                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 24, 2016                    519116
________________________________

In the Matter of JOSEPH W.
   McKAY,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

VILLAGE OF ENDICOTT,
                    Appellant.
________________________________


Calendar Date:   January 11, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


      Coughlin & Gerhart LLP, Binghamton (Lars P. Mead of
counsel), for appellant.

      Hinman, Howard & Kattell, LLP, Binghamton (Paul T. Sheppard
of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the Supreme Court (Tait, J.),
entered February 27, 2014 in Broome County, which granted
petitioner's application, in a proceeding pursuant to CPLR
article 78, to, among other things, award petitioner retroactive
benefits pursuant to General Municipal Law § 207-a.

      The underlying facts are set forth in a prior decision of
this Court (113 AD3d 989 [2014], lv dismissed 23 NY3d 1015
[2014]). Briefly, petitioner was employed by respondent as a
firefighter, sustained a work-related injury to his lower back in
2008, and stopped working because of the injury in 2009. He
obtained workers' compensation benefits for that injury and was
granted disability benefits pursuant to General Municipal Law
                               -2-                519116

§ 207-a (1), with respondent later attempting to discontinue the
latter. Petitioner was eventually found eligible for General
Municipal Law § 207-a (1) benefits but, as he had taken a
performance of duty disability retirement in the interim, he was
no longer entitled to General Municipal Law § 207-a (1) benefits
and instead sought post-retirement supplemental benefits made
available by General Municipal Law § 207-a (2). Respondent
denied the application, prompting petitioner to commence the
present CPLR article 78 proceeding. In 2012, Supreme Court
granted the petition in part and directed respondent to pay
petitioner General Municipal Law § 207-a (2) benefits retroactive
to the date of his retirement in 2010, "pending a determination
consistent with due process" as to whether they should be
terminated.

      Respondent appealed from the 2012 judgment and, while that
appeal was pending, petitioner submitted a proposed judgment to
Supreme Court that would award him a set amount of retroactive
benefits (see CPLR 7806; 22 NYCRR 202.48). While the parties
dickered over the propriety of issuing a new judgment and the
correct amount of retroactive benefits to be awarded, this Court
affirmed the 2012 judgment (113 AD3d at 991-993). Supreme Court
thereafter issued a judgment in February 2014 that awarded
petitioner $67,830.69 in retroactive benefits, interest and
costs. Respondent now appeals from the 2014 judgment.1

      Respondent raises arguments that were addressed in our
decision on the appeal from the 2012 judgment, and that ruling
constitutes the law of the case. Accordingly, we will only
address respondent's claim that Supreme Court erred in
calculating the amount of retroactive benefits awarded in the
2014 judgment (see Bell v White, 112 AD3d 1104, 1105 [2013], lv
dismissed 23 NY3d 984 [2014]; see e.g. Matter of Hickey v
Sinnott, 277 AD2d 572, 573-574 [2000]). After reviewing that
claim, we agree that the award of retroactive benefits cannot


     1
        Petitioner moved to dismiss the appeal on the ground that
the 2014 judgment was not appealable as of right (see CPLR 5701
[b] [1]). We denied that motion (2014 NY Slip Op 77553[U]) and
decline the urgings of petitioner to revisit the issue.
                              -3-                519116

stand.

      On the date that petitioner was granted performance of duty
disability retirement benefits, respondent was no longer required
to pay his full salary (see General Municipal Law § 207-a [1],
[2]). Petitioner was entitled, however, "to receive from
[respondent], . . . until such time as he shall have attained the
mandatory service retirement age applicable to him or shall have
attained the age or performed the period of service specified by
applicable law for the termination of his service, the difference
between the amounts received under such allowance or pension and
the amount of his regular salary or wages" (General Municipal Law
§ 207-a [2]; see Matter of Mashnouk v Miles, 55 NY2d 80, 85-86
[1982]). Petitioner suggests otherwise, but the 2012 judgment,
and our affirmance thereof, make clear that he was entitled to
receive the benefits afforded by General Municipal Law § 207-a
(2) until a due process hearing could be conducted to determine
whether those benefits should be terminated (113 AD3d at 992-
993).

      Supreme Court properly directed in the 2014 judgment that
respondent pay petitioner General Municipal Law § 207-a (2)
benefits retroactive to the date of his 2010 retirement, and the
court acknowledged that those benefits must be "reduced by the
amount of the [workers' compensation] benefits" that petitioner
received as a result of his 2008 injury (General Municipal Law
§ 207-a [4-a]; see Workers' Compensation Law § 30 [2]).2 It
nevertheless refused "to factor in the receipt" of the workers'
compensation benefits – despite being required to do so by the
plain language of General Municipal Law § 207-a (4-a) – lamenting
the lack of proof to establish the offset amount and directing
respondent to seek redress "in whatever forum it deems
appropriate." While we agree that the proof presented on the


    2
        Respondent has consistently disputed the underlying
entitlement of petitioner to General Municipal Law § 207-a (2)
benefits and, contrary to petitioner's contention, did not waive
its right to seek the offset by raising the issue only when it
became clear that petitioner would be awarded retroactive
benefits (see e.g. 1982 Ops St Comp No 82-92).
                              -4-                  519116

amount of the offset was meager, the award was premature without
it. Rather than countenance the piecemeal efforts of respondent
to establish the appropriate offset amount upon this appeal, we
deem it prudent to remit the matter "to Supreme Court for the
holding of a hearing, without delay, at which the parties may
present proof relative to . . . respondent[']s entitlement to an
offset" (Matter of Rea v City of Kingston, 123 AD3d 1401, 1402
[2014]).

     McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.



      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as awarded petitioner General
Municipal Law § 207-a (2) benefits retroactive to December 16,
2010; matter remitted to the Supreme Court for further
proceedings not inconsistent with this Court's decision; and, as
so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
