y.S.2d 604;  see, Matter of Geremski v. Department of Fire, 72 Misc.2d 166, 338 N.Y.S.2d 543, affd. 42 A.D.2d 1050, lv. denied 33 N.Y.2d 521;  1992 Opns.St.Comp. No. 92-15).   Because respondents did not offer any contrary proof, the determination is not supported by substantial evidence (see, Matter of Dobson v. Perales,175 A.D.2d 628, 572 N.Y.S.2d 562).   In addition, respondents did not meet their burden of establishing that petitioner's application for benefits was untimely.

Determination unanimously annulled on the law with costs and petition granted.

MEMORANDUM: