111 Misc. 2d 184 | N.Y. Sup. Ct. | 1981
OPINION OF THE COURT
In this CPLR article 78 proceeding petitioner seeks a judgment vacating and annulling the determination of the respondent which denied the petitioner’s request for accidental death benefits under section B18-39.0 of the Administrative Code of the City of New York.
Petitioner contends that Police Officer Michael Gallagher was killed during the performance of an official duty, to wit, the protection of fellow Police Officer Gregory Cassin. Petitioner (the deceased’s mother) applied for line-of-duty accidental death benefits. Her application was denied on April 27, 1981 by the New York City Police Pension Fund. It is respondent’s contention that the officer’s death was not considered a “line of duty” death and, therefore, the officer’s beneficiary was not entitled to those benefits arising from a “line of duty death”.
On December 30, 1978 Police Officer Gallagher and his partner Officer Gregory Cassin participated in a hockey
Section B18-39.0 of the Administrative Code provides that to qualify for “line of duty” death benefits, an accident must have occurred and that accident must have been service related. The determination as to whether a deceased police officer was “on” or “off-duty” at the time of his death or whether he was killed in the line of duty for purposes of “accidental death benefits” is a question for the pension board (Matter of Brady v City of New York, 22
Petitioner has the burden of establishing the proximate link between his death (or disability) and police service (Matter of Drayson v Board of Trustees of Police Pension Fund of City of N. Y., 37 AD2d 378). Petitioner submitted affidavits attesting to the fact that the death was a direct result of Gallagher’s attempt to assist a fellow officer after being informed of a hazardous and potentially deadly situation. The mere fact that Gallagher was technically “off duty” does not and cannot automatically preclude a ruling that he was killed in a “line of duty” situation. When a deceased officer’s death is causally related to helping a fellow officer in need of assistance, he cannot be penalized by the time or hour of assistance (see Matter of Brady v City of New York, supra).
Respondents contend that Gallagher’s assistance must be categorized as one friend aiding another friend instead of one off-duty police officer responding to the call of a brother officer in trouble. Respondent’s decision to deny petitioner’s application is predicated upon an oblique implication that the death of Gallagher was causally related to something other than the deceased’s recognized responsibility as a policeman.
Although an officer is technically within the “off duty” classification, as a member of the force he is subject to duty at all times (except when on sick leave) (Collins v City of New York, 7 NY2d 822, 824). He is required to be available to perform on his employer’s behalf at all times even though he may be technically off duty. The fulfillment of
Respondents’ denial of line-of-duty benefits, if taken at face value, could establish a dangerous precedent by discouraging off-duty officers from assisting their fellow officers solely by reason of the fact that the officers are friends. Public policy dictates that police officers are to be commended for their duties, assistance, and willingness to confront dangerous and often deadly situations for the protection of the public. An officer who is killed while fulfilling his duties cannot be ignored or brushed aside merely because he is technically “off duty”. In an effort to carry out the statutory purpose and implement public policy the courts have held that there is a “presumption” that the police officer’s disability had been accidentally sustained as a result of employment. If said presumption is not rebutted by contrary proof, the employee would be entitled to accidental line-of-duty pension benefits. (Matter of DeMilia v McGuire, 52 NY2d 463.)
In Matter of Schussler (NYLJ, Aug. 27, 1981, p 6, col 2) the court held that public policy dictates the awarding of special pension benefits to police officers. In DeMilia (supra), the court held that inasmuch as the genesis of the ailment (worsening heart condition) would be viewed as job related, the nature of the ailment required a ruling that that condition was “accidental” within the meaning of the statute and rules. The term “accident” as used in the pertinent statutes should be judged by the “results” and where there are unforeseen and unintended consequences, the criteria of an “accident” can be said to have been met (Matter of Cavanagh v McGuire, NYLJ, May 6, 1981, p 10, col 6).
Cognizant of the limited review of the Board’s action which is available, this court is nevertheless constrained to say, that in light of all the circumstances, the Board has
Accordingly, the petition is granted and this matter is remanded to the respondent board of trustees with a direction that petitioner be granted service-connected accidental line-of-duty death benefits and pension.