Petition for Reinstatement

Petitioner was appointed as a probationary police officer, but was later terminated when it was determined that he committed fraud on his application. On appeal, the New York City Civil Service Commission directed that he be reinstated.

Petitioner appeared for a mandatory medical examination but was found not qualified for reinstatement, and he commenced a proceeding to enforce the Commission's directive that he be reinstated, and seeking retroactive salary and benefits. During the pendency of the proceeding, petitioner's medical records were reevaluated and it was determined that he was qualified for reinstatement and was so notified, but petitioner refused the offer.

The First Department denied the petition and dismissed the proceeding, in Matter of Allocca v. Kelly, which was decided on October 2, 2007, saying that petitioner had refused the only relief to which he was entitled. The court noted that, although the Commission had directed petitioner's reinstatement, it did not award him retroactive salary and benefits, and was without authority to issue such an award. Citing CPLR 7806, the court said that the retroactive salary and benefits being sought were not incidental to petitioner's reinstatement as a police officer.

The court also denied petitioner's request for disclosure of his medical records to assist him in settlement negotiations. The request was made for the first time in petitioner's response to the City's motion to dismiss, and so it was not properly before the court. In addition, said the court, petitioner made no showing that the records were material and necessary to the prosecution of this proceeding.