Opinion 2003 - 5
PAID FIREFIGHTERS -- Death Benefits (line-of-duty presumption)
GENERAL MUNICIPAL LAW §208-b; RETIREMENT AND SOCIAL SECURITY LAW §363-d: The line-of-duty presumption in Retirement and Social Security Law §363-d does not apply to death benefits provided pursuant to General Municipal Law §208-b.
You ask whether the line-of-duty presumption in Retirement and Social Security Law §363-d applies in the case of death benefits pursuant to General Municipal Law §208-b, for a firefighter who died of cancer prior to retirement.
General Municipal Law §208-b provides, in relevant part, for the payment of death benefits to the "widow" of a regular member of a fire department of a city with a population of less than one million, provided that the chief officer of such municipality determines, upon application, the following: (i) that the member died within one year after, and as the natural and proximate result of, injuries sustained at a definite time and place and incurred in the performance of duty as a member of such department; and (ii) that the member did not cause such accident by his own willful negligence. A death benefit allowed under General Municipal Law §208-b is paid by the municipality and consists of: an amount equal to the greater of the salary received by the member during the year immediately preceding his death, or the salary received during the year preceding such injuries; and an amount equal to the greater of one thousand dollars or ten percent of the deceased member's final salary, payable for each child of such member under eighteen on the date of the member's death. The benefits under section 208-b are "in addition to any benefits otherwise provided".
Retirement and Social Security Law §363-d provides
Section 363-d, by its express terms, applies notwithstanding any contrary provisions of the Retirement and Social Security Law. The specific reference to the Retirement and Social Security Law, but no other law, suggests that the presumption is intended to apply only to accidental disability retirement, accidental death and similar "line-of-duty" benefits provided pursuant to the Retirement and Social Security Law.3 This inference is supported by memoranda in the bill jackets for chapter 49 of the Laws of 1997, which added section 363-d. The bill jacket indicates that the presumption in section 363-d is for the benefit of firefighters in the New York State and Local Retirement System, with the cost of the benefit shared among participating employers in the New York State and Local Retirement System (see, e.g., Bill Memorandum for A.2958, M. of A. Tocci; Budget Report on A. 2958, April 25, 1997). General Municipal Law §208-b, on the other hand, expressly provides for a death benefit "in addition to any benefits otherwise provided", indicative of a benefit that is independent of benefits provided to members of the New York State and Local Retirement System under the Retirement and Social Security Law.
Further, this reading of section 363-d is consistent with the holding by the Court of Appeals in Matter of Sutka v Conners, 73 NY2d 395, 541 NYS2d 191. In Matter of Sutka, supra, the Court of Appeals considered whether the presumption created under Retirement and Social Security Law §363-a, that injury to or impairment of the heart was the natural and proximate result of an accident incurred by a paid firefighter in the performance and discharge of duty, should be "read into" General Municipal Law §207-a, which, generally, provides for the payment of the full amount of regular salary or wages to a paid firefighter injured or taken sick in or as a result of the performance of duties. The Court first noted that section 363-a, as originally enacted, expressly restricted availability of the presumption to retirement system matters. Although the clauses expressly limiting the statute to retirement matters were dropped in a subsequent amendment, the Court held that the amendment was not intended to increase the scope of coverage to include section 207-a benefits.
The Court noted that Retirement and Social Security Law §363-a and General Municipal Law §207-a represent separate disability systems with differing coverages and consequences.
The Court further distinguished these sections, indicating that each
statute applies to different groups (firefighters who belong to an
organized fire company or department in the case of General Municipal
Law §207-a, and members of a retirement system as defined by the
Similarly, here, General Municipal Law §208-d and Retirement and Social Security Law §363-d represent separate benefit systems with differing coverages, administered under two separate statutory schemes. Further, the legislative history here, as in Sutka, supra, indicates that the section 363-d presumption relates to benefits for members of the New York State and Local Retirement System, paid by the System. In contrast, General Municipal Law §208-b authorizes the payment of death benefits by a municipality, in addition to and independent of any benefits the firefighter may be entitled to as a member of the System.
Accordingly, it is our opinion that the line-of-duty presumption in Retirement and Social Security Law §363-d does not apply to death benefits provided pursuant to General Municipal Law §208-b.
September 22, 2003
Michael G. Cianfarano, Esq., Assistant City Attorney
1 For purposes of this opinion, we have assumed that the type of cancer at issue is one listed in section 363-d.
Section 363-d is scheduled to expire on July 1, 2005.