dissenting:
I disagree with the majority’s conclusion that Russell was not entitled to pretermination notice. Russell was apparently entitled on the merits to the disability retirement benefits and thus had as much of a property interest in the opportunity to apply for those benefits as he had in the benefits themselves. Because terminating his medical leave was the equivalent of terminating his final opportunity to apply, I believe he should have received advance notice.
RSSL Section 605 grants state employees on medical leave the right to claim permanent disability benefits:
The application must be filed within three months from the last date the member was being paid on the payroll or within twelve months of the last date he was being paid on the payroll provided he was on a leave of absence for medical reasons without pay during such twelve month period provided the member was disabled at the time he ceased being paid.
RSSL § 605 (emphasis added). Given the emphasized language, I do not understand how the majority can conclude that New York treats a state employee’s decision to remain on medical leave “as a statement that the employee does not consider himself or herself permanently disabled.” The majority apparently believes that, by taking medical leave, Russell waived any claim to disability retirement benefits he had or might later make and that therefore Russell had no protected interest of which he may not be deprived without advance notice. But I think it beyond dispute that the State considers an employee’s decision to remain on medical leave a statement that the employee, with the full blessing of the State, needs more time in which to decide whether to consider himself or herself permanently disabled.
Although the majority appears to consider medical leave status a sort of “temporary disabled list” for employees who know from the outset that they are not permanently disabled, it is obvious that many employees simply cannot know immediately after injury whether their disability will become permanent. The vagaries of healing and diagnosis make it almost impossible for doctors, not to mention injured state employees such as Russell, to predict the permanence of a disability without a reasonable lapse of time in which to gauge the *671body’s healing or disability. Clearly, RSSL Section 605 contemplates that state employees, at some point during medical leave, might choose to consider themselves permanently disabled. By taking medical leave, Russell preserved his right to claim disability retirement benefits and therefore was entitled to pretermination notice.
I also disagree with the majority’s analysis of the second Mathews factor, which concerns the risk of erroneous deprivation and the value of additional procedural safeguards. The absence of pretermination notice in cases such as this creates an unacceptably high risk of erroneous disentitlement for qualified employees. For example, when in September 1984 Russell asked responsible officials of the New York State Division for Youth about his retirement rights, he was informed — erroneously— that he needed ten years of service to apply for disability retirement benefits.1 Had Russell received the appropriate notice, this error could have been remedied.
Even if Russell had never asked about his rights but had nonetheless received the letter terminating his medical leave, the resulting foreclosure of his opportunity to apply would still have been erroneous simply because Russell, in whose favor the court must resolve all doubts on the defendants’ summary judgment motion, was apparently entitled on the merits to the benefits he seeks. If responsible state officials are misinformed about retirement rights, I do not see how Russell could have been expected to know his rights without receiving notice of the impending termination of his leave and the consequences thereof. The avoidable error was keeping Russell in the dark about so crucial a property interest as retirement benefits.
The majority argues that “Russell makes no claim that he discovered the permanent status of his disability so close to learning of the December 18 termination that he had no time to apply.” The issue, however, is whether the State should have given Russell notice, not whether Russell would have applied, or would have had time to apply, but for the absence of notice. In any case, a letter to a state employee stating that valuable rights will be terminated unless that employee acts promptly will likely spur that employee to action.
I note also that this case involves the termination of an open-ended, discretionary medical leave. Although the State was under no obligation to grant Russell a discretionary leave beyond one year, once the State granted the leave without stating at the outset when or if it would end, the State could not terminate it — and the associated opportunity to apply for benefits— without prior notice.
Finally, the majority’s analysis of the third Mathews factor, concerning the Government’s interest, shows insensitivity to the worker-protective statutory scheme. The majority claims that New York has an interest in discouraging employees from taking full advantage of medical leave status. Given that the statutes at issue grant certain employees medical leave and entitle them to apply for disability retirement benefits, I do not see how the majority divines a state “interest” — really, an off-the-books policy — of discouraging employees from availing themselves of statutory leave. In any event, the action of the State in giving no advance notice of termination surely went far beyond any reasonable “discouragement.” There is nothing in the record to suggest that Russell had taken any improper advantage of his right to medical leave status.
The irony of this case is that Russell did receive post-termination notice, which obviously did him no service whatsoever. It would have put no conceivably greater burden on the responsible state officials to have sent notice before termination, rather than after.
I would reverse and remand with instructions to restore Russell to medical leave and to consider his application for disability retirement benefits on the merits.
. For the sake of argument, I accept the State’s contention that, under New York law, this error cannot be grounds for an estoppel claim against the State.