Adam R. Duchinsky v. Nicholas Scoppetta, Fire Commissioner of the City of New York, and The City of New York

This Article 78 case was brought about by Petitioner, Adam Duchinsky to challenge his termination and seek reinstatement as a probationary firefighter with the Fire Department of the City of New York. Petitioner was hired as a “provisional” EMS-EMT for the FDNY in 2006. Prior to being hired he disclosed that in 2000 he sustained an injury to his left knee and undergone arthroscopic surgery to repair the damage. In March 2007, Petitioner resigned from this position and became employed as a “probationary” firefighter. Again, Petitioner disclosed his previous injury and subsequent surgery.

Petitioner sustained an injury to his right knee during training in April of 2007, returned to work after a short medical leave but then was placed on light duty due to pain until mid-July. In August of 2007, Petitioner injured his left knee in another training exercise. This injury led to Petitioner’s termination as a probationary firefighter less than a month later. Petitioner then submitted this Article 78 to review the termination under the “arbitrary and capricious” standard.

Prior to his termination date, on August 23, 2007, Petitioner’s doctor, Dr. Levy, wrote a note that stated there was no reason that Petitioner couldn’t perform his duties once his knee sprain healed, that his previous injury was in no way related to the more recent one, and that he should be able to “complete a full career if at least twenty years as a New York City firefighter”. This doctor’s note is significant because it included an MRI that showed “no problems” and the Bureau of Health Services doctor, Dr. Kelly, never mentioned this information in his determination that Petitioner was “medically unqualified to perform the duties of a probationary firefighter”. Since Dr. Kelly relied heavily on the operative report for Petitioner’s 2000 surgery performed by Dr. Levy, logically he should place equal value on the August 23 Doctor’s Note.

Accordingly, the Supreme Court ordered Respondents to deliver to the court affidavits and other evidence to prove when the August 23 Doctor’s Note was received and whether and by whom it was considered prior to Petitioner’s termination.