Matter of Fiorella v. Village of Scarsdale

In Matter of Fiorella v. Village of Scarsdale, 96 Misc. 2d 406, petitioner was removed from the Village of Scarsdale's payroll for failing to abide by the Village's order, which required that he perform limited duty work. In that case, as in this one, petitioner's doctor had stated in a letter to the Village that petitioner was unable to perform any work. The Village responded that it was the opinion of the Village's doctor that petitioner was physically fit to perform limited duties, and that if he failed to report for limited duties, he would be removed from the payroll. When petitioner failed to report for such limited duty work on the grounds that he was unfit for duty, respondent Village notified petitioner that he had been removed from the payroll. Furthermore, the Village refused to grant petitioner a hearing. The Village argued that because it had been advised that petitioner was physically fit to perform limited duty, and because petitioner refused to do so, the Village had no alternative but to remove him based upon non performance of duty pursuant to GML 207-c(3). In that case, because it was an actual termination rather than a suspension, the Court found that petitioner was a permanent member of the police force and was entitled to the procedural protections afforded by Section 8-804 of the Village Law and Section 5711-q(9) of the Unconsolidated Laws. The court found that it was undisputed that petitioner's injuries were job related, which, according to the court, afforded petitioner a property right to uninterrupted payments pursuant to GML 207-c. Because respondent had removed petitioner from the payroll without having been afforded the right to a hearing, the court reinstated petitioner with back pay and any other benefits, less the amount of compensation he had earned in any other employment or from workman's compensation, holding: "when the issue arose as to the petitioner's physical condition to perform such duties as ordered and his indicated inability and absence therefrom, it was incumbent upon respondents then to determine if such refusal constituted insubordination and misconduct which would justify his removal from the respondent Village payroll and not to conclude that his non-performance of duty permitted respondent a means to summarily remove petitioner from respondent Village payroll without first affording him a meaningful evidentiary hearing within the ambit of procedural due process rights of notice and an opportunity to be heard." (Matter of Fiorella, 96 Misc. 2d at 408-409.)