A police officer's [Petitioner] initiated a CPLR Article 78 review a determination of the Village Mayor that the Petitioner application for a hearing and further evaluation of a determination of the Chief of Police denying Petitioner's application for benefits pursuant to General Municipal Law §207-c was untimely. Supreme Court sustained the Mayor's decision and Petitioner appealed.
The Appellate Division affirmed the lower court's ruling, explaining:
1. The basis for the Mayor's denial was that the Petitioner's request for a hearing and further evaluation was made more than 10 days after the Petitioner received the Chief's determination, which violated the time requirements set forth in Appendix C, §11 of the governing collective bargaining agreement [CBA] between the Village and the employee organization representing the Village's police officers.
2. A person aggrieved by an administrative determination must exhaust all available administrative remedies before seeking court intervention.
3. Although the CBA provided that the employee "may serve a written demand on the Mayor for a hearing and further evaluation of the application," was couched in permissive rather than mandatory terms, Petitioner was not excused from exhausting the administrative remedies available to him.
4. Here the CBA's provisions governing an application for benefits pursuant to §207-c of the General Municipal Law are clear -- after an initial denial of benefits, they permit, but do not require, an employee to seek a hearing and further evaluation of the application from the Mayor.
Thus, said the Appellate Division, Petitioner "may" serve a written demand on the Mayor for such hearing and further evaluation but if Petitioner intended to do so the CBA requires Petitioner to do so by filing the written demand upon the Mayor within 10 days after receiving the decision denying benefits, opining that the use of the word "may" in §11 of the CBA simply provided Petitioner with the choice between seeking further review from the Mayor or accepting the Chief's denial of benefits.
In the opinion of the court, the Mayor's denial of Petitioner's demand for a hearing and further evaluation as untimely  was not rendered in violation of lawful procedure,  was not affected by an error of law, and  was not arbitrary or capricious or an abuse of discretion.
The Mayor, said the court, had examined the Chief's denial letter and the certified mail return receipt indicating the Petitioner's receipt of the letter on June 18, "correctly determined that the demand for a hearing ... was untimely within the meaning of §11 of the CBA, and the mayor "had no discretionary authority to find otherwise," citing JP and Assoc. Corp. v NYS Division of Housing and Community Renewal, 122 AD3 739.
Accordingly, the Appellate Division concurred with the Supreme Court's determination denying the petition and dismissing the proceeding.
The decision is posted on the Internet at: