        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

544
TP 14-01088
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF JOHN WILLIAMS, PETITIONER,

                    V                              MEMORANDUM AND ORDER

PETER TROIANO, COMMISSIONER, DEPARTMENT OF
PERSONNEL, ONONDAGA COUNTY, STEPHANIE A. MINER,
MAYOR, CITY OF SYRACUSE, AND PAUL LINNERTZ, FIRE
CHIEF, DEPARTMENT OF FIRE, CITY OF SYRACUSE,
RESPONDENTS.


BLITMAN & KING LLP, SYRACUSE (NATHANIEL G. LAMBRIGHT OF COUNSEL), FOR
PETITIONER.

ROBERT P. STAMEY, CORPORATION COUNSEL, SYRACUSE (JAMES MCGINTY OF
COUNSEL), FOR RESPONDENTS STEPHANIE A. MINER, MAYOR, CITY OF SYRACUSE
AND PAUL LINNERTZ, FIRE CHIEF, DEPARTMENT OF FIRE, CITY OF SYRACUSE.

GORDON J. CUFFY, COUNTY ATTORNEY, SYRACUSE (THOMAS H. KUTZER OF
COUNSEL), FOR RESPONDENT PETER TROIANO, COMMISSIONER, DEPARTMENT OF
PERSONNEL, ONONDAGA COUNTY


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Onondaga County [Walter W.
Hafner, Jr., A.J.], entered June 4, 2014) to review a determination of
respondent Peter Troiano, Commissioner, Department of Personnel,
Onondaga County. The determination, among other things, affirmed the
decision to place petitioner on involuntary leave.

     It is hereby ORDERED that the determination so appealed from is
unanimously modified on the law and the petition is granted in part by
awarding petitioner back pay and reinstating all benefits for the
period from August 26, 2011 to September 30, 2013, and as modified the
determination is confirmed without costs in accordance with the
following memorandum: In August 2011, petitioner, a firefighter
employed by the City of Syracuse (City), was removed from active duty
because of an on-the-job hypoglycemic incident caused by his diabetes.
Although petitioner, his union, and the City’s Fire Department
subsequently engaged in negotiations regarding petitioner’s status,
petitioner was not formally notified that he had been placed on an
immediate involuntary leave of absence pursuant to Civil Service Law
§ 72 (5) until April 2012. Petitioner opposed the decision and timely
requested a hearing on the matter. Following a further delay during
which time petitioner received his final paycheck, the Hearing Officer
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                                                         TP 14-01088

determined that petitioner was properly placed on immediate
involuntary leave, but additionally determined that petitioner should
be allowed to return to work, and granted him some remedial relief.
In September 2013, respondent Paul Linnertz, the City’s Fire
Department Chief, reviewed the Hearing Officer’s determination and
agreed with the City that petitioner should remain on involuntary
leave, with no remedial relief. Petitioner appealed that
determination to respondent Peter Troiano, Commissioner of the
Department of Personnel for Onondaga County, who affirmed it.
Petitioner thereafter commenced this CPLR article 78 proceeding
seeking to annul the determination that he was unfit for active duty
as a firefighter because of his inability to manage his diabetic
symptoms. Supreme Court transferred the matter to this Court pursuant
to CPLR 7804 (g).

     We agree with petitioner that respondents did not strictly comply
with the procedural requirements of the Civil Service Law. We
conclude that the procedural protections contained in Civil Service
Law § 72 (1) apply to proceedings brought pursuant Civil Service Law
§ 72 (5) based on the language in subdivision (1) that the provisions
of notice and hearing therein apply to employees “placed on leave of
absence pursuant to this section” (emphasis added), “which includes
Civil Service Law § 72 (5)” (Matter of Smith v New York State Dept. of
Labor, 191 Misc 2d 195, 197, appeal dismissed as moot 306 AD2d 745;
see generally Matter of Petix v New York State Off. of Mental Health,
291 AD2d 846, 846). These procedures are necessary “to afford tenured
civil servant employees . . . procedural protections prior to
involuntary separation from service” (Matter of Sheeran v New York
State Dept. of Transp., 18 NY3d 61, 65). “Because of the significant
due process implications of the statute, strict compliance with its
procedures is required” (Matter of Breen v Gunn, 137 AD2d 685, 685).
Here, it is undisputed that respondents did not strictly comply with
the procedures pursuant to section 72 for placing petitioner on
immediate involuntary leave inasmuch as it was not until April 2012
that petitioner was provided with “[w]ritten notice of the facts
providing the basis for the judgment of the appointing authority that
[petitioner was] not fit to perform the duties of” his position (§ 72
[1]). Although the parties had engaged in negotiations during the
period before respondents provided petitioner with written notice,
respondents concede that at no time did petitioner waive his rights
under section 72 (cf. Grandi v New York City Tr. Auth., 977 F Supp
590, 595-596, affd 175 F3d 1007). Additionally, petitioner did not
receive the final notice of determination within 75 days from the
receipt of his request for review (see § 72 [1]). The absence of
strict compliance with these procedural requirements renders
petitioner’s alleged leave a nullity prior to September 30, 2013, when
Linnertz issued his final determination after reviewing the Hearing
Officer’s decision (see Matter of Briggs v Scoralick, 147 AD2d 694,
695; Breen, 137 AD2d at 685), and petitioner is entitled to back pay
and the restoration of benefits from August 26, 2011 until September
30, 2013. We therefore modify the determination accordingly.

     We nevertheless conclude that the determination that petitioner
was unfit for active duty is supported by substantial evidence (see
                                 -3-                           544
                                                         TP 14-01088

generally Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499;
300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176,
179-181). Based on the evidence introduced at the fact-finding
hearing, we conclude that the “inference is reasonable and plausible”
that petitioner was rendered unfit to serve as an active duty
firefighter because of his inability to manage his diabetic symptoms
(Ridge Rd. Fire Dist., 16 NY3d at 499 [internal quotation marks
omitted]). Although petitioner introduced some evidence to the
contrary, we are mindful that, under the substantial evidence
standard, the courts “may not weigh the evidence or reject the
conclusion of the administrative agency where the evidence is
conflicting and room for choice exists” (Matter of Café La China Corp.
v New York State Liq. Auth., 43 AD3d 280, 280). However, inasmuch as
respondents violated lawful procedure after initially determining that
petitioner was unfit for active duty in August 2011, we conclude that
petitioner is entitled to a hearing, should he request one, to
determine his current fitness to be reinstated, provided that his
application for reinstatement is made within one year of our decision
herein. Although petitioner is not within the one-year time period
for seeking reinstatement (see Civil Service Law § 72 [2], [3]),
respondents are estopped from asserting that petitioner is time-barred
from seeking such relief because the delay was caused by their failure
to comply with the procedures (see generally Matter of Steyer, 70 NY2d
990, 992-993).

     In view of our determination, we do not address petitioner’s
remaining contentions.




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
