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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

May 30, 1997

Disqualification for Section 207-a benefits

Disqualification for Section 207-a benefits
Faliveno v Gloversville, 215 A.D.2d 71, 228 A.D.2d 19

In 1988 John T. Faliveno, a City of Gloversville firefighter, suffered a permanently disabling on-the-job injury. The City commenced paying him benefits pursuant to §207-a of the General Municipal Law.

In April 1993 Faliveno was granted an accidental disability retirement allowance under §363 of the Retirement and Social Security Law. In accordance with §207-a, Gloversville paid Faliveno the difference between "his regular salary" and his accidental disability retirement allowance as well as his disability-related medical expenses.

In September 1993 the City told Faliveno that it was discontinuing his §207-a benefits because he was engaged in prohibited employment.

NOTE: §207-a.6 provides any firefighter receiving benefits pursuant to §207-a who engages in any employment other than light duty under §207-a.3 or in another municipal position pursuant to §207-a.5, forfeits his or her entitlement to any payments and benefits. Further, any "unlawful benefits" received by the firefighter are to refunded to the employer.

Gloversville learned that Faliveno owned and operated a number of rental properties. This, said the City, constituted prohibited employment within the meaning of §207-a. It discontinued paying him benefits pursuant to §207-a and sued in an effort to compel Faliveno to repay the supplemental benefits he had previously received from the City.

About a year later Faliveno told the City that he had sold his rental properties and ceased all "prohibited employment" and asked Gloversville to reinstate his §207-a benefits. When the City refused to do so, Faliveno sued.

The Appellate Division affirmed a State Supreme Court's ruling dismissing his petition. The decision clearly indicates that in the view of the Court once a disabled firefighter forfeits his or her §207-a benefits, curing the basis for the forfeiture will not reestablish the firefighters' eligibility for the benefit.

The Court said that General Municipal Law §207-a(6) mandates a permanent forfeiture of all §207-a benefits for a disabled firefighter who engages in prohibited employment.

The Appellate Division specifically rejected Faliveno's argument that "deterring 'double dipping' by disabled firefighters could be fully accomplished by merely requiring the firefighter to forfeit his or §207-a benefits for the period he or she is engaged in outside employment." It said that in its view "the overall legislative intent ... was to protect firefighters by ensuring that if they are injured and cannot work they will continue to be adequately compensated; the legislation was not intended to provide firefighters who are capable of maintaining outside employment with a second income."

The Court's reference to "a second income" may be significant. It could be a signal that the courts will deem any "outside employment" that provides an income as triggering a forfeiture of the benefits, even if the income results from "passive employment" and the disabled firefighter is not actively engaged in any physical activities related to the "outside employment."

The Comptroller has distinguished "paid employment" from "employment as an unpaid volunteer," concluding that "working as a volunteer" does not offend the prohibition against employment within the meaning of §207-a [Opinions of the State Comptroller 92-12].

The next several years will undoubtedly involve courts attempting to set the parameters of "prohibited employment," a term not defined with any precision in §207-a.

Another case involving the forfeiture of §207-a benefits is Robinson v Cole, 193 Misc 717. In Robinson the Court decided that §207-a benefits  were only available to firefighters while they remain members of the fire department and were not made if the individual ceases to be an employee of the fire department.

Consistent with this position, in a case involving benefits paid to a disabled police officer pursuant to §207-c of the General Municipal Law, O'Connor v Town of Clarkstown, the Appellate Division said that O'Connor was removed from his position by operation of law when he moved from Rockland County to Warren County. Accordingly, he automatically became ineligible for §207-c benefits.

May 19, 1997

Designating positions "managerial" or "confidential" within the meaning of the Taylor Law

In 1980 the Sachem Central School District a number of individuals then in the Sachem office staff bargaining unit [SOSA] were designated "confidential/managerial."* These individuals, together with a number of individuals "in positions that already had been designated confidential at the time they started working," sued, seeking compensation and benefits consistent with a resolution adopted by the Board in June 1980.

The Board's June 1980 resolution provided that "employees whose job titles were formerly included in the SOSA bargaining unit but were now designated as confidential would nonetheless receive the increases in compensation and fringe benefits provided for in the collective bargaining agreement between the District and SOSA."

Initially the District, in accordance with the June 1980 resolution,  provided all these "confidential" employees the same salary and benefits otherwise payable under the collective bargaining agreements with SOSA.

In February 1995 the District negotiated a new agreement with SOSA. When the District failed to provide these confidential employees the same level of salary and benefits set out in the new agreement and later denied their demands  for the same increases in compensation and benefits provided by the agreement, they sued.

A New York State Supreme Court judge directed the District to provide the confidential employees compensation and fringe benefits in accordance with the Board's resolution. The Appellate Division reversed that determination. The Court decided that a hearing was required and returned the case to the lower Court.

What was the Appellate Division's reasoning? The Court said that "it was unclear whether any of the employees changed their positions to their detriment in reliance upon the resolution."

Although the confidential employees allege that they had the option of accepting non-confidential positions which would have allowed them to remain in the bargaining unit, the Appellate Division decided that such representations were "inadequate to conclude that by accepting or continuing in confidential job titles [these employees] thereby changed their positions to their detriment."

One might wonder why the issue of a "change in position" is significant. As the Court commented, "a governmental agency may be subject to estoppel only if it is shown that a manifest injustice resulted from actions taken by the agency in its proprietary or contractual capacity" where the "misconduct of the agency ... has induced justifiable reliance by a party who then changes position to his or her detriment."

In other words, did some or all of these "confidential employees" change their position in reliance of the June 1980 resolution? Indeed, assuming that their designation as "confidential" was appropriate, could an individual have elected to decline being designated confidential in contrast to requesting to be reassigned to a position within the collective bargaining unit?

The Supreme Court will now have to address these questions, and probably some additional issues, in order to make its determination.

* Technically employees, in contrast to positions, are designated "managerial" or "confidential" for the purposes of the Taylor Law. §201.7(a), in pertinent part, provides that "... [e]mployees may be designated as managerial only if they are persons (i) who formulate policy or (ii) ... assist directly in ... collective negotiations ... [and] ... [e]mployees may be designated as confidential only if they are persons who assist and act in a confidential capacity to managerial employees described in clause (ii)."

The decision is posted on the Internet at:

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