IN RE: John PARK

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

IN RE: John PARK, appellant, v. John A. KAPICA, etc., et al., respondents.

Decided: January 31, 2006

ANITA R. FLORIO, J.P., STEPHEN G. CRANE, STEVEN W. FISHER, and MARK C. DILLON, JJ. Thomas J. Troetti, Elmsford, N.Y., for appellant. Vincent Toomey, Lake Success, N.Y., for respondents.

In a proceeding pursuant to CPLR article 78, inter alia, to annul the appointment of a hearing officer, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Lange, J.), dated October 20, 2003, which, in effect, denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

 The petitioner's disability payments constituted a property right giving rise to the procedural due process protection of an evidentiary hearing before they could be terminated (see Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v. City of Cohoes, 94 N.Y.2d 686, 689, 709 N.Y.S.2d 481, 731 N.E.2d 137).   The procedures for terminating disability payments under General Municipal Law § 207-c must be read in conjunction with Civil Service Law § 75 (see Matter of Hodella v. Chief of Police of the Town of Greenburgh, 73 A.D.2d 967, 968, 424 N.Y.S.2d 255).   Civil Service Law § 75(2) expressly authorizes the delegation of evidentiary hearings to a “a deputy or other person designated.”   The Town could therefore properly delegate the conduct of this hearing to a hearing officer under General Municipal Law § 207-c and Civil Service Law § 75(2).

Contrary to the petitioner's contentions, Westchester County Police Act (hereinafter WCPA) § 7, which does not permit the delegation of hearing authority, is inapplicable as it pertains to matters of police discipline (see Matter of the Town of Greenburgh, 94 A.D.2d 771, 462 N.Y.S.2d 718).   The WCPA is a special legislative enactment that would only supersede the Civil Service Law on matters of discipline (see Matter of Steinmann v. Village of Spring Val., 261 A.D.2d 548, 549, 691 N.Y.S.2d 66).   Here, disciplinary charges were never preferred against the petitioner, as the parties' dispute was instead limited to the petitioner's disability status.   Accordingly, the Town's delegation of the disability hearing to a Hearing Officer, and its adoption of the Hearing Officer's findings and recommendations requiring the petitioner to return to work, were appropriate (see Matter of Curley v. Dilworth, 96 A.D.2d 903, 466 N.Y.S.2d 79).

The petitioner's remaining contentions are without merit.

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