Lefford v. City of Jamestown , 665 N.Y.S.2d 230 ( 1997 )

—Judgment unanimously reversed on the law without costs, motion granted and petition dismissed. Memorandum: Supreme Court should have granted respondents’ motion to dismiss the petition on the ground that petitioner failed to exhaust his administrative remedies. The record establishes that petitioner, a firefighter employed by the City of Jamestown Fire Department, was granted performance of duty disability retirement benefits pursuant to Retirement and Social Security Law § 363-c. Petitioner thereafter applied to the City of Jamestown for supplemental wage benefits pursuant to General Municipal Law § 207-a (2), but he commenced this proceeding before respondents determined his application for section 207-a (2) benefits. Thus, the petition must be dismissed (see, Matter of Hoffman v City of Yonkers, 231 AD2d 520; Matter of D’Onofrio v City of Mount Vernon, 226 AD2d 719, 720; Matter of Putnam v City of Watertown, 213 AD2d 974, 975).

We reject the contention of petitioner that respondents are barred by laches from denying his request for section 207-a (2) benefits. The two-year delay in granting petitioner’s application for performance of duty disability retirement benefits is chargeable to the State Retirement System, not respondents. (Appeal from Judgment of Supreme Court, Chautauqua County, Gerace, J.—CPLR art 78.) Present—Green, J. P., Law-ton, Hayes, Wisner and Boehm, JJ.