Bett v. City of Lackawanna

563 N.E.2d 279, 76 N.Y.2d 900, 561 N.Y.S.2d 908, 1990 N.Y. LEXIS 3273

Opinion

OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

Plaintiff, disabled while performing his duties as a fireman in 1971, was paid his full salary by the city until he failed to report for light duty in 1979 (see, General Municipal Law § 207-a [3]), at which time his employment was summarily terminated. In plaintiff’s action for damages and a declaratory judgment ordering continuation of his salary, the trial court granted plaintiff’s motion for summary judgment, holding that the city had never made a determination that plaintiff was medically able to perform light duties, as required by the statute. Although we do not subscribe to all of the trial court’s reasoning, it is clear that plaintiff’s moving papers, including pleadings and affidavits, gave notice of his alleged medical inability to work, affording defendant a fair opportunity for response, and making this issue a proper basis for the award of summary judgment. In light of this conclusion, we do not reach plaintiff’s alternative contention that a hearing was required prior to termination of his salary eight years after he became permanently disabled.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.