Opinion
February 22, 1996
Appeal from the Supreme Court, New York County (Charles Ramos, J.).
The IAS Court properly determined that enactment of the statutory scheme that changed the benefit structure of the Police Officer's Variable Supplements Fund (POVSF) ( see, Administrative Code of City of N.Y. § 13-268 et seq.) from a discretionary variable to a defined benefit scheme (L 1988, ch 247) did not diminish or impair any benefit of membership in the police pension system in violation of article V (§ 7) of the New York Constitution ( see, Poggi v. City of New York, 109 A.D.2d 265, affd on other grounds 67 N.Y.2d 794), did not violate the Contract Clause of United States Constitution, article I, § 10 ( see, United States Trust Co. v. New Jersey, 431 U.S. 1), and did not violate the Takings Clause of New York Constitution, article I, § 7 ( see, Crown v. Trustees of Patrolmen's Variable Supplements Fund, 659 F. Supp. 318, affd 819 F.2d 47). In Poggi ( supra, at 270), wherein this Court, in rejecting a New York Constitution, article V, § 7 challenge to a variable supplements fund (VSF) for retired police superior officers, specifically found that "the controlling statutory language clearly shows that the variable supplements payments are independent of, and were not intended to diminish or impair, any benefit under the Pension Fund contract". Although the Court of Appeals affirmed Poggi on other grounds and did not reach the issue of whether the VSF is a pension or retirement benefit, this Court has consistently upheld the continuing authority of Poggi regarding POVSF payments by determining that the VSF is not a pension fund benefit because the statute creating the POVSF specifically provides that it is not to be construed as a pension fund ( Matter of Duffy v Dinkins, 190 A.D.2d 619), and that POVSF payments are to serve as supplemental monies paid in addition to pension benefits and do not constitute a pension or retirement benefit ( Matter of Bergamine v. Patrolmen's Benevolent Assn., 202 A.D.2d 201, 202, lv denied 83 N.Y.2d 758).
Plaintiffs herein, who were represented by the Patrolmen's Benevolent Association (PBA) during contract negotiations for the 1969-1971 collective bargaining period, are also bound by the agreement between the City and the PBA, made on their behalf by the unions designated as their collective bargaining agents, which provided that POVSF payments are not a contractual pension benefit within the ambit of article V (§ 7) of the New York Constitution ( Schacht v. City of New York, 39 N.Y.2d 28).
We have considered plaintiffs' remaining arguments and find them to be without merit.
Concur — Sullivan, J.P., Ellerin, Nardelli and Williams, JJ.