In the Matter of George Penree, III, Petitioner, v. City of Utica, Respondent

In the Matter of George Penree, III, Petitioner, v City of Utica, Respondent. [692 NYS2d 569] [MAJORITY] —Determination unanimously annulled on the law without costs and petition granted. Memorandum: Following an administrative hearing, petitioner’s General Municipal Law § 207-a disability benefits were terminated pursuant to General Municipal Law § 207-a (6). While petitioner received disability benefits, he was both a shareholder and an officer of a corporation that he and a partner had formed. In addition, petitioner owned real estate that was leased to the corporation. The Hearing Officer erred in concluding that petitioner was engaged in “employment” within the meaning of section 207-a (6). As indicated by the recent amendment to section 207-a, the forfeiture of disability benefits was not intended to apply to those disabled firefighters who earn income through passive involvement with income-producing activities. There is no evidence that petitioner was actively working for the corporation or improving the real estate. We therefore annul the determination and grant the petition. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Oneida County, Buckley, J.) Present — Lawton, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.