In the Matter of Brian Ward, Respondent,v.City of Long Beach, Appellant.

Brief

N.Y.January 2, 2013

To Be Argued By: ROBERT M. AGOSTISI, ESQ. Time Requested: 10 Minutes Court of Appeals STATE OF NEW YORK BRIEF FOR RESPONDENT-APPELLANT THE CITY OF LONG BEACH In the Matter of the Application of BRIAN WARD, Petitioner-Respondent, For an Order Pursuant to Article 78 CPLR, -against- THE CITY OF LONG BEACH, Respondent-Appellant. COREY E. KLEIN, Corporation Counsel CITY OF LONG BEACH Attorneys for Respondent-Appellant The City of Long Beach 1 West Chester Street Long Beach, New York 11561 Phone No. (516) 431-1000 Fax No. (516) 431-1016 Brief Completed on: April 5, 2012 On the Brief: ROBERT M. AGOSTISI Assistant Corporation Counsel Echo Appellate Press, Inc. • 30 West Park Avenue • Long Beach, New York 11561 • (516) 432-3601 Printed on Recycled Paper 19038 TABLE OF CONTENTS PRELThMNARYSTATEMENT ..................................................... 1 STATEMENT OF TlIE CASE· ............................................................ 2 ARGUMENT ........................................................................... 5 I. BACKGROUND ON GENERAL MUNICIPAL LAW § 207 -a(2) SUPPLEMENTAL DISABILITY BENEFITS, AND ELIGIBILITY CRITERIA ............................................. 6 II. BEVERLY WARD'S STATEMENTS REGARDING THE ORIGIN OF HER HUSBAND'S INJURY PROVIDED A RATIONAL BASIS UPON WHICH TO DENY BRIAN WARD'S APPLICATION FOR BENEFITS UNDER GENERAL MUNICIP AL LAW § 207-a(2), AND, THROUGH ITS ADOPTION OF BRIAN WARD'S STORY, THE LOWER COURT ERRED BY SUBSITUTING ITS JUDGMENT FOR THE CITY'S .......... , ... 8 A. Background on Beverly Ward's December 2007 Meeting With City Officials ................................................... 12 B. The City's Reliance on Beverly Ward's Statements Was Neither Arbitrary Nor Capricious, Inso.far as Mrs. Ward's Story Was and Still Is Credible ............................ 13 C. Even Assuming, Arguendo, that Brian Ward's Account Was Credible, the Court Should Have Deferred to the City's Judgment After the Court Tacitly Conceded that Beverly Ward's Story Had Some Semblance of Credibility ..... 18 D. The Court's Function Was Not to Evaluate the Police Department's Investigation, But, Rather, to Determine Whether the City's Denial of Ward's GML § 207-a Application Was Rational, Based on the Information Available to the City at the Time ........................... , ........ 23 III. KLEIN'S PERSONAL OBSERVATIONS OF MR. WARD PLAYING BEACH VOLLEYBALL CONFIRM THAT WARD IS NOT PERMANENTL Y DISABLED, AND THE CITY THEREFORE HAD ANOTHER RATIONAL BASIS UPON WHICH TO PREMISE ITS DENIAL OF HIS APPLICATION FOR BENEFITS UNDER GENERL MUNICIPAL LAW §207-a(2) .................... 26 IV. THE COURT FAILED TO COMPREHENSIVELY ANALYZE BRIAN WARD'S APLICATION FOR 207-A BENEFITS .................................................................. 29 CONCLUSION .......................................................................... 30 ii TABLE OF AUTHORITIES Cases: Berardi v Berardi, 54 AD3d 982,985,865 NYS2d 245 [2d Dept 2008] ........................ , ....... , .................................... 14, 16 Dolan v Dolan, 78 NY2d 463, 468, 583 NE2d 908, 577 NYS2d 195 [1991] .................................................................. 16 Jones v Beame, 45 NY2d 402,408-409,380 NE2d 277 [1978] .................... 23 Levandusky v Fifth Ave. Apt. Corp. 75 NY2d 530, 544, 553 NE2d 1317 [1990] ................................................................... 5, 14,20 Matter of Aitken v City of Mount Vernon, 200 AD2d 667, 668,606 NY2d 755 [2dDept 19941 ...................................................... 15 Matter of Cook v City of Utica, 88 NY2d 833,835 [1996] ...................... 6, 7, 15 Matter of County of Monroe v Kaladjian, 83 NY2d 185, 189,608 NYS2d 941,630 NE2d 638 [1994] .......................................... 5, 9 Matter of Diocese of Rochester v Planning Bd., . 1 NY2d 508, 520, 154 NYS2d 849, 136 NE2d 827 [1956] ..... , ............... 5 Matter of Schade v Town of Wallkill, 235 AD2d 542, 652, NYS2d 756 [2dDept 1997] ........................................................... 15 Matter ofSutka v Conners, 73 NY2d 395,541 NYS2d 191, 538 NE2d 1012 [1989] ............................ : .................................... 6, 7 Matter of Thomas P. Flynn v Zaleski, 212 AD2d 706, 706 622 NYS2d 791 [2d Dept 1995] ...................................... 10, 11, 13, 19 McGowan v. Fairview Fire Dist., 51 AD3d 796, 798, 858 NYS2d 278 [2d Dept 2008] .................................................... 26 iii Cases: (continued) Pell v Bd. of Educ. Of Union Free Sch. Dist. No. 1 of the Towns of Scarsdale & Mamaroneck, 34 NY2d 222,230, 313 NE2d 321,356 NYS2d 833 [1974] .......................................... 8, 9 Ridge Road Fire District v. Schiano, 16 NY3d 494,947 NE 2d 140, 922 NYS2d 249 [2011] ......................................................... 18, 19,20 Solano v City of Mount Vernon, 49 AD3d 762, 764, 853 NYS2d 641, 643 [2d Dept 2008] ......................................... 6, 7, 26, 27 Straker v Giuliani, 292 AD2d 260, 262, 739 NYS2d 690 [1 st Dept 2002] ............................... , ........................................... 8 The Matter of John Collins v City of Yonkers, 207 AD2d 830,830, 616 NYS2d 630 [2d Dept 1994] ................................................. 9, 10 Statutes: General Municipal Law § 207-a ........................................................ .ibid. Retirement and Social Security Law § 363-c .......................................... 2,6 iv PRELIMINARY STATEMENT This brief is respectfully filed on behalf of Appellant City of Long Beach ("City"), in support of its appeal of an October 4, 2011 Decision & Order of the Appellate Division, Second Department. (R. CA-2, 3). This Decision and Order affirmed the Judgment of the Supreme Court of the State of New York, County of Nassau (Hon. Daniel Palmieri (J.S.C.)) duly entered on December 16, 2009 (R. at 3-4), served on October 15,2010 (R. at 2), and received by the City on October 18, 2010 (id.), along with the corresponding Short Form Order dated October 30,2009 (R. at 5-9). Therein, the Supreme Court annulled the City's denial of ex-Fire Lieutenant Brian Ward's ("Mr. Ward") application for supplemental disability benefits pursuant to New York General Municipal Law ("GML") § 207-a(2). Throughout the course of this proceeding, the City has argued and continues to maintain that Mr. Ward's application for supplemental disability benefits was . . properly denied based on substantial evidence discovered by and through the City Corporation Counsel during an investigation. Herein, the City respectfully submits that the lower courts, in annulling the City's denial, improperly substituted their judgment in place of the City's. As illustrated below, the City engaged in a thorough analysis and premised its denial on substantial evidence adduced during an investigation. As such, the denial of the application contained a rational basis, and was neither arbitrary nor capricious. 1 Insofar as the Appellate Division effectively adopted the Supreme Court's reasoning when it held that the Supreme Court decided this matter "correctly" (CA-3), all references to the "Supreme Court's" and/or "Court's" holdings should, simultaneously, be understood to refer to the Appellate Division's Decision & Order as~well. The Court of Appeals has jurisdiction to entertain this appeal pursuant to its Order Granting Leave to Appeal dated February 21, 2012. (CA-4). The issues raised herein are properly preserved for appeal because they are precisely identical to the issues raised in the below proceedings. (R. at 5-9,32-39, 73-74, 98-103). STATEMENT OF THE CASE Mr. Ward worked for the City of Long Beach in the Fire Department for over 19 years, where he achieved the rank of lieutenant. (R. at 11-12). In or about 2003, he claimed to suffer a work-related injury. (R. at 12). Specifically, Ward . . claimed that he permanently injured his knee while sliding down a pole in the firehouse that contained an unknown "accelerant." (R. at 12). In or about May 2008, Mr. Ward initiated the process of applying for supplemental disability benefits pursuant to GML § 207-a(2). (R. at 12). In or about August 2004, Ward filed an application with the New York State Comptroller's Office for accidental disability retirement pursuant to Retirement and Social Security Law § 363-c. (R. at 33). In or about November 2005, the State 2 Comptroller granted Ward's application for disability retirement. (R. at 12). Shortly thereafter, Ward retired from active duty. (R. at 33). On or about December 20, 2007, Corporation Counsel Corey Klein, the City's attorney and chief legal advisor, along with former City Manager Edwin L. Eaton, attended a meeting with Beverly Ward, Mr. Ward's wife. (R. at 33,36). At this unscheduled and unsolicited meeting, Mrs. Ward explained to Mr. Klein and Mr. Eaton that Mr. Ward concocted the pole-sliding story for the purpose of receiving enhanced retirement disability benefits from the City and/or State. (Id.) She also stated that Mr. Ward actually injured himself at his daughter's varsity soccer game at Long Beach High School on October 15,2003, two days before the alleged pole-sliding incident at the firehouse. (Id.) Mrs. Ward stated that after suffering this injury, Mr. Ward screamed out in pain and was attended to by several bystanders at the soccer game. (Id.) Eaton then referred Mrs. Ward to the . . Long Beach Police Department, and an official Police interview ensued. (Id.) Mrs. Ward reiterated to Police that Mr. Ward's knee injury actually occurred at his daughter's soccer game and not in the line of duty. (R. at 38, 73-74). Detective/Sergeant Domitz of the Long Beach Police Department then referred the matter to the Nassau County District Attorney's Office for further investigation. (R. at 74). 3 On or about August 29, 2008, and for the following several weeks, Mr. Klein conducted a thorough review of Ward's case file in order to render a decision on Mr. Ward's application for supplemental disability benefits. (R. at 37). Mr. Klein considered the State decision on Ward's prior application, the record of this decision, along with his notes taken during the aforementioned December 20, 2007 meeting with Beverly Ward. (R. at 37-38). Klein also verified his recollection of that meeting with Eaton, whose recollection was in accordance with his. (R. at 38). Klein also spoke with the Long Beach Police Department detectives assigned to the Ward matter, to verify that the statements made by Mrs. Ward during the December 20,2007 meeting were consistent with those she made to the Police Department during their subsequent investigation. (Id.) In light of the fact that it is a crime to make or file a false police report, Klein afforded additional weight to Mrs. Ward's (consistent) assertions. (R. at 38). Additionally, Klein took note of the fact that he has personally witnessed Ward competing in the summer beach volleyball league in Long Beach, a highly competitive league. (Id.) Klein also considered the fact that he has personally observed Mr. Ward participating in this strenuous activity without any trace of knee damage and/or limitations. (Id.) After extensive evaluation of all aforementioned information and materials, Klein denied Ward's application for Section 207-a(2) benefits on SeptembeL 16, 4 2008. (R. at 39). On that same date, Klein mailed a letter notifying Mr. Ward of this denial. (Jd.) The City's denial was based on the evidence adduced with respect to "causation" (i.e. the cause of Mr. Ward's alleged line-of-duty accident) and the "permanence" of Mr. Ward's alleged injury. (R. at 39, 100). ARGUMENT In a proceeding commenced pursuant to CPLR Article 78, an individual may challenge a governmental action or decision that was "affected by an error of law or was arbitrary and capricious." CPLR § 7803(3). Significantly, "the cornerstone of Article 78 review under the 'arbitrary and capricious' test is that 'a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable. '" (Levandusky v. Fifth Ave. Apt. Corp., 75 NY2d 530,544,553 NE2d 1317 [1990] (quoting Matter of Diocese of Rochester v. Planning Bd., 1 NY2d 508, 520, 154 NYS2d 849, 136 NE2d 827 . . [1956])). As such, this Court has held that governmental actions or decisions need 'Only contain "a rational basis" in order to withstand challenge under CPLR §7803. (See Matter of County of Monroe v. Kaladjian, 83 NY2d 185, 189, 608 NYS2d 942,630 NE2d 638 [1994] [citations omitted]). 5 I. BACKGROUND ON GENERAL MUNICIPAL LAW § 207-a(2) SUPPLEMENTAL DISABILITY BENEFITS, AND ELIGIBILITY CRITERIA Pursuant to General Municipal Law §207-a(2), a permanently disabled firefighter, whose disability owes to an injury sustained in the line of duty (see GML § 207-a(l», may, under certain circumstances, be awarded "the difference between the amounts received" through his New York State disability pension, and the "amount of . . . his regular salary or wages" he would have received from the municipal employer, but for work-related injury. (GML § 207-a(2»; (Matter of Cook v. City of Utica, 88 NY2d 833, 835 [1996]). However, it is well settled that, "notwithstanding the disability allowance determination made by the State Comptroller, [a] City is entitled to make a separate determination as to whether [a firefighter] was permanently disabled as a result of an injury incurred in the performance of his duties ... " (Solano v. City of Mount Vernon, 49 AD3d 762, 764, . . . 853 NYS2d 641, 643 [2d Dept. 2008] (emphasis added). See also Matter of Cook, 88 NY2d at 835 (holding that "the Comptroller's determination on the causal- relationship issue in connection with petitioner's [Retirement and Social Security Law] section 363-c application was not binding on respondents in their separate proceeding to determine petitioner's eligibility for benefits under General Municipal Law §207-a"); Matter of Sutka v. Conners, 73 NY2d 395, 541 NYS2d 191, 538 NE2d 1012 [1989]). Indeed, "Sections 207-a and 363-c represent 6 separate disability systems with differing coverage and consequences[,]" (Matter of Sutka, 73 NY2d at 404), and "there is no specific statutory language or history suggesting that the eligibility determinations for these distinct classes of benefits were not intended to be separately made." (Matter of Cook, 88 NY2d at 835). As such, municipalities are "entitled to make their own determination[ s]" regarding firefighters' initial applications for benefits under §207-a(2). (Id.) A number of determining factors might, separately or collectively, justify a municipality's denial of an application for supplemental benefits under GML § 207-a(2). First, a firefighter's participation in other gainful employment during the period of alleged "disability" necessarily disqualifies that firefighter from receiving benefits pursuant to §207-a(2). (Solano, 49 AD3d 762, 764). Additionally, and in contrast to 207 -a(1) (which pertains to active-duty firefighters suffering from work-related injuries), a municipality. may utilize broader criteria to evaluate an . . application submitted pursuant to §207-a(2) (which pertains to retired firefighters already receiving disability pensions from New York State) (Id. at 643). Specifically, under Section 207-a(2), a "City's determination ... may necessarily include both the question of causal relationship" between the injury, and the workplace incident which allegedly caused the "permanent disability." (Id.) Accordingly, when it is determined that a firefighter's alleged injury did not arise from a line-of-:-duty incident, or when a firefighter's condition has improved to the 7 point where he/she is no longer considered "disabled," a municipality may deny an application for supplemental disability benefits under Section 207-a(2). (Id.) II. BEVERLY WARD'S STATEMENTS REGARDING THE ORIGIN OF HER HUSBAND'S INJURY PROVIDED A RATIONAL BASIS UPON WHICH TO DENY BRIAN WARD'S APPLICATION FOR BENEFITS UNDER GENERAL MUNICIPAL LAW § 207-a(2), AND, THROUGH ITS ADOPTION OF BRIAN WARD'S STORY, THE LOWER COURT ERRED BY SUBSITUTING ITS JUDGMENT FOR THE CITY'S The Court may not substitute its judgment for that of an administrative body, where substantial evidence exists to support that body's determination. (Straker v. Giuliani, 292 AD2d 260, 262, 739 NYS2d 690 [1 st Dept. 2002] ("The findings of fact made by an administrative agency will not be disturbed by the courts unless those findings are so devoid of factual basis in the record as to be arbitrary, unreasonable, and hence, an abuse of discretion. Where substantial evidence exists to support the determination, the court may not substitute its judgment for that of the administrative body."). "In Article 78 proceedings, 'the doctrine is well settled, that neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact ... the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is 'substantial evidence. '" (Pel! v. Bd. of Educ. of Union Free Sch. Dist. No 1 of the Towns of Scarsdale & Mamaroneck, 34 NY2d 222,230,313 NE2d 321, 356 NYS2d 833 [1974] (citation omitted)). "The approach is the same 8 when the issue concerns exercise of discretion by the administrative tribunals. The Courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is 'arbitrary and capricious'" (Id. at 230-31). (See also Matter of County of Monroe, 83 NY2d at 189). "The arbitrary or capricious test chiefly 'relates to whether a particular action should have been taken or is justified and whether the administrative action is without foundation in fact. '" (Pell, 34 NY2d at 231). '''It is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion. '" (Id. at 232 [citation omitted]). In light of the foregoing, a municipality's decision to deny an application for GML § 207 -a(2) supplemental disability benefits, based on information pertaining to the cause or permanence of the injury (or both), cannot be disturbed absent extraordinary circumstances. In The Matter of John Collins v. City of Yonkers, the petitioner, a firefighter employed by the City of Yonkers, received two "on-line" injuries during the course of his employment as a firefighter. (In The Matter of John Collins v. City of Yonkers, 207 AD2d 830, 830, 616 NYS2d 630 [2d Dept. 1994]). The first injury occurred in 1969, and the second in 1987. (Id.) In 1989,Collins was granted a voluntary retirement from the New York State Retirement System. Petitioner reapplied one year later to the retirement system for an accidental- disability 9 retirement pension, which was granted. He then applied for supplemental disability benefits pursuant to General Municipal Law Section 207-a(2). (Id. at 830-31). Subsequently, the Yonkers Fire Department denied the petitioner's request for the wage supplement, and the petitioner's subsequent appeal to the City of Yonkers was unsuccessful. (Id at 831). Thereafter, Collins commenced an action, where the Supreme Court also ruled against him. Similarly, on appeal, the Second Department held as follows: "[a ]fter reviewing the record we find that a rational basis exists for the respondents' conclusion that the petitioner's alleged disability was not caused by an "on-line" injury ... [as] the petitioner continued to work for approximately 20 years" after the 1969 injury. (Id.) "With respect to the 1987 injury, there is no evidence that during the two years after the accident, prior to his retirement, the petitioner missed work or underwent any medical treatment as a result of that injury. Thus, we find no basis to conclude that the respondents' determination in this case was irrational." (Id.) In Matter of Thomas P. Flynn v. Zaleski, the petitioner, also a firefighter with the City of Yonkers," was injured twice during the course of his employment (the first injury occurred on March 2, 1987 and the second on October 23, 1987). (In the Matter of Thomas P. Flynn v. Zaleski, 212 AD2d 706,706,622 NYS2d 791 [2d Dept. 1995]). In December of 1987, petitioner applied for voluntary service retirement and disability retirement. (See id.) The New York State & Local 10 Retirement System granted the petitioner's application for a "Performance of Duty" disability retirement pension. (See id.) Simultaneously, petitioner applied for wage supplement pursuant to General Municipal Law §207-a, which was denied. (See id.) Petitioner later commenced an Article 78 proceeding to appeal the denial of benefits, and the Fire Department was ordered to determine, de novo, whether petitioner's injury was work-related. (See id.) Subsequently, after another hearing, petitioner's request for the wage supplement was again denied. (See id.) Following a second lawsuit and appeal, the Second Department held that "there [was] substantial evidence to support respondent's conclusion that, although the petitioner was disabled from performing his regular duties, his coronary artery disease was not job-related." (ld. at 708). Significantly, the Court also held that "it is within the agency's authority to evaluate and reject conflicting medical evidence and the agency is free to credit one physician's testimony over that of another." (ld. at 708). In the present case, Mr. Ward alleges that his knee injury occurred on October 17,2003, while sliding down a lubricated fire pole. However, Mrs. Ward states that her husband's injury occurred two days prior, at his daughter's soccer game. Accordingly, just as a municipality has "authority to ... credit one physician's testimony over that of another[,]" (Matter of Thomas P. Flynn, 212 AD2d at 708), so too must it be with respect to the "causation" analysis. In other 11 words, if a City may credit one physician's report, even one which it pays jar, then certainly it must be allowed to credit an unsolicited, conflicting account of how and where an injury occurred. Indeed, as long as the credited-story is rational, it must not be disturbed by the courts. However, as demonstrated below, the Court ignored the rational, substantial evidence provided by Mrs. Ward (simply because it disagreed with her), and instead substituted its own credibility determination in place of the City's. A. Background on Beverly Ward's December 2007 Meeting With City Officials On or about December 20, 2007, former Long Beach City Manager Edwin L. Eaton and Corporation Counsel Corey Klein attended a meeting with Beverly Ward, Mr. Ward's wife. (R. at 33,36). During this meeting, which was initiated by Mrs. Ward (R. at 33)), the City learned that Mr. Ward had not injured himself sliding down the pole ill: the firehouse on October 17, 2003, as claimed: Rather, as Mrs. Ward explained, Mr. Ward's knee injury actually occurred two days prior, on October 15, 2003, when Mr. Ward inadvertently injured himself at his daughter's varsity soccer game at Long Beach High School. (R. at 33, 36). Evidently, when Ward injured himself (in public), he screamed out in pain, and was attended to by multiple bystanders. (R. at 33, 36). Two days later, on October 17,2003, Mr. Ward claimed a line of duty injury (i.e. the alleged pole sliding accident) (R. at 33, 36), so as to obtain an enhanced disability retirement package from the State and/or 12 City. (Jd.) Shortly after the meeting took place, City Manager Eaton referred the matter to the Long Beach Police Department for possible criminal proceedings. (Jd.) Both Klein and Eaton agreed that Mrs. Ward's statements regarding the origin of Mr. Ward's injury was particularly probative, and credible, in light of the fact that they were detrimental to her own financial interests. (R. at 33-34, 36-37). Accordingly, this was one factor upon which Klein premised his denial of Ward's request for § 207-a(2) benefits. (R. at 39). Klein also based his determination on the fact that Beverly Ward made precisely identical assertions (regarding the origin of Mr. Ward's injury) to the Long Beach Police Department. (R. at 38); (R. at 73- 74). In its Short Form Order, the lower court set forth several arguments in support of its annulment of the City's denial of Ward's claim for supplemental disability benefits. As demonstrated below, each of these arguments is flawed and mandates reversal. B. The City's Reliance on Beverly Ward's Statements Was Neither Arbitrary Nor Capricious, Insofar as Mrs. Ward's Story Was and Still Is Credible As discussed above, a municipality has the authority to choose between conflicting sources of information in determining GML § 207-a(2) applications. (Matter o/Thomas P. Flynn, 212 AD2d at 708). So long as its reliance (on one of those sources) is not arbitrary or capricious, the court is relegated to uphold the 13 municipality's determination, and' to refrain form substituting its own judgment over the municipality's. (See Levandusky, 75 NY2d at 544). Accordingly, the only thing the lower court should have decided in this matter was whether Beverly Ward's story possessed any semblance of credibility. To the extent it did, then the City's reliance would have been "rational," and could not have been arbitrary or capricious. (See id.) The City's decision to rely on Beverly Ward's statements regarding the origin of her husband's knee injury was eminently rational, reasonable, and supported by the record. First, these statements were made against her own financial interests. (R. at 33-34,36-37). Mr. Ward asserts in his motion papers that Eaton and Klein could not have objectively believed Mrs. Ward's version of events because, "if anything, her interests are independent of Mr. Ward's since she is not entitled to any portion of a disability pension." (R. at 46 [~25]). However, as demonstrated below, this unsupported averment misconstrues the law of marital property, and fails to reflect the nature and purpose of Section 207-a(2) benefits. As the Second Department recently observed: "[i]nasmuch as a portion of [a spouse's] ordinary disability pension represents deferred compensation related to length of employment occurring during the marriage, it constitutes marital property subject to equitable distribution." (Berardi v. Berardi, 54 AD3d 982, 985, 865 NYS2d 245 [2nd Dept. 2008]) [citations omitted]). As such, only "to the extent 14 that a disability p.enSIOn constitutes compensation for personal injuries, that compensation is separate property which is not subject to equitable distribution." (Jd.) GML §207-a(2), in tum, enables a permanently disabled firefighter to be awarded, from hislher employer: "the difference between the amounts received" under his State pension, and the "amount of his regular salary or wages[,]" (Gen. Mun. §207-a(2) (emphasis added); Matter of Cook, 88 NY2d at 835). Accordingly, by its very terms, Section 207-a(2) is designed to provide lost income to disabled firefighters; not to compensate them for their injuries or for related pain and suffering. Moreover, the existing case law surrounding Section 207-a(2) makes it clear that supplemental disability benefits are subject to equitable distribution. Specifically, after granting an application for 207-a(2) benefits, municipalities must then account for "longevity pay" (i.e. step increases based on years of service) in payments made to recipients. (See Matter of Aitken v. City of Mount Vernon, 200 AD2d 667, 668, 606 NY2d 755 [2d Dept. 1994] (holding that "a disabled retired firefighter receiving payment pursuant to General Municipal Law § 207 -a(2) is entitled to longevity salary increments[,]" as "longevity pay constitutes 'regular salary or wages' under General Municipal Law § 207-a(2)"). (See also Matter of Schade v. Town of Wallkill, 235 AD2d 542, 652, NYS2d 756 .(2nd Dept. 1997) (same). In light of this longevity entitlement, there is no question that payments received by retired firefighters under GML § 207 -a(2) represent 15 "compensation related to length of employment" (Berardi, 54 AD3d at 985), and are, therefore, subject to equitable distribution. Moreover, even if initial payments made by a municipality under Section 207-a(2) are not subject to equitable distribution (which they are), it is nonetheless clear that the municipality's subsequent longevity increases are. (See Dolan v. Dolan, 78 NY2d 463, 468, 583 NE2d 908,577 NYS2d 195 [1991]). For these reasons, Beverly Ward's statements to Klein and Eaton were clearly made against her own financial interests. Furthermore, there are other reasons why Mrs. Ward's statements may have operated against her financial interests. In settlement negotiations attendant to contentious divorce proceedings, each spouse typically has an interest in inflating the other's sources of income, not deflating them. In practical terms, this provides justification (i.e. bargaining leverage) for the lower-earning spouse to increase hislher total monetary demand. Likewise, the higher-earning spouse has an interest in inflating the other's income sources to justify the minimization of hislher demand. In either scenario, however, the spouses have an interest in inflating the other's income sources. As such, it would be illogical ,for Beverly Ward to come into Long Beach City Hall and put forth a false story regarding the nature of her husband's injury. Indeed, for the reasons cited above, her statements to Klein and Eaton (if anything) had the effect of undercutting her own bargaining position, and this lent increased credibility to her statements regarding her husband's knee 16 injury. Additionally, it should be noted that Mrs. Ward accused Brian Ward of committing a crime (fraud) in order to obtain a disability retirement from the City and/or State. (R. at 33, 36). Needless to say, Mr. Ward's incarceration, where he has zero income-earning potential, would not help her bargaining position either. Finally, the lower court ignored the reality that sometimes, even during or after the most bitter of divorce cases, spouses (and ex-spouses) reconcile. The Wards' divorce was not finalized at the time Mr. Ward applied for 207-a(2) supplemental disability benefits (R. at 70). Had the two reconciled, Mrs. Ward would have found herself deprived of the supplemental wages afforded by GML § 207 -a(2) benefits. Further, the lower. court erred by failing to consider the fact that Beverly Ward told the Police the exact same story that she told to Eaton and Klein. (R. at 38 [~ 16]; 74). This indisputably lent credibility to Mrs. Ward's version of events, insofar as it is a crime to make or file a false police report. In its assessment of Mrs. Ward's credibility, it was clear error on the part of the lower court to ignore . such objective indicia of truthfulness. Similarly, the court erred by glossing over the City's reliance on same when it denied Mr. Ward's application. Clearly, this reliance was logical, and the court should have accounted for this when it measured the City'S conduct. 17 C. Even Assuming, Arguendo, that Brian Ward's Account Was Credible, the Court Should Have Deferred to the City's Judgment After the Court Tacitly Conceded that Beverly Ward's Story Had Some Semblance of Credibility In situations where substantial evidence supports more than one position (on any given issue), courts are required to defer to the government's choice, once it selects a position. (See Ridge Road Fire District v. Schiano, 16 NY3d 494, 947 NE2d 140, 922 NYS2d 249 [2011 D. Thus, even assuming, arguendo, that Brian Ward's version of events was credible, the lower court improperly discarded the City's rational reasons (supra) for denying his application. This alone constitutes reversible error. Ridge Road involved a firefighter who claimed to suffer a work-related injury, and who subsequently applied for GML § 207-a.benefits in connection with that injury. (See id. at 497). Thereafter, the Fire District denied the application based on its determination that the fire fighter's injury was caused by an off-duty incident. (See id.) In accordance with a collective bargaining agreement clause, the fire fighter then requested a hearing to contest the denial of benefits. At the hearing, both sides presented conflicting evidence in accordance with their respective theories of causation. (See id. at 498). After the hearing officer ruled in the firefighter's favor, the Fire District commenced a series of appeals. The last of those appeals led directly to Ridge Road decision, wherein the Court held as . follows: 18 It is of no consequence that the record also indicates that there· was evidence supporting [the firefighter's] contention. Quite often there is substantial evidence on both sides. The applicable standard here was whether the District's denial of benefits was supported by substantial evidence. Thus, the dissent errs in suggesting that, because either side might reasonably have prevailed, we are required to uphold the hearing officer's ruling. To the contrary, since, as all Judges of the Court agree, there is unquestionably substantial evidence I supporting both sides' positions, the hearing officer acted arbitrarily in deciding that none supported the District's. Ridge Road, 16 N.Y.3d at 500 (emphasis added). Notably, the above holding is consonant with well settled law surrounding GML § 207-a, which, as discussed above, affordsthe government the "authority to ... credit one physician's testimony over that of another[.]" (Matter o/Thomas P. Flynn, 212 AD2d at 708). In the present case, after criticizing the City'S reliance on Beverly Ward version of events, the Supreme Court held: "Indeed, it is just as reasonable to be suspicious when one spouse undermines another to public officials than not, and there is no indication in the record that either Eaton or Klein ever asked her why she had come forward. Had such an inquiry been made it may have revealed a motive to harm her husband .... " (R. at 8-9) (emphasis added). 1 The "substantial evidence" standard applied in Ridge Road is analogous to the "arbitrary and capricious" used in Article 78 proceedings, such as the instant one. (See Johnson v. Ambach, 74 AD2d 986, 987, 426 NY2d·178 [3d Dept. 1980] ["Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious test."]). 19 The above passage displays the extent to which the court substituted its own judgment for that of the City. In fact, the court's reasoning (in holding that it was "just as reasonable to be suspicious" of Beverly Ward) implicitly concedes that the City's position was also reasonable. In these scenarios, the Court is required to defer to the municipality. (See Ridge Road, 16 N.Y.3d at 500; Levandusky, 75 NY2d at.544 ["a court m~y not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable."] [internal quotation marks and citation omitted]). In the present case, the City was placed in a position where it had to choose between Mr. and Mrs. Ward's conflicting stories. Given the court's tacit acknowledgement that the City's choice was rational, it was required to respect this decision, even if it doubted or altogether disagreed with it. Its failure to do so effectively usurped the City's authority to determine GML § 207-a(2) applications. As such, the court's Order and corresponding Judgment should be reversed for this reason, alone. Moreover, the lower court improperly adopted Mr. Ward's subjective and conclusory assumptions regarding the motivation for Beverly Ward's conduct. In this proceeding, Mr. Ward essentially claims that, because Beverly W~rd's statements were inherently biased, the City's decision to deny him Section 207- a(2) benefits was arbitrary and capricious. In this vein, Mr. Ward points out that he and Mrs. Ward are parties to a divorce proceeding. (R. at 70 [~ 6]). In Mr. 20 Ward's view, this fact alone disqualifies her, altogether, as a credible source of information. (R. at 45-46 [~~ 23, 26]). Remarkably, he goes so far as to state that Beverly Ward's actions are those of "a woman scorned[,]" adding that "[t]he old adage: Hell hath no fury like a woman scorned certainly rings resoundingly true here." (R. at 45, 46 [~23]). Needless to say, this argument assumes that Mrs. Ward's actions simply adhered to some antiquated gender-stereotype. Likewise, it overlooks that Beverly Ward could have actually told the truth to Eaton and Klein regarding the origin of her husband's injury, despite the divorce litigation, and irrespective of her gender. The lower court also overlooked this point, and its misgivings with respect to Mrs. Ward's motives (R. at 9) had the unintended and unfortunate effect of adopting Mr. Ward's objectionable statements. The lower court also held: "there is no indication in record that Eaton or Klein ever asked [Mrs. Ward] why she had come forward. Had such an inquiry been made it may have revealed a motive to harm her husband, and that disclosure was not against her own economic interests. She may very well have been advised I by an attorney that she was not going to be entitled to equitable distribution of Mr. Ward's job-related accident disability pension, which to the extent it represents compensation for personal injuries, is considered the separate property of the pension beneficiary." (R. at 9). First, and to reiterate, § 207-a(2) pensions are marital property and subject to equitable distribution. (See Section II(B), supra). 21 Moreover, the remainder of the court's observation amounts to unsupported conjecture; there was and is no way for the court to know how Mrs. Ward was advised by her divorce attorney. In fact, it is just as likely that the advice provided by this hypothetical attorney was in accordance with the City's position (see Section III(B), supra), which is that Section 207-a(2) benefits are martial property and subject to equitable distribution. Either way, the communication at issue, even if made, was between an attorney at;ld a client, and therefore privileged. It was eminently improper for the court to ascribe malevolent motives to Beverly Ward based on a hypothethical attorney-client communication that is undiscoverable to begin with. Moreover, the co~rt's reasoning overlooks the jostling and posturing that accompany contentious divorces. As discussed above, spouses have an interest in inflating the other's sources of income in these situations, not deflating them. (See id). As demonstrated by the Order, the court failed to observe, evaluate, or even mention this reality. (R. at 9). This failure to even consider the City's reasoning displays a clear lack of deference to the City, which runs contrary to the court's mandate. Along those lines, the court's elevation of the (purely theoretical) advice provided by Mrs. Ward's attorney, over the realities attendant to pre-divorce posturing, was clear error. To that end, the court used facts and hypothetical scenarios, in selective fashion, to formulate its own opinion of Beverly's Ward's 22 truthfulness and then eleyate that opinion over the City's. However, as the court duty-bound was to evaluate the reasons advanced by the City (with the information available to it at