Ring v. Langdon

69 A.D.2d 998, 416 N.Y.S.2d 137, 1979 N.Y. App. Div. LEXIS 11776

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 1979
• Status: Published

Opinions

Order reversed, without costs, and motion denied. Memorandum: Petitioners Ring and O’Mara have been firemen of the City of Buffalo since 1961. In 1964 Ring was assigned to Snorkel Company No. 1 as a firefighter and received disabling injuries when the snorkel collapsed during the performance of his duties. He has not returned to active duty since the accident. Petitioner O’Mara was assigned to Engine Co. No. 18. In October, 1975 he sustained a myocardial infarction that disabled him from performing his duties. He subsequently returned to work and in August, 1977 he sustained a second heart attack and has not returned to active duty since that time. Both petitioners have received full pay and benefits from the date of their disability. On March 7, 1978 respondent commissioner notified petitioners that they had been found medically fit to perform light duty and he ordered them back to work. Petitioners instituted this proceeding (and have obtained a preliminary injunction at Special Term) claiming that under section 207-a of the General Municipal Law, as it existed prior to January 1, 1978, they were entitled to full pay and benefits until they were able to return to their "regular duties”, which they interpret to mean the same assignment which they performed at the time their disabilities arose. Respondent city contends that under the 1977 amendment to section 207-a (L 1977, ch 965, § 1) petitioners must undertake light duty if they are physically able to do so or forfeit the benefits which they receive as full time—though disabled—employees of the fire department. Special Term held, and the dissenters agree, that the 1977 amendment which became effective January 1, 1978 may not be applied retroactively to deprive petitioners of their rights. As firemen disabled in the course of their employment petitioners are entitled to full pay and benefits as long as their disability continues, including any increment in salary received during their disability by those in similar status or grades (see Pease v Colucci, 59 AD2d 233; Matter of Birmingham v Mirrington, 284 App Div 721). Those benefits were vested under the former law and they may not be impaired by later statutory enactment. The issue, however, is in the interpretation to be placed upon the phrase "regular duties” found in section 207-a as it existed before it was amended in 1977. We assume that fire departments, and those employed by them, perform a variety of "regular duties” as diverse as firefighting, making safety inspections, working in the alarm office or any one of a number of other necessary responsibilities entrusted to municipal fire departments. We see no legislative intention expressed in the original statute to guarantee a firefighter his salary unless and until he is able to return to exactly the same assignment which he was performing at the time that he sustained his disability and no other. If petitioners can perform duties normally performed by firemen, they should perform them or retire. If they can only perform light duties, then the commissioner must assign them to light duties or allow them to remain on full pay but inactive duty status. That is how we interpret the language of the statute. The dissenters contend that while that may be the meaning of the statute under the present amendment, it was not the law prior to the amendment. No court decision is cited in support of the view that petitioners may remain on inactive duty with full pay and benefits until they are able to return to their former assignments as firefighters in the snorkel and engine companies. What was clear in the former statute became ambiguous by administrative interpretation (see 24 Opns St Comp 1968, p 442; 1966 Opns Atty Gen 165), and we interpret the 1977 amendment as a clarification of the language of the statute (see Panico v Young, 62 AD2d 1051, mot for lv to app den 46 NY2d 847). All concur, except Hancock, Jr., and Witmer, JJ., who dissent and vote to affirm the order, in the following memorandum.