New York State Department of Audit & Control v. Crime Victims Compensation Board

76 A.D.2d 405, 431 N.Y.S.2d 602, 1980 N.Y. App. Div. LEXIS 11765

Opinions

OPINION OF THE COURT

Mahoney, P. J.

These four related proceedings involve the propriety of loss of earnings awards granted by the Crime Victims Compensation Board, pursuant to article 22 of the Executive Law, to uniformed police officers injured in the line of duty. Although all four received their full base salary, three were deprived of night shift differential pay due to their inability to work following their injuries, and a fourth was unable to work overtime as a result of his injury.

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Considering that each of the police officers received his full base salary, medical care and other benefits during his period of recuperation and that each incurred no loss of unreimbursed out-of-pocket expenses as the result of his injuries, the awards should be annulled.

The awards given by the board to the individual claimants are illegal and excessive on the basis that there has been no showing that the claimants will suffer "serious financial hardship” as a result of the losses incurred (Executive Law, § 631, subd 6). The board, in attempting to justify the awards, points to one of its own regulations which gives it discretion to exempt "an amount not exceeding the victim’s or claimant’s annual income” when considering whether a financial loss is severe (9 NYCRR 525.9 [c] [1]). However, the board has no statutory authority to exempt any assets from consideration, be it discretionary or mandatory, since subdivision 6 of section 631 of the Executive Law specifically states that "[i]n determining such serious financial hardship, the board * * * shall consider all of the financial resources of the claimant” (emphasis added). Since the board’s regulation runs counter to the clear wording of the statute, it should not be given any weight (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459; Matter of Adams [Government Employees Ins. Co.], 52 AD2d 118, 121, mot for lv to app dsmd 40 NY2d 1080). Accordingly, the board’s determinations must be annulled.

The determinations should be annulled, without costs.

The respondent Hughes had a base salary when injured on August 23, 1978 of $20,555 per annum (raised to $21,318 within a month of his injury). His financial resources consisted of savings of $240. His award was $1,207.05 for unreimbursed night shift pay differential computed on the basis of $92.85 per month, net, for 13 months from the date of injury to September 22, 1979.

The respondent Eisenberg had a base salary when injured on February 28, 1979 of $22,221.42. He had no financial resources. His award was $355.47 for unreimbursed night shift pay differential computed on the basis of $142.19 per month for two and one-half months from March 1, 1979 to May 18, 1979.

The respondent Sack had a base salary when injured on December 16, 1978 of $21,149.70. He had financial resources of $1,000 with liabilities of $4,800. His award was $1,120 for unreimbursed night shift pay differential computed on the basis of $20 per week for 56 weeks from December 16, 1978 to January 11, 1980.

The respondent Melucci, a transit authority police officer, had a base salary of $18,500.56 when injured on December 12, 1978. He had a savings account of $4,000. His award was $431.65 for loss of regularly scheduled overtime computed on the basis of $8.90 per hour for 48 Vi hours from December 12, 1978 to April 26, 1979.