                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 5, 2015                     519108
________________________________

In the Matter of NEW YORK
   STATE CORRECTIONAL OFFICERS
   AND POLICE BENEVOLENT
   ASSOCIATION, INC., et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION et al.,
                    Respondents.
________________________________


Calendar Date:   January 15, 2015

Before:   Lahtinen, J.P., Garry, Devine and Clark, JJ.

                             __________


      Sheehan, Greene, Golderman & Jacques, Albany (Thien-Nga
Nguyen-Clark of counsel), for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Julie M.
Sheridan of counsel), for respondents.

                             __________


Devine, J.

      Appeal from a judgment of the Supreme Court (Mott, J.),
entered July 30, 2013 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondents denying
petitioner Gina Maliga's request to restore sick leave accruals.

      Petitioner Gina Maliga, an employee of respondent
Department of Corrections and Community Supervision (hereinafter
DOCCS) and member of petitioner New York State Correctional
                              -2-                519108

Officers and Police Benevolent Association, Inc., took approved
medical leave on November 3, 2012 and November 4, 2012. When
Maliga notified DOCCS that she was not returning to work on
November 5, 2012 because her treating physician prevented her
from doing so, Maliga's supervisor informed her that she needed
to provide a note from her physician explaining her absence
before she could return to work. After Maliga submitted a note
from her doctor stating that she was fit to return to work as of
November 8, 2012, DOCCS required her to undergo an Employee
Health Services (hereinafter EHS) examination before she could
resume active duty. On December 10, 2012, EHS deemed Maliga fit
to return to work, which she did on December 12, 2012. When
DOCCS denied Maliga's request for the restoration of 22 days of
sick leave credits that were used while she awaited EHS clearance
to return to work, petitioners commenced this proceeding.
Supreme Court dismissed the petition and this appeal ensued.

      Petitioners argue that Supreme Court erred in determining
that respondents were not in violation of Civil Service Law
§ 72 (5) in their refusal to reinstate Maliga's accruals upon
EHS's finding that she was fit to resume her job duties. We
agree with the court's determination that petitioners' reliance
on that statute fails to afford them any relief.

      Civil Service Law § 72 provides, in pertinent part, that if
an appointing authority has probable cause to believe that an
employee's presence at work poses a risk of danger to people or
property, or would otherwise materially disrupt work operations,
it can elect to immediately place such employee on an involuntary
leave of absence. In the event that the employee is ultimately
deemed fit to resume employment, the employee must be returned to
his or her position and any leave credits lost as a result of
placement on involuntary leave must be restored (see Civil
Service Law § 72 [5]). Here, nothing in the record suggests that
Maliga was placed on involuntary leave and, in fact, the evidence
shows that respondents exercised their right – under 4 NYCRR
21.3 (e) and article 14 of the parties' collective bargaining
agreement – to subject Maliga to an EHS assessment to ensure that
she could properly perform her job responsibilities. Those
regulatory and collective bargaining agreement provisions allowed
respondents to require Maliga, following a medical absence, to be
                              -3-                  519108

examined by respondents' designated physician in order to ensure
that she was capable of performing her work duties before being
permitted to resume her employment.

      Nor are we convinced that the Court of Appeals' decision in
Matter of Sheeran v New York State Dept. of Transp. (18 NY3d 61
[2011]) requires a different result. Unlike the petitioners in
Matter of Sheeran, who were found unfit to return to work
following an EHS examination and thereafter placed on an
involuntary leave of absence (id. at 63), Maliga was given EHS
approval to return to her job and was never placed on involuntary
leave. We find unavailing petitioners' assertion that DOCCS's
refusal to allow Maliga to return to work for weeks after her
personal physician indicated that she was fit to do so
constituted a de facto involuntary leave. That respondents'
reliance on a bargained-for employee leave provision
significantly affected Maliga's time accruals does not render
such determination arbitrary and capricious (see CPLR 7803 [3];
Matter of Hudson Val. Community Coll. [Hudson Val. Community
Coll. Faculty Assn.], 121 AD3d 1385, 1387 [2014]). Having found
that Supreme Court properly dismissed the petition, respondents'
alternate argument for an affirmance has become academic.

     Lahtinen, J.P., Garry and Clark, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
