Van Orman v. Slade

• Decision Date: 02 April 1987
• Citation: 126 A.D.2d 282,513 N.Y.S.2d 867
• Parties: Bernard VAN ORMAN et al., Appellants, v. Richard SLADE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 867

513 N.Y.S.2d 867

126 A.D.2d 282

Bernard VAN ORMAN et al., Appellants, v. Richard SLADE et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

April 2, 1987.

Thomas F. DeSoye, New York City, for appellants.

Ralph W. Nash, Ithaca, for Richard Slade and City of Ithaca, respondents.

John A. Ward, Ithaca, for Volunteer Fire Companies, respondents.

William P. Sullivan, Jr., Ithaca, for Veteran Volunteer Firemen's Ass'n, Inc., respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

MAHONEY, Presiding Justice.

Insurance Law §§ 9104 and 9105 impose upon foreign carriers and foreign mutual fire insurance carriers a 2% tax on premiums collected to be paid back to the fiscal authorities in the fire departments of the various municipalities wherein the foreign carriers provide fire insurance. In the City of Ithaca, Tompkins County, the proceeds of the 2% tax have been distributed exclusively among funds which exist for the benefit of volunteer firefighters. Professional firefighters have never received a share of said proceeds. In this action, plaintiffs represent the City's paid firefighters. Defendants are the trustees of the two firemen's relief funds and, among others, the City itself.

The City's charter was amended in 1921 by State legislative enactment so as to designate the Ithaca Board of Fire Commissioners as trustees for two firemen's relief funds. The first, to be funded from one half of the proceeds of the 2% tax, was to be accumulated for the benefit of "sick, indigent or disabled firemen" (L.1921, ch. 512, § 1). With respect to this fund, the 1921 amendment did not distinguish between paid and volunteer firefighters. The second fund was to receive the other one half of the proceeds from the 2% tax. It was to benefit the Veteran Volunteer Firemen's Association of Ithaca.

Subsequent to the passage of the 1923 "home rule" amendment to the NY Constitution and the subsequent enactment of the City Home Rule Law (L.1924, ch. 363), the City amended its charter by local law. The pertinent amended sections were Ithaca City Charter, article 6, § 6.4(8) and (9).

Plaintiffs requested to receive an equal share of the proceeds of the 2% tax. The Board of Fire Commissioners denied this request. Thereafter, plaintiffs commenced the present action wherein they sought, in a fourth cause of action in the complaint, a declaratory judgment declaring that Ithaca City Charter, article 6, § 6.4(8) and (9) were illegal and void. The gravamen of plaintiffs' fourth cause of action was that subdivisions (8) and (9), to the extent that they precluded the City's professional firefighters from receiving any portion of the proceeds of the 2% tax, were in derogation of the legislative intent behind Insurance Law §§ 9104 and 9105.

After a motion by one of the defendants seeking, inter alia, to dismiss plaintiffs' fourth cause of action, plaintiffs cross-moved for summary judgment on the fourth cause of action. Special Term granted only partial summary judgment with respect to this cause of action, finding that portions of subdivision (8) were illegal and void. This appeal by plaintiffs, who insist that summary relief in their favor should have been granted with respect to the entire fourth cause of action, ensued.

The Court of Appeals has stated that both paid and volunteer firemen are entitled to share ratably in the proceeds of the 2% tax, unless there is an "express legislative enactment" precluding professional firemen from participating in these proceeds (Renn v. Kimbark, 51 N.Y.2d 189, 194-195, 433 N.Y.S.2d 71, 412 N.E.2d 1298; see, Renn v. Kimbark, 115 A.D.2d 112, 113-114, 494 N.Y.S.2d 918, lv. denied 68 N.Y.2d 663, 505 N.Y.S.2d 78, 496 N.E.2d 237). While the parties herein do not dispute the applicability of Renn, nor its requirement of a special exclusionary enactment, they differ as to what legislative body (or bodies) is empowered to enact provisions which will satisfy the Renn requirement.

Special Term, relying on the 1921 amendment, clearly stated that Renn requires a State-legislated preference in favor of volunteers in order to preclude professional firefighters from receiving their share of the proceeds of the 2% tax. Defendants contend that the 1924 enactment of the City Home Rule Law, which authorized the amendment of the City charter so as to include subdivision (8) of article 6, § 6.4, was sufficient to satisfy Renn since, under theories of municipal home rule, the issue of beneficiaries under Insurance Law §§ 9104 and 9105 is primarily one of local concern. We agree.

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