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INJURY DURING HURRICANE SANDY RESCUE OPERATIONS DID NOT RESULT FROM AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW.

The Third Department, over a two-justice dissent, determined petitioner police officer was not injured in an “accident” within the meaning of the Retirement and Social Security Law, and therefore was not entitled to accidental disability retirement benefits. The officer was injured during Hurricane Sandy when he entered an unstable house to rescue people inside:

For the purposes of Retirement and Social Security Law § 363, an injury that results from “a risk of the work performed” is not an accident … . Consistent with this principle, this Court has long recognized that police officers face many substantial risks in the regular course of their duties that are inherent to the work that they perform… .

According to petitioner, he was considered a first responder to emergency calls and had a duty to assist injured persons. The Uniform Police Officer Job Description that governed petitioner's job confirmed petitioner's testimony to the extent that it dictated that his professional responsibilities included “[a]ssist[ing] any injured persons.” Petitioner acknowledged that, due to the hurricane, his supervisors had impressed upon him that his professional duty extended to responding to emergency calls involving life and limb. Petitioner explained that he answered a call regarding occupants of a house who were trapped due to a tree falling onto and through the home. Petitioner acknowledged that, when he arrived, the home was not a stable structure and debris was still falling, but he explained that he had to go in to help the trapped occupants. Petitioner was thereafter injured while throwing debris off of the trapped occupants and while holding up debris that continued to fall during that rescue effort. Accordingly, a reasonable conclusion to draw from the record is that the threat that compelled petitioner's response as a police officer and first responder — the dangerous condition in the home — was the same threat that ultimately caused petitioner's injuries. Matter of Kelly v DiNapoli, 2016 NY Slip Op 02132, 3rd Dept 3-24-16

RETIREMENT AND SOCIAL SECURITY LAW (POLICE OFFICERS INJURY DURING HURRICANE SANDY RESCUE OPERATIONS DID NOT RESULT FROM AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW)/POLICE OFFICERS (INJURY DURING HURRICANE SANDY RESCUE OPERATIONS DID NOT RESULT FROM AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW)

Slip and Fall on Ice Not an “Accident” Within Meaning of Retirement and Social Security Law

The Third Department confirmed the comptroller’s finding that petitioner, who worked for a town public safety department, was not entitled to enhanced disability benefits based upon a slip and fall on ice.  The incident did not constitute an “accident” within the meaning of the Retirement and Social Security Law:

As defined for purposes of the Retirement and Social Security Law, an unexpected and unfortunate incident does not constitute an accident, so as to support an award of benefits, “where the injury results from an expected or foreseeable event arising during the performance of routine employment duties'” … . Significantly, the burden is on the party seeking benefits to establish that the incident causing his or her injury was an accident … .

Here, petitioner testified that the night before the incident there was an ice storm, and he left for work early the following morning to allow him time to navigate the icy road conditions. He stated that he spoke to his supervisor while en route and arrived in the parking lot about 10 minutes prior to his regularly scheduled shift. As he exited his vehicle, he took a few steps and then slipped and fell in the parking lot. While he was on the ground, he saw that he was lying on ice, and water was running down the middle. Based upon petitioner’s testimony describing the occurrence and his awareness of the hazardous conditions created by the ice storm, he should have reasonably anticipated that the parking lot would be slippery when he exited his vehicle. Accordingly, as the precipitating event was entirely foreseeable, substantial evidence supports the Comptroller’s finding that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law and, thus, that petitioner was not entitled to enhanced benefits… . Matter of Begley v DiNapoli, 2015 NY Slip Op 07323, 3rd Dept 10-8-15

 

Corrections Officer Not Entitled to Performance of Duty Disability Benefits Based Upon Injury Stemming from Aiding an Inmate Who Was Having a Seizure

The Third Department determined a corrections officer was not entitled to “performance of duty” disability benefits based upon injury aiding an inmate who had a seizure. The court found that the “performance of duty” disability provision pertained only to injury caused by a violent inmate:

Retirement and Social Security Law § 507-b (a) provides for performance of duty disability retirement benefits to correction officers employed by the Department of Corrections and Community Supervision who are unable to perform their job duties “as the natural and proximate result of an injury, sustained in the performance or discharge of [their] duties by, or as a natural and proximate result of, an act of an inmate.” The statute does not specifically define an “act of an inmate.” The legislative history, however, reveals that “the statute was clearly intended to compensate correction officers who, because of the risks created by their ‘daily contact with certain persons who are dangerous [and] profoundly antisocial’ . . . become permanently disabled” … . In accordance with this intent, courts have construed the language to require that the injuries be caused by direct interaction with an inmate in order to qualify for benefits under the statute … .

Petitioner contends that she had direct interaction with the inmate while she was lowering him to the floor during his seizure. However, in analogous circumstances where a correction officer was injured while assisting an incapacitated inmate during a medical emergency, we held that the “inmate was not engaged in any act that was a proximate cause of petitioner’s. . . injury” (Matter of Esposito v Hevesi, 30 AD3d 667, 668 [2006]). Given the absence of any affirmative act on the part of the inmate here, we perceive no meaningful distinction to be drawn between this case and Matter of Esposito v Hevesi (supra) … . Matter of Laurino v DiNapoli, 2015 NY Slip Op 07327, 3rd Dept 10-8-15

 

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Supreme Court Justices Who Are “Certificated” to Continue on the Bench at Age 70 Are Entitled to Both Their Pensions and Their Salaries

The Third Department, in a full-fledged opinion by Justice Clark, reversing Supreme Court, determined Judges who reach the age of 70 and are “certificated to continue their services on the Supreme Court bench” are entitled to receive both their pensions and their judicial salaries. To hold otherwise violates the plain meaning of Retirement and Social Security law 212 (1) which reads: “any retired person may continue as retired and, without loss, suspension or diminution of his or her retirement allowance, earn [an amount not greater than statutorily prescribed] in a position or positions in public service.” That same provision provides that “there shall be no earning limitations under the provisions of [Retirement and Social Security Law § 212] on or after the calendar year in which any retired person attains age [65]”… . Matter of Loehr v Administrative Bd. of the Cts. of the State of N.Y.2015 NY Slip Op 05243, 3rd Dept 6-18-15

 

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First Responder, a NYC Police Officer, Was Entitled to the World Trade Center Presumption that Her Illness, Fibromyalgia, Was Caused by Environmental Exposure at the Site of the 2001 Collapse of the World Trade Center

The First Department, in a full-fledged opinion by Justice Acosta, determined a NYC police officer was entitled to the World Trade Center (WTC) presumption that her illness, fibromyalgia, was caused by her exposure at the site of the World Trade Center collapse in 2001.  The officer was therefore eligible for accidental disability retirement (ADR):

Administrative Code § 13-252.1 provides that “any condition or impairment of health … caused by a qualifying World Trade Center condition” as defined in the Retirement and Social Security Law “shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident … unless the contrary be proved by competent evidence” (§ 13-252.1[1][a]…). “Qualifying World Trade Center condition” is defined to include, among other conditions, “[n]ew onset diseases resulting from exposure as such diseases occur in the future including cancer, asbestos-related disease, heavy metal poisoning, and musculoskeletal disease” (§ 2 [36][c][v] [emphasis added]). * * *

Here, the evidence shows that petitioner did not have fibromyalgia before September 11, 2001, and that she developed disabling fibromyalgia and chronic fatigue syndrome in the wake of her WTC exposure.

Because it was “caused by a qualifying [WTC] condition,” petitioner’s fibromyalgia is presumed to have been “incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by [her] own willful negligence, unless the contrary be proved by competent evidence” (Administrative Code § 13-252.1[1][a]). Respondents bear the burden of showing that petitioner’s qualifying injury was not incurred in the line of duty … . The Board of Trustees’ determination must be supported by credible evidence in the record … .

The significance of the presumption is that, “unlike ordinary ADR claimants, first responders need not submit any evidence — credible or otherwise — of causation to obtain the enhanced benefits” … Thus, the Board “cannot deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure” … . * * *

…[R]espondents have failed to rebut the presumption that petitioner’s qualifying condition, fibromyalgia, was caused by hazards encountered at the WTC site.  Matter of Sheldon v Kelly, 2015 NY Slip Op 01404, 1st Dept 2-17-15

 

 

State Did Not Rebut Statutory Presumption Corrections Officer’s Heart Condition Was Linked to His Work

The Third Department determined petitioner, a corrections officer, should have been awarded performance of duty disability retirement benefits.  The state did not rebut the statutory presumption that petitioner's heart condition was linked to his job:

… Retirement and Social Security Law § 607-d … provides that performance of duty disability retirement benefits shall be awarded to correction officers who become disabled by “any condition of impairment of health caused by diseases of the heart” where such disability occurs while they are employed. Notably, the statute contains a presumption that the impairment “was incurred in the performance and discharge of duty, unless the contrary can be proven by competent evidence” (Retirement and Social Security Law § 607-d). To successfully rebut this statutory presumption, it must be demonstrated through expert proof that the applicant's cardiac condition was caused by cardiac risk factors other than the applicant's employment … . Matter of Park v DiNapoli, 2014 NY Slip Op 098075, 3rd Dept 12-31-14


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Payroll Deduction for Health Benefits Should Be Added to Teacher’s Salary When Calculating Retirement Benefit

The Third Department reversed Supreme Court finding that the pre-tax payroll deduction from a teacher’s pay for health benefits must be added to the teacher’s salary to determine the retirement benefit:

We agree with petitioner’s assertion that respondents’ exclusion of the premium surcharge payment from the calculation of her final average salary was irrational and arbitrary and capricious and, therefore, we reverse. A teacher’s final average salary for purposes of determining public retirement benefits is “the average regular compensation earned as a teacher during the three years of actual service immediately preceding his [or her] date of retirement” (Education Law § 501 [11] [b]). The “wages” used in calculating the final average salary consist of “regular compensation earned by and paid to a member by a public employer” (21 NYCRR 5003.4 [b]). Notably, Retirement and Social Security Law § 79 provides, as relevant here, that, “[t]o the extent permitted by [26 USC § 125] and any regulations adopted pursuant thereto, any salary reduction elected by an employee who is a participant in [the Retirement System] under a cafeteria plan or flexible benefit plan shall be considered part of annual compensation for the purpose of . . . computing retirement benefits.”  Matter of Felice-zwaryzuk v NYS Teachers’ Retirement System, 2014 NY Slip Op 08095, 3rd Dept 11-20-14

 

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Son of Sam Law Required Murderer’s Police Pension Be Paid to Daughter and Estate of the Murder Victim

The Second Department determined that the “Son of Sam Law” required that the pension to which a convicted murderer was entitled be paid to the estate of the murder victim.  The plaintiff is the daughter of the murder victim.  The murderer is plaintiff’s father. The father fraudulently transferred his pension rights to his second wife.  Plaintiff, individually and as the administrator of her mother’s estate, procured a wrongful death judgment against her father. The court affirmed Supreme Court’s ruling that the transfer of the pension to the father’s second wife was fraudulent under Florida law (where the transfer was made) and the “Son of Sam Law” trumped the Retirement and Social Security Law such that the father’s pension was payable to the plaintiff:

“Under the full faith and credit clause . . . , where collateral attack on the ground of fraud would be permitted in the courts of the foreign State in which the judgment had been rendered, our courts will entertain a similar challenge” … . Here, Florida law permits a collateral attack on the defendant’s transfer of his pension to [second wife] on the ground that it constituted a fraudulent transfer … . * * *

Next, we reject [the second wife’s] contention that the defendant’s pension is not subject to execution or attachment by virtue of section 110(2) of the Retirement and Social Security Law or under certain provisions of the Administrative Code of the City of New York (see Administrative Code of City of NY §§ 13-181, 13-212, 13-264). As [the second wife] correctly contends, section 110(2) of the Retirement and Social Security Law provides that the right of a person to a pension “[s]hall not be subject to execution, garnishment, attachment, or any other process whatsoever” (Retirement and Social Security Law § 110[2]). In 2001, however, the Legislature amended the Son of Sam law to subject the “[f]unds of a convicted person” to an action for damages by a crime victim, a crime victim’s representative, or certain other persons (L 2001, ch 62, § 1; see Executive Law § 632 a[1][a], [c], [d]; [3]). The phrase “funds of a convicted person” was broadly defined as “all funds and property received from any source” (Executive Law § 632 a[1][c] [emphasis added]).

We conclude, for the reasons stated by our colleagues in the Appellate Division, [3rd] Department [97 AD3d 235]…, that the defendant’s pension is subject to execution under the Son of Sam law. Both the clear statutory language and the legislative history of the 2001 amendments to the Son of Sam law evince the Legislature’s intent to permit crime victims to recover assets from convicted persons, including pensions, regardless of the source of the convicted person’s funds … . As the [3rd] Department concluded, a contrary holding would “directly thwart[ ] the Legislature’s stated intent of holding convicted criminals financially … . Kane v Galtiere, 2014 NY Slip Op 07476, 2nd Dept 11-5-14

 

Aggravation of Prior Injury Entitled Petitioner to Disability Benefits

Reversing the Comptroller, the Third Department determined that aggravation of a prior injury entitled petitioner to disability benefits:

This Court has repeatedly held that “‘when a preexisting dormant disease is aggravated by an accident, thereby causing a disability that did not previously exist, the accident is responsible for the ensuing disability'” ,,, . Here, although the Retirement System’s expert speculated that petitioner may have had some low level symptoms that he had learned to manage, there is no dispute that petitioner was not incapacitated prior to the February 2009 incident. The expert characterized the exacerbation of petitioner’s underlying conditions after that point as temporary, but could not explain why petitioner’s conceded disability had not resolved as of the date of the hearing, 3½ years after the accident. Under these circumstances, the Comptroller’s determination is not supported by substantial evidence and must be annulled … . Matter of Scannella v New York State Comptroller, 2014 NY Slip Op 05007, 3rd Dept 7-3-14

 

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No Credit for Civilian Service Under Post December 19, 1990, Tier 3 CO-20 Retirement Plan (Re: 20 Year Early Service Retirement)

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that a corrections officer, a post December 19, 1990, member of the Tier 3 CO-20 New York City Department of Corrections (DOC) retirement plan established by Retirement and Social Security Law 504-a, was not entitled to an additional pension benefit based upon his three years as a non-uniformed civilian employee of the NYC Department of Environmental Protection (DEP). Therefore, the New York City Employees’ Retirement System (NYCERS) properly did not consider the civilian service for the DEP in calculating the corrections officer’s pension benefit:

… [F]or post-December 19, 1990 Tier 3 CO-20 plan members, unlike the other participants in Tier 3 CO-20 plans established by chapter 936, only allowable correction service (i.e., uniformed service) counts towards eligibility for 20-year early service retirement … . Matter of Kaslow v City of New York, 2014 NY Slip Op 02324, 4-3-14

 

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