Summary
holding that the PBA did not violate its duty of fair representation by not taking steps to insure plaintiffs would receive VSF benefits
Summary of this case from Falardo v. New York City Police DepartmentOpinion
March 3, 1994
Appeal from the Supreme Court, New York County (Bruce McM. Wright, J.).
Former police officers, superior officers and police detectives who had retired for ordinary disability, accident disability or with vested rights to a deferred retirement allowance, but before the completion of 20 years of service without disability, brought this proceeding claiming that the respective respondent Benevolent Associations breached their duties of fair representation to them in failing to take steps to procure variable supplements fund ("VSF") payments on their behalf. These VSF benefits were established pursuant to a 1968 collective bargaining agreement and subsequent implementing legislation (L 1970, ch 876). The importance of the VSF benefits is that they serve as supplemental monies paid in addition to pension benefits and do not constitute a pension or retirement allowance (Administrative Code of City of N.Y. § 13-269 [b]; § 13-279 [b]; see, Poggi v. City of New York, 109 A.D.2d 265, affd 67 N.Y.2d 794; see also, Matter of Duffy v. Dinkins, 190 A.D.2d 619). The constitutionality of the statutory scheme which permits VSF payments to only those retirees who retired after 20 years of service without disability, while denying payments to those officers who retire under other circumstances (Administrative Code § 13-268 [5]; §§ 13-269, 13-278 [5]; § 13-279), has been upheld (Castellano v. Board of Trustees, 752 F. Supp. 98, affd 937 F.2d 752, cert denied ___ US ___ 112 S Ct 378). The collective bargaining agreement was conspicuously silent with respect to the eligibility of members for VSF benefits and it was the legislation which implemented the collective bargaining agreement that set restrictions on the payment of such benefits. Thus, assuming, arguendo, the accuracy of petitioners' allegations and contentions, it is nevertheless clear that they have not stated a claim for breach of the respondents' duty of fair representation. Since the record demonstrates petitioners were not entitled to VSF benefits and petitioners failed to set forth any facts to show either arbitrariness, discrimination or bad faith conduct on the part of respondents in discharging their duties (see, Matter of Farkas v. Public Empl. Relations Bd., 97 A.D.2d 569, lv denied 61 N.Y.2d 601), the IAS Court properly dismissed the petition.
Concur — Carro, J.P., Ellerin, Rubin, Nardelli and Tom, JJ.