The Matter of John Borelli v. City of Yonkers

State of New York                                                          OPINION
Court of Appeals                                            This opinion is uncorrected and subject to revision
                                                              before publication in the New York Reports.




 No. 95
 In the Matter of John Borelli, et
 al.,
         Appellants,
      v.
 City of Yonkers,
         Respondent.




 Richard S. Corenthal, for appellants.
 Paul J. Sweeney, for respondent.




 WILSON, J.:

        This case arises out of a dispute between the City of Yonkers (Yonkers) and 39 of

 its firefighters, who are permanently disabled and retired as a result of work-related injuries

 (the Retirees).   The parties dispute whether certain compensation outlined in their

 collective bargaining agreements (CBAs) constitutes “regular salary or wages” for the

 purposes of calculating the Retirees’ General Municipal Law § 207-a (2) supplement. We

 conclude, consistent with our precedent, that “regular salary or wages” within the meaning

 of section 207-a (2) includes monetary compensation to which current firefighters are

 contractually entitled based on the performance of their regular job duties. It does not,
                                              -1-
                                            -2-                                       No. 95

however, include monetary compensation based on the performance of additional

responsibilities beyond their regular job duties. We thus conclude here that holiday pay

and check-in pay should be included in the supplement, while night differential should not.

       General Municipal Law § 207-a (2) provides that, for firefighters who are

permanently disabled due to work-related injuries and receiving certain benefits from the

state, a municipality must make up the difference between those benefits and the

firefighter’s “regular salary or wages” until the firefighter reaches the mandatory retirement

age. Since at least 1995, the CBAs have provided for holiday pay, check-in pay, and night

differential, which collectively the parties refer to as “special pays.”1 Until 2015, Yonkers

included all three of these payments when calculating the Retirees’ section 207-a (2)

supplements.

       On December 9, 2015, Yonkers sent a letter to the Retirees stating that the prior

practice of including these payments had been a mistake and that it planned to remove such

“special pays and other compensation” from the calculation of each Retiree’s section 207-

a (2) supplement effective January 14, 2016.2 The Retirees initially challenged this


1
  One CBA is with Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO (Local 628) (the
union representing employees holding the title of “Fire Fighter”) and the other is with
Uniformed Fire Officers Association of the City of Yonkers (the union representing fire
officers). This opinion collectively refers to the employees covered by both CBAs as
“firefighters.”
2
  The instant dispute pertains only to the Retirees, who all retired due to permanent
disability before December 9, 2015. In a separate dispute concerning Local 628 members
who became or will become permanently disabled on or after December 9, 2015, an
arbitrator ruled that Article 31 of the Local 628 CBA did not permit Yonkers to remove the
holiday pay, check-in pay, and night differential from the calculation of those members’

                                            -2-
                                             -3-                                        No. 95

decision through administrative hearing procedures. After the hearing process concluded

in Yonkers’s favor, it sent each Retiree a “final determination” adjusting the Retiree’s

benefits. The Retirees filed a CPLR article 78 proceeding against Yonkers, challenging its

decision to cease special pays and recoup already-made payments as arbitrary and

capricious, an abuse of discretion, and unsupported by substantial evidence. Supreme

Court granted the Retirees’ request to block Yonkers from recouping past payments, but

otherwise denied the petition.3 The Appellate Division affirmed (

 [2020]).

We granted the Retirees leave to appeal (

 [2021]).


                                               I.

       There are two distinct bases for including compensation in the calculation of a

permanently disabled firefighter’s section 207-a (2) supplement (see Matter of Chalachan

v City of Binghamton, 

 [1982]). First, all compensation constituting a

firefighter’s “regular salary or wages” must be included. Second, the municipality may

explicitly agree that certain benefits should be included, even if the benefits are not “regular

salary or wages” under section 207-a (2). In that case, a CBA must expressly provide that

the benefits in question are to be included in the 207-a (2) supplement, as a CBA should



section 207-a (2) supplements, nor did it allow Yonkers to reduce or recoup any payments.
These issues were properly submitted to arbitration (see Matter of City of Yonkers v
Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, — NY3d — [2022] [decided today]).
Supreme Court confirmed the arbitral award and Yonkers’s appeal of that decision is now
pending before the Appellate Division.
3
 Yonkers did not appeal Supreme Court’s determination that its attempt to recoup past
payments made to Retirees was arbitrary and capricious; therefore that issue is not before
us.
                                             -3-
                                            -4-                                    No. 95

not be interpreted to “implicitly expand whatever compensation rights are provided . . .

under the statute” (Chalachan, 

). Here, the Retirees have pursued the first

route, arguing that the special pays constitute “regular salary or wages.”

       “[R]egular salary or wages is calculated based on the current salary of an active

firefighter at the same grade the pensioner held upon retirement” (Matter of Farber v City

of Utica, 

 [2002]). As the court noted in Phaneuf v City of Plattsburgh,

“ ‘salary’ generally is meant to be a fixed compensation periodically paid to a person for

regular work or services” (

 [Sup Ct, Clinton County 1974], affd 

 [3d Dept 1975], lv dismissed 

 [1976]; see also Chalachan, 

 [citing Phaneuf approvingly]). In other words, 207-a (2) beneficiaries’ supplements

must be calculated based on the compensation they would be entitled to receive for the

performance of regular job duties if they had stayed on as active-duty firefighters at the

ranks they held at retirement (cf. Chalachan, 

; see also Matter of McKay v

Village of Endicott, 

, 1343-1344 [3d Dept 2018], lv denied 

[2019]).

       General Municipal Law § 207-a reflects New York’s longstanding commitment to

taking care of its firefighters. By the late-nineteenth century, Eastern cities began to

establish paid fire departments to replace the volunteer associations that quelled

midcentury century urban fires (see Amy S. Greenberg, Cause for Alarm: The Volunteer

Fire Department in the Nineteenth-Century City 11-15 [1998]; Eric H. Monkonnen,

America Becomes Urban: The Development of U.S. Cities & Towns, 1780-1980, at 106-

107 [1988]). Many New York cities incentivized these professional firefighters with

                                            -4-
                                           -5-                                       No. 95

“comprehensive and generous” pensions for disabilities incurred in the line of duty. Some

New York cities granted pensions of up to one-half of their yearly compensation to

firefighters totally and permanently disabled in the performance of the duties (see John

Kenlon, Fires and Fire-Fighters 259 [1913]; see also e.g. L 1926, ch 677; Letter from John

Boyd Thacher II, Mayor of City of Albany, Bill Jacket, L 1938, ch 562 at 7; Letter from

Harold W. Baker, City Manager of City of Rochester, Bill Jacket, L 1938, ch 562 at 10).

       Not all cities were so generous, however. In 1938, the New York legislature

responded by passing a law to provide “for the payment of the compensation” and medical

expenses of firefighters, under which certain municipalities with paid fire departments

were required to pay disabled firefighters “the full amount of [their] regular salary or

wages” as well as “all medical treatment and hospital care furnished during such

disabilit[ies]” until their disabilities ceased (L 1938, ch 562, § 1, codified as amended at

General Municipal Law § 207-a [1]). When interpreting the language of the resulting

statute, we have therefore recognized that “section 207-a of the General Municipal Law is

a remedial statute enacted for the benefit of fire[fighters]” and have therefore “liberally

construed [it] in their favor,” (Matter of Mashnouk v Miles, 

 [1982]

[brackets omitted], quoting Pease v Colucci, 

 [4th Dept 1977]).

       When the legislature enacted General Municipal Law § 207-a (2) in 1977, it did not

alter the statutory language or remedial purpose underlying the “regular salary or wages”

provision and understood that its language would cover the kind of compensation sought

by the Retirees. By the 1970s, many New York municipalities complained that the

statutory requirements were “excessively costly and undesirable” (Governor’s Approval

                                           -5-
                                             -6-                                        No. 95

Mem at 1, Bill Jacket, L 1977, ch 965). As the Permanent Commission on Public Employee

Pension and Retirement Systems explained, “The law require[d] the employer to pay a

disabled fireman full salary . . . [as well as] any merit salary increments and all other fringe

benefits . . . which have been granted to able firemen in his grade” (Rep of Permanent

Commn on Pub Empl Pension & Retirement Sys at 1-2, Bill Jacket, L 1977, ch 965; see

also Letter from St Ins Dept, Aug. 4, 1977, Bill Jacket, L 1977, ch 965). In response, the

legislature shifted much of the burden onto state pension systems and away from municipal

payrolls (see Governor’s Approval Mem at 1, Bill Jacket, L 1977, ch 965). It did not,

however, change the amount of payment, which was governed by the familiar “regular

salary or wages” text (see Mashnouk, 

). Regular salary or wages remained

broader than simple base salary. Recognizing that fact, we observed in Mashnouk that the

legislature did not intend to limit “regular salary or wages” simply because it explicitly

entitled light duty firefighters to “regular salary or wages, including increases thereof and

fringe benefits” in General Municipal Law § 207-a (3) (id. at 86).4

       The dissent interprets “regular salary or wages” differently than the enacting

legislature did. It argues that regular salary or wages only includes “ ‘regular,’ ‘base’ or



4
  The dissent characterizes the 1977 amendment as evincing an “intent to reduce, to the
extent possible, the financial burden for disability payments placed on municipalities”
(dissenting op at 11, citing Farber, 

). The 1977 amendment did not intend
to reduce the burden for municipalities as far as possible. As the dissent admits, the law
kept beneficiary pay constant, and reduced the burden on municipalities only by “shift[ing]
the source of [some of] the payments, not the amount” (dissenting op at 2). Recognizing
that the law did not reduce the burden as far as possible, we noted in Farber that “[t]he
1977 amendment . . . only partially relieved municipalities of their burden” (

).
                                             -6-
                                            -7-                                       No. 95

‘annual’ salary as defined in the CBA” along with several other types of payments

previously recognized by our doctrine (dissenting op at 5). The dissent’s approach, which

seemingly looks solely to the placement of labels and headings in a CBA, would allow

municipalities and unions to advantage current active firefighters at the expense of retirees

disabled in the line of duty—something the statute was originally designed to prevent.5 A

CBA can reduce the financial burden of General Municipal Law § 207-a (2) by shifting

compensation away from fixed pay and towards variable compensation.6 But it may not

pretend to do so merely by adjusting the labels in its CBA.



5
  The dissent’s reasoning as to the 12-minute check-in pay, if extended near its logical end,
would allow a CBA to evade the statute by providing for a one-hour workday for which
firefighters were required to check in 8 hours in advance, and further providing for 8 hours
of check-in pay for those firefighters who “check in” 8 hours before their shifts. Under the
dissent’s theory—even when a CBA clearly states that all firefighters must check in 8 hours
in advance and that all are entitled to receive the 8-hour check-in pay regardless of whether
they do so—disabled retirees should not receive this “check-in pay” because the CBA does
not label it as “regular salary,” “base salary,” or “annual salary.”

The dissent responds that active members can be trusted to represent the interests of current
and future retirees because of their own concern of being injured themselves. Were that
so, General Municipal Law § 207-a would be unnecessary. To the contrary, “the risk
cannot be overlooked that union representatives on occasion might see fit to bargain for
improved wages or other conditions favoring active employees at the expense of retirees’
benefits” (Chemical Workers v Pittsburgh Plate Glass Co., 

 [1971]).
General Municipal Law § 207-a (2) addresses the problem of imperfectly aligned
incentives by tying the compensation of beneficiaries to active-duty firefighters. As the
dissent observes, the legislature’s solution does not ensure that the incentives of the two
groups are perfectly aligned (see dissenting op at 6 n 6), but that solution is not as readily
manipulable as the dissent’s proposal to rely on labels in a CBA.
6
  The dissent expresses concern about the fiscal challenges Yonkers faces as a result of our
decision (see dissenting op at 1, 11). Our opinion does not forbid Yonkers (or any other
municipality) from renegotiating its CBAs with its employees, tactics municipalities
regularly employ to manage budgetary shortfalls. What the legislature has prohibited
                                            -7-
                                            -8-                                      No. 95

       The sparse caselaw the dissent cites does not support its position. Farber interpreted

the “amounts received” provision of General Municipal Law § 207-a (2), noting in dicta

that a retired firefighter’s “salary or wages” was “based on the current salary of an active

firefighter at the same grade the pensioner held upon retirement” and gave no indication

that “salary” was exclusively defined as the compensation the parties called “base salary”

(

). Mashnouk is even worse for the dissent, as it explicitly construed “salary

or wages” to include salary increases (see 55 NY2d at 86). Moreover, the dissent cannot

square its approach with the Appellate Division cases it cites requiring the inclusion of

“longevity pay” in regular salary or wages. Such pay is included because “longevity pay

constitutes ‘regular salary or wages’ ” under section 207-a (2) (Matter of Aitken v City of

Mount Vernon, 

 [2d Dept 1994]). This is so regardless of how a CBA

might label longevity pay, or indeed, any other compensation.

       McKay is inconsistent with the dissent’s interpretation of our case law. Although

the dissent attributes significance to the fact that the Yonkers CBA lists the special pays

under a separate heading from “annual salary” (dissenting op at 7), the CBA in McKay did

the same thing. The McKay CBA listed “salaries” in Section 8; nevertheless, the court

included the schedule adjustment (Section 9) and the EMS pay (Section 34) in its award

(see 161 AD3d at 1341-1344). The dissent attempts to avoid the section heading problem

by reading the McKay CBA’s language that the pays would be “added to . . . base salary”




Yonkers from doing is targeting its disabled firefighters by treating them differently than
it does its active-duty firefighters.
                                            -8-
                                             -9-                                        No. 95

to mean that these provisions were “included in a participant’s base salary, rather than

treated as a separate, additional benefit” (dissenting op at 5, quoting McKay, 161 AD3d at

1342). The plain text of the McKay CBA, however, expressly distinguished “Base Pay”

from “schedule adjustment.” Thus, the petitioner recovered the schedule adjustment not

because of the text of the CBA, but because “[p]etitioner, like all other firefighters on active

duty, was receiving the adjustment when he retired, and an active firefighter currently

employed at petitioner’s rank would likewise receive the adjustment” (161 AD3d at 1344).

We apply the same approach in the present case.

                                              II.

       Under the CBAs, the Retirees would have been legally entitled to the holiday pay

and the check-in pay for performing their regular job duties. Consequently, those pays are

part of the “regular salary or wages” to which they are entitled by General Municipal Law

§ 207-a (2). By contrast, the Retirees have not established that they would be legally

entitled to the night differential for performing their regular job duties.          The night

differential is therefore not included under their “regular salary or wages” (General

Municipal Law § 207-a [2]).

       It is clear from the CBAs that all firefighters are entitled to receive holiday pay and

check-in pay based solely on the performance of regular job duties. The provisions of the

CBAs governing check-in pay require that firefighters be present for duty 12 minutes prior

to the commencement of their tours of duty to receive instruction, equipment, and for other

miscellaneous duties. They specify, without qualification, that each employee “shall

receive an additional [5½] days [of pay]” per year. The provisions governing holiday pay

                                             -9-
                                            - 10 -                                    No. 95

provide that firefighters shall be paid for 12 holidays, “whether worked or not” (emphasis

added).   Hence, all active-duty firefighters performing their regular job duties are

contractually entitled to receive both check-in pay and holiday pay.7

       Including holiday and check-in pay does not pose the risk of unfairness we

cautioned against in Chalachan. There, we noted that it would not be appropriate to “imply

a right to vacation benefits under section 207-a because disabled fire[fighters] do not have

to work at all, and to pay them for unused vacation time would unfairly discriminate against

employees actually working” (55 NY2d at 990). The scope of regular salary or wages and

the fairness inquiry are two sides of the same coin: If compensation is provided in

exchange for the performance of an employee’s regular job duties, it would not be unfair

to provide that payment to a disabled firefighter because, but for their injury, they would

be entitled to receive that compensation.8 Conversely, if compensation is paid for some



7
  The difference in our reasoning with respect to holiday pay and check-in pay is not
inconsistent (see dissenting op at 6 n 6, 10). For compensation to be salary, it must be paid
in exchange for the performance of regular job duties. In the case of holiday pay, the
“whether worked or not” language in the CBAs demonstrates that all firefighters who
perform their regular duty as firefighters are entitled to receive holiday pay. In the case of
check-in pay, because all firefighters are required to check in, it is unnecessary—and would
in fact be confusingly inappropriate to say—“whether checked in or not.” The requirement
to check in 12 minutes before a shift applies to all firefighters, and renders the check-in
pay part of their compensation for their regular duties; the lack of any qualification on the
pay provides no reason to believe otherwise. The fact that the CBAs explicitly mention
that not all firefighters are entitled to receive night pay (only those who actually work at
least one night a cycle, with no clear contractual requirement that all firefighters do so)
explains why our determination for night pay differs from the other two cases.
8
  The dissent contends that the unfairness analysis is a separate inquiry to be conducted
after we have classified a payment as “regular salary or wages” (dissenting op at 10-11).
That approach does not comport with the text of General Municipal Law § 207-a (2), which
                                            - 10 -
                                             - 11 -                                     No. 95

additional or different duty beyond regular job duties or contingent on a certain scenario

arising, it would be unfair to provide such a benefit to disabled firefighters because it is

uncertain whether they would otherwise be entitled to this compensation.9

       Here, holiday pay does not raise fairness concerns because the CBAs provide that

firefighters will be paid for the holidays “whether [they] worked [on a holiday] or not.”

Likewise, all firefighters are required to check in 12 minutes before their shift begins, and

are automatically entitled to receive check-in pay.          Therefore, “because all active

firefighters . . . receive the adjustment[s], this determination does not ‘unfairly discriminate

against employees actually working’ ” (Matter of McKay, 161 AD3d at 1344, quoting

Benson v County of Nassau, 

 [2d Dept 1988], quoting Chalachan,

55 NY2d at 990), awarding the holiday and check-in pay to the Retirees fulfills the statutory

purpose of placing them at parity with current firefighters holding the same rank.




does not mention fairness at all. If a payment is first classified as “regular salary or wages”
under the statute, there would be no need thereafter to consider fairness, because the statute
would require it be treated as such. Instead, the fairness inquiry helps determine whether
the payment in question is part of a firefighter’s regular salary or wages.
9
  Thus, typically, benefits such as compensation for unused vacation time and sick leave
are not part of regular salary or wages because receipt of those benefits depends on whether
an employee actually takes sick leave or uses vacation time (see Chalachan, at 990;
Phaneuf, 

). Similarly, “holiday pay” that, pursuant to a CBA different
from the Yonkers CBA, constitutes “additional compensation for [only] those firefighters
who are actually required to work holidays” will not normally be included in “regular
salary or wages” (see 34 Ops St Comp No. 78-842, at 170 [1978]; see also Matter of
Binghamton Firefighters, Local 729, Intl. Assn of Firefighters v City of Binghamton, 

 [1982], affg 

 [3d Dept 1981]).
                                             - 11 -
                                             - 12 -                                     No. 95

       Unlike check-in and holiday pay, the Retirees have not established whether all

firefighters are contractually entitled to receive night differential pay.10 Night differential

contains two express conditions: it is earned only by “firefighters who are regularly

scheduled to work rotating tours that include the 6:00 p.m. to 8:00 a.m. night tour, and only

to firefighters actually working that night tour.” The restriction of this payment to those

firefighters who “actually work[] the night tour” strongly suggests that night differential

must be specially earned, not paid to all, rendering it distinct from “regular salary or

wages,” and the Retirees have not demonstrated that the CBAs require all firefighters to

work the night tour. Thus, the Retirees have not demonstrated that all firefighters are

entitled to earn the night differential such that it should be included in the section 207-a (2)

calculation.

                                              III.

       Because the CBAs plainly entitle all active-duty firefighters to holiday and check-

in pay, Yonkers’s determination that these did not constitute “regular salary or wages”

under General Municipal Law § 207-a (2) was based on an error of law. Given that the

CBAs provide night differential only to those who work nights and petitioners have not

established that all firefighters are contractually obligated to work nights, substantial

evidence supports Yonkers’s conclusion that night differential should not be included when

calculating the supplement.



10
  The arbitration award pertained only to firefighters who, unlike the Retirees, were
employed by Yonkers on or after December 9, 2015, and concerned a provision of the
Local 628 CBA not raised in this appeal (see supra n 2).
                                             - 12 -
                                          - 13 -                                   No. 95

      Accordingly, the order of the Appellate Division insofar as appealed from should

be modified, without costs, in accordance with this opinion and, as so modified, affirmed.




                                          - 13 -
GARCIA, J. (dissenting):

       All four factfinders and decisionmakers in this case, applying our precedent,

concluded that the “special pays” at issue here were not “regular salary or wages” pursuant

to General Municipal Law § 207-a. In reversing, the majority redefines that statutory term

to mean “monetary compensation to which current employees are contractually entitled

based on the performance of their regular job duties.” This new rule is found nowhere in

our precedent, will drain municipal budgets, and is unworkable for future cases. I dissent.


                                           -1-
                                              -2-                                        No. 95

       There is no dispute that the Retirees here suffered injuries while serving as

firefighters and that General Municipal Law § 207-a provides for these Retirees to receive

an award totaling the equivalent of their regular salary or wages when serving as active

firefighters in compensation. When a permanently disabled firefighter is granted an

accidental disability retirement allowance under Retirement and Social Security Law §

363, payments made pursuant to General Municipal Law § 207-a (1) cease but “such

firefighter shall continue to receive from the municipality or fire district . . . the difference

between the amounts received under such allowance or pension and the amount of his or

her regular salary or wages” (General Municipal Law § 207-a [2]). As this Court explained,

the “offset” for the disability retirement allowance was enacted “to ‘substantially reduce

the financial burden of municipalities with respect to payments to disabled fire[fighers]

and . . . allow funds presently used for such payments to be used to hire able fire[fighters]

and thereby increase the level of fire protection in municipalities throughout the State’ ”

(Matter of Farber v City of Utica, 

 [2002], quoting Governor’s

Mem. approving L 1977, ch 965, at 2543]).1            The law sought to shift the source of

payments, not the amount (see Matter of Mashnouk v Miles, 

 [1982]). The

definition of “regular salary or wages”—which in turn determines the amount paid by the


1
  The majority insists that Farber does not say that the 1977 amendment was intended “to
reduce the burden for municipalities as far as possible” (majority op at 6 n 4). It is beyond
dispute, as we explained in Farber, that making the municipality liable only for the
difference between the retirement allowance and “regular salary or wages” meant reducing
the financial burden on the municipality to that extent. Of course, by redefining “regular
salary and wages” so broadly, the majority significantly increases the amount owed by the
municipality.

                                              -2-
                                              -3-                                        No. 95

municipality—remained unchanged. A proper interpretation of this statutory term is

critical; any unwarranted expansion of the definition undermines the goals of the

legislation, forcing municipalities to spend more on disability payments and less on active

fire protection.2

       Where a “collective bargaining agreement . . . is entirely silent regarding the status

of disabled fire[fighters] as employees of the city[,] [t]heir continued status as employees

even after disability has occurred is strictly a matter of statutory right” and “[t]he collective

bargaining agreement should not therefore be construed to implicitly expand whatever

compensation rights are provided petitioners under the statute” (Matter of Chalachan v

City of Binghamton, 

 [1982]). We have previously explained that, for

purposes of determining General Municipal Law § 207-a (2) payments, “the amount of a

pensioner’s regular salary or wages is calculated based on the current salary of an active

firefighter at the same grade the pensioner held upon retirement” (Farber, 

). That term includes “prospective salary increase[s] given to active fire fighters

subsequent to the award of an accidental disability retirement allowance or pension”




2
  The majority’s cavalier assurance that municipalities will be able to “renegotiat[e]” CBAs
to “manage budgetary shortfalls” (majority op at 7 n 6) is cold comfort given the expanded
liability imposed on many of those municipalities by today’s holding. Moreover, unions
may reject proposals to renegotiate (see Matter of Civil Servs. Empls. Assn., v New York
State Publ. Empl. Relations Bd., 

 [3d Dept 1994] [rejection of County
proposal to renegotiate CBA despite fiscal crisis, leading to County’s unilateral
implementation of unpaid furloughs]). One thing we do agree on: the need for such
measures is now likely to increase.
                                              -3-
                                             -4-                                       No. 95

(Mashnouk, 55 NY2d at 88) 3 and, before today, excluded holiday pay (see Matter of

Binghamton Firefighters, Local 729 v City of Binghamton, 

 [1982], affg

 [3d Dept 1981] [holding that disabled firefighters were not entitled to holiday

pay where the CBA “provisions . . . are not substantially different from those at issue in”

Chalachan and the same “public policy considerations referred to in the Chalachan case

apply equally here”]).4 The Appellate Division Departments have held that the term

includes salary decreases received by active firefighters of the same rank (Matter of

Whitted v City of Newburgh, 

 [2d Dept 2015]) and longevity pay

(Matter of Aitken v City of Mount Vernon, 

 [2d Dept 1994] [in part

relying on NYC Comptroller opinion concluding that General Municipal Law § 207-a (2)

recipients are entitled to longevity salary increments]), as well as additional categories of

pay that the CBA provides may be “added to [the participating firefighter’s] base salary”

(Matter of McKay v Village of Endicott, 

, 1342 [3d Dept 2018] [“the plain

language of the contract (adding the disputed payment categories to base pay) thus


3
  In Mashnouk, the Court noted that prior to the amendment providing for the offset, “the
term ‘regular salary or wages’ had already been interpreted by the courts to include
subsequent salary increases,” which were at issue in that case (55 NY2d at 88). In other
words, the amendment did not change or limit the prior definition of “regular salary or
wages;” it merely shifted the source of—and therefore some of the financial responsibility
for—the payment. By the same token, the amendment, aimed at providing certain financial
relief to municipalities, certainly did not expand that definition of regular salary and wages,
as the majority does today.
4
  Although the majority holds the opposite today with respect to holiday pay, there is no
mention, let alone any attempt to distinguish, our precedent holding otherwise—save for a
see also citation to Binghamton Firefighters following a citation to a 1978 Comptroller’s
Opinion that predated the case. The majority’s disregard of our precedent with respect to
holiday pay also calls the precedential value of Chalachan into question.
                                             -4-
                                             -5-                                        No. 95

contemplates that (these categories of pay are) included in a participant’s base salary, rather

than treated as a separate, additional benefit”]).5 Courts had no difficulty understanding

that a “salary increase” was part of “regular salary,” while “holiday pay” was not (but see

majority op at 8 [professing confusion as to how “longevity pay” constitutes part of a

regular salary when not specifically included as such in the CBA]).

       Our precedent is clear: when assessing entitlement to General Municipal Law § 207-

a benefits pursuant to a CBA that is silent with respect to the rights of disabled firefighters,

we do not look simply to the total compensation or funds received by an active firefighter

of the same rank as the Retiree but must determine what part of that compensation

constitutes “regular salary or wages.” And “regular salary or wages” means exactly that:

“regular,” “base,” or “annual” salary as defined in the CBA. The majority elides this

distinction, reasoning that “207-a (2) beneficiaries’ supplements must be calculated based

on the compensation they would be receiving for the performance of regular job duties if

they had stayed on as active-duty firefighters at the ranks they held at retirement” (majority

op at 4). None of the cases cited support this conflation between “regular salary and wages”

and “compensation . . . receiv[ed] for the performance of regular job duties” (id.). Whether

items of compensation are provided to active firefighters “based on the performance of



5
  The majority selectively reads McKay and ignores that court’s analysis of the relevant
CBA. The majority’s assertion that the categories of pay in McKay were not recovered
“because of the text of the CBA” is misleading in light of McKay’s language, quoted above,
that “[t]he plain language of the contract thus contemplates that EMS pay is included in a
participant’s base salary, rather than treated as a separate, additional benefit” (161 AD3d
at 1342, 1344). The majority’s attempt to distort the McKay holding in an effort to support
its new rule is particularly confounding in light of that case’s lack of precedential value.
                                             -5-
                                             -6-                                       No. 95

their regular job duties” is not the relevant question—what is relevant is their regular salary

or wages pursuant to the language of the CBA.6

       Two CBAs apply here—that for the Uniformed Fire Officers Association (UFOA)

and Local 628. Both CBAs contain an Article 4:0, titled “Compensation.” Section 4:01

of Article 4:0 of the UFOA CBA, entitled “Annual Salary,” includes base salary and

provides the calculations necessary for determining base salary and longevity pay.

Subsequent sections explain the circumstances under which firefighters shall receive arson

pay, check-in pay, holiday pay, night differential, and educational incentive pay, as well as

the timing of these payments: for check-in pay, “on a semi-annual basis, in January and

July,” for holiday pay, in two installments, in June and December, and for night differential,

in two installments, in February and August. Section 4:01 of the Local 628 CBA, entitled

“Annual Salary,” includes base salary, longevity pay, and arson pay; section 4:02 explains

the rate of pay; and section 4:03 addresses overtime and overtime pay, minimum recall

pay, night differential, check-in pay, and holiday pay.




6
  The majority’s assertion that my approach “would allow municipalities and unions to
advantage current active firefighters at the expense of retirees disabled in the line of duty”
(majority op at 7, 7 n 5) contains several flaws. First, it is unclear how the majority’s
approach would resolve the hypothetical problem, as it both requires explicit language
showing that all active firefighters receive such benefits (with respect to holiday pay and
night differential) and does not require such express language (for check-in pay)—which
could easily be manipulated in the same manner. And it presumes that active members of
a Union consider themselves impervious to injury when, in fact, active firefighters have an
obvious interest in negotiating for benefits they would receive in the event they become
disabled in the line of duty.
                                             -6-
                                           -7-                                       No. 95

       Although the decisions by the hearing officers and courts below applying our well-

settled approach to this issue receive no consideration from the majority, all examined the

specific provisions of the relevant CBAs and concluded that night differential, check-in

pay, and holiday pay—the “special pays” at issue here—are not part of a firefighter’s

regular salary or wages. The two Yonkers-appointed hearing officers who held the due

process hearings through which the Retirees first challenged Yonkers’s determination to

exclude special pays analyzed both CBAs and issued reports and recommendations with

their findings. Hearing Officer Bernstein determined that “[a] plain reading of the relevant

provisions of the parties’ collective bargaining agreements refutes Respondent’s

contention that night differential pay, check-in pay and holiday pay are contractually

mandated components of his ‘regular salary and wages.’ ” He explained that “[t]he

agreements between the City and its respective bargaining units specifically define ‘annual

salary’ ” and “[i]n both agreements check-in pay, holiday pay and night differential pay are

contained in distinctly separate provisions and are excluded from the provision defining

‘annual salary,’ ” and “[i]nstead, check-in pay, holiday pay and night differential pay are

described in separate provisions along with ‘overtime pay’ and ‘minimum recall pay’ in

the agreement with Local 628 and ‘arson pay’ and ‘educational incentive pay’ in the

agreement with the UFOA.” Accordingly, Hearing Officer Bernstein found that it was not

arbitrary and capricious for Yonkers “to recalculate the Respondent’s General Municipal

Law § 207-a (2) benefit.”




                                           -7-
                                            -8-                                       No. 95

       Hearing Officer Ponzini determined similarly that “[t]he collective bargaining

agreements here define the rate of pay for active members as ‘annual base salary’ plus

‘longevity’ and do not include fringe benefits in that definition,” explaining that “[w]hile

the CBAs provide check-in pay, night differential and holiday pay to those on active duty,

those additional benefits are addressed in provisions that are distinct from the provisions

defining annual salary.” Since “[n]either agreement addresses the payment of such fringe

benefits to retirees” and “the CBAs here are silent with respect to this issue, they cannot

provide a contractual predicate for expanding the statutory benefit” and “[a]ccordingly,

[inclusion of the special pay categories in General Municipal Law § 207-a payments] was

not authorized by statute nor by the collective bargaining agreement.” The City adopted

these reports and recommendations, and the Retirees filed an article 78 petition alleging

that the determination to reduce the categories of special pay from the Retirees’ General

Municipal Law § 207-a payments was arbitrary and capricious and lacked a rational basis.

       In dismissing the article 78 petition, Supreme Court held that “the decision was not

arbitrary or capricious” because the City’s determination “relied on the findings of both

hearing officers, who, in turn, relied heavily upon the Second Department and Court of

Appeals cases that distinguish between ‘regular salary and wages’ and ‘fringe benefits.’ ”

The Appellate Division affirmed, holding that, in light of this relevant precedent to the

contrary, “petitioners did not sustain their burden of establishing their entitlement to

compensation for night differential, check-in pay, and holiday pay as part of their disability




                                            -8-
                                              -9-                                        No. 95

benefits under the language of” General Municipal Law § 207-a (2) (

[2d Dept 2020]). I agree.

       The majority disagrees and, in reversing here, promulgates a radical new approach

reading “regular salary and wages” out of the statutory text and substituting “monetary

compensation” and, sporadically, “regular job duties.” As a result, courts must now look

to whether each item of compensation is provided to all active firefighters. The governing

standard is variously expressed as whether the CBA: (1) “strongly suggests” the payment

must be earned; (2) makes clear that “all firefighters are entitled to receive holiday pay and

check-in pay based solely on the performance of regular job duties”; or (3) makes clear

that any active firefighter is “legally entitled” to the special pays (majority op at 9, 12). Or,

put another way, the majority’s new “monetary compensation” rule is “everyone gets

everything everyone else always gets.” However articulated, the test is wrong.

       While the majority implies that its analysis is grounded in the statutory language,

consideration of the parties’ stipulated practices is woven through their reasoning—their

analysis demands nothing more than an examination of what active firefighters obtain for

“regular job duties” (majority op at 2, 4, 9, 10, 10 n 7, 11). Even at that level, the majority’s

reasoning is inconsistently applied. The majority contends that “it is clear from the CBAs

that all firefighters are entitled to receive holiday pay and check-in pay based solely on the

performance of regular job duties” (majority op at 9). In fact, the CBA provides that, for

check-in pay, “[m]embers shall be present at their assigned commands for duty twelve (12)

minutes prior to the start of their tour of duty for receipt of officer instructions, notice of


                                              -9-
                                           - 10 -                                     No. 95

pertinent alarms, roll call, training, equipment and/or uniform inspection.” The majority’s

assumption that those firefighters who are not present at that assigned time continue to

receive check-in pay stems from reliance on the parties’ stipulation that is beyond the four

corners of the CBA. Moreover, with respect to holiday pay, the majority relies heavily on

the CBA’s inclusion of language providing that “firefighters ‘shall be paid for [12] legal

holidays, whether worked or not’ ” (majority op at 10 [emphasis in majority]). The lack

of corresponding language for check-in pay somehow has no similar effect on the analysis.

In addition, the majority fails to grapple with our precedent excluding holiday pay from

the statutory term “regular salary or wages” for the same reasons unused vacation time was

excluded in Chalachan (see Binghamton Firefighters, 

). And with respect

to night differential pay, the majority—correctly—ignores the stipulation by the parties

that all active firefighters receive that compensation, and relies on the CBA’s “restriction

of this payment to those firefighters who ‘actually work[] the night tour’ ” in order to

exclude night differential from regular salary or wages (majority op at 12). The majority’s

convoluted explanation for when such language should be required to prove that a category

of compensation is part of the “performance of their regular job duties” (as with night

differential) and when it should not (as with check-in pay) only highlights the inconsistency

(majority op at 10 n 7).

       Lastly, the majority makes much of the fact that awarding “holiday and check-in

pay [to the Retirees] does not pose the risk of unfairness we cautioned against in

Chalachan” (majority op at 10).        But that concern was expressed with respect to


                                           - 10 -
                                            - 11 -                                    No. 95

“imply[ing] a right to [certain] benefits under section 207-a” when that statute is “expressly

limited to ‘regular salary and wages’ ” (Chalachan, 55 NY2d at 990). It was not used, as

the majority does here, to justify classifying a “special pay” as such.

       In the past, we have ensured that our interpretation of the language of General

Municipal Law § 207-a comports with the legislature’s intent to reduce, to the extent

possible, the financial burden for disability payments placed on municipalities and thereby

“ ‘increase the level of fire protection’ ” (Farber, 

). Mindful of the

legislature’s intent as well as of the needs of disabled firefighters, we could take comfort

in the fact that, in the event a municipality such as Yonkers decided that disabled

firefighters should receive these categories of special pay, they may, as the Second

Department acknowledged, “agree in a collective bargaining agreement to include such

additional amounts in the regular salary or wages payable to disabled firefighters pursuant

to” General Municipal Law § 207-a (

). That approach ends today.

Tapping other funding sources for active fire protection may be difficult. Yonkers has

faced serious budget deficits, including a Public School District budget gap of at least $7.4

million in its proposed budget for fiscal year 2022-2023 (State Comptroller’s Review of

Yonkers Proposed City Budget for 2022-23 Fiscal Year, dated May 16, 2022, available at

https://www.osc.state.ny.us/files/local-government/audits/2022/pdf/yonkers-budget-

review-B22-6-5.pdf [last accessed Nov. 29, 2022]). Today’s change in the law will have

very real consequences for Yonkers residents and for municipalities statewide facing

similar fiscal challenges.


                                            - 11 -
                                         - 12 -                                  No. 95




Order insofar as appealed from modified, without costs, in accordance with the opinion
herein and, as so modified, affirmed. Opinion by Judge Wilson. Judges Rivera, Singas
and Troutman concur. Judge Garcia dissents and votes to affirm in an opinion, in which
Acting Chief Judge Cannataro concurs.


Decided December 15, 2022




                                         - 12 -