An individual terminated pursuant to Civil Service Law §71 must be reinstated consistent with §71 once the individual has been found qualified to return to work by a medical officer selected by personnel department or civil service commission having jurisdiction

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Anindividual terminated pursuant to Civil Service Law §71 must bereinstated consistent with §71 once the individual has been found qualified toreturn to work by a medical officer selected by personnel department or civil service commission having jurisdiction
Lazzari v Town of Eastchester, 2012 NY Slip Op 08052,Court of Appeals
A Town ofEastchester employee, Richard Lazzari, injured his neck, back, and botharms while performing his job duties. Eventually the Town placed Mr. Lazzari onworkers’ compensation leave pursuant Civil Service Law §71 and ultimately theTown notified him that his employment with the Town wasterminated. Mr.Lazzari was also told that he had certain rights regarding reinstatement tohis former position and the Town provided him with a copy of Civil Service Law §71.*
Subsequently Mr. Lazzari requested and obtained a review ofhis medical condition by the Westchester County Department of Human Resources[DHR]. DHR designated a physician to examine Mr. Lazzari and the physician determined that Mr. Lazzari wasmedically able to perform the duties of his position. Accordingly, DHR advisedthe Town that as "[t]he examining physician has concluded in his writtenreport provided to this department that Mr. Lazzari is able to perform [hisjob] duties," Mr. Lazzari should be immediately restored to hisposition.
The Town Supervisor, however, requested that DHR send the Towna copy of the medical report, contending that "[i]n light of the apparentlyconflicting medical opinions, we are concerned about Mr. Lazzari's safety andthat the interests of the Town and its residents will be imperiled if [he]cannot effectively perform the essential functions of his position."
In response, DHR advised the Town that it would not providea copy of the requested report and again advised the Town that shouldimmediately reinstate Mr. Lazzari to his former position.**
The Town neither reinstated Mr. Lazzari nor filed aFreedom of Information Law (FOIL) for the document. Further, the Town did not commence an Article 78 proceeding against the Countyto procure the medical documentation. Neither did the Town challenge the County's determination under Civil Service Law §71.As a result, Mr. Lazzari was required to take the initiative and filed an Article78 petition seeking a court order compelling the Town to reinstate him.
Supreme Court granted Mr. Lazzari's petition and ordered the Town toreinstate him, reasoning that "i]gnoring the mandate of Civil ServiceLaw §71 is not the appropriate mechanism for questioning [Mr. Lazzari's] condition orchallenging the determination of [DHR]." The Town appealed and theAppellate Division reversed the lower court’s ruling on the procedural ground that DHRhad not be named as a necessary party in the action and remitted the matter for further consideration with DHR'sparticipation (see 62 AD3d 1002).
The Supreme Court, after revisiting the matter, concluded that Civil Service Law §71 doesnot provide for a challenge to the determination of the medical officerselected by the civil service commission or department and held the only availableremedy was for the Town to institute its own Article 78 proceeding against DHR,. Supreme Court then noted that the Town failed to do so within the statutorily mandated time frameof four months.
Supreme Court then granted Mr. Lazzari’s petitionand ordered the Town to reinstate him to his former position, and, in addition,ordered the Town to compensate him with back pay in accordance with CivilService Law §77, retroactive to the date of DHR's initial letterdirecting Mr. Lazzari's reinstatement.
Still refusing to reinstate Mr. Lazzari, the Town appealed.The Appellate Division sustained the Supreme Court’s ruling, holding that CivilService Law §71 did not require DHR to provide the Town with a medicalcertification or provide it with the underlying medical report (see 87 AD3d 534). In addition, the Appellate Division agreed that Mr. Lazzari was entitled to back pay as directed by Supreme Court.
The Court of Appeals affirmed the Appellate Division’sdecision, explaining than when a municipal civil service commission or county personnelofficer directs a municipal employer to reinstate an employee pursuant to amedical officer's determination of fitness pursuant to Civil Service Law §71,the municipal employer must immediately reinstate the employee and should it wish to challengethat determination, such a challenge must "take the form of an Article 78 petition."
As the coda to its decision, the Court of Appeals, JusticePigott dissenting, said:
“After five years of litigation, the County's refusal togive the Town a copy of the medical report, and the Town's refusal to ask forit under FOIL, remain unexplained. The County does not suggest that it wouldhave any ground for rejecting a FOIL request. It seems that a bit more commonsense and less stubbornness on either side could have avoided years of troubleand expense. Since the parties have chosen to litigate, however, we mustresolve the dispute, and we do so in the County's favor.
“On the issue of back pay, Civil Service Law §77 providesthat an "employee who is removed . . . and who thereafter is restored tosuch position by order of the supreme court, shall be entitled to . . . thesalary or compensation which he would have been entitled by law to havereceived in such position but for such unlawful removal...." The Townargues that because Mr. Lazzari was lawfully terminated and not unlawfullyremoved, and does not even challenge his initial termination, Civil Service Law§ 77 does not apply. However, within the context of the statute there is nomeaningful distinction between an unlawful removal and an unlawful refusal toreinstate, so Mr. Lazzari is entitled to back pay retroactive to the time theCounty directed the Town to reinstate him on December 18, 2007”
* Civil Service Law §71provides that an employee terminated for a job-related incident can apply forreinstatement within one year of the abatement of his or her disability. Theemployee is to apply to the civil service department or municipal commissionhaving jurisdiction "for a medical examination to be conducted by amedical officer selected for that purpose by such department orcommission." §71 further provides that “[t]he employee ‘shall bereinstated’ if such medical officer shall certify that such person 'isphysically and mentally fit to perform the duties"' of the job,"
** §71, in pertinent part,provides that “If no appropriate vacancy shall exist to which reinstatement maybe made, or if the work load does not warrant the filling of such vacancy, thename of such person shall be placed upon a preferred list for his or her formerposition, and he or she shall be eligible for reinstatement from such preferredlist for a period of four years” In the event that the individual is reinstatedto a position in a grade lower than that of his or her former position, his orher name is to be placed on the preferred eligible list for his or her formerposition or any similar position.

The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08052.htm