DECISION AND ORDER On August 9, 2010, plaintiff — then a motor equipment operator for defendant — suffered an injury to his shoulder as the result of an accident which occurred during the course of his employment. He did not return to work as a result of these injuries and on July 11, 2011 defendant sent correspondence to plaintiff advising that a meeting was scheduled for August 9, 2011 to provide him with an opportunity to demonstrate his ability to return to work immediately without restriction and to perform all of the essential duties of his job. The meeting was held as scheduled, with defendant finding that plaintiff failed to make the requisite demonstration. Defendant then terminated plaintiff’s employment on August 10, 2011.Plaintiff commenced this action in April 2012, alleging five causes of action: (1) that his employment was wrongfully terminated; (2) that defendant breached the collective bargaining agreement governing his employment; (3) that defendant owes him certain compensation and benefits under the terms of this collective bargaining agreement and its Employee’s Manual; (4) that defendant violated the Civil Service Law; and (5) that defendant violated 42 USC §1983. Issue was subsequently joined and discovery and depositions have now been completed. Presently before the Court is (1) plaintiff’s motion for summary judgment on liability with respect to his first, fourth and fifth causes of action; and (2) defendant’s motion for summary judgment dismissing the complaint. The motions will be addressed ad seriatim.Plaintiff’s Motion for Summary JudgmentA party seeking summary judgment must establish its entitlement to judgment as a matter of law by admissible proof (see Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 967 [1988]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]).Plaintiff contends that he is entitled to summary judgment granting his first, fourth and fifth causes of action because defendant violated Civil Service Law §71. This statute provides, in pertinent part:“Where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen’s compensation law, he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.…Such employee may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission. If, upon such medical examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant position for which he or she was eligible for transfer.”Plaintiff first contends that defendant violated Civil Service Law §71 by terminating his employment notwithstanding certain notes from his treatment providers advising of his ability to return to work within one year of the date of his injury. In support of this contention plaintiff submits: (1) a note dated April 13, 2011 from a treatment provider at North Country Sports Medicine, PLLC (hereinafter NCSM) stating that plaintiff was “able to return to work” on April 18, 2011 with “no heavy lifting” and “otherwise[] no restrictions”; (2) a note dated April 14, 2011 from a treatment provider at NCSM stating that plaintiff was “able to return to work” on April 18, 2011 with “no restrictions”; (3) a note dated April 14, 2011 from a treatment provider at NCSM stating that plaintiff was “able to return to work” on April 18, 2011 with “no restrictions other than heavy lifting”; (4) a note dated April 14, 2011 from a treatment provider at NCSM stating that plaintiff was “unable to return to work” until July 14, 2011 based “upon Doctor Kircher’s advisement”; and (5) a note dated August 10, 2011 from a treatment provider at NCSM stating that plaintiff was “able to return to work” on August 11, 2011 with “no restrictions.”At the outset it is observed that these notes and are not submitted in admissible form. They are not accompanied by an affidavit from the treatment provider who signed them — nor is the identity of the treatment provider clear given the illegible signatures on the notes. As such, the notes “are of no probative value” (Parmisani v. Grasso, 218 AD2d 870, 872 [1995]; see Thomas v. Laustrup, 21 AD3d 688, 690 [2005]).Further, even if the notes had been submitted in admissible form, they fail to demonstrate as a matter of law that plaintiff was able to return to work within one year of the date of his injury. While the note dated April 13, 2011 and two of the notes dated April 14, 2011 indicate that plaintiff could return to work on April 18, 2011, they are entirely contradictory as to whether he could return with or without restrictions. To the extent that Civil Service Law §71 requires an employee to return to “the performance of the duties of his or her position,” a return to employment with restriction is not envisioned under the statute. Moreover, the remaining note dated April 14, 2011 indicates that plaintiff could not return to work until July 14, 2011. Finally, the note dated August 10, 2011 indicates that plaintiff could return to work without restriction on August 11, 2011 — one day after expiration of the one year period.Plaintiff next contends that defendant violated Civil Service Law §71 by failing to schedule a medical examination upon his application for the same. In support of this contention plaintiff submits a copy of correspondence sent by his counsel to defendant’s Town Supervisor on March 26, 2012 requesting, “pursuant to §71 of the Civil Service Law,…a medical examination to be conducted by a medical examiner selected for that purpose by the Town.”Civil Service Law §2 (4) defines a “municipal commission” as follows:“[T]he civil service commission of a city, of a county, or of a suburban town governed pursuant to [Town Law article 3-A] and having a population of at least fifty thousand…, or the personnel officer of a city, of a county, or of such a suburban town….”To the extent that defendant is not a suburban town, as referenced in Civil Service Law §2 (4), plaintiff’s application for a medical examination under Civil Service Law §71 should have been directed to the Washington County Personnel Officer — not to defendant’s Town Supervisor (see Matter of Armetta v. Town of Bethel, 265 AD2d 789, 791 [1999]).Based upon the foregoing, plaintiff has failed to demonstrate his prima facie entitlement to summary judgment granting his first, fourth and fifth causes of action. To the extent that plaintiff has failed to meet this initial burden, the Court need not consider defendant’s opposition papers (see Vogler v. Perrault, 149 AD3d 1298, 1299 [2017]; Batzin v. Ferrone, 140 AD3d 1102, 1104 [2016]).Defendant’s Motion for Summary JudgmentTurning now to defendant’s motion for summary judgment, defendant first contends that the second and third causes of action in the complaint — both of which allege breach of contract — must be dismissed under Town Law §65 (3), which provides that “no action shall be maintained against a town upon or arising out of a contract entered into by the town…unless a written verified claim shall have been filed with the town clerk within six months after the cause of action shall have accrued.” In support of this contention defendant submits the affidavit of its Town Clerk, who “attest[s] that [defendant] did not receive a notice of claim relating to the allegations made by [p]laintiff at any time prior to the commencement of the action.”Under these circumstances the Court finds that defendant has demonstrated its prima facie entitlement to summary judgment dismissing plaintiff’s second and third causes of action (see Town of Nassau v. Westchester Fire Ins. Co., 281 AD2d 803, 804 [2001]).In opposition, plaintiff does not dispute his failure to file a notice of claim. Instead, he contends that defendant is barred from raising the argument because it was not raised as an affirmative defense in its answer. This contention is without merit, however, as “service of a notice of claim is a statutory condition precedent which does not have to be pleaded as an affirmative defense” (Flanagan v. Board of Educ., Commack Union Free School Dist., 47 NY2d 613, 617 [1979]; see McCulloch v. Milan, 74 AD3d 1034, 1035 [2010]).Plaintiff further contends that — because six years have passed since issue was joined — defendant is now barred from raising the argument under the equitable doctrines of waiver, laches and estoppel. This contention is also without merit. “[W]here a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice, that subdivision should be estopped from asserting a right or defense which it otherwise could have raised” (Bender v. New York City Health & Hosps. Corp., 38 NY2d 662, 668 [1976]). Here, there are no allegations whatsoever that defendant conducted itself wrongfully or negligently insofar as plaintiff’s failure to file the notice of claim is concerned.To the extent that plaintiff has failed to raise a triable issue of fact, defendant is entitled to summary judgment dismissing the second and third causes of action.Defendant next contends that the first, fourth and fifth causes of action in the complaint must be dismissed under Civil Service Law §71 because plaintiff (1) failed to demonstrate his ability to return to work within one year of his injury; and (2) failed to properly request a medical examination.With respect to the first contention, defendant submits copies of (1) a medical note prepared by a treatment provider at NCSM relative to an office visit plaintiff had on July 11, 2011; (2) a medical note prepared by a treatment provider at NCSM relative to an office visit plaintiff had on August 10, 2011; (3) a note dated July 11, 2011 from a treatment provider at NCSM stating that plaintiff was “unable to return to work” until August 11, 2011, and (4); an undated form submitted to the Washington County Self-Insurance Department indicating that plaintiff will have some restrictions upon his return to employment. It appears that this form was also completed by a treatment provider at NCSM.Again, these notes are not submitted in admissible form. “[A]lthough ‘hearsay evidence that is inadmissible at trial may be sufficient to defeat a motion for summary judgment, there must be some additional competent evidence to support the motion or an excuse for the failure to present proof in admissible form’” (Zupan v. Price Chopper Operating Co., Inc., 132 AD3d 1211, 1213 [2015], quoting Saint James’ Episcopal Church v. F.O.C.U.S. Found., 47 AD3d 1058, 1059 [2008]; see Towne v. Kinglsey, 121 AD3d 1381, 1382-1383 [2014]).Here, defense counsel offers no excuse whatsoever for the failure to submit the proof in admissible form. Further, the only other evidence of plaintiff’s inability to return to work is the deposition testimony of defendant’s Highway Superintendent and plaintiff’s supervisor, Greg Brown. While the Highway Superintendent testifies that plaintiff failed to demonstrate his ability to return to work without restriction within one year of the injury, he relies entirely on the notes provided by plaintiff’s treatment providers — having no personal knowledge of plaintiff’s ability or inability to perform the duties of his employment.In this posture defendant has failed to satisfy its initial burden with respect to its first contention that plaintiff failed as a matter of law to demonstrate his inability to return to work within one year of his injury. Accordingly, the Court need not consider plaintiff’s opposition in this regard (see Vogler v. Perrault, 149 AD3d at 1299; Batzin v. Ferrone, 140 AD3d at 1104).Turning now to defendant’s second contention, defendant submits a copy of the March 2012 correspondence sent by plaintiff’s counsel to defendant’s Town Supervisor — as opposed to the Washington County Personnel Officer — requesting a medical examination under Civil Service Law §71, as well as an affidavit from the current Washington County Personnel Officer — indicating that “the County of Washington did not receive an application for reinstatement pursuant to [Civil Service Law §71].”In view of the foregoing analysis defendant has satisfied its initial burden insofar as this contention is concerned.Plaintiff, however, has raised a triable issue of fact in opposition. While the March 2012 correspondence was not directed to Barbara Winchell — who was the Washington County Personnel Officer at that time — she was copied on the correspondence. Indeed, the Highway Superintendent testified at his deposition that she was aware of the situation with respect to plaintiff and provided ongoing guidance as to the proper procedures to be followed under Civil Service Law §71. It is also be noted that defense counsel responded to the March 2012 correspondence by letter dated April 16, 2012, stating as follows:“While [defendant] would be happy to schedule the IME, as you may recall one of the issues with [plaintiff] was that the Town has been provided with relatively limited information concerning his injury and treatment. If you would kindly provide me with authorizations for all of [plaintiff's] treating physicians, including any IME doctors, we will then contact you to schedule the IME.”Although the requested authorizations were then provided on May 1, 2012, the requested medical examination was never scheduled.Under the circumstances the Court finds that there exist questions of fact as to whether plaintiff complied with Civil Service Law §71 (compare Matter of Armetta v. Town of Bethel, 265 AD2d at 790-791), as well as whether defendant waived the defense of noncompliance by affirmatively stating that it would schedule a medical examination (see Bender v. New York City Health & Hosps. Corp., 38 NY2d at 668).Based upon the foregoing, defendant’s motion for summary judgment is granted to the extent that plaintiff’s second and third causes of action are dismissed and the motion is otherwise denied.Therefore, having considered with respect to plaintiff’s motion the Affidavit of William J. White, Esq. with Exhibits “A” through “K” attached thereto, sworn to October 17, 2018, submitted in support of the motion; Affidavit of Timothy J. Shields, sworn to October 2, 2018, submitted in support of the motion; Memorandum of Law of William J. White, Esq., dated October 17, 2018, submitted in support of the motion; Affirmation of Michael A. Brandi, Esq. with Exhibit “A” attached thereto, dated November 12, 2016 (sic), submitted in opposition to the motion;And having considered with respect to defendant’s motion the Affirmation of Michael A. Brandi, Esq. with Exhibits “A” through “L” attached thereto, dated November 15, 2016 (sic), submitted in support of the motion; Memorandum of Law of Michael A. Brandi, Esq., dated November 15, 2018, submitted in support of the motion; Affidavit of William J. White, Esq., sworn to December 28, 2018, submitted in opposition to the motion; Memorandum of Law of William J. White, Esq., dated December 28, 2018, submitted in opposition to the motion; and Affirmation of Michael A. Brandi, Esq., dated January 3, 2019, submitted in further support of the motion;And oral argument having been held on June 19, 2019 with William J. White, Esq. appearing on behalf of plaintiff and Michael A. Brandi, Esq. appearing on behalf of defendant, it is herebyORDERED that plaintiff’s motion for summary judgment is denied in its entirety; and it is furtherORDERED that defendant’s motion for summary judgment is granted to the extent that plaintiff’s second and third causes of action are dismissed, and the motion otherwise is denied; and it is furtherORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.The original of this Decision and Order has been filed by the Court together with the Notices of Motion dated October 17, 2018 and November 15, 2018 and the submissions enumerated above. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.Dated: June 20, 2019Lake George, New York
