Kauffman v. Dolce

In a proceeding pursuant to CPLR article 78 to review a determination of John M. Dolce dated January 22, 1992, which terminated, without a hearing, the petitioner’s benefits pursuant to General Municipal Law § 207-a, (1) John M. Dolce and the City of White Plains appeal from a judgment of the Supreme Court, Westchester County (Lange, J.), entered September 24, 1993, which granted the petition and (2) the petitioner cross-appeals from stated portions of the same judgment. Ordered that the cross appeal is dismissed since the petitioner is not aggrieved by the portions of the judgment that he cross-appeals from (see, CPLR 5511); and it is further, Ordered that the judgment is affirmed insofar as appealed from, with costs. The Supreme Court properly determined that the petitioner firefighter’s refusal to undergo surgery a second time does not constitute a waiver of the petitioner’s right to benefits pursuant to General Municipal Law § 207-a. In Matter of Sche [299] nectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd. (85 NY2d 480), the Court of Appeals stated that General Municipal Law § 207-c authorizes a city to require that police officers undergo surgery "under the appropriate circumstances * * * where reasonable” (see, Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., supra, at 486). The Court of Appeals also stated that, in this regard, police officers do not differ from firefighters, who may also be required to undergo surgery pursuant to General Municipal Law § 207-a. Thus, the Supreme Court properly found that the petitioner’s refusal to undergo surgery a second time was reasonable in light of his previous unsuccessful surgery and steroid treatments and the lack of the likelihood of success of the proposed surgery (see, Matter of Messina v Speranza, 79 AD2d 807). We have examined the appellants-respondents’ remaining contentions and find them to be without merit. Sullivan, J. P., Rosenblatt, O’Brien and Thompson, JJ., concur.