De Novio v. County of Schenectady

293 A.D.2d 101, 741 N.Y.S.2d 573, 2002 N.Y. App. Div. LEXIS 3600
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 11, 2002
StatusPublished
Cited by6 cases

This text of 293 A.D.2d 101 (De Novio v. County of Schenectady) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
De Novio v. County of Schenectady, 293 A.D.2d 101, 741 N.Y.S.2d 573, 2002 N.Y. App. Div. LEXIS 3600 (N.Y. Ct. App. 2002).

Opinion

OPINION OF THE COURT

Spain, J.

In December 1991, while employed by respondent County of Schenectady as a correction officer with the Sheriffs Department, petitioner slipped on a wet floor and sustained injuries. Thereafter, petitioner, a member of tier IV of the State and Local Employees’ Retirement System, was placed on disability and paid a benefit equal to his full salary pursuant to General Municipal Law § 207-c. Petitioner collected section 207-c benefits until May 1992, when he returned to work for approximately one month before reinjuring his back in the line of duty, at which time he again was granted and collected section 207-c full-salary benefits until he was ordered back to work on light-duty status in December 1996.

In November 1996, the County filed an application on petitioner’s behalf, without his consent, for disability retirement benefits pursuant to Retirement and Social Security Law § 605 (hereinafter section 605 disability retirement). Respondent Comptroller approved the section 605 disability retirement application and the County thereafter ceased paying General Municipal Law § 207-c benefits to petitioner. After exhausting his administrative remedies, petitioner commenced this CPLR article 78 proceeding challenging the County’s termination of his section 207-c benefits. Supreme Court found a rational basis for the County’s determination to discontinue petitioner’s section 207-c benefits and dismissed the petition. Petitioner appeals, and we now affirm.

[103]*103General Municipal Law § 207-c requires municipal employers to pay a full-salary benefit to, among others, correction officers who sustain disabling injuries or illnesses in the performance of their duties. In pertinent part, the statute provides:

“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 [qualified employee] who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his duties if such [employee] is granted an accidental disability retirement allowance pursuant to section three hundred sixty-three of the retirement and social security law, a retirement for disability incurred in performance of duty allowance pursuant to section three hundred sixty-three-c of the retirement and social security law or similar accidental disability pension provided by the pension fund of which he is a member” (General Municipal Law § 207-c [2] [emphasis supplied]).

On its face, the statute clearly anticipates that section 207-c benefits can be extinguished when the recipient retires, even where the recipient’s retirement benefit is less than the full-salary benefit provided by section 207-c (see, General Municipal Law § 207-c [2]; Retirement and Social Security Law § 363 [e] [three-quarter salary benefit]; § 363-c [f] [one-half salary benefit]; see also, General Municipal Law § 207-c [5] [discontinuing benefits when recipient reaches age or period of service designated by law for termination of service]). The statute also expressly gives the municipality the authority to apply for a correction officer’s retirement without the officer’s consent, thus evincing an intent to permit a municipality to limit its liability where the officer is eligible for some other qualifying form of disability benefit (see, General Municipal Law § 207-c [2]).

Notably, petitioner does not challenge the County’s authority to file for section 605 disability retirement on his behalf, nor does he provide any basis for concluding that the application should not have been granted. Instead, he asserts that the one-third salary benefit provided by section 605 disability retirement cannot operate to terminate the General Municipal Law § 207-c full-salary benefits. Petitioner is not a member of the Police and Fire Retirement System and, therefore, he is not eligible for either the accidental disability or performance of [104]*104duty disability retirement benefits provided by Retirement and Social Security Law §§ 363 and 363-c (hereinafter section 363 accidental retirement and section 363-c performance of duty retirement, respectively). The question before us, therefore, distills to whether section 605 disability retirement is “similar” to section 363 accidental retirement or section 363-c performance of duty retirement within the meaning of General Municipal Law § 207-c (2).

As a tier IV member of the State and Local Employees’ Retirement System, petitioner is subject to Retirement and Social Security Law article 15 and section 605 disability retirement. In contrast to the provisions of title 8, which separately authorize ordinary disability retirement (see, Retirement and Social Security Law § 362), accidental retirement (see, Retirement and Social Security Law § 363) and performance of duty retirement (see, Retirement and Social Security Law § 363-c), with one exception

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Bluebook (online)
293 A.D.2d 101, 741 N.Y.S.2d 573, 2002 N.Y. App. Div. LEXIS 3600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-novio-v-county-of-schenectady-nyappdiv-2002.