Klonowski v. Department of Fire

Appellate Division of the Supreme Court of New York

Klonowski v. Department of Fire

86 A.D.2d 744, 447 N.Y.S.2d 783, 1982 N.Y. App. Div. LEXIS 15304

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 22, 1982

StatusPublished

This text of 86 A.D.2d 744 (Klonowski v. Department of Fire) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Klonowski v. Department of Fire, 86 A.D.2d 744, 447 N.Y.S.2d 783, 1982 N.Y. App. Div. LEXIS 15304 (N.Y. Ct. App. 1982).

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Opinion

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.

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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.

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86 A.D.2d 744, 447 N.Y.S.2d 783, 1982 N.Y. App. Div. LEXIS 15304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klonowski-v-department-of-fire-nyappdiv-1982.

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