New Appellate Case Raises Problems for NYC Correction Officers’ Disability Pensions
By: Sean Patrick Riordan, Esq.
Partner, McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP.
Correction Officers have a tremendously dangerous job, each day confronted with the most hardened criminals in our justice system. Based on this danger New York’s governing bodies have put in place protections for Officers who become permanently disabled due to their job duties. Correction Officers in New York City, New York State and those in the County jails have ¾’s disability pensions available to them if they become permanently disabled from full duty resulting from an “act of an inmate.” A frequent question that arises in Correction Officer ¾’s cases is: What legally constitutes the “act of an inmate?” Over the course of the last year New York State and County Correction Officers have been able to procure good legal decisions solidifying their ¾’s rights. However, a recent decision in the New York State Supreme Court Appellate Division, Second Department has greatly challenged the rights of NYC Correction Officers ¾’s benefits.
It’s important to understand that two different appeals courts cover the two different pension systems, the New York City Employees’ Retirement System (“NYCERS”) and the New York State & Local Retirement System. When a City Correction Officer is forced to appeal a ¾’s denial such denial will be appealed to the Appellate Division, Second Department (“2nd Department”). When a NYS/County Correction Officer appeals a ¾’s denial their appeal goes before the Appellate Division, Third Department (“3rd Department”). The two courts now have vastly different stances on what the “act of an inmate” is for ¾’s purposes.
The 3rd Department has considered the “act of an inmate” clause several times over the last decade. Initial decisions narrowed the clause to include only “direct interactions” between the inmate and the Officer. The Court further limited the act of an inmate to exclude “benign inmate chores” such as mopping etc. In doing so the court recognized the legislature’s intent behind the ¾’s bill was to protect Officers from the unique dangers presented in the prison/jail setting, not simple accidents that arise from some inmate responsibilities. As Officers and their attorneys began to worry that the “act of an inmate” clause would be so narrowly interpreted as to be almost meaningless, the 3rd Department issued its decision in Naughton v. DiNapoli finding that injuries that flow directly from the “unruly and combative” actions of an inmate are covered for ¾’s purposes. In DeMaio v. DiNapoli the 3rd Department importantly stated that “act of an inmate” does not have to be intentional, but instead that there is some affirmative act of an inmate that lead to an Officer’s injuries. The importance of this decision cannot be overstated as having to prove the inmates’ intent to hurt the officer would be extremely difficult in many cases. Further, such a reading of the statute would provide incentive for inmates to hide their intentions. This is now the problem faced by New York City Correction Officers.
The 2nd Department recently upheld the Brooklyn Supreme Court decision in Jones v. NYCERS. In Jones an Officer “suffered an injury to her shoulder and elbow when an inmate pulled a cell door which she was opening with the cell key.” On initial appeal the Brooklyn Supreme Court found that NYCERS did not act “arbitrarily or capriciously” in finding that the incident did not meet the standards of the “act of an inmate” clause. The ruling relied on the legislative intent behind the ¾’s bill without specifying why the inmate’s actions towards the Officer did not meet such intent. On appeal to the 2nd Department, the Court found NYCERS determination was not “arbitrary and capricious” and was based on “some credible evidence”, two legal standards that attorney’s face when bringing these appeal actions.
Under the 3rd Department’s standard it can clearly be argued that the incident in which Jones was injured constitutes an “act of an inmate.” There was a direct interaction between the inmate and Jones, and the inmate’s actions can be established as “unruly”, if not “combative”, as well. The 2nd Department’s decision now leaves us with the unenviable position of potentially having to prove an inmate’s intention to harm the officer with their actions, not a good position for New York City’s Boldest.
There is one potential savior, the 2nd Department did not address whether NYCERS interpretation of “act of an inmate” clause constitutes an “error of law.” In DeMaio, the court specifically found that the Retirement System committed error of law in its interpretation of the “act of an inmate” provision, unjustly placing an additional burden on the applicant of having to prove the intent of the inmate. If NYCERS now follows the Jones decision, we will be forced to challenge their interpretation of the “act of an inmate” clause as an error of law necessary of overturn. We will fight diligently to protect NYC’s Correction Officers ¾’s benefits.
To best combat this decision on a day-to-day basis, officers should be cognizant of specifically noting their direct interaction with the inmate that caused their injury. “Unruly” and “combative” behavior by the inmate should be specifically noted in the Injured Employee Report. For instance, in Jones, the NYCERS Board of Trustees noted that there may have been a different outcome if the “contemporaneous documentation” had noted that the inmate “intentionally” pulled the gate, rather than “accidentally” which was actually noted in the initial reports. Statements that help the reader capture the volitional, combative and/or violent nature of the interaction potentially help us on the ¾’s if needed later on. The general rule of thumb is do not assume the inmate’s intent, either good or bad, in your report, merely the factual circumstance that led to an injury.
If you have any questions regarding your ¾’s case, or an injury in general, don’t hesitate to contact me anytime at 212-612-3198.
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