The facts underlying this action are essentially undisputed. On October 21, 2002, plaintiff Village of Homer hired defendant Joshua Parente as a police officer. Beginning in January 2003, [*2]the Village paid for Parente's attendance at a police training course at the Mohawk Valley Police Academy, from which he graduated in September 12, 2003. Parente continued as an employee of the Village until May 20, 2005, when he left his position to take a job with the Sheriff's Department of defendant County of Cortland.

When he was hired by the Village, Parente was provided with a copy of an Employment Handbook which contained, inter alia, a provision for the reimbursement of a percentage of training costs in the event that he were to leave his position within three years of completing his training. Specifically, the Handbook, which Parente acknowledged having received and read, stated that he would be responsible to pay back to the Village 60% of his training costs if he quit his job between one and two years after the completion of training.^[FN1]

The Village now brings this action to recover that portion of the training costs from Parente, and to recover the statutorily specified portion of such costs from the County, as Parente's successor employer, pursuant to General Municipal Law § 72-c. Parente's counsel attempted to serve an answer, which plaintiff rejected as untimely. The County answered, asserting two affirmative defenses. Plaintiff now seeks a default judgment against Parente for the amount sought in the complaint ($9,538.39), and summary judgment against the County in the amount of $ 47,803.72 (representing 479 days remaining in the three-year period, times a per diem training cost of $99.80, based on total expenses of $109,279.90; see, General Municipal Law § 72-c).

The County does not contest plaintiff's assertion that it is liable for reimbursement of training costs pursuant to General Municipal Law § 72-c, but contends that plaintiff has improperly calculated those costs. The County seeks summary judgment limiting its liability to $10,633.80 (representing 479 days remaining, times a per diem cost of $22.20, based on total training costs of $24,336.90).

Plaintiff has established, through the affidavit of its Chief of Police, that Parente acknowledged having received, read and understood the provisions set forth in the Employee Handbook, including the schedule for reimbursement of training costs should he terminate his employment within the first three years, and that he "agreed" to those terms (Affidavit of Daniel D. Mack, dated November 20, 2006, ¶¶ 3-12). This is sufficient to demonstrate, prima facie, the creation of a binding obligation by Parente to comply with the reimbursement schedule, in the form of his promise (i.e., his verbal agreement, as set forth by the Chief) to do so, supported by the consideration of his continued employment by the Village (cf., Zellner v Stephen D. Conrad, M.D., P.C., 183 AD2d 250, 255-256 [1992]). Pursuant to that schedule, Parente must reimburse plaintiff for 60% of his training costs.

Plaintiff has also demonstrated that Parente defaulted in answering the complaint or appearing in the action (see, Jaworower v Rovere, 98 Misc 377, 380, affd 177 App Div 740 [1917] [service of answer, rejected as untimely, does not constitute appearance in action]). Accordingly, plaintiff is entitled to a default judgment against Parente for the amount sought in [*3]the complaint.^[FN2]

As for the County, it does not contest its liability to repay a portion of Parente's training costs, measured in accordance with the formula set forth in General Municipal Law § 72-c. The County's chief argument is that the Village has improperly included, when calculating the total cost of training, the salary and benefits paid to Parente during his entire employment, including the periods before and after his actual training. This contention has merit. The statute provides for reimbursement of a portion of "such expenses, including, salary, tuition, enrollment fees, books, and the cost of transportation to and from training school" (GML § 72-c [emphasis added]); the scope of the term "such expenses" can only be understood by reference to the preceding portion of the statute, which permits the municipality to pay "for the annual expenses of the members of the police department * * * in attending a police training school" (id. [emphasis added]). These are the "expenses" for which reimbursement may be sought. The salary and benefits provided to an officer, even a newly hired officer, during periods of time when he or she is not actually attending a training course, cannot be viewed as an "expense" of "attending a training school". Rather, those are expenses that are incurred by the municipality as a result of hiring an officer, regardless of whether he or she is formally trained, in exchange for which the municipality obtains the services rendered by that officer.

Accordingly, the expenses for which a partial reimbursement may be had, from the County, include the salary and benefits provided to Parente during his training period (from January 20, 2003 to September 12, 2003), together with the direct costs of the training itself (tuition, books, ammunition, supplies, and travel costs paid by the Village). The Village shall be entitled to recover 480/1096, or 43.796%, of those costs.^[FN3] The Village and the County shall have 30 days from the date of this Decision and Order to either (1) submit a consent order, if they can agree to the amount to be paid by the County; (2) submit affidavits and documentary evidence, if [*4]they agree that the amount shall be determined by the court on the basis of written submissions; or (3) advise the court if either party desires a hearing on the issue of the amount owed.

This decision shall constitute the order of the court.

Dated:March 5, 2007

Cortland, New York

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HON. PHILLIP R. RUMSEY

Supreme Court Justice