Opinion
92088
Decided and Entered: December 26, 2002.
Appeal from a judgment of the Supreme Court (Benza, J.), entered June 7, 2002 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition for failure to exhaust administrative remedies.
Christopher H. Gardner, Law Enforcement Officers Union, Council 82, Albany (Richard V. Stewart Jr. of counsel), for appellant.
Michael C. Lynch, County Attorney, Albany (Darius Shahinfar of counsel), for respondents.
Before: Cardona, P.J., Crew III, Carpinello, Rose and, Lahtinen, JJ.
MEMORANDUM AND ORDER
Petitioner, a correction officer, has been receiving General Municipal Law § 207-c benefits since August 2000 for a work-related injury. By letter dated December 27, 2001, he was notified by respondent Albany County Sheriff that he was being terminated in accordance with Civil Service Law § 71 as a result of his absence from work for more than a year. Rather than avail himself of the protest procedures outlined under the statute and its implementing regulations (see 4 NYCRR 5.9), petitioner commenced this CPLR article 78 proceeding seeking immediate return to the County payroll as a correction officer. Supreme Court dismissed the proceeding on the ground that petitioner had failed to exhaust administrative remedies, prompting this appeal.
Notably, petitioner does not dispute the fact that he failed to exhaust the administrative remedies available to him under the statute (see generally Matter of Armetta v. Town of Bethel, 265 A.D.2d 789; Matter of House v. New York State Off. of Mental Health, 262 A.D.2d 929). Rather, citing Watergate II Apts. v. Buffalo Sewer Auth. ( 46 N.Y.2d 52) andMatter of Cliff v. Russell ( 264 A.D.2d 892), he argues that pursuit of such remedies was unnecessary because the Sheriff's action is being challenged as wholly beyond his grant of power. Even if we agree that petitioner has adequately demonstrated that the present case falls within an exception to the exhaustion rule, we disagree with his contention that the Sheriff acted in excess of his jurisdiction. Upon our review of Civil Service Law § 71 and its legislative history, we find it clearly within the Sheriff's authority to avail himself of the termination procedures therein outlined to remove a disabled correction officer — even one receiving General Municipal Law § 207-c benefits — from the County payroll (see generally Matter of Lynn v. Town of Clarkstown, 296 A.D.2d 411; Matter of McMahon v. Board of Trustees of Vil. of Pelham Manor, 270 A.D.2d 491; Matter of Correction Officers Benevolent Assn. [City of New York], 199 A.D.2d 12). Thus, the petition was properly dismissed.
To the extent that petitioner raises arguments in his reply brief that are not raised in either the petition itself or his main brief on appeal, they are not properly before this Court (see e.g. Matter of Zimmerman v. Planning Bd. of Town of Schodack, 294 A.D.2d 776, lv denied 98 N.Y.2d 612; Matter of Killeen v. Travis, 291 A.D.2d 600; Matter of Eckerson v. New York State Local Retirement Sys., 270 A.D.2d 705,lv denied 95 N.Y.2d 756).
Consistent with its statutory purpose, the Sheriff's resort to Civil Service Law § 71 was presumably "to secure a steady, reliable, and adequate work force" (Matter of Duncan v. New York State Dev. Ctr., 63 N.Y.2d 128, 135; see Matter of Allen v. Howe, 84 N.Y.2d 665, 672), i.e., he wanted to hire another correction officer to replace petitioner. However, termination of employment under Civil Service Law § 71 does not necessarily involve a termination of benefits awarded pursuit to General Municipal Law § 207-c, as such benefits "are a property interest that may not be terminated without procedural due process under the Fourteenth Amendment" (Matter of Gamma v. Bloom, 274 A.D.2d 14, 16; see Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v. City of Cohoes, 94 N.Y.2d 686, 691; Matter of Meehan v. County of Tompkins, 219 A.D.2d 774, 775). Nor does our determination have any effect on the separate dispute between these parties concerning whether petitioner can perform light duty.
Cardona, P.J., Crew III, Rose and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed, without costs.