Opinion 90-43


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


PUBLIC OFFICERS AND EMPLOYEES -- Death Benefits (police officers - eligibility of children)
POLICE AND POLICE PROTECTION -- Death Benefits (eligibility of children)

GENERAL MUNICIPAL LAW, §208-f: The special accidental death benefit which is payable under §208-f may be paid to a deceased member's children where the deceased member is divorced at the time of his death or where the deceased member's spouse predeceases him. Subject to any applicable statute of limitations, payments made to children of a deceased member may be made retroactive to September 1, 1978.

This is in reply to your inquiry requesting our opinion concerning section 208-f of the General Municipal Law. This provision provides for a special accidental death benefit to be paid by municipalities with respect to police officers who were not members of a State retirement system and who died as a result of injuries incurred in the performance of their official duties. You ask the following questions: (i) are children under the age of 18 of a deceased police officer, who was divorced at the time of death, eligible for the death benefit; (ii) are children under the age of 18 of a deceased police officer eligible for the death benefit where the spouse of the officer predeceased the officer; and (iii) are the provisions of section 208-f, and in particular subdivision (f) thereof, retroactive to September 1, 1978, the date that section 208-f became a law.

It appears that the first two questions you have raised arise from the wording of subdivision (a) of section 208-f which provides:

[T]he special accidental death benefit provided by this section shall be paid to the widow or widower or the deceased member's children under the age of eighteen, if the widow or widower has died of: (i) a deceased member of a pension or retirement system of a police department or paid fire department of a city, town or village; (ii) a deceased paid member of the police force of the police department of the New York City transit authority; or (iii) a deceased paid member of the police force of the police department of the New York City housing authority; providing the widow or widower is ineligible to receive benefits pursuant to section [361-a] of the retirement and social security law as added by chapter [472] of the laws of [1978] ....

Read literally, this provision would permit the payment of the death benefit to the member's children only upon the death of the member's widow or widower. As a result, in the situations you describe, it would preclude payment since there would be no widow or widower who could die and thus trigger the payment to the children. We believe, however, that section 208-f(a) must be read in light of subdivision (f) of section 208-f, which was added by Chapter 415 of the Laws of 1982 and amended by Chapter 348 of the Laws of 1989.

Chapter 348 of the Laws of 1989 amended subdivision (f) effective April 1, 1990 to allow the widow or widower of a deceased member to receive the accidental death benefit during his or her lifetime rather than only during their widowhood. This amendment was intended to permit the widow or widower to remarry without having the benefits ended (see sponsor's memorandum in support). General Municipal Law, §208-f(f)currently provides:

f. The special accidental death benefit shall be paid to:

1. The member's widow or widower to continue during his or her lifetime. If he or she shall leave no widow or widower, or if his or her widow or widower shall die before all his or her children shall have attained age eighteen or sooner die, then to

2. His or her child or children under age eighteen, divided in such manner as the comptroller, in his discretion, shall determine. Such pension shall continue in the same amount as received by the member's widow or widower as a joint and survivor pension until every such child shall have attained age eighteen or sooner die.

The clear purpose and effect of this subdivision is to provide the death benefit to the member's children if at the time of the member's death he or she leaves no widow or widower. Under accepted rules of statutory construction, the provisions of a statute must be read together and construed as a whole in order to determine their fair meaning (McKinney's Cons Laws of NY, Book 1, Statutes, §97, p 211). Doing so in this case, we believe that section 208-f must be read as permitting the payment of the death benefit to the deceased member's children in both the situation where the deceased member is divorced at the time of his death and in the situation where the deceased member's spouse predeceases him.

With respect to the remainder of your inquiry, we note that from 1978, when section 208-f was first enacted, until 1982, when subdivision (f) was added, the death benefit provided by section 208-f was payable only to the widow or widower of the deceased member. It was not payable, under any circumstances, to the deceased member's minor children. Chapter 415 of the Laws of 1982 amended subdivision (a) of section 208-f to permit the payment of the death benefit to the deceased member's minor children in certain circumstances. Specifically, this legislation added a new subdivision (f) to section 208-f to authorize the payment to such children. Further, section 5 of chapter 415 provided that chapter 415 took effect immediately (September 1, 1982) and was "retroactive to and deemed to be in full force and effect from and after September first, nineteen hundred seventy-eight." Clearly the purpose and effect of this effective date provision was to authorize payment of the death benefit to the children of deceased members from September 1, 1978, or from the date that their deceased parent/member died, or the date that their nonmember/parent died, until the date they reached age 18.

To the extent that death benefit payments were not made to eligible children, either retroactive from September 1, 1982 or thereafter, it appears that such children now possess a claim against the municipality for these benefits, subject only to the municipality's obligation, if any, to interpose, in an appropriate case, a statute of limitations defense. In this connection, we note the long-standing general rule that the prohibition against gifts and loans contained in Article VIII, §1 of the State Constitution precludes municipalities from making payments to individuals unless the payment is made pursuant to a legal obligation or in recognition of an equitably payable claim (Antonopoulou v Beame, 32 NY2d 126, 343 NYS2d 346; City of Rochester v Chiarella, 98 AD2d 8, 470 NYS2d 181, affd 63 NY2d 857, 482 NYS2d 270). Thus, generally, where a claim is legally barred by the statute of limitations, a municipality is not authorized to pay it. Further, while General City Law, §20(5) and Village Law, §4-412(3)(3) expressly authorize cities and villages, respectively, to pay or compromise claims, which, although not legally binding on the city or village, are equitably payable, these same statutes expressly preclude cities and villages from paying a claim barred by the statute of limitations.(1)  

January 26, 1990
Gordon Hamilton, Supervisor, Local Assistance
Office of the State Comptroller

1. This opinion should not be construed to imply that the statute of limitations has run with respect to any of the beneficiaries in question. While it would appear that the four month statute of limitation contained in CPLR, §217 would be applicable (subject to any tolling for infancy or otherwise since the Article 78 proceeding would be in the nature of mandamus to compel the official to perform a mandated duty), the four month limitation would not begin to run until there has been a demand and a refusal, although a claim may be barred by laches even where no demand has been made if the claimant unreasonably delays in making the appropriate demand (Central School District No. 2 of Town of Coeymans, et. al v New York State Teachers Retirement System, 27 AD2d 265, 278 NYS2d 141, affd 23 NY2d 213, 296 NYS2d).