YONKERS, NY — September 13, 2017 —Attorneys of the firm of Eisenberg & Schnell LLP yesterday filed legal suit against the City of Yonkers demanding a jury trial on behalf of Plaintiffs Robert Fumarelli, William Parker, Arthur Rivera, Stephen Ronan, Thomas Spaun, among other persons similarly situated. The nature of the legal action is based on the fact that for approximately thirty-five years, the City of Yonkers (CoY) paid its firefighters and fire officers, collectively to be referred to as “firefighters” herein, who became permanently disabled in the line of duty a disability payment pursuant to New York General Municipal Law (GML) §207-a(2). This payment was equal to the difference between the firefighter’s full “regular salary or wages” and the amount the firefighter receives as a New York State and Local Retirement System/New York State and Local Police and Fire Retirement System (“NYSLRS”) allowance for accidental disability retirement or retirement for disability incurred in the performance of duty. Yonkers paid these GML §207-a(2) payments pursuant to the statutory framework described below to ensure the disabled firefighters receive the full “regular salary or wages” that was earned prior to becoming disabled.
The suit notes that since at least 1982, Yonkers computed and reported the full “regular salary of wages” to NYSLRS and the firefighter to calculate the GML §207-a(2) payment, by including check-in pay, night differential pay, and holiday pay (“full pay components”) – which all firefighters receive as part of their regular compensation – as part of every firefighter’s “regular salary or wages.” Yonkers accordingly included these full pay components as part of the GML §207-a(2) payment it provided.
However in the latter part of 2015, Yonkers unilaterally and abruptly changed its position and practice. the City of Yonkers decided the full pay components were improperly paid to plaintiffs and those similarly situated to them. It omitted these full pay components from the calculation of the GML §207-a(2) payments, and stated its intention to recoup the alleged overpayments from plaintiffs and those similarly situated for prior years.
In so doing, Yonkers began, and continues to treat plaintiffs and those similarly situated differently from non-disabled firefighters, based on their disability and having a record of a disability.
So the Plaintiffs have brought this action to remedy discrimination on the basis of disability, in violation of the Americans with Disabilities Act (ADA); the Rehabilitation Act of 1973; and the New York State Human Rights Law. Plaintiffs also allege breach of contract for deprivation of their vested right to receive GML §207-a(2) payments including the full pay components.
Plaintiffs further seek declaratory and injunctive relief, back and front pay, attorney’s fees and costs, and any other appropriate legal and equitable remedies under the applicable laws.
Plaintiffs continue to be employed by the defendant, the City of Yonkers, and continue to receive pay raises as provided to all active duty firefighters. Plaintiffs are qualified individuals with a disability within the meaning of the ADA, and the Rehabilitation Act, and therefore entitled to protection from discrimination based on disability.
The City of Yonkers is a municipal corporation organized under the laws of the State of New York, which maintains its principal place of business at Yonkers City Hall, 40 South Broadway, Yonkers, New York 10701. Defendant is an employer covered by the ADA and NYHRL. Defendant receives federal financial assistance within the meaning of the Rehabilitation Act.
Since at least 1982, Yonkers reported to NYSLRS for plaintiffs and the putative class the firefighters’ salary that NYSLRS uses to calculate a retiree’s benefit as including the full pay components.
Since at least 1982, Yonkers has paid the full pay components to (a) all active firefighters who are not disabled and (b) all active firefighters who have been approved for benefits under GML§ 207-a(l) and assigned light-duty positions.
Since at least 1982 until as described below, Yonkers included the full pay components in the GML §207-a(2) payment paid to all firefighters who received NYSLRS accidental or performance of duty disability retirement benefits, including to plaintiffs and the putative class.
Prior to making the adjustment or recoupment, Yonkers afforded plaintiffs and the putative class “due process” hearings to object that the adjustment and recoupment should not be made.
Forty-four members of the putative class requested due process hearings; forty-three participated in the “due process” hearings in February and March 2016.
Following the hearings, the hearing officers made Reports of Findings and Recommendation to Yonkers Commissioner of Human Resources Carlos Moran.
The hearing officers recommended that the objections be denied, that Yonkers proceed to adjust the GML §207-a(2) payments by omitting the full pay components therefrom, and that Yonkers recoup the overpayments.
By letters dated April 5, 2016 from Commissioner of Human Resources Moran, Yonkers adopted the recommendations as a final determination and notified plaintiffs and the putative class members that it would reduce their GML §207-a(2) payments and recoup overpayments, although it temporarily held the recoupment in abeyance.
Thereafter, Yonkers reduced the GML §207-a(2) payments for plaintiffs and the putative class by excluding the full pay components from their regular salary or wages and GML §207-a(2) payments.
Plaintiffs demand a trial by jury in this action as is their right.