Summary
In West, it was noted that the plaintiff, a former detective with the New York City Police Department, was receiving an accidental disability retirement allowance of $21,733.55 per year, but would have been entitled to only $12,596.
Summary of this case from Pilny v. PilnyOpinion
December 16, 1985
Appeal from the Supreme Court, Queens County (Buschmann, J.).
Judgment modified, on the law and the facts, by striking the words "the sum of $60.00 per week" from the second decretal paragraph thereof, and substituting therefor the words "the sum of $181.12 per week". As so modified, judgment affirmed insofar as appealed from, without costs or disbursements.
Plaintiff, a former detective with the New York City Police Department, is receiving an accident disability pension of $21,733.55 per year as a result of a heart condition. We remitted the case to the Supreme Court, Queens County, for a hearing to determine the nature and status of plaintiff's disability pension and of a lump-sum payment plaintiff received as part of his pension payments, in accordance with the principles of Damiano v Damiano ( 94 A.D.2d 132), and Newell v Newell ( 121 Misc.2d 586).
At the hearing on remittitur, plaintiff's pension expert testified that the regular pension plaintiff would have been entitled to (had he retired when he did, without having incurred a heart condition) was $12,596.68 per year. To the extent of this amount, therefore, plaintiff's disability pension represents deferred compensation, is indistinguishable from a retirement pension, and is subject to equitable distribution (Newell v Newell, supra; Damiano v Damiano, supra). Considering the evidence adduced at trial in light of the statutory criteria, we award defendant 50% of that part of plaintiff's pension which represents deferred compensation, i.e., $6,298.34 per year, or $121.12 per week, which award is reflected in our modification of the second decretal paragraph.
The statement in the memorandum of Justice Buschmann, dated August 2, 1984, to the effect that plaintiff is relieved of the obligation to pay the expenses on the marital home, has no binding effect, since our remittitur was limited to a consideration of plaintiff's pension. In effect, Justice Buschmann found that defendant violated that part of the judgment which directed sale of the marital premises forthwith. Assuming such is the case, plaintiff's remedy is a motion at special Term for appropriate relief.
Similarly, Justice Buschmann's allocation of defendant's pension was not the subject of our remittitur and has no binding effect. Plaintiff never appealed from the judgment, and, therefor, that issue is not before us. In any case, there is insufficient evidence in the record to arrive at an accurate valuation of defendant's pension.
We have considered defendant's other contentions and find them to be without merit. Gibbons, J.P., Bracken, Niehoff and Rubin, JJ., concur.