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Collective Bargaining Agreement Subsequently Made Retroactive to Cover Period When it Had Expired Did Not Include Firefighters Hired During the Period the Agreement Had Expired

The Third Department affirmed Supreme Court’s determination that newly hired firefighters [hired January 9, 2010] were not eligible, pursuant to a collective bargaining agreement (CBA), for participation in a retirement plan to which they need not contribute a portion of their salary.  The collective bargaining agreement which would have allowed participation in the noncontributory program had expired at the time the firefighters were hired and was made effective retroactively when it was subsequently signed:

Petitioners’ reliance on the continued effect of the terms of the 2008-2009 CBA is unavailing in light of the recent decisions of the Court of Appeals expressly rejecting the application of the Triborough Amendment to the tier 5 retirement legislation … .  Accordingly, the expired 2008-2009 CBA cannot be considered to have been “in effect” on January 9, 2010 for the purpose of permitting the new hires to qualify for the statutory exception (see L 2009, ch 504, Part A, § 8).

Nor are we persuaded that the 2009-2013 CBA can be considered to be retroactively “in effect” on January 9, 2010, as it was not executed until seven months later in August 2010.  At that time, newly hired firefighters were required by law to contribute to the retirement system (see Retirement and Social Security Law §§ 1201, 1204) and, as a result, the Union and NFTA [Niagara Frontier Transportation Authority] were prohibited from agreeing to a noncontributory retirement plan (see Civil Service Law § 201 [4]; Retirement and Social Security Law § 470).  Moreover, while the Union and NFTA were able to retroactively bind each other to the terms of the 2009-2013 CBA, they were unable to bind third parties such as the Comptroller … . Matter of Buffalo Niagara Airport Firefighters Association v DiNapoli, 515811, 3rd Dept 11-7-13

 

Accidental Disability Retirement Benefits (Police Officers)

The Third Department confirmed the comptroller’s determination that the injuries suffered by a police officer were not the result of “accidents” and therefore did not justify the award of accidental disability retirement benefits.  The officer slipped on a wet metal-encased curb while directing traffic and was subsequently injured again when a suspect he was chasing resisted arrest.  The Third Department wrote:

Initially, we note that petitioner has the burden of demonstrating that he is entitled to receive accidental disability retirement benefits, and the Comptroller’s determination will be upheld if supported by substantial evidence … .  In order to qualify as an accident, the precipitating event must be “a sudden, fortuitous mischance that is unexpected, out of the ordinary and injurious in impact” … .  Notably, an injury will not be considered accidental if it “‘results from an expected or foreseeable event arising during the performance of routine employment duties'” … . Matter of Rodriques v DiNapoli, 515935, 3rd Dept 10-3-13

 

New York City’s Decision Not to Apply Increased Take Home Pay Benefit to Police Officers and Firefighters Struck Down

In a full-fledged opinion by Justice Acosta, the First Department determined that the “City of New York’s decision to not apply an increased-take-home-pay (ITHP) benefit to police officers and firefighters placed into Tier III of the retirement system after July 1, 2009, and to continue deducting 3% of their wages towards their retirement benefits, violates Retirement and Social Security Law (RSSL) [section] 440(b)” and supports a cause of action for “common-law conversion of the deducted wages.”  Lynch v City of New York, 2013 Slip Op 03581, 1st Dept, 5-16-13

 

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Issue Whether Son of Sam Law Supersedes Retirement and Social Security Law Protection of Pension Benefits Not Preserved for Review​

This case was remitted to the Third Department after the Court of Appeals determined the issue whether the Son of Sam Law (allowing the victims of crimes to seek compensation from the perpetrator) superseded Retirement and Social Security Law 110, which protects pension payments from creditors, had not been preserved for review.  The Third Department made it clear that it believes the Son of Sam Law does supersede the Retirement and Social Security Law, but the court was prohibited from addressing the subject due to the procedural posture of the case.  Matter of NYS Office of Victim Services v Raucci, 513039, 3rd Dept, 5-2-13

 

Denial of Benefits Affirmed In Spite of Conflicting Medical Evidence

In affirming the denial of (World Trade Center) accidental disability retirement benefits to a police officer, the Third Department explained how to deal with conflicting medical opinion.  Here the officer presented evidence he suffered from post traumatic stress disorder stemming from the World Trade Center attacks, and the state presented evidence he suffered from treatable mild depression:

“In situations where, like here, there are conflicting opinions as to whether  petitioner is permanently  disabled, it is well  settled that  [the  Comptroller]  is vested with  the  authority to resolve conflicts in the medical evidence and to credit one expert’s opinion over that of another” ….   Inasmuch as the Retirement System’s expert provided a rational and fact-based opinion, founded upon an examination of petitioner and a review of his medical records, the Comptroller’s determination is supported by substantial evidence and will not be disturbed, despite evidence in the record that might support a contrary result … .  Matter of Cantelmo v NYS Comptroller, 515641, 3rd Dept, 4-25-13

 

 

Injury to Officer Who Was Pursuing a Suspect Not an “Accident”

In finding that injury to a police officer was not the result of an “accident” within the meaning of the Retirement and Social Security Law, the Third Department wrote:

Here, petitioner was performing his regular police duties chasing a suspect within his authorized patrol area at the time he was injured. As we have recognized, the “pursuit of suspects is an ordinary employment duty of a police officer” … .  Petitioner’s pursuit took him through a wooded area to the edge of a ravine where he stopped because he recognized the danger of falling into it. Nevertheless, he stood too close to the edge, the edge gave way under his weight and he fell into the ravine in a manner that he reasonably could have anticipated… .  Matter Roth v DiNapoli, 515078, 3rd Dept, 4-11-13

 

Connection of Illness to Work at Trade Center Not Demonstrated

The Third Department upheld the denial of World Trade Center Accidental Disability benefits to a policeman who claimed a 12-hour stint looking for survivors exacerbated his pre-existing condition (ulcerative colitis).  The court determined the statutory presumption had been rebutted by the respondent and the petitioner failed to present sufficient evidence linking his condition to his work at the World Trade Center. Matter of Cardino v NY State and Local Retirement System, 514782, 3rd Dept 4-11-13

 

 

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Expired Fire Fighters’ Collective Bargaining Agreement Was Not “In Effect” Pursuant to Statute With Respect to Fire Fighters’ Mandated Contributions to Pension Plan

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a collective bargaining agreement entered into by the City of Yonkers Fire Fighters was not “in effect” within the meaning of Article 22 of the Retirement and Social Security Law.  For some purposes, the Retirement and Social Security Law deems a collective bargaining agreement to remain “in effect” after it has expired, until another agreement is reached.  If the collective bargaining agreement had been deemed to be “in effect” in this case, the firefighters would not have been required to contribute to their pensions, a requirement that was imposed only after the collective bargaining agreement expired.  Matter of City of Yonkers v Yonkers Fire Fighters …, 48, CtApp, 4-2-13

 

Injury to Officer from Collapsing Stretcher Deemed Accidental

The Third Department annulled a determination denying a police officer’s claim for accident disability benefits.  The officer was injured when a wheeled stretcher collapsed.  The Third Department determined the collapse of the stretcher was not a foreseeable consequence of the officer’s ordinary duties and, therefore, constituted an accident.  In the Matter of Scharp v DiNapoli, 515287, 3rd Dept. 3-21-13

 

Injuries from Subduing Mentally Disturbed Person Not Accidental

In confirming the denial of a police officer’s application for accidental disability retirement benefits, the Third Department noted that the injuries suffered when subduing a mentally disturbed person were the result of a risk inherent in the duties of a police officer and did not constitute “a sudden, fortuitous, out of the ordinary and unexpected event that [did] not result from an activity undertaken in the performance of regular or routine employment duties” … . In the Matter of Carpenter v DiNapoli, 515251, 3rd Dept. 3-21-13

 

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