Klonowski v. Department of Fire

Judgment unanimously affirmed, without costs. Memorandum: In order for petitioner to prevail in this CPLR article 78 proceeding in the nature of mandamus, his right to the benefits sought “ ‘must be so clear as not to admit of reasonable doubt or controversy’ ” (Matter of Association of Surrogates & Supreme Ct. Reporters within City of N. Y. v Bartlett, 40 NY2d 571, 574). Respondents’ affidavit alleged that petitioner voluntarily retired effective May 11, 1978, that he was not disabled at that time and that he consequently is not entitled to supplemental wage benefits. Inasmuch as petitioner failed to reply to those allegations, they must be deemed admitted (CPLR 7804, subd [d]). Since petitioner voluntarily retired, he waived any benefits to which he might have been entitled under section 207-a of the General Municipal Law (Matter of Weber v Department of Fire of City of Syracuse, 54 AD2d 164). (Appeal from judgment of Supreme Court, Cayuga County, Provenzano, J. — art 78.) Present — Simons, J. P., Callahan, Doerr, Denman and Moule, JJ.