Opinion 88-27


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PAID FIREFIGHTERS -- Disability Benefits (termination of paid fire department)

GENERAL MUNICIPAL LAW, §207-a: A village which has terminated its paid fire department is still obligated to pay a village firefighter, who was disabled prior to termination of the department, his full salary under this statute unless there is a voluntary agreement to the contrary.

You ask if a village which has terminated its paid fire department is still obligated to pay a disabled village firefighter his full salary pursuant to General Municipal Law, §207-a.

Subdivision 1 of General Municipal Law, §207-a provides that any paid fireman who is injured in the performance of his duties shall be paid the full amount of his regular salary or wages until the disability arising from such injuries has ceased. It further provides that the municipality or fire district that employed the injured fireman shall be liable for all medical treatment and hospital care furnished during the disability.

Subdivision 2 of General Municipal Law, §207-a provides that payment of the full amount of regular salary or wages shall be discontinued with respect to a permanently disabled fireman who is granted an accidental disability retirement allowance or a retirement for disability incurred in performance of duty allowance pursuant to the Retirement and Social Security Law, or similar accidental disability pension provided by the pension fund of which the fireman is a member. That subdivision also provides, however, that the municipality or fire district shall continue to pay any difference between the disabled fireman's regular salary or wages and the amount of disability payment until the fireman obtains the mandatory service retirement age or performs the period of service specified by law for termination of his services. Pursuant to subdivision 4 of section 207-a, if a disabled fireman is not eligible for or granted an accidental disability retirement allowance, the obligation of the municipality or fire district to pay the full amount of the fireman's regular salary or wages similarly terminates after the fireman has obtained the mandatory service retirement age or has served the period specified by law for the termination of his services.

The courts have held that General Municipal Law, §207-a is a remedial statute enacted for the benefit of firefighters and that this statute should be liberally construed in their favor (Pease v Colucci, 59 AD2d 233, 399 NYS2d 519 [1977]; Mashnouk v Miles, 55 NY2d 80, 447 NYS2d 889, 432 NE2d 761 [1982]). Thus, prior to the 1977 amendment of the statute (L 1977, c. 965, §1), which, inter alia, added subdivisions 2 and 4, it was clear that a permanently disabled fireman would be entitled to his salary for life (Mashnouk, supra; Matter of Birmingham v Mirrington, 284 App Div 721, 134 NYS2d 456) and that a municipality was without power to retire such a fireman involuntarily (Mashnouk, supra; (Weber v Department of Fire of City of Syracuse, 54 AD2d 164, 388 NYS2d 397 [1976]). Moreover, prior to the 1977 amendment, it was settled that the rights of a disabled firefighter vested at the moment of his disability and that he could not thereafter be divested of those rights other than by his own act (Pease, supra).

In Pease, supra, which was decided prior to the 1977 amendment to General Municipal Law, §207-a, it was held that a fireman who was disabled while holding the rank of lieutenant was entitled to continue to receive his full salary as lieutenant even after the city abolished several lieutenants' positions for economy reasons and the lieutenant was properly demoted to the rank of firefighter pursuant to provisions of the Civil Service Law. Therefore, at least prior to the 1977 amendment, it appears that the termination of a fire department would not extinguish any rights of a fireman receiving benefits under that statute since such rights vested at the time the disability occurred and the fireman could not be divested of these rights involuntarily (Pease, supra).

The 1977 amendment to section 207-a, in part, changed that statute to permit municipalities to seek the retirement of disabled firemen who did not themselves apply for retirement (General Municipal Law, §207-a[2]), and to terminate salary payments to disabled firemen who reached mandatory retirement age or attained the age or performed the period of service specified by applicable law for the termination of service (General Municipal Law, §207-a[2],[4]). The effect of this amendment, inter alia, was to permit the retirement of an eligible disabled fireman with the municipality being liable only for any difference between his regular wages or salary and his retirement benefits until the fireman reached mandatory retirement age (Cook v City of Binghamton, 67 AD2d 469, 416 NYS2d 349 (1979), mod on other grnds 48 NY2d 332, 422 NYS2d 919). Thus, the amendment merely provided a mechanism which was intended to free municipal resources from an unnecessary drain by providing that a municipality would not be required to pay a disabled fireman the full amount of his regular salary and wages indefinitely and by partially shifting the source of the payments from the municipality to the New York State and Local Police and Fire Retirement System in appropriate circumstances (Mashnouk, supra).

The 1977 amendment did not, in our opinion, in any way terminate or modify the rights of disabled firemen whose jobs may have been eliminated subsequent to the occurrence of their disability. We note that there is nothing in the amendment which indicates a legislative intent to allow municipalities to divest themselves of their long-established obligations to disabled firefighters except to the extent that it removed the obligation of a municipality or fire district to pay a fireman the full amount of his regular salary and wages after the fireman reached the mandatory retirement age and permitted the municipality or district to transfer part of its obligation under that statute to the Police and Fire Retirement System in appropriate instances. Accordingly, it is our opinion that, pursuant to General Municipal Law, §207-a, the rights of a firefighter who is employed by a fire department which is terminated subsequent to the occurrence of the firefighter's disability remain the same as if the fire department had remained in existence unless there is a voluntary agreement to the contrary.

June 15, 1988
Richard E. McLenithan, Esq., Village Attorney
Village of Hudson Falls