Simons v. N.Y.C. Employees' Ret. Sys.

60 Misc.3d 765

78 N.Y.S.3d 657

Ebony SIMONS, Petitioner,

v.NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM and The City of New York, Respondents.

51421/2016

Supreme Court, Kings County, New York.

Decided on June 14, 2018

Bernard C. Han, Esq., 1776 Eastchester Road (Ste. 210), Bronx, NY 10461, Attorneys for Petitioner

Zachary W. Carter, Corporation Counsel of the City of New York, 100 Church Street, 5th Floor, New York, NY 10007, Attorneys for Respondent

Katherine A. Levine, J.

HON. KATHERINE A. LEVINE

This case addresses the issue of whether a correction officer who becomes disabled due to an assault by a visitor to the correctional facility is entitled to performance of duty disability retirement benefits ("disability benefits") pursuant to Retirement and Social Security Law ("RSSL") § 507–c. Petitioner Ebony Simons ("petitioner" or "Simons"), a correction officer employed by the NYC Department of Corrections ("DOC"), seeks an order annulling the determination of the Board of Trustees ("Trustees") of the New York City Employees' Retirement System ("NYCERS"), which denied her application for disability benefits pursuant to RSSL § 507–c.

Petitioner, who worked at the Ana M. Kross Center, a correctional facility on Rikers Island (the "Facility"), applied for disability benefits based upon injuries sustained when on multiple occasions in 2012 and 2013, she was assaulted by visitors to the Facility. The Medical Board of NYCERS deemed petitioner disabled based solely on an injury to her ankles which occurred on November 20, 2013, when she was assaulted by a visitor while attempting to confiscate contraband. However, the Medical Board recommended that petitioner's application for disability benefits be denied because incidents perpetrated by visitors do not fall within the aegis of RSSL § 507–c, "despite the fact that the applicant was assigned to a visitors' area." Petitioner appealed the recommendation, and the Trustees adopted a resolution denying her application for disability benefits.

RSSL § 507–c provides that correction officers employed by the DOC who become "physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties by, or as a natural and proximate result of, an act of any inmate or any person confined in an institution under the jurisdiction of the department of correction ... shall be paid a performance of duty disability retirement allowance equal to three-quarters of final average salary."

Petitioner claims that the Trustees' decision was erroneous as a matter of law, and arbitrary and capricious because the visitor assailant shed his status as visitor and became confined when he assaulted petitioner and was arrested. Respondent argues that this provision is inapplicable since the attacker was a visitor rather than an inmate, and that petitioner is therefore not entitled to disability benefits under RSSL § 507–c. Petitioner contends that the visitor was a "confined" person since he was not free to leave the Facility once he was arrested for assaulting petitioner, in effect arguing that his "confined" status was retroactive to the time he entered the Facility. Petitioner further argues that a strict construction of the statute would defeat its purpose to "protect the officer due to inherent dangers that the officer would face on a daily basis while working as a correctional officer."

As a threshold matter, a correction officer applying for disability benefits bears the burden of establishing that her incapacity was the "natural and proximate result" of a "direct interaction with an inmate." See , Mtr. of Stevens v. DiNapoli , 155 A.D.3d 1294, 1294–1295, 64 N.Y.S.3d 768 (3d Dept. 2017) (to qualify for performance of duty disability retirement benefits under RSSL § 507–b(a), which contains identical statutory language to RSSL § 507–c(a), correction officer must make threshold showing that injuries were result of "direct interaction with an inmate"); Mtr. of Boyd v. New York City Employees' Retirement Sys. , 60 Misc.3d 608, ––––, 72 N.Y.S.3d 792, 2018 WL 1279031, *2 (Sup. Ct. Kings. Co. 2018, J. Levine). This Court finds that petitioner has not made this threshold showing because the alleged perpetrator was not an inmate.

RSSL § 507–c does not address incapacities which result from acts of visitors, or define what it means to be "confined." However, the legislative histories of RSSL §§ 507–b and 607–c, which apply to correction officers employed by the Department of Corrections and Community Supervision and county-employed correction officers, respectively, and which contain identical statutory language to RSSL § 507–c, do shed light on this term. These three sections relate to the same subject matter and are deemed to be "in para materia," i.e. that they are to be "construed together as though forming part of the same statute." Khela v. Neiger , 85 N.Y.2d 333, 336, 624 N.Y.S.2d 566, 648 N.E.2d 1329 (1995) ; ...