Decided March 4, 2008.
Michael Block, Esq., Sullivan Papain Block McGrath Cannavo P.C., NY NY, Petitioner.
Michael Cardozo, Corp Counsel of New Yor, NY NY by Karen Seemen, Esq., Respondent.
Alan J. Callahan (petitioner), individually, and as Executor of the Estate of Joseph Callahan (Mr. Callahan), deceased, seeks a judgment, pursuant to Article 78 of the CPLR, directing respondents, The New York City Fire Department Pension Board of Trustees (Pension Board) and Robert C. North, Jr., Chief Actuary of the City of New York (Chief Actuary) to: rescind the premature and erroneous "finalization" of the accidental disability pension of Mr. Callahan, a deceased New York City Firefighter; and, award the appropriate "death gamble" lump sum payment to Mr. Callahan's beneficiaries after the rescission of the erroneous pension finalization. Respondents, in their verified answer, oppose the instant petition because: the petition fails to state a cause of action under Article 78 of the CPLR; petitioner has not sufficiently demonstrated that respondents failed to perform a duty as required by law, or that their determination to deny Mr. Callahan's beneficiaries the death gamble benefit was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious or an abuse of discretion; and, respondents' determination was in all respects lawful and proper and in accordance with all applicable laws, rules and regulations.
The instant petition arises from the pension benefits received by Mr. Callahan upon his retirement form the New York City Fire Department (FDNY). Mr. Callahan applied for and was granted a service retirement in July 2002. In a letter dated August 20, 2002 [exhibit A of petition and exhibit 22 of verified answer], Mr. Callahan was informed that he would receive a monthly gross partial payment of $4,475.00, less court-ordered payments to his former wife of $2,162.96, until his pension was finalized. Further, the letter informed him that, upon finalization, there would be a "lump sum payment retroactive to [his] date of retirement, representing the difference between the partial payments that should have been made."
The petition avers that when Mr. Callahan retired on July 30, 2002, there was no current Collective Bargaining Agreement (CBA) in place governing his salary. Years later the new CBA would be agreed upon and ratified. Petitioner contends, in ¶ 9 of the petition, that "[i]t was and remains the consistent custom and practice of the [Pension Board] to calculate the pension of a retired firefighter at 90% of its appropriate amount whenever a firefighter retires at a time that a [CBA] covering the salary and benefits of said firefighter has previously expired and there is no current [CBA] in effect." In support of this contention, petitioner submits page 28 of the March 1999 FDNY Pension Fund Handbook (Pension Handbook) [exhibit B of petition] which pertains to the "partial payment" policy. It states:
After you have filed for retirement, you will not begin receiving your regular retirement check until your retirement allowance is finalized. In the interim, you will receive a partial pension of approximately ninety percent (90%).
Once your retirement allowance is finalized, you will begin receiving your full retirement checks. If you are entitled to a retroactive adjustment, you will receive a one-time payment.
In addition, the Pension Handbook states:
Before finalization, you may request information about the cost of the various options available to you. Whether you select an option or choose the maximum pension benefit, your pension will be finalized as long as the contract covering your retirement date has been ratified.
At the time Mr. Callahan retired under a regular "service" retirement he also had pending an application for "service incurred disability retirement," based upon "loss of lung capacity and shortness of breath" received in the line of duty [exhibit 21 of verified answer]. His application was granted on December 20, 2002, for "accident disability" retirement [exhibit C of petition and exhibit 24 of verified answer]. Thereafter, by letter dated January 23, 2003, Mr. Callahan was advised that his "Monthly Partial (90%) Pension Benefit has been adjusted to the ACCIDENTAL DISABILITY RETIREMENT granted to you" [exhibit D of petition and exhibit 25 of verified answer], which increased his monthly pension benefit to $6,580.00, less $2,162.94 in court ordered payments to his former wife.
Petitioner alleges that despite that the CBA governing Mr. Callahan's final
salary and compensation had not yet been ratified, respondents nonetheless improperly finalized his pension in or about October 2004. As a result of this finalization, Mr. Callahan's beneficiaries were deprived of their potential for a substantial lump sum death gamble benefit payment, which is generally available to a firefighter's beneficiaries when the firefighter dies prior to the finalization of his or her pension. The death gamble is a statutory creation, governed by New York City Administrative Code § 13-346 (d), which states:
d. Upon the death of an original plan member not subject to article eleven who has completed the period of service, as elected by him or her for retirement, but who shall not have filed application for retirement or who, having filed application for retirement shall die prior to the first payment on account of the benefits thereunder, there shall be paid to his or her estate, or to such person as he or she has nominated or shall nominate by written designation duly executed and filed with such board:
1. His or her accumulated contributions, that is his or her contributions without interest; and in addition thereto,
2. The present value of the pension he or she would have received if he or she had become entitled to a pension for service on the day immediately preceding the day of his or her death.
The Pension Handbook, at page 16 [exhibit E of petition], describes the death gamble benefit as follows:
If you are eligible for service retirement at the time of your death, the benefit is computed as though you had retired the day before your death. Your designated beneficiary will be eligible to receive an amount equal to the reserve for the service retirement allowance that would have been payable, had you retired on the day before your death.
Petitioner contends that given the Pension Fund's longstanding policy to forestall finalization until a ratified contract was in place, Mr. Callahan's pension finalization prior to such ratification was an error. The death gamble benefits should have been paid to his beneficiaries (his son and daughter only, since his former wife predeceased him) as if his pension had never been finalized and the first certified payment never made. As a result of the erroneous finalization, neither petitioner nor his sister, Krista Sierra, have received any portion of the death gamble benefit and all pension payments otherwise have ceased.
Respondents, in their verified answer, describe the process by which Mr. Callahan's pension was finalized, on September 8, 2004, when the Office of the Chief Actuary certified Mr. Callahan's retirement and selection of the maximum pension allowance [exhibit 27 of verified answer]. The certification was made after receipt by the Chief Actuary of an August 11, 2004-comprehensive statement of facts from the Pension Board concerning Mr. Callahan's retirement. This communication requested that the Pension Board be advised "of the amount of benefits to be paid under each of the various options permitted under section 13-369 and of the amount to be transferred to the Retirement Allowance Reserve Fund in accordance with Section 13-325 [exhibit 26 of verified answer]." Subsequently, Mr. Callahan received a letter from the Pension Payroll Unit, dated October 27, 2004 [exhibit 29 of verified answer], which informed him of the certification of his pension as follows:
Please be advised that the Actuary's Office has certified that the annual retirement allowance payable to you under the MAXIMUM ALLOWANCE amounts to $94,476.39. This amount includes the deduction for your outstanding loan at retirement, if applicable. Our records indicate that you have selected the MAXIMUM
ALLOWANCE. Therefore, at the end of October 04 you will receive your first full pension check, which includes pension monies retroactive to your retirement date.
Please note that once your Electronic Funds Transfer is sent, or your check has been mailed from the Office of the Comptroller at the end of October 04 your option selection CAN NOT be changed.
On April 19, 2005, approximately six months after the pension certification, Timica Wilson, a Pension Unit employee, informed Fatima Sandoval, FDNY's Supervisor of the Pension Payroll, by e-mail, that Mr. Callahan had been improperly certified. The e-mail [exhibit 35 of the verified answer] states, in relevant part:
Joseph T. Callahan retired on 7/30/02. His pension was finalized in October 2002, however, because there was no contract for this time period, he should not have been finalized.
Therefore, as per Albert Connolly please change his status code from AO to AF, to reflect a partial pension. In addition, please reduce his monthly pension to $6,300, which is about 80% of $94,476.39, the maximum allowance and recoup10% of the $6300 for the overpayment. The adjustment should take effect the month ending April, 2005.
More than five months later, Mr. Callahan died on October 1, 2005. Thereafter, the respondent Pension Board held three separate meetings on April 28, 2006, May 24, 2006 and June 23, 2006, where, respondent Chief Actuary was present, and the issue of Mr. Callahan's finalization was discussed. The Chief Actuary opposed payment of the death gamble benefit to Mr. Callahan's beneficiaries [exhibits 37, 38 and 39 of verified answer]. He contended that because Mr. Callahan's demonstrated an intent to have his pension finalized prior to ratification of the relevant CBA, this finalization negated the availability of death gamble benefit to Mr. Callahan's beneficiaries. At the June 23, 2006 Pension Board meeting, Mr. North, the Chief Actuary, stated, at p. 21, l. 20 to p. 22, l. 9 [exhibit 39 of verified answer]:
I believe that if you just take the series of coincidences on this case, they seem to support from the view of the actuary that this, in fact, was the member's desire, was the member's interest and was consistent with what his life situation was at the time, and I remain convinced that our certification was proper and that the payment of these benefits to other beneficiaries would be in excess of those provided for by the law, and I cannot certify to such.
Ultimately, at the June 23, 2006 Pension Board meeting, a motion was made to pay death gamble benefits to the Callahan beneficiaries. The motion failed because a majority was not in favor.
Petitioner, in reply to the verified answer, submitted his own affidavit, as well as the affidavits of: James Slevin, a Trustee of the Pension Board and Vice President of the Uniformed Firefighter's Association (UFA), the firefighter's union; Louis Sforza, a retired firefighter and former UFA President, who attends Pension Board meetings as a consultant to the UFA; and, Anthony J. Morisano, Mr. Callahan's former attorney [exhibits J, L, N, and P of reply affirmation]. They all claim that Mr. Callahan never intended to request finalization prior to ratification of a new CBA. Mr. Slevin states, in relevant part:
6.In fact, the regular practice back in 2000 and 2002 was for firefighters who intended to retire to fill out all the appropriate beneficiary forms, including the forms choosing the applicable option which applied to their prospective pension before they actually retired. Those forms were regularly held by the Fire Department Payroll and Pension office and not sent to the office of the [Chief Actuary] for finalization until the appropriate labor contract was in effect
7.In the case of Joseph Callahan, it is clear that the Payroll and Pension office of the Fire Department erroneously and inadvertently prematurely sent Callahan's documents to the Chief Actuary requesting certification for finalization. There is simply no evidence that Callahan himself requested such action and the Payroll and Pension office has admitted that the papers were sent to the Chief Actuary in error. In addition, Mr. Sforza states, in relevant part:
7.I can unequivocally state that in all the years that I have been a firefighter, a member of the Executive Board of the Uniformed Firefighters Association and a consultant on pension issues, I have never heard of nor learned of any firefighter, otherwise eligible for the death gamble benefit, who chose to have his pension "finalized" prior to the ratification of a collective bargaining agreement governing his date of retirement.
8.It simply makes no sense that any firefighter would knowingly seek finalization of his pension and forfeit the possible death gamble benefit for his family to receive an additional ten (10%) percent benefit in his monthly pension check for the limited time between such premature finalization and the ratification of the labor contract. Furthermore, firefighters who are not finalized until the labor contract is completed receive all of their retroactive pension money shortly after proper finalization.
The Court, in Marsh v Hanley ( 50 AD2d 687, 687 [3rd Dept 1975]), articulated that the standard for judicial review in an Article 78 proceeding is "to scrutinize the record and determine whether the decision of the administrative agency is supported by substantial evidence and not arbitrary and capricious ( Matter of Pell v Board of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroncek, Westchester County, 34 NY2d 222)." ( See Consolation Nursing Home, Inc. v Commissioner of New York State Dept. of Health, 85 NY2d 326, 331; Sullivan County Harness Racing Ass'n v Glasser, 30 NY2d 269. Sewell v City of New York, 182 AD2d 469 [1st Dept 1992], lv denied 80 NY2d 756). If the reviewing court finds that the agency determination has a rational basis, supported by substantial evidence, such determination must be sustained ( Halperin v City of New Rochelle , 24 AD3d 768 [2nd Dept 2005]; Dawson v Zoning Board of Appeals of Town of Southold , 12 AD3d 444 [2nd Dept 2004]). When the decision under review is not arbitrary and capricious, the reviewing court in an Article 78 proceeding is prohibited from substituting its own judgment for that of the agency ( Morley v Arricale, 66 NY2d 665; Purdy v Kreisberg, 47 NY2d 354; Pell at 230-232).
With respect to pension determinations, it is well settled ( Matter of Mahoney v McGuire, 107 AD2d 363, 366 [1st Dept 1985] affd 66 NY2d 622), that the trustees of public employee pension board have "the sole responsibility of determining if, and how much of a pension shall be granted" and, in accordance with the general rule governing agency determinations," [t]he due exercise by respondent Board of Trustees of their discretion in acting upon such application' ( Matter of Conlon v Murphy, 24 AD2d 737 [1st Dept 1965]), should not be interfered with unless it can be shown to be arbitrary and capricious, or an abuse of discretion ( Matter of Pell v. Board of Educ., 34 NY2d 222)." In Benson v City of New York ( 15 Misc 3d 1022 , 1026 [Sup Ct, Kings County 2007]), the Court noted that "[i]t is the Pension Board, and the Pension Board only, which possesses that authority to grant or deny a firefighter's application for a . . . pension. The City, its employees or any individual Pension Board member does not possess the authority to effectively veto a determination by the Pension Board."
It is axiomatic that "the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld" ( Howard v Wyman, 28 NY2d 434, 438). ( See Gaines v Div. of Housing and Community Renewal, 90 NY2d 545; Bernstein v Poia, 43 NY2d 437; Lower Manhattan Loft Tenants v New York City Loft Bd., 104 AD2d 223 [1st Dept 1984], affd 66 NY2d 298; Tommy and Tina, Inc. v Dept. of Consumer Affairs of the City of New York, 95 AD2d 724 [1st Dept 1983], affd 62 NY2d 671). However, "[i]t is well settled that an agency acts arbitrarily and capriciously by failing to comply with its own rules and regulations" ( Church v Wing, 229 AD2d 1019, 1020 [4th Dept 1996]). ( See Mullen v County of Suffolk Police Dept., 307 AD2d 1036 [2nd Dept 2003]).
Moreover, although administrative agencies are to be afforded great deference with regard to interpreting statutes and regulations that they are responsible for enforcing or applying, a court may, nonetheless, find that an agency determination is arbitrary and capricious where the agency "neither adhered to its own prior precedent nor indicated its reasons for reaching different results on essentially the same facts" ( 2084-2086 BPE Associates v State of New York Div. of Housing and Community Renewal, 15 AD3d 288 [1st Dept 2005]). Stated differently, "[w]here two cases are so similar as to require the same treatment, to treat them differently would be evidence that the determination should be considered arbitrary and capricious" ( Buffalo Civic Auto Ramps, Inc. v Serio , 21 AD3d 722 , 725 [1st Dept 2005]). In 721 Ninth Avenue, LLC v New York State Div. of Housing and Community Renewal ( 8 AD3d 41, 43 [1st Dept 2004]), an administrative agency's determination that a building was subject to the Rent Stabilization Code was held to be arbitrary and capricious when the agency "failed to follow a prior determination in a proceeding with remarkably similar facts or explain its reasons for reaching a contrary result." The Court, in Civic Ass'n of Setaukets v Trotta ( 8 AD3d 482 , 483 [2nd Dept 2004]), found that a zoning board's determination was arbitrary and capricious because the board granted an application for a zoning variance identical to an application it had denied a year earlier. In Klein v Levin ( 305 AD2d 316, 318 [1st Dept 2003], lv denied 100 NY2d 514), an agency's determination denying petitioner's application for a public adjuster's license was deemed arbitrary and capricious because "a comparison of the facts of petitioner's case with [another agency determination which had granted such a license to a different applicant] reveals that the two cases are virtually indistinguishable and that, if anything, the slight factual differences that do exist make petitioner's case the more compelling for granting his license application." (See Waylonis v Baum, 281 AD2d 636, 638 [2nd Dept 2001]; 72A Realty Associates v New York City Environmental Control Bd., 275 AD2d 284, 287 [1st Dept 2000]; Los-Green, Inc. v Weber, 156 AD2d 994 [4th Dept 1989], lv denied 76 NY2d 701; Uniondale Union Free School Dist. v Newman, 140 AD2d 612, 612-613 [2nd Dept 1988]; Stop Polluting Orleans County, Inc. v Crotty, 3 Misc 3d 1111 (A) [Sup Ct, Albany County 2004]; Cittadino v Bellacosa, 136 Misc 2d 999, 1002 [Sup Ct, New York County 1987]).
In the instant matter, the Court finds that the Pension Board's determination not to correct the erroneous finalization of Mr. Callahan's pension and distribute the resulting death gamble benefit to Mr. Callahan's beneficiaries contravenes the Pension Board `s prior precedents, rules, and procedures for finalization of firefighter pensions when a CBA has expired and a new CBA has yet to be ratified. It is undisputed that it has been the longstanding policy and practice of the Pension Board to delay the finalization of a firefighter's pension when a ratified CBA is not in place at the time the firefighter retires. The Pension Board, the agency responsible for administering FDNY pension benefits, interpreted the statutory death gamble provision, that a firefighter must have died "prior to the first payment on account of the benefits thereunder" to become eligible for death gamble benefits, to apply to firefighters who have only been receiving preliminary "partial payments," because of the expiration of the CBA, and have not yet received a post-finalization pension payment. The "partial payment" system allows a firefighter to collect substantial partial payments subsequent to his or her retirement, but prior to the finalization of his or her pension, because a new CBA has not yet been ratified.
A limited exception to this policy apparently exists where a firefighter requests, for specific reasons, that he or she be finalized prior to the ratification of a new CBA. The only instances of such exception, noted by the Chief Actuary, and not by any members of the Pension Board, were a few admittedly rare cases where a member allegedly found out that he or she had a terminal illness and wanted to be finalized prior to his or her death, even where a ratified CBA was not in place. However, such instances of finalization prior to CBA ratification appear to be further limited, according to the Pension Board, in that they most likely only would occur, and actually inure to a firefighter's benefit, when a firefighter was not only terminally ill, but did not have enough years in service to qualify for a regular service retirement. It is further undisputed that no such circumstances were present in the instant case, thereby rendering the finalization of Mr. Callahan's pension by the Pension Board entirely out of step with its established precedent that pensions are not to be finalized prior to CBA ratification absent a specific request from the firefighter, generally based upon exigent and compelling circumstances, such as a terminal illness. The Pension Board also failed to determine why such deviation from established precedent was warranted given the conceded dearth of any evidence of Mr. Callahan's specific request that the Pension Board make an exception for him with respect to finalization.
Mr. Callahan merely completed the standard paperwork necessary to retire, both under a regular service retirement and then an accidental disability retirement. He received partial payments prior to finalization of his pension in compliance with the "partial payment" rule. There is no evidence that he received partial payments absent the submission of the required retirement paperwork. Moreover, there is admittedly no evidence that Mr. Callahan made any specific request to the Pension Board to finalize his pension in contravention of its longstanding policy that such pension would not be finalized until the pending CBA was ratified. The Chief Actuary speculated that such intent could be gleaned from the existence of a court-ordered distribution of certain pension benefits to Mr. Callahan's former wife. Mr. Callahan's obligation to choose the maximum benefit amount pursuant to a qualified domestic relations order [exhibit 7 of verified answer] provided no rational basis for the Pension Board's decision. The Pension Handbook makes it clear that "[w]hether you select an option or choose the maximum pension benefit, your pension will be finalized as long as the contract covering your retirement date has been ratified " [ emphasis added ]. The plain meaning of this policy provision is that a firefighter is free to take steps to finalize his or her pension, including choosing a pension payment option, but such pension will not be finalized until the CBA covering the firefighter's retirement date has been ratified. Therefore, it is of no moment that Mr. Callahan was obligated to choose a certain pension option by court order and did so choose. In any event, his 90% partial payments took his qualified domestic relations order into account prior to any finalization. Further, to the extent Mr. Callahan allegedly never complained of such finalization, either of his own accord or through an attorney when he was represented by counsel with respect to an unrelated pension overpayment matter concerning his former wife, there is, again, no evidence that such finalization resulted from a specific request by Mr. Callahan, or that, more than two years after officially retiring, he was aware of the status of the CBA or the impact of the mistaken finalization on his death gamble benefits and specifically acquiesced to finalization or otherwise waived his death benefit rights.
Moreover, it was the Pension Board, and not Mr. Callahan himself, who forwarded such paperwork to the Chief Actuary for finalization, an act which was later determined by a Pension Board employee to be an error given the absence of any current ratified CBA. Subsequent to the Pension Board's identification of such error, the finalized pension payments were directed to be reduced back to partial payments. Mr. Callahan died shortly thereafter. Nonetheless, the Pension Board voted to disallow death gamble benefits to Mr. Callahan's beneficiaries, despite: the Pension Board's longstanding policy not to finalize pensions pending ratification of a CBA; the failure of Mr. Callahan to fall into the limited exception to such rule (the alleged "terminally ill firefighter" exception previously discussed or some variation thereof); and, the admitted absence of any evidence that Mr. Callahan otherwise specifically requested finalization, other than his submission of standard retirement paperwork, which, according to members of the Pension Board including Mr. Slevin, is often filed concurrent to a firefighter's retirement, but well in advance of any pension finalization particularly when a CBA ratification is pending and such paperwork will be held in abeyance until such ratification occurs.
The Pension Board's determination to deny death gamble benefits to Mrs. Callahan's beneficiaries contravened the longstanding policy, procedure and precedents of the Pension Board. It was apparently based in part upon the Chief Actuary's wholly unsupported speculation that Mr. Callahan elected finalization in sufficiently specific terms to override such established policy and fall into the limited exception to the general rule. Courts have held that to conclude that an individual waived a substantial right or entitlement, such as death gamble benefits for his or her beneficiaries, the waiver must have been clear, unequivocal and deliberate. The Court, in Werking v Amity Estates, Inc. ( 2 NY2d 43, 52), held that," [a] waiver is the intentional relinquishment of a
known right with both knowledge of its existence and an intention to relinquish it." (Whitney on Contracts [4th ed., 1946], p. 273.)." ( See Silverman v Silverman, 204 NY2d 41, 47 [1st Dept 2003]; Friedman v Lillie Einsidler Trust No. 201, 248 AD2d 275 [1st Dept 1998]). Less than four months ago, in Golfo v Kycia Associates, Inc. ( 45 AD3d 531 , 533 [2nd Dept 2007]), the Court instructed that, "[a] waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence' (Peck v Peck, 232 AD2d 540 [2nd Dept 1996]). Rather, there must be proof that there was a voluntary and intentional relinquishment of a known and otherwise enforceable right (see Peck v Peck, 232 AD2d 540 [2nd Dept 1996])."
Therefore, in the instant case, there is no evidence of any waiver by Mr. Callahan of the right of his beneficiaries to receive a death gamble benefit. Thus, respondents had no rational basis to conclude that Mr. Callahan elected finalization of his pension. It is proper for the Court to vacate as arbitrary and capricious the Pension Board's determination to deny death gamble benefits to Mr. Callahan's beneficiaries, and order the granting of death gamble benefits to Mr. Callahan's beneficiaries.
Accordingly, it is
ORDERED, that the petition of Alan J. Callahan, individually, and as Executor of the Estate of Joseph Callahan, Deceased, for a judgment pursuant to Article 78 of the Civil Practice Law and Rules is granted; and it is further
ORDERED, that the finalization of the accidental disability pension of Joseph Callahan, Deceased, by the New York City Fire Department Pension Board of Trustees is rescinded; and it is further
ORDERED, that the June 23, 2006 determination by the New York City Fire Department Pension Board of Trustees to deny the appropriate death gamble lump sum payment to the beneficiaries of Joseph Callahan, Deceased is vacated; and it is further
ORDERED, that the New York City Fire Department Pension Board of Trustees is directed to award the appropriate death gamble lump sum payment to Alan J. Callahan and Krista Sierra, the beneficiaries of Joseph Callahan, Deceased; and it is further
ORDERED, that this matter is remanded to the New York City Fire Department Pension Board of Trustees for any and all further proceedings necessary to calculate and effectuate the amount and distribution of the appropriate death gamble benefits to Alan J. Callahan and Krista [*10]Sierra, the beneficiaries of Joseph Callahan, Deceased.
This constitutes the Decision and Order of the Court.