David S. v. McCall

—Casey, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioners’ request for a recalculation of their final average salary. Petitioners, firefighters with the Fire Department of the City of Utica, Oneida County, sought to have wages paid pursuant to a call-back plan included in the calculation of their final average salary for the purpose of determining their pension. After a hearing, respondent determined that the payments were not overtime payments or compensation as provided by [880] General Municipal Law § 90, were not made pursuant to a comprehensive overtime plan, did not constitute regular compensation as defined by Retirement and Social Security Law § 302 and constituted compensation paid in anticipation of retirement as set forth in Retirement and Social Security Law § 431. Petitioners commenced this proceeding to review respondent’s determination. The Fire Department, in order to meet minimum staffing requirements and fill shortages caused by vacancies, vacations, injuries or other reasons, had a call-back system. Those firefighters interested in working on their regularly scheduled days off could voluntarily enter their names on the call-back roster wheel. The Department then used the wheel to contact firefighters until the next day’s manning requirement was filled. A firefighter in receipt of a call-back could voluntarily accept or decline the call. Payment was at the regular straight-time rate. Pursuant to petitioners’ collective bargaining agreement, firefighters planning to retire were entitled to an absolute preference on call-backs for a 24-month period; however, if such a firefighter failed to retire after utilizing the benefit of the preference, the firefighter forfeited 24 months of call-back eligibility. The call-back system was distinct from the Department’s overtime provisions. The record amply supports respondent’s conclusion that the voluntary call-back program was not a comprehensive overtime plan requiring firefighters to work in excess of their regularly established hours of employment (see, Conrad v Regan, 175 AD2d 629, lv denied 78 NY2d 860; see also, Matter of Buchwald v New York State Police & Firemen’s Retirement Sys., 168 AD2d 774, Iv denied 77 NY2d 806; Matter of Shames v Regan, 132 AD2d 743). Similar support exists for the conclusion that payments pursuant to an exercise of the absolute preference on call-backs constituted additional compensation paid in anticipation of retirement for those electing to perform extra work in their last two years prior to their retirement (see, Abbatiello v Regan, 205 AD2d 1027, 1029, lv denied 84 NY2d 808; see also, Matter of Hohensee v Regan, 138 AD2d 812, lv denied 72 NY2d 807). Respondent is vested with exclusive authority to determine applications for retirement benefits and where, as here, it is supported by substantial evidence, respondent’s determination must be upheld (see, Matter of Cannavo v Regan, 122 AD2d 523, lv denied 68 NY2d 612; see also, Abbatiello v Regan, supra). Mikoll, J. P., White, Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.