Hennessy v. G.S. Mink Steamer & T. Claxton Hose Co.
| Decision Date | 16 April 2020 |
| Docket Number | 528314 |
| Citation | 122 N.Y.S.3d 784,182 A.D.3d 830 |
| Parties | Mark HENNESSY, as President of the Rensselaer Professional Firefighters Local 2643, Appellant–Respondent, v. G.S. MINK STEAMER AND T. CLAXTON HOSE COMPANY NO. 2, AUXILIARY INC., et al., Respondents–Appellants, and City of Rensselaer, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Blitman & King LLP, Syracuse (Brian J. LaClair of counsel), for appellant-respondent.
Law Office of Raymond A. d'Amico, Clifton Park (Raymond A. d'Amico of counsel), for respondents-appellants.
Goldman Attorneys PLLC, Albany (Erika C. Browne of counsel), for respondent.
Before: Lynch, J.P., Clark, Devine, Pritzker and Reynolds Fitzgerald, JJ.
(1) Cross appeals from an amended order of the Supreme Court (Zwack, J.), entered October 12, 2018 in Rensselaer County, which, among other things, partially denied plaintiff's motion for partial summary judgment, and (2) appeal from an amended order of said court, entered February 5, 2019 in Rensselaer County, which, among other things, denied certain defendants' motion for leave to amend their consolidated answer.
The Rensselaer Fire Department consists of five companies, four of which are volunteer fire companies: defendants G.S. Mink Steamer and T. Claxton Hose Company No. 2, Auxiliary Inc.; E.F. Hart Hose Co. No. 3 Rensselaer, New York, Inc.; Rensselaer City Chemical and Hose Fire Company No. 4 ; and James Hill Hook and Ladder Company of the City of Rensselaer, N.Y. (hereinafter collectively referred to as the volunteer companies). The fifth company is comprised of 15 paid firefighters (hereinafter the paid firefighters) who are employed by defendant City of Rensselaer. All of the paid firefighters are members of the Rensselaer Professional Firefighters Local 2643 (hereinafter the Union), a voluntary, unincorporated association consisting of paid firefighters employed by the City. The City receives fire insurance premium tax monies collected pursuant to Insurance Law §§ 9104 and 9105 and distributes them equally to the Union and each volunteer company.
In August 2016, plaintiff, the President of the Union, commenced this action seeking, among other things, a declaratory judgment that the City violated Insurance Law §§ 9104 and 9105 by distributing the collected tax monies to members of the volunteer companies who were not "active." Plaintiff also sought to enjoin the City from distributing tax monies to the volunteer companies based on members who are not active, arguing that the term active should be defined as responding to alarms and performing firefighting at least eight times per year. The City answered, asserting affirmative defenses, counterclaims and cross claims. Three of the volunteer companies answered and asserted affirmative defenses. Soon thereafter, the fourth volunteer company answered and asserted affirmative defenses. Plaintiff replied to the City's cross claims, answering and asserting affirmative defenses. The volunteer companies replied to the City's cross claims, answering and asserting affirmative defenses against the City and alleging counterclaims and cross claims. In January 2017, Supreme Court consolidated the volunteer companies' answers and directed them to serve a separate and correctly labelled reply to the City's cross claims.
In April 2018, plaintiff moved for partial summary judgment on its first cause of action against the City, seeking declaratory relief and enjoinment. The volunteer companies then moved for partial summary judgment dismissing the complaint against them and seeking a declaration that, among other things, plaintiff lacks the legal capacity to receive the paid firefighters' pro rata portion of the collected tax monies. The City opposed both motions. In October 2018, Supreme Court granted plaintiff's motion to the extent of determining that the City, in 2016 and 2017, failed to distribute the tax monies appropriately and enjoining the City from any future distributions inconsistent with Insurance Law §§ 9104 and 9105. The court also partially granted the volunteer companies' motion to the extent of determining that plaintiff is not an entity eligible to receive the paid firefighters' pro rata distribution. The court determined that the volunteer companies were not entitled to additional declaratory relief because their consolidated answer contained no counterclaims, thereby rendering their request for declaratory relief improperly interposed.
In November 2018, pursuant to CLPR 3025, the volunteer companies moved for leave to amend their consolidated answer to include counterclaims and to amend their reply to the City's answer to include cross claims. The City and plaintiff opposed the motion as untimely and prejudicial. Pursuant to CPLR 2221, plaintiff also cross-moved for reargument of the October 2018 order and, in the alternative, for a stay pursuant to CPLR 2201. The volunteer companies opposed the cross motion. In February 2019, Supreme Court denied the volunteer companies' motion to amend in its entirety and partially granted plaintiff's motion seeking reargument. In that regard, the court deemed its October 2018 order a final order resolving the claims set forth in plaintiff's first and second causes of action in the amended complaint and the first counterclaim, second counterclaim, first cross claim and second cross claim in the City's answer; the court found that the remaining issue and request to adjourn the trial were rendered academic. Plaintiff and the volunteer companies cross-appeal from the October 2018 order and both appeal from the February 2019 order.1
" Insurance Law §§ 9104 and 9105 provide that foreign and alien fire insurance companies and mutual fire insurance companies must pay a 2% tax on the amount of all premiums for insurance against loss or damage by fire" ( Krol v. Potter, 106 A.D.3d 1440, 1441, 967 N.Y.S.2d 156 [2013] [internal quotation marks and citations omitted]; see Volunteer & Exempt Firemen's Assn. of Garden City v. Local 1588 of the Professional Firefighters Assn. of Nassau County, 82 A.D.3d 876, 877, 918 N.Y.S.2d 529 [2011], lv denied 17 N.Y.3d 705, 2011 WL 2535153 [2011] ). The statutes designate "the treasurer or other fiscal officer of the fire department affording fire protection" in each city as the intended recipient of the monies ( Insurance Law §§ 9104[a][1] ; 9105[d][2][B]; see Foley v. Masiello, 52 A.D.3d 1225, 1226, 860 N.Y.S.2d 345 [2008], lv denied 11 N.Y.3d 714, 873 N.Y.S.2d 269, 901 N.E.2d 763 [2009] ). If there is no such fiscal officer, the payment is to be made "to the fiscal officer of the authorities having jurisdiction and control of such fire department" ( Insurance Law §§ 9104[a][2] ; 9105[d][2][C]; see Watt v. Richardson, 6 A.D.3d 1117, 1118, 776 N.Y.S.2d 418 [2004], lv denied 9 A.D.3d 920, 779 N.Y.S.2d 799 [2004], lv dismissed 3 N.Y.3d 735, 786 N.Y.S.2d 808, 820 N.E.2d 287 [2004] ). "[T]he tax proceeds generated by Insurance Law §§ 9104 and 9105 are intended for the personal use and benefit" of the fire departments ( MacIsaac v. City of Poughkeepsie, 158 A.D.2d 140, 143, 558 N.Y.S.2d 667 [1990], lv denied 76 N.Y.2d 714, 564 N.Y.S.2d 717, 565 N.E.2d 1268 [1990], appeal dismissed 80 N.Y.2d 891, 587 N.Y.S.2d 901, 600 N.E.2d 628 [1992] ) and are to "be shared [pro rata] by all fire departments affording fire protection" ( Pillig v. Strange, 239 A.D.2d 568, 569, 658 N.Y.S.2d 82 [1997], lv dismissed 90 N.Y.2d 979, 665 N.Y.S.2d 953, 688 N.E.2d 1035 [1997] ; see Krol v. Potter, 106 A.D.3d at 1442, 967 N.Y.S.2d 156 ). Only active members of a fire department who are "actually responsible for providing fire protection" are eligible to receive these monies ( Krol v. Potter, 106 A.D.3d at 1442, 967 N.Y.S.2d 156 [internal quotation marks and citation omitted] ).
We turn first to plaintiff's assertion that Supreme Court erred in partially denying its motion for partial summary judgment inasmuch as it erroneously determined that actual participation in firefighting is not a criterion for determining whether a firefighter is "active" and thus eligible to share in the tax monies. This Court has held that "active" members are those who are "trained to perform interior or exterior firefighting" and are unrestricted in their ability to perform actual firefighting ( Krol v. Potter, 106 A.D.3d at 1442, 967 N.Y.S.2d 156 ). "[D]espite recognition that the paid firefighters [as compared to volunteer firefighters] commonly shoulder the main responsibilities in a department" ( Renn v. Kimbark, 115 A.D.2d 112, 113–114, 494 N.Y.S.2d 918 [1985], lv denied 68 N.Y.2d 663, 505 N.Y.S.2d 78, 496 N.E.2d 237 [1986] ), a member's response rate or attendance record does not determine whether a member is active within the meaning of the statutes (see id. ). Therefore, the court properly determined that the actual number of calls a firefighter responds to is not determinative of the manner in which the City must distribute the tax monies and, as such, we discern no error in the court's pro rata disbursement of the monies (see Krol v. Potter, 106 A.D.3d at 1442, 967 N.Y.S.2d 156 ; Pillig v. Strange, 239 A.D.2d at 569, 658 N.Y.S.2d 82 ; Renn v. Kimbark, 115 A.D.2d at 113–114, 494 N.Y.S.2d 918 ).
Plaintiff's further contention, that Supreme Court erred in determining that the Union may not receive the paid firefighters' pro rata distribution of the monies, is similarly without merit. Initially, there is no dispute that the monies are properly paid, in the first instance, to the treasurer of the City. The issue lies in whether the City can then distribute the paid firefighters' portion of those monies to the Union. Pursuant to Insurance Law §§ 9104(a)(4) and 9105(d)(2)(E), after the treasurer of the City receives the...
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