STATE OF NEW YORK ORIGINAL SUPREME COURT COUNTY OF ULST In the Matter of the Application of CHRISTOPHER REA, Petitioner, -against- ‘The CITY OF KINGSTON, and SHAYNE R. GALLO, in his official capacity as Mayor, Respondents. All Purpose Term Hon, Henry F. Zwack, Acting Supreme Court Justice Presiding RJL: 55-12-01544 Index No. 12-3110 Appearances: Gleason, Dunn, Walsh & O’Shea Attorneys For Petitioner Ronald G. Dunn, Esq. & Christopher R. Scoville, Esq., of counsel 40 Beaver Street Albany, New York 12207 Andrew P. Zweben, Esq. Attorneys For Respondents 420 Broadway Kingston, New York 12401AMENDED' DECISION/ORDER Zwack, J.: On remand from the Appellate Division, Third Department, this Court held a hearing for the limited purpose of determining if petitioner Christopher Rea’s (“Rea”) actions attributed to the delay in the subject disciplinary hearing and if there are any offsets to the amount of back pay due Rea pursuant to this Court’s order of December 18, 2013 — which directed that he be restored to his prior position as Assistant Fire Chief of the respondent City of Kingston (“City”) and awarded him full back pay (Rea v City of Kingston, 110 AD3d 1227 [3d Dept 2013). For proper context, the history of the proceeding needs repeating. In January, 2012, petitioner was promoted from Assistant Fire chief to Fire Chief of the City of Kingston. On February 9, 2012, petitioner was notified by respondent that his appointment as Fire Chief was, rescinded and that he was suspended without pay pending disciplinary charges. On May 24, 2012, when no disciplinary proceeding had yet been served, petitioner commenced a CPLR article 78 petitioner seeking to compel his reinstatement to his prior Assistant Fire Chief position, retroactively to February 9, 2012, or alternatively, bring disciplinary charges. This Article 78 "The decision was amended to reflect the Court’s error in calculation of the number of weeks due. *Rea v City of Kingston, 123 AD3d 1401.petition was resolved by an August 3, 2012 consent order, with the direction that respondent serve the disciplinary charges by August 22, 2012. On August 22, 2012 the disciplinary charges were served, asserting in sum and substance that from 2006 until 2012 petitioner accepted pay from one government entity on the same dates, he was also receiving pay from the City. On August 31, 2012, petitioner commenced the instant Article 78 seeking pay and benefits retroactive to March 10, 2012 — 30 days after his suspension — and dismissal of all charges that arose 18 months prior to the suspension as time barred. This Court found that the Article 78 was not brought within four months from March 10, 2012 and dismissed the petition, and the determination was reversed. Following reversal, on remand, this Court reinstated petitioner and awarded him full back pay and benefits. On appeal, the matter was remanded for a hearing to determine if there were any viable defenses or offsets to the Court’s award of full back pay and benefits, and to ultimately arrive at a figure which would fairly compensate petitioner. ‘The City argued in the context of the appeal that it should not be liable for the entire period, as petitioner indicated in mid-February that he was retiring, an application he subsequently withdrew, They also argued that because petition did not file for reinstatement or back pay until May 29, 2012, they are not responsible for the time that elapsed in between the suspension and the resulting disciplinary charges, At the time the matter was remitted to the Court to determine the amount of offsets, if any, to the retroactive salary, no disciplinary hearing had been held. While this remand was pending, a disciplinary hearing was actually held, petitioner was exonerated by the HearingOfficer, and ultimately he was terminated from his position by the City on October 14, 2104. Following his termination, petitioner filed a separate Article 78 proceeding. Finding that a substantial issue of fact was presented, the Court (Mott, J.) transferred that proceeding to the Appellate Division. It is important to note that the purpose of the Ci Service 75 (3) and Civil Service 77, as are invoked by petitioner here, is to serve as a source of income for petitioner until such time as a final determination has made been on the disciplinary charges (Nabors v. Town of Somers, 72. AD3d 769 [2 Dept 2010}; Civil Services Employees Ass'n Inc., Local 1000, AFSCME, AFL- CIO v. Cortland Housing Authority, 115 AD3d 1080 [3 Dept 2014]). Only after a final determination by the City terminating the petitioner would the City be entitled to invoke the any offsets except unemployment insurance (Civil Service Law 77; Boylan v. Town of Yorkshire, 179 AD2d 753 [2 Dept 1992]). By refusing to make any payments while drawing out the disciplinary charges, including the filing of an appeal of this Court’s order of December 18, 2013, they have eviscerated the intent and purpose of the these provisions.° Here, the Court notes that at no time prior to the scheduling of the instant hearing did respondent move for discovery (CPLR 408) or request or attempt any form of disclosure. However, shortly before the hearing it did serve petitioner with, in the Court’s view, an onerous subpeona duces tecum. That subpeona sought production of documents for the past six years SConsidering that in the event petitioner was terminated, as he eventually was, the City would be able to recoup any overpayments, it can hardly be said that this municipality was in any way prejudiced when they were directed to pay petitioner.in connection with any sort of income peti ner may have made while employed by the City. ‘Treating the subpoena as a motion in limine, the Court dismissed the same on petitioner’s motion fora protective order, finding that any income received by petitioner from any other source while he was suspended — with the exception of unemployment insurance — was not a proper offset in the context of this limited proceeding —which concerns only the issue of retroactive pay and which “could be resolved independently of petitioner’s disciplinary proceeding” (Rea, 1402, quoting Rea v City of Kingston, 110 AD3d 1227, 1230 ). Thus, the Court declined to accept any testimony or evidence of offsets other than unemployment insurance benefit. On this issue, the Court concluded, after the matter was thoroughly briefed by both parties, that the “issues upon which proof was relevant concerns whether Rea contributed to the delay and did he receive unemployment." During the hearing, respondents objected to the limitations on the proof, Remarkably, respondents offered no witnesses or proof to support it’s argument that petitioner was responsible for the delay in the service of the disciplinary charges, a position it has so vociferously argued since the commencement of the proceedings. Respondent argues that the Mayor, the City Clerk, and the County Executive were all led to believe by petitioner’s legal tacti that he would be the one to ask for a hearing on the disciplinary charges. Notably, none of these individuals were called to testify and explain the basis for their understanding or their reliance on petitioner’s action or inaction, Here, counsel’s arguments that respondent was somehow tricked into inaction by petitioner’s initial submission of retirement papers is ‘Decision and Order dated February 2, 2014.unavailing, as Rea withdrew his papers almost immediately. The argument that petitioner was seeking arbitration without a clear right to do so is also unavailing, as there was simply nothing to arbitrate inasmuch as there were no disciplinary charges. ‘The Court conducted a hearing on February 4, 2015, at which time only Rea testified. Petitioner produced as exhibits a December 16, 2011 paystub, and his 2011 W-2 form. The prior petitions and the resulting orders were entered as evidence by respondent, as was an employment agreement dated June 1, 2009 and Schedule ‘A’ of that agreement. Petitioner testified that his paystub reflected he earned $2,836.90 bi-weekly pay while an Assistant Fire Chief, and additional bi-weekly sums. This included $114.11 as longevity pay, $11.51 “advanced education”, which reflects that he holds an advanced degree, $11.51 for FIT (Article 31, page 26), $38.36 demonstrating that he was an Emergency Medical Technician, and a bi-weekly sum of $221.05 which he described as supplemental pay. Supplemental pay was given to firefighters as they worked holidays without the benefit of overtime pay. Res jentified, but acknowledged that he was not a signatory to the agreement between the City of Kingston and the Kingston Professional Firefighters Association, Local 461. Rea further testified that this agreement was the source of the supplemental pay and other benefits in his paystub. Rea admitted that he did not have any information regarding overtime pay he may have received in 2011. Accordingly, the Court’s review is necessarily limited to petitioner's testimony and the documents submitted as exhibits. Respondent presented no evidence or testimony which in any way limits the duration or the amount of salary owed to petitioner. Pet joner’s employmentcontract does not define how his total compensation is calculated, The Court can only refer to the 2011 pay schedule, utilize petitioner’s pay scale as an Assistant Chief, and look to the compensation set forth in his last pay stub. The only documentary evidence provided was the representative paystub of the Assistant Chief, as well as a 2011 W-2, on which the Court did not rely. The Court finds that petitioner’s bi-weekly salary base salary was $2,836.90, which together with bi-weekly longevity, $114.11, advanced education, $11.51, uniform, $11.51, EMT, $38.36, and supplemental pay, $221.00, his gross income bi-weekly was $3,233.44. Petitioner’ pay should be retroactive from March 10, 2012 until the date he was terminated by the Mayor, October 14, 2014. By the Court’s calculation, this represents 135 weeks and three days of pay, or $219,227.23. Petitioner is entitled to a back pay award in the amount of $219,227.23, which represents his back pay, consistent with the rate of pay he was receiving at the time of his suspension, On this record, there is no dispute that petitioner did not receive unemployment benefits, which the Court had previously determined, in the context of this proceeding, were the only offsets to the salary issue. Respondents were entitled to no other offsets in the course of this hearing. According, itis “The W-2 was a photocopy with the words 2011 W-2 handwritten in. Further, petitioner testified that he did not recall if he received any kind of supplemental compensation such as overtime during that year. ‘Petitioner did not seek interest in his Article 78 petition, nor would he be entitled to prejudgment interest ( Bello v. Roswell Park Cancer Center, 5 NY3d 170 (2005). 7ORDERED, that respondent shall within 30 days of this Decision and Order pay to the petitioner the sum of $219,227.23, in full settlement of salary and benefits due him for the period of his suspension until his termination, without interest. ‘This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the attorneys for the petitioner. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry. Dated: June 15, 2015 Troy, New York Henry F. Pack Acting Supreme Court Justice Papers Considered: 1, Stenographic record of Article 78 Hearing held on February 4, 2015, together with Petitioner’s Exhibits “1" through “2"; Respondent's Exhibits “A” through “G" and “T° through “J”; Court’s Exhibits “I” through “V"; 2. Petitioner’s Memorandum of Law by Ronald G. Dunn, Esq., dated March 20, 2015; 3, Respondent’s Summation/Memorandum of Law by Andrew Zweben, Esq., received March 23, 2015.