Robida v. Mirrington
| Decision Date | 27 February 1956 |
| Parties | Matter of the Application of Norman ROBIDA, Petitioner, v. Ernest W. MIRRINGTON, Jr., Mayor, and Fred W. Van Liew, Anthony J. Keller, George Stoll and Calvin Keller, members of the Council of the City of Niagara Falls, New York, and Harold R. Cheek, City Manager of the City of Niagara Falls, New York, Respondents. |
| Court | New York Supreme Court |
Findlay, Argy & Hackett, Niagara Falls (Jack W. Hackett, Niagara Falls, of counsel), for petitioner.
Clarence W. Greenwald, Corporation Counsel, Niagara Falls (Ralph A. Boniello, Deputy Corporation Counsel, Niagara Falls, of counsel), for respondent.
This is a proceeding under Article 78 of the Civil Practice Act. It was heard at Lockport, Niagara County, New York on September 27, 1955.
The final brief for the respondents was received January 26 and the amended answer on February 8, 1956.
The petitioner seeks an order directing the City of Niagara Falls to restore him to the benefits provided for a disabled fireman under § 207-a of the General Municipal Law, said benefits having been discontinued February 1, 1953.
Section 207-a provides, in part, that any paid fireman of a fire department of a city of less than one million population, who is injured in the performance of his duties so as to necessitate medical or other lawful remedial treatment, shall be paid by the municipality by which he is employed, 'the full amount of his regular salary or wages until his disability arising therefrom has ceased', and, in addition, 'such municipality * * * shall be liable for all medical treatment and hospital care furnished during such disability.'
The section further provides that the municipal health authorities, or any physician appointed for the purpose by the municipality, may attend the disabled fireman, from time to time, for the purpose of providing medical, surgical or other treatment, or for making inspections, and that the municipality shall not be liable for salary or wages payable to such a fireman, or the cost of medical or hospital care, or treatment furnished, after such date as the health authorities, or examining physician, as the case may be, shall certify that such disabled fireman has recovered and is physically able to perform his regular duties in the department.
It further provides that any disabled fireman who shall refuse to accept such medical treatment, or shall refuse to permit such medical examinations as are authorized by the statute, shall be deemed to have waived his rights under the section in respect to medical expenses incurred, or salary payable, after the date of any such refusal.
The applicant's demand to be restored to the benefits of said section is based upon his petition, dated and verified March 12, 1953, setting forth the necessary and pertinent facts, among which are: that he was appointed as a paid fireman by the city on or about January 3, 1918; that on July 19, 1932, he was made a master mechanic of the department; that he held said job and performed its duties until on or about July 13, 1942, when he was permanently disabled; that thereafter the petitioner received an award from the Compensation Board for said disability, and that the city paid to him, in addition to said compensation award, the benefits provided for by § 207-a in an amount sufficient to make up his regular salary of $2,400 a year until about February 1, 1953. The foregoing facts are undisputed.
The main issue in this proceeding is created by the disputed allegation No. 9 of the petition, which alleges:
.
The answer to the foregoing 'admits that portion * * * to the effect that on or about November 1, 1945, petitioner made application to the State Retirement System for accidental disability retirement pursuant to the provisions of the Civil Service Law and that such application was duly accepted by the Department of Audit and Control of the State of New York as of November 1, 1945, as of which date petitioner was duly retired; and upon information and belief denies the remaining portion * * *'.
The foregoing pleadings thus pose the issue, Did the petitioner irrevocably retire as an employee of the Niagara Falls Fire Department and become a pensioner under the State Retirement System as of November 1, 1945?
If he did so retire as an employee, then he removed himself from the city's payroll and thereby effected a waiver of any further rights under § 207-a of the General Municipal Law. He could not legally receive pay from both the city and the State Retirement System for the same disability at the same time. Robinson v. Cole, 1948, 193 Misc. 717, 84 N.Y.S.2d 514, 515. The decision in the Robinson case was rendered by Mr. Justice Van Duser in Special Term, Steuben County, on December 6, 1948, or about three years after Mr. Robida's alleged retirement. It appears that Mr. Robinson was also a member of a fire department (Corning, N. Y.) to which the provisions of § 207-a of the General Municipal Law applied if such member were disabled while performing his duties. Mr. Robinson made such claim, alleging that on July 27, 1943, he was injured in the performance of his duties and thereby incapacitated permanently from performing them. The allegation was denied by the city and was an issue in the proceeding. It appears that he had made application for compensation under the provisions of the Workmen's Compensation Law, and his claim was denied. He applied for, and was retired on March 15, 1945, in accordance with the provisions of the Civil Service Law, and thereafter received payments as therein provided, from the State Retirement System.
On or about March 11, 1948, Mr. Robinson filed a notice of claim with the City of Corning, alleging that under the provisions of § 207-a of the General Municipal Law, he was entitled to receive the full amount of his regular salary as a city fireman during the entire term of his disability, 'and to receive such in addition to the benefits and payments received by him from the State retirement system.' (Italics mine.)
The court denied the claim, stating:
'Unquestionably, had petitioner's status not changed between the time of his injury and the institution of the present proceeding, he would be entitled to receive the full amount of his regular salary or wages * * *.'
Then the Court points out that Mr. Robinson's status had changed in that 'he is not a present employee of the City, and has not been such since March 15, 1945, and that, therefore, he is not entitled to the benefits provided by Sec. 207-a of the General Municipal Law.'
The reason for that conclusion, according to the opinion of Justice Van Duser, was that 'On March 15, 1945, the petitioner unquestionably 'retired' from the Fire Department. * * * he is no longer a 'fireman' * * * the petitioner's name was removed from the city payroll, as the City was directed to do by the authorities having in charge the administration of the Retirement System.'
The court's opinion continues,
In the words of the Court:
'Manifestly, the purpose and aim of Sec. 207-a. * * * does not contemplate payment when he ceases to be an employee of the City and a member of the department. Such must be the intent of the Statute. To hold to the contrary would be to approve double payment, and double payment is frowned upon.
The policy of the State is against such.'
In March of 1945 when Mr. Robinson filed his application for disability retirement as a fireman in Corning, New York, the record reveals that the City of Niagara Falls was concerned with a somewhat similar problem in connection with the claim of one of its firemen, a Mr. William Birmingham. Birmingham v. Mirrington, 1953, 204 Misc. 821, 123 N.Y.S.2d 72, affirmed 1954, 284 App.Div. 721, 134 N.Y.S.2d 456.
He claimed that in 1942 he had suffered accidental injuries 'which rendered him permanently and totally disabled for regular duty as a member of the fire department.' 284 App.Div. at page 723, 134 N.Y.S.2d at page 457, supra. At page 724 of 284 App.Div., at page 458 of 134 N.Y.S.2d of the Court's opinion it states that Mr. Birmingham 'on or about March 8, 1945, the Comptroller of the City of Niagara Falls requested the petitioner to file an application for accidental disability retirement under the provisions of Sec. 65 of the Civil Service Law * * * declined to do so.'
Despite his refusal to apply voluntarily for retirement, the city attempted to effectuate such result without his knowledge or consent by an application to the State Retirement System signed on his behalf by the City Comptroller, under date of January 24, 1945.
In disposing of the city's contention that Mr. Birmingham was not entitled to the benefits of § 207-a of the General Municipal Law because he had retired as...
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