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MATTER ANGELINA MENNELLA v. BOARD ESTIMATE CITY NEW YORK ET AL. (03/25/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.40916 <http://www.versuslaw.com>; 298 N.Y.S.2d 446; 31 A.D.2d 459 March 25, 1969 IN THE MATTER OF ANGELINA MENNELLA, AS ADMINISTRATRIX OF THE ESTATE OF ANTHONY J. MENNELLA, DECEASED, APPELLANT,v.BOARD OF ESTIMATE OF THE CITY OF NEW YORK ET AL., RESPONDENTS Appeal from a judgment of the Supreme Court at Special Term (Charles G. Tierney, J.), entered August 15, 1968 in New York County, which denied petitioner's applications (1) to review and annul the determination of the Board of Estimate which awarded ordinary death benefits, and (2) for an order directing the respondents to retire Anthony J. Mennella as of March 30, 1967. John Windsor for appellant. Robert T. Hartmann of counsel (Stanley Buchsbaum with him on the brief; J. Lee Rankin, Corporation Counsel), for respondents. Macken, J. McGivern and Markewich, JJ., concur with Macken, J.; Stevens, P. J., and Capozzoli, J., dissent and vote to affirm for the reasons stated in the opinion of the court below. Author: Macken


Appeal from a judgment of the Supreme Court at Special Term (Charles G. Tierney, J.), entered August 15, 1968 in New York County, which denied petitioner's applications (1) to review and annul the determination of the Board of Estimate which awarded ordinary death benefits, and (2) for an order directing the respondents to retire Anthony J. Mennella as of March 30, 1967.

Macken, J. McGivern and Markewich, JJ., concur with Macken, J.; Stevens, P. J., and Capozzoli, J., dissent and vote to affirm for the reasons stated in the opinion of the court below.

Author: Macken

 The issue here presented is whether upon the death of her husband, an employee of the City of New York and a member of its Retirement System, petitioner became entitled to the benefits provided by section B3-32.0 of the Administrative Code of the City of New York (Code) relating to members who die while in city service or the substantially greater benefits payable under section B3-46.0 upon death of a retired member.

Following accidental injury sustained July 25, 1966 in the course of his employment as a uniformed sanitation worker, Anthony Mennella on February 6, 1967 applied for accident disability retirement in accordance with section B3-40.0 of the Code which provides: "Medical examination of a member in city-service for accident disability and investigation of all statements and certifications by him or on his behalf in connection therewith shall be made upon the application of the head of the agency in which the member is employed, or upon the application of a member or of a person acting in his behalf, stating that such member is physically or mentally incapacitated for the performance of city-service, as a natural and proximate result of such city-service, and certifying the time, place and conditions of such city-service performed by such member resulting in such alleged disability and that such alleged disability was not the result of wilful negligence on the part of such member and that such member should, therefore, be retired. * * * If such medical examination and investigation shows * * * that such member should be retired, the medical board shall so certify to the board [Board of Estimate] stating the time, place and conditions of such city-service performed by such member resulting in such disability, and such board shall retire such member for accident disability forthwith." (Emphasis supplied.)

On March 30, 1967 the Medical Board certified to the Board of Estimate (Board) that Mennella should be so retired. By letter dated April 5, 1967 the Board informed him: "A resolution proposing your accident disability retirement to take effect May 7, 1967 will be presented to the Board of Estimate at its meeting to be held May 18, 1967. * * *

"Your pension will be in suspense for the period subsequent to May 7, 1967 during which you will be carried on the department payroll with pay." On April 7 Mennella wrote to the Commissioner of the Department of Sanitation: "I am a sanitation man assigned to Dist. 30. I have been retired on accident disability effective May 7, 1967.

"I respectfully request my terminal leave time owed and vacation, including pro-rata premium." By letter dated April 17 the Chief of the Bureau of Administration Services wrote: "Commissioner Kearing has granted your request for terminal leave.

"You will be permitted a leave with pay for two (2) months and nine (9) days starting May 21, 1967, to and ending July 29, 1967.

"The New York City Employees Retirement System will be notified to suspend your Accident Disability Retirement Allowance from May 7, 1967 the date of retirement to the last day of terminal leave July 29, 1967. The retirement allowance will be resumed July 30, 1967." At a meeting held April 20 the Board adopted the following resolution: "resolved, That the Board of Estimate, pursuant to the provisions of law, does hereby retire the said Anthony J. Mennella, Sanitation Man, Department of Sanitation, from City-service, effective May 7, 1967, on account of accident disability, subject to later determination and fixation of the amount of accident disability retirement allowance." Mennella died April 24, 1967 of causes unrelated to his occupation. In the meantime, at the suggestion of the Retirement System and on April 17, 1967, he had executed and filed a "Selection of Benefits under Option One" (ยง B3-46.0 of the Code) on a form furnished and completed by the Retirement System in which the date of retirement was stated to be May 7.

Following his death, the Board awarded petitioner the so-called "ordinary death benefits" payable in the event of death of a member of the Retirement System while in city service. Petitioner has refused to accept the latter and by this proceeding asks that the determination of the Board be annulled; that it be directed to retire Mennella as of March 30, 1967, the date of certification by the Medical Board, and that it award her the benefits provided by the Code in event of death of a retired member of the system. Appellant contends that the language of the Code providing for "forthwith" retirement required that Mennella be retired as of March 30, 1967, the date of certification by the Medical Board or, in any event, no later than April 20, the date upon which the Board undertook to act.

Respondents' position is summarized by the following quotation from their brief:

"Pursuant to Section B3-40.0 of the Administrative Code, a member of the New York City Retirement System retiring on accident disability is entitled to prompt retirement by resolution of the Board of Estimate once the Medical Board certifies the disability. It is not disputed that, had Mr. Mennella requested prompt retirement, he would have been entitled to the disability retirement as soon as the Board of Estimate was able to pass a resolution effectuating the retirement. (Emphasis supplied.)

"This record indicates that the decedent was not seeking a prompt retirement. He requested and accepted a somewhat later retirement date to take advantage of the benefits of continued service at full pay."

The application was for retirement in accordance with the provisions of the Code and no provision of the Code required him to request a prompt retirement or gave him an option of a prompt or delayed retirement. It thus seems conceded that unless some conduct on his part permitted otherwise, ...


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