Opinion
2014-02-7
In the Matter of Sharon ANDERSON, Petitioner, v. CITY OF BUFFALO, Respondent.
Chiacchia & Fleming, LLP, Hamburg (Andrew P. Fleming of Counsel), for Petitioner. Timothy A. Ball, Corporation Counsel, Buffalo (Mary B. Scarpine of Counsel), for Respondent.
Chiacchia & Fleming, LLP, Hamburg (Andrew P. Fleming of Counsel), for Petitioner. Timothy A. Ball, Corporation Counsel, Buffalo (Mary B. Scarpine of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, and WHALEN, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the Hearing Officer's determination that she was able to return to work on November 16, 2012, as ordered by respondent. Petitioner had been receiving benefits pursuant to General Municipal Law § 207–c as a result of injuries that she sustained in the course of her work as a police officer.
We reject petitioner's contention that respondent's procedure in determining her entitlement to benefits deprived her of due process. Petitioner, who was represented by counsel at the hearing, was “given the opportunity to contest” the opinion of the City's expert that she could return to work in a light duty capacity by testifying at the hearing as well as “presenting [her] own witnesses and cross-examining [respondent's] witnesses” ( Matter of Park v. Kapica, 8 N.Y.3d 302, 311, 832 N.Y.S.2d 885, 864 N.E.2d 1284; see Matter of Howell v. County of Albany, 105 A.D.3d 1122, 1124, 962 N.Y.S.2d 799). Moreover, respondent “did not terminate [her] disability benefits at any time prior to [her] hearing” (Park, 8 N.Y.3d at 311, 832 N.Y.S.2d 885, 864 N.E.2d 1284). We therefore conclude that respondent's procedure “sufficiently met the dictates of due process” ( id.; see also Howell, 105 A.D.3d at 1124, 962 N.Y.S.2d 799).
We reject petitioner's further contention that the Hearing Officer erred in determining that petitioner was able to return to work. Although petitioner presented evidence establishing that she was unable to return to work as ordered, “[t]he Hearing Officer was entitled to weigh the parties' conflicting medical evidence ..., and ‘[w]e may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists' ” ( Matter of Clouse v. Allegany County, 46 A.D.3d 1381, 1382, 849 N.Y.S.2d 372, quoting Matter of CUNY–Hostos Community Coll. v. State Human Rights Appeal Bd., 59 N.Y.2d 69, 75, 463 N.Y.S.2d 173, 449 N.E.2d 1251).
Finally, petitioner's contentions that respondent failed to comply with General Municipal Law § 207–c (3) and (4) are not properly before us inasmuch as petitioner failed to exhaust her administrative remedies with respect thereto ( see Matter of Nelson v. Coughlin, 188 A.D.2d 1071, 1071, 591 N.Y.S.2d 670, appeal dismissed81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297; see also Matter of Cummings v. New York State Dept. of Motor Vehs., 87 A.D.3d 1347, 1348, 929 N.Y.S.2d 920).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.