In the Matter of Arthur T.
Farber,
Respondent,
v.
City of Utica and Barbara B.
Barry, &c.,
Appellants.
2002 NY Int. 24
On this appeal we are asked to determine a municipality's retirement payment obligation under General Municipal Law § 207-a. More precisely, the issue is whether the phrase "amounts received," in section 207-a(2) of the General Municipal Law, includes both base pension benefits and supplemental entitlements received pursuant to the Retirement and Social Security Law. We hold that it does.
Arthur T. Farber is a retired City of Utica
Pursuant to Retirement and Social Security Law § 363-c, he receives an annual disability pension from the New York State Retirement System. Pursuant to General Municipal Law § 207-a, he also receives from the City the difference between the State disability pension and the salary of active firefighters.
This appeal centers on the third statutory source of
Farber's benefits. Pursuant to Retirement and Social Security
Law § 378, Farber receives a supplemental allowance from the
State.[1]
Originally, the amount of this supplemental retirement
allowance was $431 annually (see L 1998, ch 8). In 1995, the
amount was increased to $1,117 (see L 1995, ch 119), and in 1998,
it was again increased, to $1,726 (see L 1998, ch 390). After
the third increase, the City became aware of the supplemental
allowance and sought both to decrease its payments under General Municipal Law § 207-a and to recoup past overpayments. The City
Farber commenced an article 78 proceeding to compel the City to recalculate its obligation under General Municipal Law § 207-a. The City counterclaimed seeking reimbursement for alleged overpayments. Supreme Court granted Farber's petition and denied the City's counterclaim and the City appealed. The Appellate Division unanimously affirmed, holding that "there is no statutory authority for the City to reduce the amount of section 207-a benefits by the amount of the supplemental retirement allowance" (282 2 39, 40 [4th Dept. 2001]). We now reverse.
In 1977, the Legislature amended General Municipal Law § 207-a, effecting dramatic changes in the statutory framework
governing firefighters' disability and pension payments (L 1977,
ch 965). As a result of the amendments, local and municipal
pensions were discontinued and firefighters mandatorily enrolled
in the State pension system (Retirement and Social Security Law
§§ 113, 330). The amendment sought to "substantially reduce the
financial burden of municipalities with respect to payments to
disabled fire[fighters] and * * * allow funds presently used for
such payments to be used to hire able fire[fighters] and thereby
increase the level of fire protection in municipalities
throughout the State" (Governor's Mem approving L 1977, ch 965,
The 1977 amendment, however, only partially relieved municipalities of their burden. The City's statutory obligation guarantees a pensioner the "full amount of * * * regular salary or wages" (General Municipal Law § 207-a[1]). If a firefighter is granted "an accidental disability retirement allowance," pursuant to Retirement and Social Security Law §§ 363, 363-c or similar accidental disability pension, however, the City is liable only for "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages" (General Municipal Law § [2]).
In Matter of Mashnouk v Miles (, 55 NY2d 80, 88 1982]), this Court held that the phrase "'regular salary or wages' * * * includes prospective salary increases given to active fire fighters subsequent to the award of an accidental disability retirement allowance or pension." Therefore, the amount of a pensioner's regular salary or wages is calculated based on the current salary of an active firefighter at the same grade the pensioner held upon retirement.
The City's payment obligation is determined by
calculating the total "amounts received" by the pensioner
relative to a retiree's "allowances or pensions" (General Municipal Law § 207-a; Retirement and Social Security Law § 363-
c). The phrase "allowances or pensions" refers specifically and
exclusively to "an accidental disability allowance pursuant to
In addition, members of the State pension system are also entitled to a "supplemental allowance" representing a percentage of the base pension otherwise provided by the Retirement and Social Security Law (Retirement and Social Security Law § 378). Significantly, these supplemental allowances are not independent pensions. Instead, the supplements are wholly contingent upon payment of a base pension amount and computed accordingly.
We conclude from the statutory scheme that the
supplemental allowance should reduce the City's obligation.
Here, Farber's supplemental allowance derives from his Retirement
and Social Security Law § 363-c disability pension. The phrase
"amounts received" in General Municipal Law § 207-a includes, and
expressly refers to, Retirement and Social Security Law § 363-c
disability pensions. Insofar as § 378 benefits are funded from
the same source -- the State pension system -- and exist only in
relation to Farber's § 363-c benefits, they are subject to
Additionally, the Legislature clearly intended
Retirement and Social Security Law § 378 to provide a cost of
living adjustment to State retirement system pensioners (see Bill
Jacket, L 1998, ch 390, at 4).[2]
As we noted in Mashnouk (55 2
at 83,
Accordingly, the order of the Appellate Division should be reversed, with costs, the petition dismissed, the City's counterclaim reinstated and the matter remitted to Supreme Court for further proceedings on the counterclaim.
1 Farber, and the courts below, erroneously indicated that the source of the supplemental allowance was Retirement and Social Security Law § 78 rather than section 378. Whereas section 78 applies generally to all other members of the New York State Retirement System, section 378 applies specifically to retired members of the police and fire departments.
2 Effective July 11, 2000, the Legislature enacted an automatic cost of living adjustment. Retirement and Social Security Law § 378-a applies to "all disability pensioners regardless of age who have been retired for five years." This new provision is the subject of Wise v Jennings, AD2d [3d Dept.], lv denied NY2d [2002]).