In the Matter of Brian Ward, Respondent,v.City of Long Beach, Appellant.BriefN.Y.January 2, 2013To Be Argued By: LOUIS D. STOBER, JR., ESQ. Time Requested: 10 Minutes Court of Appeals STATE OF NEW YORK BRIEF FOR PETITIONER-RESPONDENT In the Matter of the Application of BRIAN WARD, Petitioner-Respondent, For an Order Pursuant to Article 78 CPLR, -against- THE CITY OF LONG BEACH, Respondent-Appellant. LAW OFFICES OF LOUIS D. STOBER, JR., L.L.C. Attorneys for Petitioner-Respondent Brian Ward 350 Old Country Road, Suite 205 Garden City, New York 11530 Phone No. (516) 742-6546 Fax No. (516)742-8603 Brief Completed on: June 6, 2012 On the Brief: LOUIS D. STOBER, JR., ESQ. i COURT OF APPEALS STATE OF NEW YORK -----------------------------------------------------------------------------x In the Matter of the Application of Brian Ward, Petitioner-Respondent, For an Order Pursuant to Article 78 CPLR, -against- The City of Long Beach, Respondent-Appellant. -----------------------------------------------------------------------------x TABLE OF CONTENTS PAGE Counter-Questions Presented ..................................................................................... 1 Preliminary Statement ................................................................................................ 1 Counter-Statement of Facts ........................................................................................ 2 Argument Point I Standard of Review in an Article 78 Proceeding .................................. 5 Point II The Judgment and Orders of the Courts Below Must Be Affirmed Because the Respondent’s Denial of Petitioner’s Application for NYGML 207-a(2) Benefits Was Arbitrary and Capricious .............................................. 13 Point III NYGML § 207-a(2) is to Be Construed in a Light Most Favorable to Firefighters ............................................................ 20 Conclusion ............................................................................................................. 22 ii TABLE OF AUTHORITIES PAGE Cases 300 Gramatan Avenue Associates v. State Division of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54 (1978) ......................................................... 6 Berardi v. Berardi,54 A.D.3d 982 ............................................................................ 10 Beshara v. Beshara,281 A.D.2d 577 ........................................................................ 10 Brown v. Camillus Volunteer Fire Dept., 288 AD2d 932 (4th Dept. 2001) ............ 13 Catabiano v. N.Y.S. Employees’ Retirement System, 135 A.D.2d 113, 524 N.Y.S.2d 540 (3d Dept. 1988) .................................................................. 7 Diotte v. Fahey, 97 A.D.2d 653, 469 N.Y.S.2d 191 (3d Dept. 1983) ....................... 6 Gramando v. Putnam County Personnel Dept.,58 A.D.3d 842 (2d Dept. 2009) .... 13 Jetter v. McCall, 288 A.D.2d 591, 732 N.Y.S.2d 283 (3d Dept. 2001) .................... 7 Majauskas v. Majauskas, 61 N.Y.2d 481 ................................................................ 10 Matter of Cook v. City of Utica, 88 N.Y.2d 833, 834 (1996) .......................... 14, 15 Matter of Heck v. Keane, 6 A.D.3d 95, 99-100, 774 N.Y.S.2d 214 ....................... 21 Matter of Sutka v. Connors, 73 N.Y.2d 395, 541 N.Y.S.2d 191, 538 N.E.2d 1012, (1989) ............................................................................... 15 Matter of Thomas P. Flynn, 212 A.D.2d 708 ........................................................7, 8 Matter of Viscomi v. Village of Herkimer, 23 A.D.3d 1049, 1050, 803 N.Y.S.2d 873, 875 (4th Dept. 2005) ........................................................ 21 McGowan v. Fairview Fire Dist., 823 N.Y.S.2d 649, 656, 14 Misc.3d 270, 280 (Sup. Ct. 2006) ....................................................... 9, 21 McNelis v. McNelis, 6 A.D.3d 673 ......................................................................... 10 iii Pease v. Colucci, 59 A.D.2d 233, 235, 399 N.Y.S.2d 519 (1977) ..................... 9, 21 Pell v. Board of Educ. Of Union Free School Dist. No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 839 (1974) ....................................... 5 Ridge Road Fire District v. Schiano, 16 N.Y.3d 494, 947 N.E.2d 140, 922 N.Y.S.2d 249 ............................................................................................ 7 Solano v. City of Mount Vernon, 853 N.Y.S.2d 641, 49 A.D.3d 762 (2d Dept. 2008) ........................................................................... 15, 16, 17, 20 Ward v. Ward, 101 A.D.2d 1006 ............................................................................. 10 Statutes 1 N.Y.Jur., Administrative Law, § 184, p. 609 .......................................................... 5 CPLR § 7804(f) .......................................................................................................... 1 New York General Municipal Law § 207-a(2) .......................... 1, 3, 4, 5, 6, 7, 9, 11, .................................................................................... 13, 15, 16, 20, 21 New York General Municipal Law Section 207-a ................... 1, 3, 9, 10, 12, 20, 21 New York General Municipal Law Section 207-c .................................................. 10 New York Retirement and Social Security § 363-c ...................................... 3, 14, 15 1 COUNTER-QUESTIONS PRESENTED Did the Appellate Division err in affirming the granting of the Petitioner- Respondent, Brian Ward’s petition and annulling the City of Long Beach’s denial of supplemental disability benefits under General Municipal Law Section 207- a(2)? Petitioner-Respondent respectfully submits that this question should be answered in the negative and the Judgment of the Supreme Court, as affirmed by the Appellate Division, Second Department should be affirmed. PRELIMINARY STATEMENT Petitioner, Brian Ward (hereinafter “Ward”), commenced an Article 78 proceeding on December 15, 2008, alleging that Respondent, City of Long Beach (hereinafter “City” or “the City”), rendered an arbitrary and capricious determination that improperly denied Ward’s application for supplemental disability benefits under General Municipal Law Section 207-a (R- 10-30)1. Petitioner further alleged that the City’s inaction violated Ward’s due process, as it substantially prejudiced and rendered impossible any meaningful appeal of the City’s denial. Respondent moved pursuant to CPLR § 7804(f), to dismiss the petition(R-31). After the Motion to Dismiss was denied (R-75-80), Mr. Ward submitted his Re-Notice of Petition(R-81) and the City submitted its Answer (R- 1 (R- ) refers to Record on Appeal 2 98) and no additional information other than it had already provided in its failed Motion to Dismiss. By Short Form Order dated October 30, 2009, Supreme Court Justice Daniel Palmieri granted Mr. Ward’s Petition in its entirety (R-5-9). After Judgment was entered on December 16, 2009 (R-3-4), the City of Long Beach appealed(R-1). This brief is submitted on behalf of the Petitioner-Respondent, Brian Ward, in opposition to the Respondent-Appellant City’s appeal. COUNTER-STATEMENT OF FACTS Ward has worked for the City in the Fire Department (hereinafter “Department” or “the Department”) for over 19 years and seven to eight years as Lieutenant. Ward holds the position of Lieutenant with the Department (R-11). On or about October 17, 2003, Lieutenant Ward suffered an injury at the Fire Department, located at 1 West Chester Street in Long Beach (R-12). At the time of his injury Ward was on duty, he was going to pick up a new Fire Engine from the City garage. While sliding down the fire pole, an accelerant on the pole increased the rate of speed that Lt. Ward traveled down the pole causing severe and permanent injuries to his left knee and preventing Ward from ever performing the duties of a Firefighter or Lieutenant again (R-12). 3 Lt. Ward subsequently applied for disability retirement with New York State pursuant to the New York Retirement and Social Security § 363-c (R-12). The application for disability retirement was granted by Decision and Order November 17, 2005 R-22-25). On May 14, 2008, Lt. Ward advised the City, through its Corporation Counsel, that he was pursuing General Municipal Law Section 207-a benefits for supplemental disability pension benefits, and that under New York State Law, the City must apply for these benefits on his behalf (R-26). By letter dated July 10, 2008, Fire Commissioner Steve Fraser notified Lt. Ward that his request to the City for supplemental disability pension benefits pursuant to New York General Municipal Law (hereinafter “NYGML”) § 207-a(2) was denied and that Lt. Ward could appeal the decision to the City Manager (R-27). While the letter is dated July 10, 2008, Lt. Ward did not receive the letter until July 28, 2008, as it was sent to the Firehouse instead of Lt. Ward (R-12). By letter dated August 13, 2008, Lt. Ward hand delivered the appeal of the denial to City Manager Charles Theofan (R-28). This letter was hand delivered after two attempts were made by Lt. Ward to personally meet with the City Manager to discuss and appeal the denial (R-13). By letter dated August 29, 2008, the City Manager gave a cryptic response saying “Receipt of your written appeal of my denial of your application for Section 207-a(2) benefits is hereby acknowledged. All further proceedings are to be coordinated by and through the 4 Corporation Counsel’s office. Kindly contact Corporation Counsel Corey Klein if you have any questions.”(R-29). Lt. Ward did not receive this letter until early September, 2008 (R-13). Lt. Ward attempted to contact Mr. Klein, City Corporation Counsel (R-13). In fact, he made more than two attempts to contact Mr. Klein to discuss and coordinate the appeal of the denial of his NYGML 207- a(2) benefits, but those efforts were to no avail (R-13). Therefore, on September 11, 2008, Lt. Ward hand delivered a letter to Corporation Counsel Corey Klein trying to set up a meeting and to get the specific details why his application for 207-a(2) benefits was denied (R-13,30). Not until the City put in its Motion to Dismiss, did the City provide Lt. Ward any insight or information as to why his application for 207-a(2) benefits was denied (R-31). The City never scheduled a meeting nor provided a written denial outlining the reasons for the denial (R-13). The questionable evidence which the City relied upon, medical suggestions from a lay person (Corporation Counsel Corey Klein) and calculated remarks by Petitioner’s embittered soon to be ex-wife (Mrs. Ward), do not constitute substantial evidence. At the very best, it amounts to rank hearsay and pure speculation. The City did not give Ward an opportunity to present evidence to respond to any reason for denying Lt. Ward benefits under NYGML 207-a(2) (R-13). Since the City did not provide Lt. Ward any reason for denying him 207-a(2) benefits 5 prior to their Motion to Dismiss the instant Petition, the City effectively made any meaningful appeal an impossibility. Lt. Ward continues to seek his 207-a(2) supplemental disability benefits based on the City’s inaction and improper denial of his benefits. The City’s actions are arbitrary and capricious and affected by errors of fact and law. ARGUMENT POINT I STANDARD OF REVIEW IN AN ARTICLE 78 PROCEEDING The Court of Appeals has held that, “[t]he arbitrary and capricious test chiefly ‘relates to whether a particular action should have been taken or is justified * * * and whether the administrative action is without foundation in fact.’” Pell v. Board of Educ. Of Union Free School Dist. No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 839 (1974) (quoting 1 N.Y.Jur., Administrative Law, § 184, p. 609). This Court has defined arbitrary and capricious as “without sound basis and is generally taken without regard to the facts.” Id. Both Courts below properly found in favor of Lt. Ward because the City’s determination to deny Ward’s application for supplemental disability benefits under NYGML 207-a(2) falls squarely within the definition of arbitrary and capricious. Lt. Ward’s initial claim for GML 207-a(2) benefits followed by the City’s inaction and improper denial amounts to a cause of 6 action upon which relief was granted (R-5-9, CA-2-3). It should be noted that the Petition was initially brought because the City didn’t give Lt. Ward any reason why it was denying the request for 207-a(2) benefits. It was only with the hindsight brought by a Court petition that the City concocted its poorly conceived “reasons” for denying the application for the additional disability benefit afforded under 207-a(2). The Court’s function in reviewing the substantiality of the evidence upon which an administrative agency has acted is to exercise a genuine judicial function and not to confirm a determination merely because it was made by such an agency. See 300 Gramatan Avenue Associates v. State Division of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54 (1978); Diotte v. Fahey, 97 A.D.2d 653, 469 N.Y.S.2d 191 (3d Dept. 1983). However, an agency’s assessment of the credibility of witnesses and the inferences to be drawn from the evidence presented are conclusive if supported by substantial evidence and the court must review the entire record to determine whether there is a rational basis in it for the findings of fact supporting the agency’s decision. Id. Moreover, the record must show proof of such quality and quantity which would generate conviction in and persuade a fair and detached fact finder that, from the proof presented as a premise, the conclusion reached could be extracted reasonably, probatively and logically. The record must provide a rational basis for the findings of fact supporting the agency’s 7 decision. Id. Both Courts below properly utilized this criteria in finding for Mr. Ward (R-5-9, CA-2-3). The courts have held that in a case involving judicial review of an administrative agency’s quasi-judicial determination, regardless of which party has the burden of persuasion, the agency’s decision must be supported by substantial evidence. Catabiano v. N.Y.S. Employees’ Retirement System, 135 A.D.2d 113, 524 N.Y.S.2d 540 (3d Dept. 1988); Jetter v. McCall, 288 A.D.2d 591, 732 N.Y.S.2d 283 (3d Dept. 2001). Here, it is clear that the City’s findings are not supported by substantial evidence. In its brief, the City tries to analogize its alleged reliance on Ms. Ward’s statement to the denials in Ridge Road Fire District v. Schiano, 16 N.Y.3d 494, 947 N.E.2d 140, 922 N.Y.S.2d 249 and Matter of Thomas P. Flynn, 212 A.D.2d 708. We use the word “allged” reliance because the City never provided Lt. Ward with an explanation why it was denying him 207-a(2) benefits and only came up with the Beverly Ward explanation after a lawsuit seeking the 207-a(2) disability benefit be awarded. In Ridge Road, there was a full blown due process hearing held in which both sides were given the opportunity to present all evidence in favor of each position BEFORE a decision was made to deny benefits. As the record in the instant case shows, Lt. Ward was never afforded this opportunity, indeed, his 8 estranged wife’s statement was never even presented to him to rebut prior to being denied 207-a(2) disability benefits. In Flynn, the court battle was over the issue of whether to credit one physician’s testimony (after having had a full opportunity to examine Mr. Flynn) over another physician’s testimony (who also had a full opportunity to examine Mr. Flynn). From this, the City is claiming that it could decide to credit Ms. Ward’s statement. It claims it had to decide between Mr. and Mrs. Ward’s “conflicting stories.”(Appellant brief at 20). Yet the record shows that Lt. Ward was never given an opportunity to give his “story” prior to the denial, indeed, the entirety of Ms. Ward’s alleged statement was kept hidden from him. Further, unlike Flynn, where the physicians testified at a hearing and were subjected to cross examination, Ms. Ward has never testified, never been sworn and never subjected to cross examination. In other words, the protections ensuring truthful testimony in Flynn were not present here. Also, in Flynn, the physicians’ testimony concerned their personal knowledge of Mr. Flynn’s condition after having personally examined him. In the instant case, Ms. Ward never stated she saw the alleged injury happen, she is concededly not a physician and did not perform any kind of examination of Lt. Ward’s knee to determine the extent of any injury, if any, allegedly sustained in the claimed soccer incident. She also did not 9 conduct an examination of Lt. Ward’s knee after the fire pole injury to determine if it was the same as the alleged soccer injury, or indeed if it was even the same knee. There are so many holes in Ms. Ward’s statement that it must be rejected even before one gets to the disability benefit argument and whether Ms. Ward would be entitled to any share of Lt. Ward’s 207-a(2) disability benefit. Furthermore, NYGML 207-a was enacted for the benefit of firefighters and is to be interpreted in a light most favorable to them. “It is well settled that GML § 207-a is a ‘remedial statute enacted for the benefit of firemen and should be liberally construed in their favor’.” McGowan v. Fairview Fire Dist., 823 N.Y.S.2d 649, 656, 14 Misc.3d 270, 280 (Sup. Ct. 2006) (quoting Pease v. Colucci, 59 A.D.2d 233, 235, 399 N.Y.S.2d 519 (1977)). Further, the above cited cases, and many others, make it clear that 207-a benefits, including 207-a(2) are “benefits” to compensate Firefighters for their personal injuries sustained in the performance of duty. In other words, it does not matter whether a Firefighter has been employed for one day or 30 years, his or her benefit is the same. Unlike retirement benefits or other benefits that are awarded based on the number of years credit the employee received based on the number of years of employment of the employee, 207-a benefits are always the same, to wit, a benefit equal to the full amount of the regular salary of the employee. Therefore, since the only circumstance underwhich a Firefighter can receive 207-a(2) benefits 10 is if he/she is injured, the statute represents a method for compensating him/her for his/her personal injuries. Clearly, compensation for personal injuries is considered the separate property of the pension beneficiary. Berardi v. Berardi,54 A.D.3d 982, McNelis v. McNelis, 6 A.D.3d 673. The above caselaw makes clear that no portion of a disability pension (including sums received under Section 207-a for Firefighters, or 207-c for Police and other specifically enumerated positions) are subject to equitable distribution since they constitute compensation for personal injuries (suffering a personal injury being a requirement for the triggering of said benefits). It is only that portion of a disability pension that represents payment of “deferred compensation” that is subject to equitable distribution. See, Beshara v. Beshara,281 A.D.2d 577. The City’s convoluted argument, raised for the very first time in this appeal, that longevity payments that are to be paid as part of 207-a benefits makes 207-a somehow magically transformed into compensation that is subject to equitable distribution must be rejected. That a sum equal to the amount of longevity pay an injured Firefighter would otherwise receive if not injured is not “compensation related to length of employment” under the Majauskas v. Majauskas, 61 N.Y.2d 481 analysis. Coincidently, in Ward v. Ward, 101 A.D.2d 1006 (not related to the instant parties), the Appellate Division, Fourth Department once again confirmed that 11 benefits a party receives from a service-connected disability are in the nature of compensation for personal injuries and are thus separate property. Applying the above caselaw to the instant case, even though no one had the opportunity to cross examine Ms. Ward on what, if any belief she had as to her entitlement (or not) to any portion of Lt. Ward’s 207-a(2) benefit, it is clear that Ms. Ward is not entitled to any portion thereof. Therefore, she was not acting against her financial interest in making the alleged statement to Messrs. Klein and Eaton that her soon to be ex-husband had injured himself at his daughter’s soccer game and not on the job. It is also clear from the record that neither Klein nor Eaton performed any legal research into the issue of whether a spouse is entitled to a portion of a disability pension before “believing” Ms. Ward. The City’s argument, in its brief to this Court, that Ms. Ward had an interest in trying to inflate her husband’s income ignores the fact that the pension benefit is irrelevant to that calculation. Also, the City’s claim that it was against her economic interest to have Lt. Ward incarcerated because he would have zero income is also false because the only income he had at the time was his retirement monies. He was not working elsewhere, therefore, the only income available for equitable distribution was whatever his regular pension benefit was. Ms. Ward clearly saw that her soon to be ex-husband was going to be receiving a substantial sum of money to live on for the rest of his life that she was 12 not going to be able to get any portion of. Rather than accept this fact, she took action to attempt to deprive him of this benefit. This was clearly in her own self- interest out of her need to extract as much pain and suffering as she could for his allegations of infidelity against her in the divorce proceedings. Another error in the City’s argument is that the amount Lt. Ward receives in disability pension and 207-a benefits is not used in calculating the amount of maintenance to be awarded to Ms. Ward. It is irrelevant to the calculation. All that can be considered, under New York law, is that income that is subject to equitable distribution, regardless of what other income or property either spouse has. Finally, it should be noted that whether Ms. Ward was entitled to any portion of Lt. Ward’s 207-a(2) benefit was not the major reason for a finding of arbitrariness in the denial of 207-a(2) benefits. Rather, it was the entirety of the City’s actions, starting with its refusal to provide Lt. Ward with a reason why it was denying his benefit, coupled with the City’s failure to seek corroboration to Ms. Ward’s statement, obtain medical proof of the alternate theory of injury, the failure to provide Lt. Ward with a hearing or even an opportunity to be heard on the allegation before denying the benefit that was arbitrary. The topping on the cake was the reliance on Mr. Klein’s lay opinion based on seeing sporadic occasions of Lt. Ward playing beach volleyball as part of his physical therapy 13 regime and the absolute dearth of even one medical examination to obtain a professional diagnosis of whether Lt. Ward was still disabled. The formula for the arbitrary and capricious denial of 2097-a(2) benefits was clearly shown in the instant case. POINT II THE JUDGMENT AND ORDERS OF THE COURTS BELOW MUST BE AFFIRMED BECAUSE THE RESPONDENT’S DENIAL OF PETITIONER’S APPLICATION FOR NYGML 207-a(2) BENEFITS WAS ARBITRARY AND CAPRICIOUS The Supreme Court below summed it up best: “The familiar standard for Article 78 review of a determination such as this, which was not the result of a hearing held at which evidence was taken, was whether or not it was arbitrary and capricious and had a rational basis. See generally, Gramando v. Putnam County Personnel Dept.,58 A.D.3d 842 (2d Dept. 2009); Brown v. Camillus Volunteer Fire Dept., 288 AD2d 932 (4th Dept. 2001). Under the circumstances presented here, Court finds the City’s determination not to have had a rational basis, and therefore annuls the denial. The statements by Mrs. Ward were not made under oath. There was no recording made, either electronic or written. She was not asked to submit an affidavit. There is no indication that any investigation was made by any City official to verify the contents of her statements, notwithstanding the fact that the knee injury took place in public, in the presence of a number of witnesses. There is no proof that any person in law enforcement took any action against petitioner based upon Mrs. Ward’s statements. As noted above, there is no description of the accident that allegedly occurred two days before petitioner slid down the pole at the fire department building. In short, Mrs. Ward’s statement was wholly unverified. The City also appears to rely on Klein’s personal knowledge of petitioner’s playing beach volleyball some time after the injury. However, as the determination to deny benefits was based on the injury not having occurred during the course of employment, and not on any claim that there was no disabling injury at all, it is not material here. In any event, such an observation obviously is made 14 not by a medical professional but by a lay person, who is unable to relate what he saw to the petitioner’s ability to function as a firefighter. Further, while the State determination finding petitioner eligible for disability retirement benefits was not binding on the City (Matter of Cook v City of Utica, 88 NY2d 833 [1996]), the record compiled during that proceeding and hearing, including sworn testimony and medical evidence, lends support to petitioner’s position that the injury was indeed employment-related. Although Klein states that he reviewed it, he does not explain why it did not change his mind about petitioner’s application. The foregoing renders the City’s reliance on Mrs. Ward’s untested and unsworn allegations, and its subsequent decision to deny benefits, without a rational basis and thus arbitrary and capricious. The fact that they believed her report because it appeared to be against her own economic interests, and that she told the same story to the police, does little to cure the deficiencies noted above.”(R-7-8). The New York Retirement and Social Security Laws allow for payment of benefits to firefighters who are injured in the course of their job. “Section 363-c of the Retirement and Social Security Law provides for payment of benefits to firefighters who become incapacitated as a result of the performance of their duties. Eligibility for such benefits is determined by the Comptroller.” Matter of Cook v. City of Utica, 88 N.Y.2d 833, 834 (1996). Firefighters that have been declared permanently disabled by the New York State Comptroller are also entitled, in certain circumstances, to receive from their employing municipality the difference between what they received under 363-c of the Retirement System and their regular salary. “ . . .[f]irefighters who are also granted Retirement System benefits for performance-of-duty or accidental disability are entitled to receive from the employing municipality ‘the difference between the amounts received 15 [from the Retirement System] and the amount[s] of [their] regular salary or wage’. . .” Id. (quoting General Municipal Law § 207-a(2)). At the outset, Petitioner-Respondent acknowledges that respondent-appellant City has the right to make a separate determination from the New York State Comptroller as to whether a firefighter was permanently disabled in the performance of his duties. See Matter of Cook, 88 N.Y.2d at 835; See also Solano v. City of Mount Vernon, 853 N.Y.S.2d 641, 49 A.D.3d 762 (2d Dept. 2008); See also Matter of Sutka v. Connors, 73 N.Y.2d 395, 541 N.Y.S.2d 191, 538 N.E.2d 1012, (1989). Having acknowledged that the City had the right to make a separate determination from the NYS Comptroller, Petitioner-Respondent now contends, and both Courts below agreed, that the City’s determination was arbitrary and capricious in that the City failed to perform its due diligence to properly evaluate the condition of Ward’s knee prior to its denial of his 207-a(2) application. In rendering its decision, the City did not have substantial evidence for its determination and ultimately relied on mere medical speculation by a lay person and comments from an estranged wife (who did not even state that she saw the alleged injury at the soccer game) that amounts to hearsay. In Solano, a firefighter received permanent disability benefits from the New York Retirement System under Retirement and Social Security Law § 363-c. The NYS Comptroller determined the firefighter permanently disabled from a lower 16 back injury incurred in the performance of his duties. The firefighter subsequently applied to the City of Mount Vernon, Respondent therein, for payment of supplemental benefits under GML § 207-a(2). The City of Mount Vernon denied the petitioner’s 207-a(2) application and the City’s determination was upheld under Article 78 review by the Appellate Division, Second Department. Respondent herein cites to this case, with emphasis added, to justify the City’s improper denial of Petitioner Ward’s 207-a(2) application. However, the City did not exercise the due diligence required as did the Respondent in Solano. In Solano, the Respondent required the petitioner to undergo a medical examination. The examining physician issued an independent medical report stating that, in his medical opinion, the petitioner did not suffer from a work related injury. It was from this medical evaluation that the City, in Solano, denied petitioner’s 207-a(2) application. Moreover, it was this substantial evidence (medical examination) that allowed the City’s denial, in Solano, to withstand Article 78 review. The City’s denial, in Solano, was not based on lay person opinion or scandalous allegations from an embittered soon to be ex-wife, as they were herein. Rather, the City, in Solano, relied on an independent medical examination conducted by a physician. Contrary to the substantial evidence relied on by the Respondent in Solano, the City in the instant matter did not rely on substantial evidence in denying 17 Ward’s 207-a(2) application. The City did not require Ward to undergo a medical examination. Rather, the City’s Corporation Counsel, Corey Klein, stated that because he saw Ward play beach volleyball on occasion that the causation and permanence of his injury were drawn into question. (R-38-39, Klein Aff. ¶ 17-20). Corey Klein stated the following in regard to Ward’s beach volleyball participation: “At worst, they indicate that Ward never sustained a knee injury to begin with.” (R-38, Klein Aff. ¶ 18). Ward’s participation in beach volleyball took place after several years of rigorous rehabilitation following reconstructive surgery of his knee, and moreover, Ward’s sporadic recreational participation in beach volleyball does not establish that Ward was indeed fit to perform the duties of a firefighter. In fact, Ward’s participation in beach volleyball does not place the same stress on the knee as would the duties of a full-time firefighter. Furthermore, if the City was so concerned with the current status of Ward’s knee they could have required him to undergo a medical examination, or at the very least, inquired of Ward himself. Nevertheless, the City never investigated the health status of Ward’s knee; the City merely relied on Corey Klein’s lay opinion after watching Ward play beach volleyball. This certainly does not rise to the standard in Solano, where a medical examination, given by a physician, was the evidence that Respondent relied on. 18 Another factor the City relied on in denying Ward’s application for 207-a(2) benefits were the comments made by Ward’s estranged wife to the former City Manager, Edwin Eaton. (R-33-34, Eaton Aff. ¶ 5 -11). The City failed to disclose to the Court below that at the time Mrs. Ward made these comments she and Mr. Ward were engaged in a bitter divorce proceeding. Furthermore, all of Mrs. Ward’s statements amount to rank hearsay, none of which are admissible and none of which constitutes substantial evidence. What the City also failed to disclose is that not only was Ms. Ward not present for the alleged soccer incident, but she also had no information as to what, if any, was the extent of any alleged injury. There is no medical report, no hospital records, in short, nothing to show that Lt. Ward suffered any injury at the soccer game. Did the City even attempt to obtain any medical records regarding the alleged soccer injury? No. Did the City explain how Lt. Ward was able to work for two days after the alleged soccer injury? No. Did the City present any evidence whatsoever to substantiate the hearsay claim of Ms. Ward? No. Mr. Eaton claims that he referred the information provided to the Long Beach Police Department who opened an investigative file. However, nothing else was done. The City did not question Ward directly about this information. The City never disclosed any information relating to the “police investigation”, not one piece of evidence from that “investigation” has been turned over or shared. In fact, 19 Detective Domitz of the LBPD, signed an affidavit stating that in the interview of Ms. Ward, “no notes were taken, and no Police reports were generated.” (Record on Appeal to Court of Appeals – 74). In other words, the record is devoid of any proof of what Ms. Ward actually said to the police or to Mr. Klein and Mr. Eaton (since neither of them took a written statement from her or took notes either). Furthermore, the City never obtained corroboration of Ms. Ward’s alleged statement. In its brief to this Court, the City concedes that Ms. Ward’s statement could not be corroborated and that any “attempts to locate and obtain useful information, after the passage of so many years, would have been fruitless” (Appellant brief page 26). Yet, in the next breath, the City claims that despite the events occurring so many years ago and there being no proof that could be obtained to substantiate Ms. Ward’s hearsay claims, the City made a “rational” decision to deny Lt. Ward his disability benefit under 207-a(2). The arbitrariness of the decision is made obvious by the City itself. None of the information the City has disclosed amounts to substantial evidence. In actuality, it amounts to pure speculation and comments made by an estranged wife. Mr. and Mrs. Ward are in the middle of a bitter divorce action. At the time of the statements to Mr. Eaton, Mr. Ward had already sued Mrs. Ward for divorce on the grounds of infidelity. Mrs. Ward subsequently sued Mr. Ward for divorce in 2008 after Mr. Ward withdrew his suit (R-69-70). That a party would 20 make scandalous and absurd allegations in order to bolster their bargaining position in divorce negotiations is nothing new. That Mrs. Ward made such a false statement to the City in order to extort more money from Mr. Ward is certainly a plausible and the most credible view of what happened. Indeed, Mrs. Ward could also have been motivated by a desire to try to cause Mr. Ward to be penniless and pensionless after the divorce in order to extort even more pain and misery to Mr. Ward for having accused her of adultery. The basis of the City’s determination certainly does not rise to the level in Solano that allowed the respondent to deny petitioner a statutory benefit. Based on the lack of substantial evidence, the Respondent-Appellant herein could not and was not able to withstand Article 78 judicial review as evidenced by both of the Orders of the initial Court below or on appeal. POINT III NYGML § 207-a(2) IS TO BE CONSTRUED IN A LIGHT MOST FAVORABLE TO FIREFIGHTERS When considering the City’s denial of Ward’s 207-a(2) application in light of the legislative intent of the statute, it is clear that the City’s decision was arbitrary and capricious. NYGML 207-a was enacted for the benefit of firefighters and is supposed to be interpreted in a light most favorable to them. “It is well settled that GML § 207-a is a ‘remedial statute enacted for the benefit of firemen 21 and should be liberally construed in their favor’.” McGowan v. Fairview Fire Dist., 823 N.Y.S.2d 649, 656, 14 Misc.3d 270, 280 (Sup. Ct. 2006) (quoting Pease v. Colucci, 59 A.D.2d 233, 235, 399 N.Y.S.2d 519 (1977)). Not only has the City not followed this well settled interpretation of GML 207-a, the City’s actions in denying Ward his statutory benefits are a clear contradiction of what the statute calls for. Furthermore, the City obviously placed no credence in the fact that Ward was placed on permanent disability by the NYS Comptroller. While the City has the authority to make its own determination, the City is still required to consider the NYS Comptroller’s decision as well. “Furthermore, although the award of a performance of duty disability pension to petitioner is not dispositive of whether he is entitled to receive General Municipal Law § 207-a(2) benefits, respondent was required to consider the fact that petitioner has been awarded such a pension in determining his application for section 207-a(2) benefits. Matter of Viscomi v. Village of Herkimer, 23 A.D.3d 1049, 1050, 803 N.Y.S.2d 873, 875 (4th Dept. 2005) (citing to Matter of Heck v. Keane, 6 A.D.3d 95, 99-100, 774 N.Y.S.2d 214). The City’s determination has effectively discounted the fact that Petitioner Ward has been awarded a permanence of duty disability pension, and has lent the greatest weight to scandalous allegations by his estranged wife and the medical opinion of a lay person, NOT a physician, regarding Ward’s knee. For these 22 reasons, it is clear that the City’s determination lacks substantial evidence and is arbitrary and capricious. After all the City’s histrionics are discounted, what this case comes down to is a denial of a substantial benefit to a disabled firefighter based on the most inadmissible hearsay and rank speculation possible. An unsworn, untested, unverified hearsay statement of an estranged wife in the middle of a bitter divorce (who did not even see the alleged injury at the soccer game) and a lay opinion from the City’s Corporation Counsel, who is clearly not independent-minded and lacks even the most basic medical training and firematic training to determine if Mr. Ward is disabled and is unable or able to perform the duties of a firefighter, are all the City relies on in this case. This total lack of even a scintilla of substantial evidence cannot be viewed as anything other than arbitrary and capricious. The City denied the application because it wanted to, without taking the initiative of conducting a proper investigation. Its denial cannot be allowed to stand. CONCLUSION By reason of all of the foregoing it is respectfully requested that this Honorable Court affirm the Judgment and Order of the Courts below with costs. Dated: Garden City, New York June 5, 2012 23 Respectfully submitted, ______________________________ Law Offices of Louis D. Stober, Jr., LLC By: Louis D. Stober, Jr., Esq. Attorneys for Petitioner-Respondent 350 Old Country Road Suite 205 Garden City, NY 11530 (516) 742-6546