Pomakoy v. Lombardo

OPINION OF THE COURT Yesawich Jr., J. Petitioner was hired as a firefighter by respondent City of Albany in 1958. After being diagnosed with heart disease in 1968, he was given light duty assignments until he suffered a heart attack on November 29, 1984. It is not clear from the record why petitioner was assigned light duties. Petitioner claims that his heart disease was work related and that, although a formal determination awarding him General Municipal Law § 207-a benefits was not made, he in fact received his full salary during this period pursuant to section 207-a; he appears to suggest that this indicates that a light duty position existed. On the other hand, respondents, who have not yet interposed an answer, maintain in their brief that petitioner was gratuitously allowed to remain on the payroll to enable him to earn retirement time and that this arrangement does not support an inference that petitioner was receiving section 207-a benefits. Furthermore, respondents assert that there is no light duty firefighter position in their fire department. Following his heart attack in 1984, petitioner was unable to work but continued receiving his full salary until January 6, 1986, when he was involuntarily terminated by the City of Albany. After petitioner’s initial CPLR article 78 proceeding and collective bargaining agreement grievance, both aimed at securing restoration to the payroll and continuation of General Municipal Law § 207-a benefits, were rejected as untimely, petitioner, in August 1989, requested reinstatement as a firefighter pursuant to Civil Service Law § 73. Two medical experts found petitioner unfit for full firefighter duty, whereupon respondents denied his request. In the instant CPLR article 78 proceeding, petitioner seeks to overturn this determination by claiming that respondents acted arbitrarily and capriciously in requiring him to be medically fit for full firefighter duty rather than light firefighter duty and that respondents are estopped under the doctrine of laches from asserting that petitioner was not entitled to continue working in a light duty capacity pursuant to General Municipal Law § 207-a. Supreme Court found the petition time barred and granted respondents’ motion to dismiss. We reverse. [15] Petitioner rightly contends that Supreme Court erred by limiting the time period in which he could apply for reinstatement to one year from the time he was terminated from his employment instead of, as the statute provides, to within one year from the termination of his disability (see, Civil Service Law § 73; Matter of Driscoll v Department of Fire, 115 AD2d 300, 300-301; Matter of Miller v Regan, 80 AD2d 968, 969). Whether, however, the position occupied by petitioner before his heart attack in 1984 constituted a light duty position, was recognized as such by respondents, still exists and remains unfilled, and, if so, whether petitioner is physically capable of filling that position—the medical reports presently before us are inconclusive in this regard—are among the fact issues yet to be developed by the parties.* As the record is clearly incomplete, consideration of these and the related issues they generate would be premature. Footnotes [*] Significantly, the Court of Appeals has just recently explicitly recognized that whether a police officer’s "ability to perform the desk job he had filled [for 10 years preceding his termination] constitutes an ability 'to perform the duties of his position’ within the meaning of section 73” is a question warranting pretermination notice and a minimal opportunity to respond (Matter of Prue v Hunt, 78 NY2d 364, 368).