                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 26, 2016                      521541
________________________________

In the Matter of JOSEPH W.
   McKAY,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

VILLAGE OF ENDICOTT et al.,
                    Respondents.
________________________________


Calendar Date:   March 25, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


      Hinman, Howard & Kattell, LLP, Binghamton (Paul T. Sheppard
of counsel), for petitioner.

      Coughlin & Gerhart, LLP, Binghamton (Lars P. Mead of
counsel), for respondents.

                             __________


Lynch, J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Broome County) to
review a determination of respondent Mayor of the Village of
Endicott denying petitioner's application for General Municipal
Law § 207-a (2) benefits.

      Petitioner was employed as a firefighter by respondent
Village of Endicott. In April 2008, while responding to a call,
petitioner injured his lower back as he was lifting a homebound
person. In August 2009, he applied for temporary disability
benefits pursuant to General Municipal Law § 207-a (1). The
Village initially granted the benefit to petitioner, who, since
at least November 2009, has not worked as a firefighter. In
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March 2010, petitioner underwent cervical spine fusion surgery.1
Thereafter, the Village's Acting Fire Chief wrote to petitioner
to advise him that, because his "neck condition" was "not related
to the work injury," his General Municipal Law § 207-a benefits
were "terminated." Petitioner appealed and, in November 2010,
respondent Mayor of the Village appointed a Hearing Officer with
regard to the "appeal hearing." In August 2011, after hearing
testimony and expert medical evidence, the Hearing Officer found
that there was no causal relationship between the cervical spine
injury and the April 2008 event. He determined, however, that
petitioner was entitled to General Municipal Law § 207-a benefits
because there was a causal relationship linking the lower back
injury to the accident and no evidence that petitioner's lower
back had improved to the point that, but for the intervening
cervical spine injury, he would have been able to return to work
as a firefighter.

      During the pendency of the foregoing, petitioner sought and
obtained, in December 2010, performance of duty disability
retirement benefits (see Retirement and Social Security Law
§ 363-c). In response, the Village stopped paying petitioner his
General Municipal Law § 207-a (1) benefits. In November 2011, at
the Village's request, petitioner applied for supplemental
benefits pursuant to General Municipal Law § 207-a (2).2 In
March 2012, petitioner submitted to a medical examination
performed by Daniel Carr, an orthopedist retained by the Village.


     1
        In February 2011, petitioner had lumbar spine fusion
surgery.
     2
        As explained in a prior decision involving this same
incident, General Municipal Law § 207-a provides for (1) the
payment of full wages until a disability has ceased and (2)
where, as here, a firefighter receives a performance of duty
disability retirement pursuant to Retirement and Social Security
Law § 363-c, the payment of a supplemental benefit calculated as
"the difference between the amounts received under such allowance
or pension and the amount of his [or her] regular salary or
wages" (see Matter of McKay v Village of Endicott, 113 AD3d 989,
990-991 [2014], lv dismissed 23 NY3d 1015 [2014]).
                              -3-                521541

That same day, Carr issued a report finding that the April 2008
low back injury "would not have prohibited [petitioner] from
performing his duties as a firefighter and EMT." In May 2012,
the Village denied petitioner's "application" for benefits
pursuant to General Municipal Law § 207-a (2). Petitioner
commenced a CPLR article 78 proceeding to challenge this
determination and, in December 2012, Supreme Court (Tait, J.)
partially granted petitioner's application finding that the
Village could not terminate petitioner's General Municipal Law
§ 207-a benefits without a hearing.3

      In August 2012, during the pendency of petitioner's first
CPLR article 78 proceeding, the Mayor wrote to the Hearing
Officer to confirm his appointment "in the [General Municipal
Law] § 207-a (2) appeal case." At the subsequent 2013 hearing to
consider petitioner's November 2011 application, the parties
presented testimony by petitioner, petitioner's pain management
doctor, Kevin Hastings, petitioner's orthopedist, William
Lavelle, and Carr. In February 2014, the Hearing Officer issued
a decision characterizing the "issue presented" to be whether
petitioner was entitled to General Municipal Law § 207-a (2)
benefits as a result of the April 2008 lower back injury. The
Hearing Officer noted that he was obligated to "uphold" the
Village's determination to deny the benefits as long as it was
supported by substantial evidence. After summarizing the
testimony, the Hearing Officer issued "findings" that petitioner
was entitled to General Municipal Law § 207-a (2) benefits based
on the "volume of medical evidence" that supported the conclusion
that petitioner was "permanently incapacitated from performing
his duties, that his disability [was] permanent, and that his
disability [was] causally related to the performance of his
duties." Specifically, the Hearing Officer "determin[ed] that
[petitioner's] workplace injury on April 8, 2008 [was] the cause
of his permanent inability to work."




    3
        In January 2014, this Court affirmed Supreme Court's
judgment (Matter of McKay v Village of Endicott, 113 AD3d at
993).
                              -4-                521541

      In response to the Hearing Officer's decision, the Mayor,
in two letters to petitioner characterized as a "determination"
and "revised determination," rejected the Hearing Officer's
recommendation to award General Municipal Law § 207–a (2)
benefits finding that substantial evidence supported the
Village's determination to deny said benefits in May 2012.
Petitioner then commenced this CPLR article 78 proceeding to
annul the Mayor's determination. Supreme Court (Lebous, J.)
determined that the Village was not bound by Hearing Officer's
decision and then transferred the proceeding to this Court.

      The core issue before us is whether the Hearing Officer's
February 2014 decision was a final and binding determination.
Because "it has long been recognized that . . . General Muncipal
Law § 207-a . . . [was] enacted for the benefit of firefighters
. . . who sustain disabling injuries in the line of duty, the
statutory provisions are to be liberally construed" (Matter of
Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City
of Cohoes, 258 AD2d 24, 27 [1999]). Significantly, the statute
does not provide a procedure for determining a firefighter's
entitlement to benefits, which a municipality may develop
provided that it comports with due process (see Matter of Park v
Kapica, 8 NY3d 302, 311 [2007]; Matter of Richards v City of
Binghamton, 80 AD3d 1022, 1023 [2011]; Local 589, Intl. Assn. of
Fire Fighters, AFL-CIO v City of Newburgh, 116 AD2d 396, 398
[1986]). The initial question presented is what procedure, if
any, did the Village implement.

      Here, there was no negotiated procedure in place nor did
the parties present any written policy that governed the
termination of existing General Municipal Law § 207-a benefits.
Rather, the record shows that the Village simply opted to appoint
a hearing officer – first, in 2010 to decide petitioner's
entitlement to General Municipal Law § 207-a (1) benefits, and
then, in 2012, to decide petitioner's entitlement to General
Municipal Law § 207-a (2) benefits. Based on the record, we
conclude that Supreme Court's initial finding that the Village
was not bound by the Hearing Officer's determination was in
error. First, and contrary to respondents' argument, without any
statutory or negotiated prohibition or direction, the Village was
authorized to delegate its decision-making authority to the
                              -5-                521541

Hearing Officer (see Matter of Richards v City of Binghamton, 80
AD3d at 1022; Matter of Kirley v Department of Fire, City of
Oneida, 138 AD2d 842, 844 [1988]; compare Matter of Ridge Rd.
Fire Dist. v Schiano, 16 NY3d 494, 497 [2011] [collective
bargaining agreement]; Matter of Simpson v Wolansky, 38 NY2d 391,
394 [1975] [Civil Service Law § 75]; Matter of Lewandowski v New
York State & Local Police & Fire Retirement Sys., 69 AD3d 1027,
1029 [2010] [Retirement and Social Security Law § 74]). Second,
that the Mayor did, in fact, appoint the Hearing Officer to make
a final determination and not a recommendation is apparent from
the record before us. Neither the 2010 nor the 2012 appointment
was in any way qualified so as to limit the respective Hearing
Officers to an advisory role.

      Moreover, in our prior decision, we determined that the
Village could not terminate benefits payable to petitioner under
General Municipal Law § 207-a without a hearing (Matter of McKay
v Village of Endicott, 113 AD3d 989, 993 [2014], lv dismissed 23
NY3d 1015 [2014]). Given this procedural due process protection,
we consider that hearing to be a de novo assessment of whether
petitioner sustained a permanent disability as a result of the
2008 work incident. The Hearing Officer's observation that he
was required to uphold the Village's decision if that decision
was supported by substantial evidence misstates the standard for,
as a matter of due process, it was the Hearing Officer's charge
to decide the permanency issue in the first instance based on a
fully developed record – which, in fact, he did after assessing
the credibility of the witnesses and weighing the testimony. Our
review of the hearing transcript before the Hearing Officer and
the posthearing submissions further confirms that neither the
Hearing Officer nor the parties considered the Hearing Officer to
be serving in an advisory capacity. Because the Mayor chose to
unilaterally and abruptly change the Hearing Officer's decision
to a recommendation, rather than comply with the protocol
outlined in the appointment letter, we conclude that the Mayor's
February 2014 determinations must be annulled (see Matter of
Richards v City of Binghamton, 80 AD3d at 1025). If dissatisfied
with the Hearing Officer's determination, the Village's remedy
was to challenge that determination in a CPLR article 78
proceeding. In light of our conclusion, it is not necessary to
consider the parties' remaining contentions.
                              -6-                  521541

     McCarthy, J.P., Garry, Devine and Clark, JJ., concur.



      ADJUDGED that the determination is annulled, without costs,
and petition granted.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
