Opinion
Decided July 1, 1982
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, PAUL J. YESAWICH, JR., J.
Kevin F. McDonough for James Harzinski and others, appellants.
Rodney A. Richards for Village of Endicott, respondent.
Kenneth Auerbach, Corporation Counsel, for City of Binghamton, respondent.
Robert Abrams, Attorney-General ( Alan W. Rubenstein and Shirley Adelson Siegel of counsel), for Edward Regan, as Comptroller of the State of New York, and in his statutory capacity pursuant to section 71 of the Executive Law.
In Harzinski v Village of Endicott: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [b]), order modified, with costs to appellants, to the extent of reinstating the provision of the order of Supreme Court, Broome County, declaring that plaintiffs are entitled to salary increases given to active firemen and, as so modified, affirmed. Appellants, disabled firemen, are entitled to salary increases where, as here, such increases were negotiated after the award of the disability allowance ( Matter of Mashnouk v Miles, 55 N.Y.2d 80). We agree with the Appellate Division, however, that the benefit should be computed using the "zero option" retirement allowance inasmuch as "amounts received" includes the package of benefits received by the firemen upon retirement. Finally, we find appellants' constitutional arguments to be unavailing.
In Russo v City of Binghamton: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [b]), order modified, with costs to appellants, by granting plaintiffs' motion for partial summary judgment to the extent of declaring that plaintiffs are entitled to salary increases granted to active firemen and, as so modified, affirmed. Appellants, disabled firemen, are entitled to salary increases where, as here, such increases were negotiated after the award of the disability allowance ( Matter of Mashnouk v Miles, 55 N.Y.2d 80). We agree with the Appellate Division, however, that the benefit should be computed using the "zero option" retirement allowance inasmuch as "amounts received" includes the package of benefits received by the firemen upon retirement. Finally, we find appellants' constitutional arguments to be unavailing.
Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER. Taking no part: Judge GABRIELLI.