Labor & Employment Law

Termination for ordinary disability pursuant to §73 of the Civil Service Law

§73 of the Civil Service Law, "Separation for ordinary disability," in pertinent part provides that in the event an employee on leave for ordinary disability pursuant to §72 of the Civil Service Law has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the Worker's Compensation Law, "his employment status may be terminated and his position may be filled by a permanent appointment."

The Town terminated a police sergeant [Petitioner] employed by the Town's Police Department pursuant to Civil Service Law §73. Petitioner, contending that the determination to terminate his employment was made in violation of lawful procedure and was affected by error of law, challenged the Town's action. Supreme Court denied Petitioner's CPLR Article 78 petition and dismissed the proceeding.

The Appellate Division subsequently affirmed the Supreme Court's ruling, opining that although an administrative determination may be annulled when it "was made in violation of lawful procedure [or] was affected by an error of law" there were no relevant issues of fact that would have necessitated a post-termination hearing, citing Prue v Hunt , 78 NY2d 364.* 

However, a §73 termination is not pejorative and a former employee may, within one year after the termination of the disability, apply to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission. 

If the former employee is found medially qualified to perform the duties of his former position he is to be reinstated. In there is no vacancy to which he may be appointed, the former employee's name is to be placed on a preferred list. Further, the individual is eligible for appointment to a vacancy in a similar position or a position in a lower grade in the same occupational field in his former department or agency. 

* NYPPL's summary of the Court of Appeals' decision in Prue is posted on the Internet at https://publicpersonnellaw.blogspot.com/2012/02/pre-termination-hearings-required-when.html 

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_04944.htm

Full post as published by New York Public Personnel Law on September 18, 2020 (boomark / email).