A probationary firefighter injured while participating in an approved basic firefighter training program is eligible for General Municipal Law §207-a disability benefits

Less than six months after being appointed as a full-time probationary firefighter by the City of Norwich the Plaintiff in the CPLR Article 78 action attended the Binghamton Fire Academy to complete an approved required training program. While practicing for one of the required physical tests, Plaintiff sustained an injury and was unable to complete the training or return to active duty. He subsequently applied for benefits pursuant to General Municipal Law §207-a, but Norwich denied his application contending that Plaintiff's injury did not occur in the course of his  performance of his official duties. 

As the collective bargaining agreement between the City and Plaintiff's union contained no provision for an administrative appeal of the denial of §207-a benefits, Plaintiff commenced a combined CPLR Article 78 and action for declaratory judgment proceeding seeking a court order annulling the City's determination, contending it was arbitrary and capricious and in violation of General Municipal Law §207-a.

Supreme Court rejected the City's argument that Plaintiff's "alleged injury occurred while training, not as a result of the performance of his duties" and held that the denial of Plaintiff's application for General Municipal Law §207-a benefits was arbitrary and capricious, which ruling the Appellate Division sustained upon Norwich's appeal.*

Explaining that "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts," the Appellate Division observed that General Municipal Law §207-a provides for the payment of the full amount of regular salary or wages to a firefighter who is injured "in the performance of" or "as a result of" his or her job duties.

Further, said the court, "[t]o be eligible for benefits, a firefighter need only demonstrate 'a direct causal relationship between job duties and the resulting illness or injury" without regard to whether the specific injury-causing activity was one entailing the 'heightened risk' posed to firefighters." The court also noted that General Municipal Law §209-w requires that probationary firefighters, such as Plaintiff, complete an approved basic training program within a proscribed period of time following initial appointment.

Although Plaintiff was injured while practicing for the candidate physical ability test, a mandatory component of the required training and which had not occurred in the course of his actual performance of the required test, the Appellate Division opined that "successful completion of the candidate physical ability test was a necessary requirement of Plaintiff's position." Thus, said the court, Plaintiff "was engaged in the expected and foreseeable task of practicing for that test during a mandatory training program that was part of his duties as a probationary firefighter."**

Noting that §207-a[1] provides that payment of benefits shall be made to "[a]ny paid firefighter which term as used in this section shall mean any paid officer or member of an organized fire company or fire department of a city of less than one million population, ... who is injured in the performance of his or her duties," the Appellate Division concluded that statute applies to "any paid . . . member" of a municipal fire department and draws no distinction between certified and noncertified firefighters." Indeed, observed the Appellate Division, had the Legislature had intended to restrict General Municipal Law §207-a eligibility to only those firefighters who had obtained the required certification of basic training at the time of their injury, "it easily could have and surely would have written the statute to say so."

The bottom line: Benefits provided pursuant to General Municipal Law §207-a are available to both certified and noncertified paid firefighter[s] injured in the performance of their duties, including training required to qualify for the position.

Editor's note: In Cheryl M. Smith v County of Erie, et al., 210 AD2d 933, a probationary police officer injured during training was held eligible for General Municipal Law §207-c disability retirement benefits. 

*As the City of Norwich's administrative determination was made without having conducted an evidentiary hearing otherwise required by law, judicial review is limited to determining whether the City's determination had a rational basis and was not arbitrary and capricious.

**The Appellate Division also noted that Plaintiff "was attending the Fire Academy at the direction of the City that the training was paid for by the City and that [Plaintiff] was receiving full pay for his attendance and participation in the program."

Click HEREto access the Appellate Division's decision posted on the Internet.

Elements considered by courts when addressing a party's effort to vacate an arbitration award

Nassau County initiated a CPLR Article 75 action in Supreme Court in an effort to have the court vacate a contract disciplinary grievance arbitration award won by the Nassau County Investigators Police Benevolent Association, Inc. [PBA]. Nassau contended that the arbitration award "... was irrational, exceeded the arbitrator's powers, and violated public policy."

Supreme Court agreed with the County and denied PBA's petition seeking to confirm the arbitrator's award. The court then remitted the matter for a rehearing and determination before a different arbitrator. PBA appealed Supreme Court's ruling to the Appellate Division.

Citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471and other decisions, the Appellate Division explained that judicial review of arbitration awards is extremely limited, and an arbitration award may be vacated by a court only in the event "an arbitrator exceeds his or her power" and arbitrators exceed their power only in the event the award issued "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power".

Here, said the Appellate Division, Supreme Court properly granted Nassau County's petition to vacate the arbitration award and properly denied the PBA's cross petition to confirm the award upon the court's finding that that the award was irrational and the arbitrator clearly exceeded a specifically enumerated limitation on his power. 

The relevant Collective Bargaining Agreement [CBA] provided that the arbitrator had no authority to modify the CBA and that the arbitrator "shall onlydecide whether misconduct or incompetence existed and, if so, the appropriate penalty permitted by [the CBA]" [emphasis in the Appellate Division's decision].

The court then explained that "[u]pon vacating an arbitration award, 'the court may order a rehearing and determination of all or any of the issues either before the same arbitrator or before a new arbitrator' [and that] It is within the court's discretion to remit an arbitration matter to the same or a different arbitrator."

Rejecting the PBA's contention to the contrary, the Appellate Division opined that "the Supreme Court providently exercised its discretion" in remitting the arbitration for a hearing before a different arbitrator, citing Matter of O'Flynn [Monroe County Deputy Sheriffs' Assn., Inc.], 141 AD3d at 1099].

Click HEREto access the Appellate Division's decision posted on the Internet.

Judicial consideration of a party's CPLR Article 75 petition seeking a permanent stay of arbitration

Supreme Court denied Nassau County's CPLR Article 75 petition seeking a court order permanently staying an employee organization's demand to submit an employee's grievance to arbitration. Nassau County appealed. The Appellate Division reversed the Supreme Court's ruling, on the law, and granted the County's petition to permanently stay arbitration, denying the employee organization's motion to compel arbitration.

Citing Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, the Appellate Division explained that in determining whether a dispute between a public sector employer and an employee organization is arbitrable "a court must first determine whether 'there is any statutory, constitutional or public policy prohibition against arbitration of the grievance.'" 

If, said the Appellate Division, "there is no prohibition against arbitration," the court must then examine the parties' collective bargaining agreement to determine "whether the parties in fact agreed to arbitrate the particular dispute."

In this instance, said the Appellate Division, the employee organization is essentially seeking a reclassification of a public position in the Classified Service.*

As Civil Service Law §22** mandates that the reclassification of a civil service position in the classified service can only be accomplished by the responsible municipal civil service commission, the Appellate Division opined that the "subject grievance is nonarbitrable.

Thus, said the Appellate Division, Supreme Court should have granted Nassau County's petition "to permanently stay arbitration," rejecting the employee organization's motion to compel arbitration.

* See Civil Service Law §§40-45.

** §22, in pertinent part, provides that "Any such new position shall be createdor any such existing position reclassified only with the title approved and certified by the commission."

Click HERE to access the Appellate Decisions ruling posted on the Internet.