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

IN RE: James V. SARTO, Petitioner-Appellant, v. Jeffrey A. WHITTEMORE, Personnel Officer, Herkimer County Personnel Department, and Richard Zilkowski, City of Little Falls, Supervisor of Public Works, Respondents-Respondents.

Decided: September 28, 2007

PRESENT:  GORSKI, J.P., SMITH, CENTRA, FAHEY, AND PINE, JJ. Nancy E. Hoffman, Albany (Constance R. Brown of Counsel), for Petitioner-Appellant. Robert J. Malone, County Attorney, Herkimer (James J. Franchi of Counsel), for Respondent-Respondent Jeffrey A. Whittemore, Personnel Officer, Herkimer County Personnel Department. Armond J. Festine, Utica, for Respondent-Respondent Richard Zilkowski, City of Little Falls, Supervisor of Public Works.

Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, reinstatement to his position as a motor equipment operator with the City of Little Falls.   Petitioner had sustained a work-related injury in August 2003 and was receiving disability benefits when he was terminated from his position in December 2004.   Petitioner timely applied for reinstatement to his former position within one year pursuant to Civil Service Law § 71, asserting that he had sufficiently recovered from his injury to return to work.

Supreme Court erred in dismissing the petition and instead should have directed respondents to comply with Civil Service Law § 71 by selecting a medical officer to conduct a medical examination of petitioner in order to determine whether he “is physically and mentally fit to perform the duties of his ․ former position” and, if so, to certify that he is physically and mentally fit to perform those duties.   Respondents failed to comply with the statute inasmuch as they relied only on past medical records in refusing to reinstate petitioner to his former position.   Respondents' further contention that the issue of reinstatement is moot because petitioner's former position has been filled is without merit.   Pursuant to Civil Service Law § 71, “[i]f no appropriate vacancy shall exist to which reinstatement may be made ․, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years.”

We therefore reverse the judgment, reinstate the petition and remit the matter to respondents for compliance with Civil Service Law § 71.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law with costs, the petition is reinstated and the matter is remitted to respondents for further proceedings.