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November 01, 2012

Firefighter’s injury suffered at the World Trade Center after 9/11 ruled the result of a personal activity rather than the performance of official duties


Firefighter’s injury suffered at the World Trade Center after 9/11 ruled the result of a personal activity rather than the performance of official duties
Cavanaugh v DiNapoli, 2012 NY Slip Op 07177, Appellate Division, Third Department

A firefighter for the City of Syracuse filed an application for accidental disability retirement benefits following an injury he suffered at the World Trade Center [WTC] in the aftermath of 9/11.

The Comptroller denied the application on the grounds that the firefighter had not established he was performing duties in his official capacity at the time he was working at the WTC.

The firefighter appealed the Comptroller’s determination contending that it was not his burden to establish that he was working in his official capacity as a firefighter at the time of his injury because the rebuttable presumption set forth in Retirement and Social Security Law §363(g)(2)(a) placed that burden upon the New York State and Local Retirement System.

The Appellate Division never reached that issue as it found that there was substantial evidence that firefighter presence at the WTC following 9/11 was a “personal pursuit” rather than part of his job as a Syracuse firefighter.

According to the decision, the record showed that the firefighter had been granted a leave of absence from his position to go to the WTC and was considered to be on vacation during the time he was there. Thus, said the court, the firefighter was not working in an official capacity when the 9/11 attacks occurred and he went to the WTC the next day at the invitation of a friend who owned a private ambulance service.

The bottom line: Although the firefighter had the approval of his fire chief to go to the WTC and took his firefighting gear with him, the Appellate Division said that there was substantial evidence supports the Retirement System’s finding that he was engaged in a personal activity and not performing or discharging his official duties as a Syracuse firefighter while at the WTC site.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07177.htm

October 31, 2012

A breach of contract complaint fails as a matter of law in the absence of any showing that a specific provision of the contract was breached


A breach of contract complaint fails as a matter of law in the absence of any showing that a specific provision of the contract was breached
Westchester County Corr. Officers Benevolent Assn., Inc. v County of Westchester, 2012 NY Slip Op 07106 {See, also, 2012 NY Slip Op 07107 decided herewith], Appellate Division, Second Department

The Westchester County Correction Officers Benevolent Association, Inc., and individually named retired correction officers, commenced this action to recover damages for an alleged breach of contract based on Westchester County’s' failure to pay the individual plaintiffs benefits equivalent to those provided by the Worker's Compensation Law for loss of earning capacity due to permanent partial disability.

The Association argued that any correction officer who has been receiving disability benefits pursuant to General Municipal Law §207-c and who then receives a disability retirement pension upon the County of Westchester's application* for such retirement on the behalf of the individual is entitled, upon retirement, to benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent partial disability.

Westchester, on the other hand, contended that the parties' intention at the time that the collective bargaining agreement (the CBA) was negotiated was to assure that the correction officers were afforded all of their rights under the Workers' Compensation Law.

The Associating had admitted that the CBA "is silent as to awards for permanent partial disability." Accordingly, argued the County, as the CBA is silent as to such awards, the correction officers were not entitled, upon retirement, to Workers' Compensation awards for permanent partial disability.

The Appellate Division pointed out that "A breach of contract cause of action fails as a matter of law in the absence of any showing that a specific provision of the contract was breached."

Here, the Association failed to identify a specific provision in the CBA that requires the County to pay benefits equivalent to those paid pursuant to the Workers' Compensation Law for loss of earning capacity due to permanent partial disability. Accordingly, ruled the court, the Association failed to establish its prima facie entitlement to judgment as a matter of law.

The Appellate Division explained that "[W]hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations. Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms."

Further, said the court, "[i]nterpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument. A court should not imply a term which the parties themselves failed to include."

Finding that the specific provisions of the CBA did not provide for the retirement benefits sought by the Association, the Appellate Division held that the Association’s “reliance upon generalized language in the CBA is unavailing.”

* §207-c.2 of the General Municipal Law, in pertinent part, provides that the “Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his [or her] duties if such policeman is granted an accidental disability retirement allowance …If application for such retirement allowance or pension is not made by such policeman, application therefor may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed. [Emphasis supplied.]

The decision is posted on the Internet at:

October 30, 2012

Police officers involved shootings may be required to submit to breathalyzer testing


Police officers involved shootings may be required to submit to breathalyzer testing
Palladino v. City of New York, USDC, SDNY, #07 CV 9246, 2012 U.S. Dist. Lexis 90291

Unions representing various ranks of police officers serving with the New York City Police Department objected to a departmental order requiring that any police officer involved in a shooting, on or off duty, that resulted in an injury or death submit to a breathalyzer test.

The unions contended that requiring police personnel to submit to such testing “without probable cause” constituted an unreasonable search in violation of the Fourth Amendment. Federal District Court Judge George B. Daniels rejected this argument and granted the City’s motion for summary judgment.

Judge Daniels ruled that requiring police officers to submit to the breathalyzer tests under such circumstances was justified under the “special needs doctrine.” This doctrine has been relied upon to justify warrantless drug and alcohol testing of individuals employed in the public sector.*

According to the decision, the primary purpose of the searches was not crime control, but personnel management--to deter officers from becoming intoxicated and discharging their weapons. These special needs outweigh any privacy interest that officers might have in not submitting to the tests.

* See National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), upholding drug and alcohol testing of public employees.

The decision is posted on the Internet at;
http://www.nysd.uscourts.gov/cases/show.php?db=special&id=190

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