Thursday, March 19, 2015

Adjustments to a disabled firefighter’s salary and supplements to his or her disability retirement allowance paid pursuant to GML §207-a[2]


Adjustments to a disabled firefighter’s salary and supplements to his or her disability retirement allowance paid pursuant to GML §207-a[2]
2015 NY Slip Op 02134, Appellate Division, Second Department

General Municipal Law §207-a[1] guarantees a firefighter who is disabled in the performance of his or her duties entitlement to, among other benefits, the continued payment by his or her municipal employer of the "full amount of his [or her] regular salary or wages until [the] disability . . . has ceased.”. If, however, a permanently disabled firefighter is granted an accidental disability retirement allowance pursuant to Retirement and Social Security Law §363, a performance of duty disability retirement allowance pursuant to Retirement and Social Security Law §363-c, or a "similar accidental disability pension provided by the pension fund of which he [or she] is a member," the municipality is obligated to pay "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."*

In Mashnouk v City of Newburgh, 55 NY2d 80, the Court of Appeals held that the provisions of §207-a[2] includes "prospective salary increases given to active firefighters subsequent to the award and therefore firefighters receiving §207-a benefits were to receive the benefits of the negotiated salary increases."

Disabled retired firefighters [DRF] who became disabled as a result of injuries they sustained in the performance of their duties were receiving performance-of-duty disability retirement allowances from the New York State Retirement System pursuant to Retirement and Social Security Law §363-c, as well as supplemental benefits from the employer in the amount of the "difference between the amounts received under [their] allowance[s] . . . and the amount of [their] regular salary or wages" pursuant to General Municipal Law §207-a[2].

However, the employer entered into a new Taylor Law [Civil Service Law Article 14] contract with its firefighters' union pursuant to which the salaries paid to active firefighters were temporarily decreased from the levels set forth in the previous contract by 5% for the period from January 14, 2011, through June 30, 2013, and by 3% for the period from July 1, 2013, through December 31, 2013. On January 21, 2011, the City notified the DRFs that the supplemental benefits they received pursuant to General Municipal Law §207-a[2] would be reduced in accordance with the new contract.

The DRFs commenced a proceeding pursuant to CPLR Article 78 in the nature of mandamus** to compel the employer to continue to pay supplemental benefits at the level that was in effect before the commencement of the new contract. Supreme Court dismissed their petition, which decision was sustained by the Appellate Division.

The Appellate Division explained that General Municipal Law §207-a guarantees a firefighter who is disabled in the performance of his or her duties entitlement to, among other benefits, the continued payment by his or her municipal employer of the "full amount of his [or her] regular salary or wages until [the] disability . . . has ceased." If, however, a permanently disabled firefighter is granted an accidental disability retirement allowance pursuant to Retirement and Social Security Law §363, a performance of duty disability retirement allowance pursuant to Retirement and Social Security Law §363-c, or a "similar accidental disability pension provided by the pension fund of which he [or she] is a member," the municipality is obligated to pay only "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."

Citing Farber v City of Utica, 97 NY2d 476, the court said that the amount of such a disabled firefighter's regular salary or wages under §207-a[2] "is calculated based on the current salary of an active firefighter at the same grade the [firefighter] held upon retirement." Thus, the term "regular salary or wages" as employed in General Municipal Law §207-a[2] includes salary increases given to active firefighters following the award of the disability retirement allowance or pension as well as the benefit of longevity pay increases provided to active firefighters’

The Appellate Division then ruled that "regular salary or wages" also includes salary decreases applied to active firefighters and thus the DRFs failed to establish a "clear legal right" to the relief they sought.

* Such fireman shall continue to receive this supplement until such time as he or she shall have attained the mandatory service retirement age applicable to him or her or shall have attained the age or performed the period of service specified by applicable law for the termination of his or her service. Further, this supplement to the retirement allowance benefit is limited to firefighters; police officers are covered by Section 207-c of the General Municipal Law, which does not provide for the payment of the difference between the police officers retirement allowance and his or her "Section 207-c benefit."

** In addition to "mandamus" and "certiorari," CPLR Article 78 provides for the modern version of two other "ancient writs:" the writ of quo warranto [by what authority] and the writ of prohibition [a superior court barring the consideration of a matter by a lower court].

The decision is posted on the Internet at:

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Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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