Matter of Paradiso v Loeffler

[*1] Matter of Paradiso v Loeffler 2008 NY Slip Op 50489(U) [19 Misc 3d 1103(A)] Decided on March 3, 2008 Supreme Court, Suffolk County Sgroi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 3, 2008
Supreme Court, Suffolk County

In the Matter of the Application of Edward T. Paradiso, Petitioner,

against

Joseph Loeffler, in his capacity as MAYOR; THE VILLAGE OF OCEAN BEACH and THE VILLAGE OF OCEAN BEACH POLICE DEPARTMENT, Respondents.



26541-2007



CERTILMAN BALIN ADLER & HYMAN, LLP

Attorney for the Petitioner

90 Merrick Avenue, 9th Floor

East Meadow, New York 11554

BEE READY FISHBEIN HATTER & DONOVAN, LLP

Attorney for the Respondents

170 Old Country road-Suite 200

Mineola, New York 11501

Sandra L. Sgroi, J.

ORDERED that the relief requested in this Article 78 proceeding commenced by the Petitioner, Edward T. Paradiso, is granted, and it is further

ORDERED that the Court declares that the Petitioner is entitled to all salary increases, benefits and enhancements provided for by General Municipal Law § 207-m; and it is further

ORDERED that the Respondents are directed to compensate the Petitioner in the amount of $2,174.00 with interest from June 30, 2007 and $1,500.00 in longevity pay with interest from July 30, 2007, within thirty (30) days of service of a copy of this order.

Enter Judgment.

The Respondent, Village of Ocean Beach, is an incorporated village located on Fire Island in Suffolk County. The Respondent, Joseph Loeffler, is the Mayor of the Village and the Respondent, Village of Ocean Beach Police Department, is an agency of the Village of Ocean Beach. In May of 1982, Edward Paradiso was hired by the Ocean Beach Police Department as a police constable as a seasonal position. Paradiso graduated from the police academy in May of 1983 and in November of 1983, he began a full time position with the Village Police Department. According to Paradiso, he was on call for twenty four hours a day, seven days a week.

In 1985, Paradiso passed the Suffolk County Police test, and he was given the position of acting Sergeant by the Village. Thereafter, Paradiso passed the Sergeant's test for the County of Suffolk. According to the Petition, on April 1, 1992, Paradiso was appointed "Police Chief" of the Ocean Beach Police Department by the Village because the former Chief of Police, Joseph Loeffler, was retiring from his position as the Chief of Police.

According to the Petition, on August 3, 2005, Paradiso suffered an injury to his right leg and right ankle when he slipped off the front steps of the police station while responding to a medical call in the performance of his duties. Paradiso states that he continued to work as Police Chief despite his injuries and that he was treated by medical doctors for his injury, "a high grade partial tear of his Achilles tendon" (Verified Petition, ¶ 12).

Paradiso did miss some time from work and he eventually had surgery in February of 2006. From February 2006 through September 2006, he was recovering from the surgery. In June, [*2]2006, he received his regular yearly increase in salary, and in July of 2006, he received his regular yearly longevity payment. In September 2006, allegedly while in physical therapy, Paradiso suffered an injury to his back and he alleges that he is now incapacitated from employment. In October 2006, the Village filed an application for his disability retirement and that application is still pending. The Respondents allege that Paradiso has been receiving line of duty injury payments since August 2005 pursuant to General Municipal Law § 207-c.

On July 13, 2007, the attorney for the Petitioner wrote a letter to the Respondent requesting that the Petitioner's annual compensation be increased by $2,174.00 and that he receive his yearly longevity payment of $1,500.00 (see, Petitioner's Exhibit "A"). On August 8, 2007, the attorney for the Petitioner received a response wherein the attorney for the Village stated that Paradiso is not the Police Chief and that his title with the Village Police Department is Sergeant. The letter from the attorney for the Respondents further states that "there is no collective bargaining unit within the Village of Ocean Beach Police Department, and Sergeant Paradiso does not have a contract of employment with the Village of Ocean Beach."(see, Petitioner's Exhibit "B").

The Petition acknowledges that the Village of Ocean Beach employs only two full time police positions, one of them being the Petitioner's position and the other line occupied by a person called the "Acting Deputy Chief." Since the Village is a seasonal beach community, as many as twenty-five part time and full time seasonal police department positions are fulled in the summer to address the problems attendant with a transient summer population. Pursuant to Civil Service Law § 58 (1-c), the Village is not required to appoint a Chief of Police to head its Police Department because of the small size of its permanent police force.

However, Paradiso asserts that although the Village was not required to appoint a Chief of Police, he was nonetheless appointed as the Chief of Police and that he "is entitled to receive the same increase in salary and benefits as his highest ranking subordinate, Acting Deputy Chief George Hess, who was the only other full time officer in the police Department." (Verified Petition, ¶ 24). The Petition has been properly verified although the verification was inadvertently not attached to the copy of the Petition served upon the Respondents. This non-prejudicial, inadvertent error has been rectified ( see, CPLR § 2005).

The Respondents strongly dispute Paradiso's assertion that he was appointed the Chief of Police of the Village and they take the position that there is no Chief of Police in the Village of Ocean Beach. According to the Respondents, Paradiso is employed as a Sergeant and he has no employment agreement with the Village.

However, it is irrelevant whether Paradiso is a Sergeant or a Chief of Police. General Municipal Law § 207-m does not state that it applies to the Chief of Police, an appointed title under New York State Civil Service. Instead, this statute specifically states that it applies to the head of the Police Department. The Court notes that it is not disputed that Paradiso was the head of the Village Police Department although he may not have been the appointed "Chief of Police." The Village allowed Paradiso to hold himself out as the Chief of Police, he was issued official [*3]identification designating him as the Chief of the Police Department, other County agencies recognized him as the "Chief", Village letterhead designated him as the "Chief of Police", the Village budget listed him as the "Police Chief", he was recognized by other members of the Ocean Beach Police Department as the head of that Department and he approved vacation requests in that role(see generally, Whitman v. City of Troy, 3 Misc 3d 794, 774 NYS2d 666).

General Municipal Law § 207-m provides that the salary of the Police Department's full time head be increased by at least the same dollar amount as that received by a permanent full time police officer, covered by a "negotiating unit", who is the Department's highest ranking subordinate(see, Lavin v. Town of East Greenbush, 17 Misc 3d 766, 843 NYS2d 484; Local Government, 47 Syracuse Law Review 633, 653,1997). The purpose of this section is to assure that the compensation of the head of a municipal police department is increased at a rate that is at least commensurate with the salary of members of a negotiating unit(emphasis provided by the Court)(see, Murphy v. Village of Dolgeville, 87 NY2d 883, 639 NYS2d 1006, 663 NE2d 318; Op.Atty.Gen.91-76).

The term used in General Municipal Law § 207-m, "negotiating unit", is not defined by the Civil Service Law. The Court notes that the drafters of the statute did not use the term union or collective bargaining unit in crafting the language of that statute. Such terms could have been utilized if the intent of the drafters was to restrict the applicability of this statutory provision.

Although no person employed in the Village of Ocean Beach Police Department belongs to a collective bargaining unit or union, General Municipal Law § 207-m contains no restrictions that limit it to a situation where the subordinate officer to the head of the Police Department is in a collective bargaining unit. The Petitioner can claim the protection afforded by this provision of the General Municipal Law and there is no indication that the drafters of General Municipal Law § 207-m intended to carve out an exception for the head of a Police Department that has not been unionized (see, Whitman v. City of Troy, 3 Misc 3d 794, 774 NYS2d 666; New York Jurisprudence 2d Counties, Towns, & Municipal Corp. §§ 863, 873; 1978 Op. St. Compt File No. 53).

This result is also consistent with the general policy in employment law that the provisions of an employee's contract should not be unilaterally modified and previously to 2007, the Village regularly granted the increases in salary that the Petitioner is seeking herein (see, Civil Service Law § 209-a(1)(e); Town of Southampton v. New York State Public Employment Relations Bd., 2 NY3d 513, 813 NE2d 602, 780 NYS2d 522; see also, Professional Staff Congress-City University of New York v. New York State Public Employment Relations Bd., 7 NY3d 458, 857 NE2d 1108, 824 NYS2d 577; Local Union 813, Intern. Broth. of Teamsters v. Waste Management of NY, LLC, 469 F. Supp. 2d 80; see generally, Statutes § 141).

Therefore, the relief requested in the Petition shall be granted.

Dated: March 3, 2008________________________SANDRA L. SGROI, J. S. C.