Majority
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Albany County Sheriff suspending petitioner’s General Municipal Law § 207-c benefits.
Petitioner is employed as a correction officer by respondent Albany County Sheriffs Office. He was attacked by an inmate at the Albany County Correctional Facility in September 2009, and the Workers’ Compensation Board established his claim for injuries to his head, face, neck and right arm, as well as consequential depression, anxiety and seizures. He thereafter received General Municipal Law § 207-c benefits. After petitioner refused respondents’ offer of a light duty assignment, a hearing was held regarding the extent of his disability. A Hearing Officer recommended that petitioner be found capable of performing light duty. Respondent Albany County Sheriff adopted the recommendation and ordered petitioner to report for a light duty assignment or face suspension of his section 207-c benefits, prompting this proceeding.
We confirm. Petitioner argues that the Sheriff’s determination was made in violation of his due process rights because the Hearing Officer refused to consider proof that petitioner suffered from posttraumatic stress disorder, and considered evidence outside the record.[1] “The right of a disabled officer to receive section 207-c disability payments constitutes ‘a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated’ ” (Matter of Park v Kapica, 8 NY3d 302 , 310 [2007], quoting Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686 , 691 [2000]). The statute does not provide a procedural framework for making such determinations, and municipalities are free to establish their own procedures, consistent with or exceeding what is required by due process, through collective bargaining (see Matter of Park v Kapica, 8 NY3d at 311 ; Matter of Richards v City of Binghamton, 80 AD3d 1022 , 1023 [2011]). It is settled, however, that due process does not entitle a petitioner to a hearing upon “the issuance of a report for [a] light duty order . . .
* The proceeding was improperly transferred to this Court because the petition does not raise a question of substantial evidence; nonetheless, we retain jurisdiction in the interest of judicial economy (see Matter of Pozefsky v Jung, 268 AD2d 646 , 647 [2000]).
Here, petitioner was afforded due process. He contested respondents’ light duty determination on the ground that his established psychiatric and mental health issues prevented him from returning to work, and was afforded a predetermination hearing in which he was able to present his own witnesses and cross-examine respondents’ witnesses. In our view, the Hearing Officer did not violate petitioner’s procedural due process rights by refusing to consider evidence that he suffered from post-traumatic stress disorder inasmuch as there is no indication in the record before us that petitioner put that diagnosis in issue—i.e., he raised no genuine dispute with respect to that diagnosis, as opposed to his established claims—prior to offering his expert’s testimony at the hearing (see Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d at 692-693 ). Finally, we reject petitioner’s argument that the Hearing Officer considered evidence outside the record when he noted, in the context of his assessment of the credibility of petitioner’s witnesses, his observations of petitioner’s demeanor while leaving the hearings.
Spain, McCarthy and Garry, JJ., concur.
Adjudged that the determination is confirmed, without costs, and petition dismissed.
Cases cited
- Park v. Kapica 8 NY3d 302 at 310 p. 1122
- Uniform Firefighters of Cohoes v. City of Cohoes 94 NY2d 686 at 691 p. 1122
- Richards v. City of Binghamton 80 AD3d 1022 at 1023 p. 1122
- Davis v. County of Westchester 42 AD3d 791 at 793 p. 1124