Attorneys for Petitioner Bernard C. Han, Esq.
Attorneys for Respondent Zachary W. Carter Corporation
Counsel of the City of New York
KATHERINE A. LEVINE JUSTICE.
as required by CPLR 2219(a), of the papers considered in the
review of this motion:
Notice of Petition with Accompanying Affidavits and
Respondent's Verified Answer to Petition with
Accompanying Affidavits and Exhibits
Respondent's Memorandum of Law
Petitioner's Reply Memorandum of Law
Respondent's Sur-Reply Memorandum of
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.
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
§ 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."
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."
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 (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., 2018 NY Slip Op 28073,
2018 NY Misc. LEXIS 768, *7 (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
§ 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 (1995); Mtr. of London Terrace Assoc. L.P. v.
New York State Div. of Hous. & Community Renewal, 35
Misc.3d 525, 534 (Sup. Ct. NY Co. 2012). The Court therefore
looks to these statutes to divine the meaning of the term
legislative history of section 507-b reveals that "the
statute was clearly intended to compensate correction
officers who, because of the risks created by their daily
contact with certain persons who are dangerous [and]
profoundly anti-social... become permanently disabled."
Mtr. of Laurino v DiNapoli, 132 A.D.3d 1057, 1058
(3rd Dep't 2015); Mtr. of Boyd v NYCERS, 2018 NY
Slip Op 28073, 2018 NY Misc. LEXIS 768, *7 (Sup. Ct. Kings
Co. 2018). The legislative history of § 607-c reveals
that the increased inmate population "created strain and
tension, manifesting itself in an increase in altercations
among inmates and between inmates and correction
officers," and that "restraining combative and
unruly inmates is the type of activity that was intended to
trigger the protections afforded correction officers" by
§ 607-c. Mtr. of Naughton v. DiNapoli, 127
A.D.3d 137, 140 (3d Dept. 2015). Thus, it is clear that the
legislature did not intend that contact between visitors and
correction officers trigger § 507-c protection.
Furthermore, visitors are not expected to be
"dangerous" and "profoundly anti-social."
on the above, there is no basis upon which to confer a
"confined" status on a visitor upon his entrance to
the Facility and before he assaulted the officer which
resulted in his arrest. Petitioner's argument that the
legislature intended to "protect the officer due to
inherent dangers that the officer would face on a daily basis
while working as a correctional officer" also has no
sound basis. Section 507-c does not provide disability
benefits based upon risks of the job that are not related to
direct interaction with inmates, and therefore cannot be
interpreted in such a broad manner. Mtr. of Park v
DiNapoli, 123 A.D.3d 1392, 1393 (3d Dept. 2014).
agency's determination will not be deemed arbitrary and
capricious if it has evaluated the facts using a standard
which is expressly set forth in the statute. See, James
v. Been, 55 Misc.3d 631, 633 (Sup. Ct. Kings Co. 2017,
J. Levine). Since respondent adhered to language and intent
of RSSL § 507-c, this Court finds that its determination
denying petitioner disability benefits had a sound basis, and
was not arbitrary and ...