Bellman v. McGuire

• Decision Date: 26 May 1988
• Citation: 140 A.D.2d 262,528 N.Y.S.2d 834
• Parties: In re Application of James F. BELLMAN, Petitioner-Appellant, For a Judgment, etc., v. Robert J. McGUIRE, etc., et al., Respondents-Respondents,
• Court: New York Supreme Court — Appellate Division

Page 834

528 N.Y.S.2d 834

140 A.D.2d 262

In re Application of James F. BELLMAN, Petitioner-Appellant,

For a Judgment, etc., v. Robert J. McGUIRE, etc., et al., Respondents-Respondents,

Supreme Court, Appellate Division,

First Department.

May 26, 1988.

R.E. Kerno, New York City, for petitioner-appellant.

B.P. Schwartz, New York City, for respondents-respondents.

Before KUPFERMAN, J.P., and ROSS, CARRO, KASSAL and ELLERIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (David Edwards, Jr., J.) entered September 17, 1986 which denied petitioner's motion to renew his Article 78 petition challenging his termination from the New York City Police Department, unanimously reversed, on the law and the facts, the motion for renewal granted, and upon renewal, the petition granted, his termination from the New York City Police Department vacated, and the Medical Board and the Board of Trustees of the Police Pension Fund are ordered to consider petitioner's application for accident disability retirement benefits, without costs.

Petitioner, a probationary New York City Police Officer, was disabled as a result of an injury which occurred on November 24, 1982, in the course of his police duties. On that date, while petitioner was investigating an automobile accident, and attempting to remove an intoxicated driver from his vehicle, the driver put his car into reverse, slamming into petitioner and pinning his legs against another car. As a result of this incident he suffered significant permanent damage to his legs. His supervising officer reported and recommended that the accident be designated "line-of-duty", and the medical reports indicated that the injury had rendered petitioner physically incapacitated for the further performance of police duties. Accordingly, petitioner filed for accident disability retirement benefits on December 13, 1982. Five days later, the Police Department terminated petitioner's employment, and the Police Pension Fund never ruled on his disability application because he was no longer in City service.

Petitioner timely instituted an Article 78 petition challenging his termination in which he asserted that the application for disability retirement benefits should have been considered and that the firing was in bad faith to frustrate his pursuit of the disability claim. The City contended that it had justifiably fired him because he lied with respect to his medical history on his application for appointment to the force, that his medical history showed a potential for future unfitness for duty and that since he was a probationary officer, he was terminable at will. In denying the petition, Special Term expressly relied on the City's reasoning.

In response to the original Article 78 petition, the City vigorously argued that the petitioner had misrepresented and omitted material facts from his application for appointment. The limited and confusing nature of the record before the Court at that time appeared to lend support to the City's position. A review of the complete record, however, reveals a markedly different picture.

The first fact allegedly concealed from the Police Department was a prior injury to petitioner's leg. The record reveals that on May 2, 1981, two weeks prior to the time that petitioner was scheduled to take his City Department of Personnel physical examination, he suffered a minor injury to his right knee at his then place of employment. On the recommendation of his physician, he requested a short postponement of the physical exam by reason of that injury. He did so by appearing at the Police Academy and presenting a note from his doctor to the police official in charge and was excused from the previously scheduled exam. Petitioner also communicated this circumstance to the Personnel Department in a letter dated May 29th which fully detailed all the specifics of the injury. On June 24, 1981, petitioner's doctor submitted a letter which stated that petitioner "has recovered satisfactorily and now can engage in strenuous physical activities". Subsequently, petitioner was examined by both the Police Department and by the Civil Service Commission and successfully passed all medical tests including orthopedic examinations.

In that factual setting, petitioner's failure to list the alleged May knee injury on his application form can hardly be construed as a "misrepresentation" and was certainly not the omission of a "material fact". Although the incident was not included in the application form, the precise information involved was provided to the Police Department. Petitioner promptly informed the Department of all relevant facts regarding this minor injury at the time it occurred; and after his recovery, he was thoroughly examined by the respondent's medical staff, which found this injury of no consequence since they approved his application.

The second alleged misrepresentation was petitioner's failure to report his hospitalization for a "parotid tumor" when he was 14 years old. Petitioner's explanation for not listing this incident on the application is that he had forgotten about it. On the original Article 78 petition, the respondent Police Department submitted only the cover sheet of petitioner's hospital admission record which contained little more than a prominently featured handwritten "parotid tumor". It was argued that in failing to include this ominous sounding diagnosis in his medical history petitioner omitted a material medical fact from his application, which indicated that he suffered from a tumorous condition...