Bett v City of Lackawanna
Annotate this CaseDecided on June 23, 2006
Supreme Court, Erie County
Richard Bett, SR., Petitioner
against
The City of Lackawanna, Respondent
4969/06
APPEARANCES:
Flaherty & Shea
Attorneys for Petitioner
James P. Shea, Esq., of Counsel
Hodgson Russ, LLP
Attorneys for Respondent
Michael B. Risman, Esq., of Counsel
John M. Curran, J.
Petitioner instituted this Article 78 proceeding to invalidate respondent's
notice dated May 10, 2006, apprising petitioner that benefits payable to him as a disabled firefighter "are terminated effective immediately." Petitioner contends that he is entitled to these benefits pursuant to a previous decision and judgment of this Court. Respondent counters through an Answer and Points in Law and a cross-motion to dismiss that: (1) the proceeding was not properly commenced; (2) termination of petitioner's benefits is required by law and (3) alternatively, that respondent is entitled to a vacatur of this Court's previous judgment pursuant to CPLR 5015 (a). At oral argument, based on respondent's agreement to continue providing full benefits to petitioner pending this Court's decision, both parties acknowledged that the record is complete, an evidentiary hearing is unnecessary and that the matter is ripe for decision.
Petitioner was a firefighter employed by the respondent commencing in or about 1950. In 1971, he was injured while on the job as a firefighter. Pursuant to General Municipal Law § 207-a, petitioner thereafter received his full salary as a disabled firefighter.
In 1979, following a legislative amendment to General Municipal Law § 207-a, petitioner was ordered to report for light duty as a fire inspector but he declined. Accordingly, in August of 1980, petitioner was terminated from his employment. Petitioner commenced an [*2]action in this Court before a different Justice contesting this decision. Petitioner was granted summary judgment by decision dated January 29, 1986 (Bett v City of Lackawanna, 132 Misc 2d 630 [Sup Ct, Erie County 1986]). The Court found that respondent had failed to timely file notice of petitioner's accident with the firefighter's retirement system, thereby negating petitioner's eligibility for a disability pension, and, in any event, had failed to establish that petitioner was medically able to perform light duty. This decision was affirmed by the Appellate Division for the reasons stated at Special Term on July 10, 1987 (132 AD2d 951 [4th Dept 1987]). The Court of Appeals affirmed by Order dated October 11, 1990, albeit not on all of the grounds recited by the trial court (76 NY2d 900 [1990]). Petitioner was thereupon reinstated to full salary as a disabled firefighter and awarded back wages.
Petitioner turned seventy (70) on July 1, 1996. A few days later, respondent imposed retirement upon petitioner pursuant to Retirement and Social Security Law § 370 (b). Petitioner then commenced another proceeding against the respondent before yet a different Justice. Judgment was granted in favor of petitioner in October of 1996 directing respondent to reinstate the petitioner "with all the salary and benefits due him."
The parties here provided this Court with some of the records from the 1996 proceeding but not the memorandum decision. This Court has taken judicial notice of the entire Clerk's file related to that proceeding, including the decision, as it is hornbook law that a court may take judicial notice of its own records (People v Comfort, 278 AD2d 872, 873 [4th Dept 2000; Casson v Casson, 107 AD2d 342, 344 [1st Dept 1985]; Lobotsky v Lobotsky, 103 AD2d 799 [2d Dept 1984]). In 1996, the Court held that the 1977 amendment to General Municipal Law § 207-a did not have retroactive effect and that petitioner was "entitled to payment of his full salary for the entire time of his disability even if such disability lasts for the duration of his life." Accordingly, the Court held that "termination of petitioner's salary upon his attaining the age of seventy years, was done in error of law . . .."
Respondent filed a Notice of Appeal of this decision but failed to timely perfect the appeal. The appeal was therefore dismissed by Order dated April 7, 1997. Respondent continued to refuse to reinstate petitioner and ultimately did so only after the Supreme Court directed such reinstatement and awarded attorneys' fees by Order granted in July of 1997. Petitioner has been paid full salary as a disabled firefighter since that time, all of which has been paid after petitioner became seventy (70) years old.
By notice dated May 10, 2006, respondent notified petitioner that his full salary would be terminated effective immediately and that he would be considered retired. However, as noted above, while this action is pending, respondent has voluntarily continued to pay petitioner his full salary.
Respondent moved to dismiss on the basis that this proceeding was not properly commenced. At oral argument, respondent withdrew this argument and the motion to dismiss on that basis is therefore denied.
Respondent further asserts that its actions are mandated by law. This argument appears to be correct (Retirement and Social Security Law § 370 [b]; Cook v City of Binghamton, 48 NY2d 323 [1979]). The Court of Appeals in Cook held that a firefighter disabled before General Municipal Law § 207-a was amended in 1977 (Chapter 965) was nevertheless subject to the amended provisions. While the courts have not been consistently clear about this conclusion (Ring v Langdon, 69 AD2d 998 [4th Dept 1979]; Drahos v Johnson City, 80 AD2d 106 [3d Dept [*3]1981]; Luisi v City of Auburn Dept. of Fire, 101 Misc 2d 529 [Sup Ct, Cayuga County 1979]), the greater weight of the cogent authority as well as the Appellate Division and Court of Appeals' decisions in Cook make this conclusion definitive (Cook v City of Binghamton, 67 AD2d 469 [3d Dept 1979]; Cook, 48 NY2d at 332-333; Thayer v City of Plattsburgh, 80 AD2d 938 [3d Dept 1981]; Glanville v Johnson City, 77 AD2d 692 [3d Dept 1980] [Mahoney, J., concurring]). Thus, under Cook, Chapter 965 should govern petitioner's situation and the amended law allows respondent to cause petitioner to retire as of his seventieth (70th) birthday.
Nevertheless, this Court does not see any reference to the 1979 Cook decision in the papers presented to the court in 1996. Respondent thus seems to have failed to properly brief the court at that time on apparently controlling authority. Respondent also failed to perfect its appeal at that time, even though respondent's position is now that the trial court made an error of law. For these reasons, the issue as to whether respondent must continue to pay full salary to petitioner as a disabled firefighter pursuant to General Municipal Law § 207-a has been finally decided and is entitled to res judicata effect (American Ins. Co. v Messinger, 43 NY2d 184 [1977]; Parker v Blauvelt Fire Co., 93 NY2d 343 [1999]; Restatement [Second] of Judgments § 17 [1]). This result is not altered even assuming the 1996 decision was legally incorrect (Federated Dept. Stores v Moitie, 452 US 394, 398 [1981]).
Alternatively, respondent asserts that it is entitled to vacatur of the 1996 judgment pursuant to CPLR § 5015 and that such relief ought to be afforded in the interest of substantial justice. However, the Court of Appeals and Appellate Division have squarely held that relief under CPLR § 5015 cannot serve as a substitute for an appeal and cannot remedy an error of law which could have been addressed on a prior appeal (McKenna v County of Nassau, 61 NY2d 739 [1984]; Pjetri v New York City Health & Hosp. Corp., 169 AD2d 100 [1st Dept 1991]). Moreover, respondent does not assert any of the enumerated grounds for relief pursuant to CPLR § 5015-a. Therefore, the request for relief under that statute is denied.
Based on the foregoing, the petition is granted to the extent of invalidating the notice from the respondent dated May 10, 2006. Petitioner's counsel should settle the Order and Judgment with respondent's counsel.
Dated:June 23, 2006
__________________________________________
HON. JOHN M. CURRAN, J.S.C.
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