McKay v. Vill. of Endicott

• Citation: 28 N.Y.S.3d 143,137 A.D.3d 1462
• Parties: In the Matter of Joseph W. McKAY, Respondent, v. VILLAGE OF ENDICOTT, Appellant.
• Decision Date: 24 March 2016
• Court: New York Supreme Court Appellate Division

137 A.D.3d 1462
28 N.Y.S.3d 143

In the Matter of Joseph W. McKAY, Respondent,
v.
VILLAGE OF ENDICOTT, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

March 24, 2016.

28 N.Y.S.3d 143

Coughlin & Gerhart LLP, Binghamton (Lars P. Mead of counsel), for appellant.

Hinman, Howard & Kattell, LLP, Binghamton (Paul T. Sheppard of counsel), for respondent.

Before: McCARTHY, J.P., EGAN Jr., LYNCH and DEVINE, JJ.

DEVINE, J.

Appeal from a judgment of the Supreme Court (Tait, J.), entered February 27, 2014 in Broome County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, award petitioner retroactive benefits

28 N.Y.S.3d 144

pursuant to General Municipal Law § 207–a.

The underlying facts are set forth in a prior decision of this Court (113 A.D.3d 989, 979 N.Y.S.2d 422 [2014], lv. dismissed 23 N.Y.3d 1015, 992 N.Y.S.2d 775, 16 N.E.3d 1253 [2014] ). Briefly, petitioner was employed by respondent as a firefighter, sustained a work-related injury to his lower back in 2008, and stopped working because of the injury in 2009. He obtained workers' compensation benefits for that injury and was granted disability benefits pursuant to General Municipal Law § 207–a(1), with respondent later attempting to discontinue the latter. Petitioner was eventually found eligible for General Municipal Law § 207–a(1) benefits but, as he had taken a performance of duty disability retirement in the interim, he was no longer entitled to General Municipal Law § 207–a(1) benefits and instead sought post-retirement supplemental benefits made available by General Municipal Law § 207–a(2). Respondent denied the application, prompting petitioner to commence the present CPLR article 78 proceeding. In 2012, Supreme Court granted the petition in part and directed respondent to pay petitioner General Municipal Law § 207–a(2) benefits retroactive to the date of his retirement in 2010, "pending a determination consistent with due process" as to whether they should be terminated.

Respondent appealed from the 2012 judgment and, while that appeal was pending, petitioner submitted a proposed judgment to Supreme Court that would award him a set amount of retroactive benefits (see CPLR 7806 ; 22 NYCRR 202.48 ). While the parties dickered over the propriety of issuing a new judgment and the correct amount of retroactive benefits to be awarded, this Court affirmed the 2012 judgment (113 A.D.3d at 991–993, 979 N.Y.S.2d 422 ). Supreme Court thereafter issued a judgment in February 2014 that awarded petitioner $67,830.69 in retroactive benefits, interest and costs. Respondent now appeals from the 2014 judgment.¹

Respondent raises arguments that were addressed in our decision on the appeal from the 2012 judgment, and that ruling constitutes the law of the case. Accordingly, we will only address respondent's claim...