Matter of Gerardi v Village of Scarsdale

[*1] Matter of Gerardi v Village of Scarsdale 2009 NY Slip Op 52760(U) [26 Misc 3d 1239(A)] Decided on December 24, 2009 Supreme Court, Westchester County Zambelli, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 8, 2010; it will not be published in the printed Official Reports.

Decided on December 24, 2009
Supreme Court, Westchester County

In the Matter of the Application of Robert Gerardi, Plaintiff/Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

against

Village of Scarsdale, Defendant/Respondent.



08/02112



Baker, Leshko, Saline & Blosser, LLP

Attorneys for Plaintiff/Petitioner

One North Lexington Avenue

White Plains, New York 10601

Attn: Mitchell J. Baker, Esq.

Bond, Schoeneck & King, PLLC

Attorneys for Defendant/Respondent

1399 Franklin Avenue - Suite 200

Garden City, New York 11530

Attn: Craig Olivo, Esq.

Barbara G. Zambelli, J.

Plaintiff / petitioner Robert Gerardi ("petitioner") brings this action for a permanent injunction or alternatively for declaratory relief pursuant to CPLR Article 78 that the defendant / respondent Village of Scarsdale's ("Village" or "respondent") decision to deny petitioner benefits pursuant to General Municipal Law ("GML") §207-a was arbitrary and capricious. Respondent moves to dismiss for failure to state a cause of action on the grounds that petitioner is not a member of the class of individuals entitled to such benefits and on the grounds that petitioner has failed to sufficiently plead his 42 U.S.C. §1983 claim. Petitioner cross moves for "summary judgment"[FN1] on the ground that petitioner is a member of the statutorily defined class.

On March 20, 2000, petitioner was hired as a Fire Inspector by the Village. On January 4, 2006, petitioner injured his shoulder while on duty at the Fire Department. Petitioner's injury was sustained when he lifted a box containing a battery backup to place it on a shelf and he attempted to catch it as it slipped off the shelf. As a result of his injury and subsequent surgical treatment, petitioner was unable to return to work for periods of time thereafter and not at all since July 24, 2007. On December 17, 2007, petitioner received a letter from respondent advising that, due to petitioner's cumulative absence from work due to a disability compensable under the Worker's Compensation Law for more than one calendar year, the Village was exercising its right to terminate petitioner's employment pursuant to Civil Service Law §71 (Amended Verified Complaint, Exhibit M). The letter also advised that petitioner would have an opportunity to meet with the Village Manager or his designee to discuss petitioner's reasons for disputing the Village's findings and/or the decision to terminate his employment (Id.). After an exchange of correspondence between petitioner's attorney and the Village regarding whether petitioner was covered under GML §207-a (Id., Exhibits N, O, P), on December 26, 2007, petitioner and his attorney met with the Village's Director of Human Resources, who reiterated the Village's position that petitioner was not covered under GML §207-a. At this meeting, petitioner was provided with a calendar which depicted his absences due to his injury and was given an opportunity to dispute the Village's allegations regarding his absences. Thereafter, on January 7, 2008, the Village Manager wrote to petitioner and advised that as petitioner did not dispute his absences, his employment with the Village would be terminated as of January 17, 2008 (Id., Exhibit Q).

In determining a motion to dismiss pursuant to CPLR §7804(f), a court is limited to examining the petition and all of the allegations contained therein are to be deemed true (10 East Realty LLC v. Incorporated Village of Valley Stream, 17 AD3d 472, 473 (2d Dept. 2006); Manzi [*2]v. Town of Riverhead, 17 AD3d 590, 594 (2d Dept. 2005)). However, the respondent may base a motion to dismiss on documentary evidence (see Dodge v. King, 19 AD3d 359, 360 (2d Dept. 2005)).

GML §207-a, which provides for payment of salary, medical and hospital expenses of fireman with injuries or illness incurred in performance of their duties, provides in relevant part as follows:

Any paid fireman which term as used in this section shall mean any paid officer or member of an organized fire company or fire department of a . . . village. . . 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 or fire district 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 or fire district shall be liable for all medical treatment and hospital care furnished during such disability. (GML §207-a(1)).

Petitioner asserts that pursuant to the clear language of the statute, he was a paid member of the Village Fire Department and thereby entitled to these statutory benefits. In support of his contention, petitioner alleges that his position reports directly to the Fire Chief of the Department, he was issued a badge, an official identification card and business cards by the Village which indicated that he was a fire inspector for the Village Fire Department, was allowed to use a Fire Department vehicle for his fire inspection duties and was given a uniform by the department. He also notes that on the Department website, the Department is described as consisting of "47 career members and approximately 95 volunteers. There is a career fire chief, six career fire captains and one fire inspector." Petitioner further notes that his duties as a fire inspector involved the investigation of fires occurring within the Village, setting up the fire inspection programs for commercial establishments in the Village, issuing violations on the Department's behalf and that he was responsible for systems administration for the Department computers and for the radio equipment used by the Department (Verified Amended Complaint, Exhibits C-L).

Respondent asserts that petitioner is not covered by GML §207-a because as a fire inspector, such benefits are not applicable to him; respondent asserts that the benefits are not available to all categories of fire department employees and are only available to those employed as firefighters. Respondent argues that petitioner is not covered by the terms "paid fireman" or "any paid officer or member" as set forth in the statute. Rather, respondent argues, as a fire inspector, petitioner was an employee of the Department, but not a "paid fireman", "paid officer or member" of the department. In support of its argument, respondent points to identical language contained in the Retirement & Social Security Law ("RSSL") which is construed to apply only to firefighters and which excludes fire inspectors. Respondent asserts that petitioner, as a fire inspector, is not a member of the Firefighter's Union, and that petitioner has job duties that are distinct and separate from those of firefighters and that petitioner has not undergone the necessary training nor taken the required civil service examination to be considered a firefighter. Respondent further argues that the legislative history for GML §207-a demonstrates that the legislature only intended for such benefits to be available to those actually employed as firefighters and that the legislature has acted specifically to extend those benefits to certain classes of public employees who perform dangerous work and that petitioner's job as a fire inspector has not been included in any of these expansions. [*3]

As a general rule, when interpreting a statute, a court must first turn to the text of the statute as the best evidence of the legislature's intent, and where that language is unambiguous, the language alone is determinative (Matter of Theroux v. Reilly, 1 NY3d 232, 239 (2003)). However, when a statute, or part thereof, is ambiguous, it is the court's duty to construe the language so as to effectuate the legislature's intent, using the legislative history and the legislature's underlying purpose in enacting the statute as guideposts (Jericho Water District v. One Call Users Council, Inc., 37 AD3d 136, 140 (2d Dept. 2006)).

The reference within GML §207-a(1) to a "paid officer or member of an organized fire company" is ambiguous as to the scope of fire department employees who are to be considered covered by the statute. The ambiguity is heightened by the fact that another part of the statutory scheme enacted to provide benefits for firefighters, the Retirement & Social Security Law ("RSSL"), defines the same terms in a manner which expressly excludes those in petitioner's position as fire inspectors. The RSSL establishes a separate retirement system - the Police and Fire Retirement System ("PFRS") - open only to "policemen and firemen" (RSSL §292) and which uses identical statutory language to that in GML §207-a regarding whom is eligible for this retirement system, ie. "[s]ervice as an officer or member of an organized fire department of any . . . village . . . ." (RSSL §302(11)(d)). As a fire inspector and not a firefighter, petitioner is ineligible for benefits under the same language in the RSSL[FN2]. Thus, as neither this Court nor the parties are aware of any case law construing this statutory language, the legislative history and purpose behind the enactment of GML §207-a must be explored in order to determine whether it was the intent of the legislature to extend such benefits to fire inspectors.

The legislative history behind GML §207-a reveals that this section was enacted to provide enhanced benefits to those actually employed to fight fires because the job of firefighting itself involves enhanced risks, including considerable risk to personal safety (Report No.76-2 in Support at 2, Senate Bill 6832, Assembly Bill 8978, Ch. 965, L. 1977 ("It is the policy of the state to provide generously for fireman disabled in the course of fire fighting"). The Court of Appeals has recognized this legislative purpose in discussing the scope of GML §207-c, the analogous provision to GML §207-a (see e.g. Park v. Kapica, 8 NY3d 302, 310 (2007) (provisions discussed interchangeably)) which extends such benefits to police officers. In Matter of Theroux v. Reilly, the Court noted that the legislature repeatedly amended the statute to extend benefits to additional classes of municipal employees and in doing so, made reference to the "dangerous and stressful" work, or the "heightened risk", that such employees face in their jobs as justification for extending such benefits to them (Id. at 240); see also Dobbertin v. Town of Chester, 292 AD2d 382, 383-4 (2d Dept. 2002), lv. denied, 98 NY2d 605 (2002)). Indeed, the Court [*4]noted that the legislature specifically decided to extend such benefits to other classes of municipal employees, including Nassau County fire inspectors and fire marshalls (Id. at n.1, citing L. 1996, ch. 675).

The official description of petitioner's duties as a fire inspector reflect that he is responsible for inspecting buildings to detect fire hazards, ensuring compliance with the fire code, issuing violations where necessary, administering the Fire Inspection Program, establishing rapport within the community to help ensure compliance with the fire code, reviewing building construction plans for compliance with the fire code and safety requirements, investigating the cause of fires, including searching the scene of fires, ensuring the proper operation of newly installed sprinkler systems, assuring the safe installation and use of tanks for flammable liquids and participating in court room presentations on cases involving arson (Verified Amended Complaint, Exhibit A, pp. 9-11). In contrast, the duties of fire fighters involve, inter alia, responding to fires, rescuing victims and administering first aid where necessary and ensuring equipment is properly maintained (Id. at pp. 3-5). It is also notable that the requirements for being a "fire fighter" include completion of a Basic Firefighter course and complying with the state's requirement for in-service training, whereas a fire inspector does not need to comply with these requirements and instead needs to complete a New York State Uniform Commercial Code course (Id., p. 5, 11).

The legislative intent behind GML §207-c demonstrates that its purpose was to extend benefits to those actually engaged in the work of fighting fires because of the inherently dangerous nature of that work. A comparison of the official job descriptions of "fire fighter" and "fire inspector" reveals that these positions involve distinct duties, but that the responsibility for fire fighting is squarely within the province of those employed as "fire fighters" as opposed to "fire inspectors" and also reveals that not just any employee of a fire department may be considered a fire fighter, as this position has specific prerequisites in regard to course work and training. Moreover, construing GML §207-a to only apply to fire fighters makes sense, as it is harmony with the construction given to the same statutory language in the RSSL, which also provides benefits to firefighters (see Aetna Casualty & Surety Co. v. Co. of Nassau, 221 AD2d 107, 110 (2d Dept. 1996) (citing McKinney's Const. Laws of NY, Book 1, Statutes, §97 for the proposition that even strong statutory language must yield to what appears to be legislative intention found not only in words of section alone, but by comparing it with other provisions of the general scheme of which it is a part, including other acts on the same subject). It is also noteworthy that the legislature specifically took steps to extend GML §207-c benefits to fire inspectors in Nassau County; the legislative history of that enactment demonstrates that those fire inspectors had certain duties different from that of petitioner, including rescuing individuals at hazardous material emergencies (Senate Bill 7305, Ch. 621, L. 1996, Bill Jacket at 000006-09).

Accordingly, as petitioner is not a firefighter, he is not eligible for GML §207-a benefits as the legislature did not intend to extend such benefits to those in his position of fire inspector. While petitioner's job as fire inspector no doubt does involve some risk, it is for the legislature, and not for this Court, to decide whether to extend such benefits to such class of individuals, as they did in the case of Nassau County fire inspectors. As petitioner was not entitled to GML §207-a benefits, the decision by the Village to deny him such benefits was not arbitrary and capricious. [*5]

As to petitioner's contention that he was deprived of due process of law by the refusal of the Village to grant him such benefits, in order to be entitled to such due process, petitioner must demonstrate the existence of a protectable property interest (see American Manufacturers v. Sullivan, 526 U.S. 40, 59 (1999); Huntington Yacht Club v. Incorporated Vil. Of Huntington, 1 AD3d 480, 481 (2d Dept. 2003)). As fire inspectors such as petitioner are not entitled to GML §207-a benefits, petitioner does not have a protectable property interest that entitles him to due process. To the extent that petitioner alleges that he was already receiving GML §207-a benefits and the decision by respondent to terminate those benefits deprived him of due process, petitioner's allegations are not supported by the documentary evidence submitted as exhibits to his complaint and indeed are refuted by this evidence. While in deciding a motion to dismiss a court must consider the allegations contained within the complaint to be true, a court need not accept as true allegations which are flatly contradicted by documentary evidence (Committee to Save Washington Square, Inc. v. Dormitory Auth. Of the State of NY, 281 AD2d 770, 771 (3d Dept. 2001)). Despite the fact that petitioner was injured in January, 2006, the first time he requested that he be afforded GML §207-a benefits was via his attorney's letter of December 20, 2007 (Verified Amended Complaint, Exhibit N ("Accept this letter as an official request that Fire Inspector Robert Gerardi be afforded the benefits that he is entitled to under New York General Municipal Law §207-a"). Moreover, the paystubs attached to petitioner's complaint reveal that petitioner was receiving worker's compensation benefits during his absences (Id. at Exhibit I). Thus, petitioner's contention that he was already receiving §207-a benefits is conclusively refuted by the documentary evidence in this case.

Petitioner's cause of action pursuant to 42 U.S.C. §1983 must also be dismissed for failure to plead a cause of action. In order for a municipality to be held liable pursuant to 42 U.S.C. §1983, a petitioner must show that the municipality had an official policy or custom that caused him to be subjected to a denial of a constitutional right (Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995)). While petitioner amended his complaint to allege that "the actions of the Village are in keeping with and/or reflective of the official policy of the Village and/or are the custom of the Village" (Amended Verified Complaint, ¶ 40), such allegations are conclusory and as such cannot survive a motion to dismiss (Claudio v. City of New York, 423 F. Supp. 2d 170, 172 (S.D.NY 2006)). Accordingly, because petitioner failed to plead or prove the existence of an official policy or custom, his cause of action pursuant to 42 U.S.C. §1983 must be dismissed (see Montano v. City of Watervliet, 47 AD3d 1106, 1111 (3d Dept. 2008)). As petitioner's claims pursuant to 42 U.S.C. §1983 are dismissed, so must his claim for attorney's fees pursuant to 42 U.S.C. §1988, as such fees are only available to "prevailing parties" (42 U.S.C. §1988(b)).

Accordingly, the Court declares that as petitioner is a fire inspector and not a firefighter, GML §207-a benefits are not available to him. Thus, the action by respondent in refusing to grant him such benefits was not arbitrary and capricious. Respondent's motion to dismiss is granted in its entirety.This decision constitutes the Order and Judgment of the Court.

Dated:White Plains, New York

December, 2008 [*6]

______________________________

BARBARA G. ZAMBELLI

A.J.S.C.

Donna Minort,

Chief Clerk

Elizabeth Pace,

Deputy Chief Clerk Footnotes

Footnote 1:To the extent that petitioner's Amended Complaint argued in the alternative that pursuant to Article 78 respondent's decision to deny him GML §207-a benefits was arbitrary and capricious, petitioner's "motion for summary judgment" is redundant. An Article 78 special proceeding is already governed by the same standards that apply to a motion for summary judgment (see Matter of Spitzer v. Telehublink Corp., 301 AD2d 1006, 1007 (3d Dept. 2003)). Petitioner's second cause of action alleges that "the decision of the Village that Mr. Gerardi was not a covered person under GML §207-a is arbitrary and capricious" (Verified Amended Complaint, §42); his motion for summary judgment alleges that he is covered by the statute and entitled to benefits thereunder. These arguments are essentially two sides of the same coin, as a determination on whether GML §207-a applies to fire inspectors such as petitioner resolves both questions. Accordingly, this Court will treat defendant's "motion for summary judgment" as a further elucidation of his argument under Article 78.

Footnote 2:It is undisputed that petitioner is a member of the New York State Employees' Retirement System ("ERS") and not the PFRS, and further that in order to be eligible for membership in the PFRS, petitioner's job would have to be actually fighting fires (Verified Amended Complaint, Exhibit O at Exhibits C, D). It is also undisputed by the documentary evidence that petitioner's official employment duties as a fire inspector do not include fighting fires, which are included under the official duties of those working as "fire fighters" (Id., Exhibit A). Accordingly, as petitioner is not employed as a "fire fighter", but rather as a "fire inspector", he is not eligible for retirement benefits under the RSSL (Id., Exhibit O at Exhibit D).