Supreme Court, Kings County, June 14, 2018

Bernard C. Han, Bronx, for petitioner.

Zachary W. Carter, Corporation Counsel, New York City, for respondents.

This case addresses the issue of whether a correction officer who becomes disabled due to an assault by a visitor to the correctional facility is entitled to performance of duty disability retirement benefits pursuant to Retirement and Social Security Law § 507-c. Petitioner Ebony Simons, a correction officer employed by the New York City Department of Corrections (DOC), seeks an order annulling the determination of the Board of Trustees of the New York City Employees' [*2]Retirement System (NYCERS), which denied her application for disability benefits pursuant to Retirement and Social Security Law § 507-c.

Petitioner, who worked at the Ana M. Kross Center, a correctional facility on Rikers Island, applied for disability benefits based upon injuries sustained when, on multiple occasions in 2012 and 2013, she was assaulted by visitors to the facility. The Medical Board of NYCERS deemed petitioner disabled based solely on an injury to her ankles which occurred on November 20, 2013, when she was assaulted by a visitor while attempting to confiscate contraband. However, the Medical Board recommended that petitioner's application for disability benefits be denied because incidents perpetrated by visitors do not fall within the aegis of Retirement and Social Security Law § 507-c, "despite the fact that the applicant was assigned to a visitors' area." Petitioner appealed the recommendation, and the Trustees adopted a resolution denying her application for disability benefits.

Retirement and Social Security Law § 507-c (a) provides that correction officers employed by the DOC who become

"physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties by, or as a natural and proximate result of, an act of any inmate or any person confined in an institution under the jurisdiction of the department of correction . . . shall be paid a performance of duty disability retirement allowance equal to three-quarters of final average salary."

Petitioner claims that the Trustees' decision was erroneous as a matter of law, and arbitrary and capricious because the visitor assailant shed his status as visitor and became confined{**60 Misc 3d at 767} when he assaulted petitioner and was arrested. Respondent argues that this provision is inapplicable since the attacker was a visitor rather than an inmate, and that petitioner is therefore not entitled to disability benefits under Retirement and Social Security Law § 507-c. Petitioner contends that the visitor was a "confined" person since he was not free to leave the facility once he was arrested for assaulting petitioner, in effect arguing that his "confined" status was retroactive to the time he entered the facility. Petitioner further argues that a strict construction of the statute would defeat its purpose to "protect the officer due to inherent dangers that the officer would face on a daily basis while working as a correctional officer."

As a threshold matter, a correction officer applying for disability benefits bears the burden of establishing that her incapacity was the "natural and proximate result" of a "direct interaction with an inmate." (See Matter of Stevens v DiNapoli, 155 AD3d 1294, 1294-1295 [3d Dept 2017] [to qualify for performance of duty disability retirement benefits under Retirement and Social Security Law § 507-b (a), which contains identical statutory language to Retirement and Social Security Law § 507-c (a), correction officer must make threshold showing that injuries were result of "direct interaction with an inmate"]; Matter of Boyd v New York City Employees' Retirement Sys., 2018 NY Slip Op 28073, 2018 NY Misc LEXIS 768, *7 [Sup Ct, Kings County 2018, Levine, J.]). This court finds that petitioner has not made this threshold showing because the alleged perpetrator was not an inmate.

Retirement and Social Security Law § 507-c does not address incapacities which result from acts of visitors, or define what it means to be "confined." However, the legislative histories of Retirement and Social Security Law §§ 507-b and 607-c, which apply to correction officers employed by the New York State Department of Corrections and Community Supervision and county-employed correction officers, respectively, and which contain identical statutory language to Retirement and Social Security Law § 507-c, do shed light on this term. These three sections relate to the same subject matter and are deemed to be "in para materia," i.e. that they are to be "construed [*3]together as though forming part of the same statute." (Khela v Neiger, 85 NY2d 333, 336 [1995]; Matter of London Terrace Assoc., L.P. v New York State Div. of Hous. & Community Renewal, 35 Misc 3d 525, 534 [Sup Ct, NY County 2012].) The court therefore{**60 Misc 3d at 768} looks to these statutes to divine the meaning of the term "confined."

The legislative history of section 507-b reveals that "the statute was clearly intended to compensate correction officers who, because of the risks created by their daily contact with certain persons who are dangerous [and] profoundly anti-social . . . become permanently disabled." (Matter of Laurino v DiNapoli, 132 AD3d 1057, 1058 [3d Dept 2015]; Matter of Boyd v New York City Employees' Retirement Sys., 2018 NY Slip Op 28073, 2018 NY Misc LEXIS 768, *7 [Sup Ct, Kings County 2018].) The legislative history of section 607-c reveals that the increased inmate population "created strain and tension, manifesting itself in an increase in altercations among inmates and between inmates and correction officers," and that "restraining a combative and unruly inmate is precisely the type of activity that was intended to trigger the protections afforded correction officers" by section 607-c. (Matter of Naughton v DiNapoli, 127 AD3d 137, 140-141 [3d Dept 2015].) Thus, it is clear that the legislature did not intend that contact between visitors and correction officers trigger section 507-c protection. Furthermore, visitors are not expected to be "dangerous" and "profoundly anti-social."

Based on the above, there is no basis upon which to confer a "confined" status on a visitor upon his entrance to the facility and before he assaulted the officer which resulted in his arrest. Petitioner's argument that the legislature intended to "protect the officer due to inherent dangers that the officer would face on a daily basis while working as a correctional officer" also has no sound basis. Section 507-c does not provide disability benefits based upon risks of the job that are not related to direct interaction with inmates, and therefore cannot be interpreted in such a broad manner. (Matter of Park v DiNapoli, 123 AD3d 1392, 1393 [3d Dept 2014].)

An agency's determination will not be deemed arbitrary and capricious if it has evaluated the facts using a standard which is expressly set forth in the statute. (See James v Been, 55 Misc 3d 631, 633 [Sup Ct, Kings County 2017, Levine, J.].) Since respondent adhered to the language and intent of Retirement and Social Security Law § 507-c, this court finds that its determination denying petitioner disability benefits had a sound basis, and was not arbitrary and capricious or an abuse of discretion. Accordingly, the petition is denied.