69 A.D.2d 998 | N.Y. App. Div. | 1979
Lead Opinion
Order reversed, without costs, and motion denied. Memorandum: Petitioners Ring and O’Mara have been firemen of the City of Buffalo since 1961. In 1964 Ring was assigned to Snorkel Company No. 1 as a firefighter and received disabling injuries when the snorkel collapsed during the performance of his duties. He has not returned to active duty since the accident. Petitioner O’Mara was assigned to Engine Co. No. 18. In October, 1975 he sustained a myocardial infarction that disabled him from performing his duties. He subsequently returned to work and in August, 1977 he sustained a second heart attack and has not returned to active duty since that time. Both petitioners have received full pay and benefits from the date of their disability. On March 7, 1978 respondent commissioner notified petitioners that they had been found medically fit to perform light duty and he ordered them back to work. Petitioners instituted this proceeding (and have obtained a preliminary injunction at Special Term) claiming that under section 207-a of the General Municipal Law, as it existed prior to January 1, 1978, they were entitled to full pay and benefits until they were able to return to their "regular duties”, which they interpret to mean the same assignment which they performed at the time their disabilities arose. Respondent city contends that under the 1977 amendment to section 207-a (L 1977, ch 965, § 1) petitioners must undertake light duty if they are physically able to do so or forfeit the benefits which they receive as full time—though disabled—employees of the fire department. Special Term held, and the dissenters agree, that the 1977 amendment which became effective January 1, 1978 may not be applied retroactively to deprive petitioners of their rights. As firemen disabled in the course of their employment petitioners are entitled to full pay and benefits as long as their disability continues, including any increment in salary received during their disability by those in similar status or grades (see Pease v Colucci, 59 AD2d 233; Matter of Birmingham v Mirrington, 284 App Div 721). Those benefits were vested under the former law and they may not be impaired by later statutory enactment. The issue, however, is in the interpretation to be placed upon the phrase "regular duties” found
Dissenting Opinion
The majority are understand-
ably troubled by the very omission in section 207-a of the General Municipal Law which prompted the Legislature and Governor to approve the amendment to 207-a, adding, inter alia, subdivision 3 to cover the situation where a disabled fireman, although not fully recovered, is nonetheless capable of performing light duties. While apparently agreeing with Special Term that the amendment should not be applied retroactively the majority would accomplish the effect of a retroactive application by finding that the amendment was enacted not to obviate the deficiency in the statute but for the purpose of clarifying some purported ambiguity. Thus, the majority construe the statute prior to the amendment as permitting what is now specifically authorized by the added subdivision 3—the imposition of a requirement that a disabled fireman who is not completely recovered must perform light duties of which he is capable. The purpose of the addition of subdivision 3 was clearly to supply an omission in the statute, not to clarify its meaning. The wording of the statute itself, construed with that of the amendment, dispels any doubt that prior to the amendment a fireman who could not perform the duties which he had performed before his injury or illness could not be required to perform other different duties. Section 207-a of the General Municipal Law, before its amendment in 1977, provided that a fireman injured or taken sick in the performance of his duties shall be paid the full amount of his salary "until his disability arising therefrom has ceased,” and that he shall not be entitled to such salary after he "has recovered and is physically able to perform his regular duties in the company or department.” The terms used in that section (i.e., "disability * * * has ceased,” "has recovered,” and "his regular duties in the company or department”) contemplate the complete recovery of the fireman and his return to the particular duties to which he had been assigned and which he had been performing prior to his injury or disability. As the statute stood before the amendment a fireman could not be required to perform any duty whatsoever until his disability had completely ceased and he was able to
