Mashnouk v. Miles

432 N.E.2d 761, 55 N.Y.2d 80, 447 N.Y.S.2d 889, 1982 N.Y. LEXIS 3070
CourtNew York Court of Appeals
DecidedFebruary 16, 1982
StatusPublished
Cited by41 cases

This text of 432 N.E.2d 761 (Mashnouk v. Miles) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mashnouk v. Miles, 432 N.E.2d 761, 55 N.Y.2d 80, 447 N.Y.S.2d 889, 1982 N.Y. LEXIS 3070 (N.Y. 1982).

Opinion

OPINION OF THE COURT

Jasen, J.

On this appeal,, we are asked to resolve a narrow issue of statutory interpretation involving section 207-a of the [83]*83General Municipal Law. The specific question is whether the phrase “regular salary or wages” in subdivision 2 of that statute, defining the accidental disability retirement allowance to be paid a disabled fireman, includes salary increases paid to active firemen when such increases were negotiated after the award of the disability allowance. We hold that it does.

The facts are not in dispute. On December 23, 1977, petitioner, while in the course of his employment as a fireman for the respondent City of Newburgh, seriously injured his knee. Although he briefly returned to work in February of 1978, reoccurrence of pain in and lack of support from the injured knee prevented petitioner from performing his duties. At that time, petitioner was 33 years old and his annual salary was $13,867. On May 3, 1979, petitioner was granted an accidental disability retirement allowance under section 363 of the Retirement and Social Security Law.

Thereafter, pursuant to subdivision 2 of section 207-a of the General Municipal Law,1 the city paid petitioner the difference between his accidental disability retirement allowance and his regular salary of $13,867. Effective January 1, 1980, an across-the-board salary increase was awarded to the Newburgh fire fighters. By letter dated January 24, 1980, the city notified petitioner that payments made to him pursuant to section 207-a of the General Municipal Law would not include any salary increases, but would continue to be computed on the basis of petitioner’s salary at the time he was awarded the accidental disability retirement allowance.

Petitioner then commenced the present article 78 proceeding, seeking to compel the respondents — Frederick Miles, Acting City Mamager, and the City of Newburgh — to recompute the payments made to him under section 207-a of the General Municipal Law by taking into account [84]*84salary increases paid to active fire fighters employed by the city. Supreme Court granted the relief requested, ordering respondents to pay petitioner the difference between his accidental disability allowance and his regular salary, including increases in annual salary retroactive to January 1, 1980 and any future salary increases as they occurred. On appeal, a unanimous Appellate Division reversed, on the law, and dismissed the proceeding, stating: “Based upon the language of subdivisions 1, 2 and 3 of section 207-a of the General Municipal Law, along with the legislative history of the 1977 amendment to that section * * * we hold that the phrase ‘regular salary or wages’ as employed in subdivision 2 of section 207-a of the General Municipal Law refers to a disabled fireman’s salary as of the time of his retirement and should not reflect prospective salary increases of firemen.”2 (80 AD2d 855.) We disagree.

Prior to the amendment of section 207-a of the General Municipal Law (see L 1977, ch 965, eff Jan. 1, 1978), the statute provided that any paid fire fighter disabled in the course of duty was to be “paid by the municipality or fire district by which he [was] employed the full amount of his regular salary or wages until his disability *** ceased.” (General Municipal Law, former § 207-a.) As construed by the courts, the phrase “regular salary or wages” included any subsequent increases in salary that were given to active fire fighters of the same grade or title after the disability arose. (Matter of Barber v Lupton, 282 App Div 1008, affd 307 NY 770.) In addition, payments under former section 207-a continued so long as the fire fighter did not recover from his injury, even if he remained disabled for the rest of his life. (Matter of Birmingham v Mirrington, 284 App Div 721, 728.)

The former statute was the subject of a great deal of criticism. (See, e.g., Governor’s Memorandum upon approving L 1977, ch 965, NY Legis Ann, 1977, p 336; Report by Permanent Commission on Public Employee Pension and Retirement Systems [recommendation for reform of section 207-a of the General Municipal Law].) The excessive cost of carrying disabled firemen on the public payroll [85]*85at full salary, sometimes for life, often prevented local municipalities from employing an adequate force of able-bodied fire fighters. Moreover, the former statute, by guaranteeing full salary after disability, provided no incentive to an injured fire fighter to accept the lesser amounts paid under the disability retirement provisions, and the municipality was without power to involuntarily retire a fireman even though he was permanently disabled. As a result, funds readily available to disabled fire fighters under the New York State Policemen’s and Firemen’s Retirement System were not being utilized. Finally, an injured fireman was free to accept outside employment while he continued, under the former statute, to receive his full salary from the municipality.

The original course of statutory reform proposed to the Legislature was that section 207-a be repealed and that the provisions of section 207-c of the General Municipal Law, which govern disability payments to policemen, be made applicable to firemen as well. (See Governor’s Memorandum upon approving L 1977, ch 965, NY Legis Ann, 1977, p 337.) Interestingly, subdivision 2 of section 207-c of the General Municipal Law provides that all payments of salary or wages are to terminate upon the injured policeman being granted an accidental disability retirement allowance or pension. However, apparently as a result of various compromises between the sponsors of the amendment and representatives of the firemen (see Memorandum of State Comptroller in support of Bill No. 8978 in Assembly), the original proposal to repeal section 207-a never received legislative approval.

Although the present statute contains, for the most part, the language found in former section 207-a (see General Municipal Law, § 207-a, subds 1, 7), five new subdivisions have been added. Subdivision 2, which is the focus of this appeal, authorizes the municipality to apply for an accidental disability allowance or pension on behalf of the injured fireman and states that, if the allowance or pension is granted, the “[playment of the full amount of regular salary or wages * * * shall be discontinued.” In that event, however, subdivision 2 requires that the fireman be paid by the municipality “the difference between the amounts [86]*86received under [the] allowance or pension and the amount of his regular salary or wages” (emphasis supplied) until he either reaches the age of mandatory retirement or attains the age or performs the service specified by law for the termination of his service.

Petitioner contends that the term “regular salary or wages” contained in subdivision 2 of section 207-a of the General Municipal Law was intended by the Legislature to include salary increases granted to active fire fighters after the award of a disability retirement allowance or pension. In support of his position, petitioner relies primarily on the judicial interpretation of the phrase prior to the amendment and on various memoranda submitted to the Legislature in connection with the revision of the statute.

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Bluebook (online)
432 N.E.2d 761, 55 N.Y.2d 80, 447 N.Y.S.2d 889, 1982 N.Y. LEXIS 3070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mashnouk-v-miles-ny-1982.