Wise v Jennings, 290 AD2d 702, 703, lv denied 97 NY2d 612
Section 207-a of the General Municipal Law provides that firefighters who retire after suffering a work-connected disability are to receive employer-paid supplements to their retirement allowance until their mandatory age of retirement.
The amount of the supplement: the difference between their retirement allowance and the amount that they would have earned as active firefighters had they not retired for disability, including adjustments for negotiated salary increases.
When the legislature provided for an automatic cost of living adjustment [COLA] to retirees, including those retired for accidental or service connected disability, the City of Albany advised its retirees receiving Section 207-a supplements that it would recompute and reduce their supplements to reflect the increase they received as a result of the COLA adjustment. William Wise, a retired City of Albany firefighter and President of the Albany Permanent Professional Firefighters Retirees' Association, sued the City contending that the City could not withholding any portion of the supplemental income payments as an adjustment for the amount that they receive as a COLA increase. A Supreme Court justice dismissed Wise's petition and he appealed.
Pointing out that General Municipal Law Section 207-a was intended only to affect the source, not the amount, of payments made to disabled firefighters, the Appellate Division affirmed the lower court's ruling.
The Appellate Division said that COLA's legislative history demonstrates that it constituted a clear policy directive to offset the negative effects of inflation experienced by public retirees whose pension benefits were eroded as a result of annual increases in the cost of living without commensurate increases in benefits. Accordingly, the court reasoned, "[a]s a clear pension supplement, we agree that since the payment of the adjustment is dependent upon the right to receive a disability retirement allowance, the COLA adjustment must be found to be generated through that income stream."
As Section 207-a only permits the employer to supplement the "difference between the amounts received under such allowance or pension and the amount of the firefighters' regular salary or wages [had he or she remained an active firefighter]," the deduction of an amount equal to the COLA adjustment from the firefighters' Section 207-a supplement was proper. This determination, said the court, is consistent with the underpinnings of Section 207-a, which is to ensure that permanently disabled firefighters receive an amount equal to that of active firefighters holding the same position and rank with only the income source and not the amount affected.
General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.