FOLEY 282 IAFF AFL CIO CLC v. MASIELLO (2008)

Plaintiff, individually and as president of the Buffalo Professional Firefighters Association, Inc., Local 282, IAFF, AFL-CIO-CLC (Union), and on behalf of all other individuals providing fire protection to defendant City of Buffalo (City), commenced this action seeking tax revenues (two percent funds) paid to the City and allegedly owed to the Union pursuant to Insurance Law §§ 9104 and 9105.   Supreme Court erred in granting plaintiff's motion for partial summary judgment on liability and instead should have granted defendants' cross motion seeking summary judgment dismissing the complaint.   We agree with defendants that, pursuant to those sections of the Insurance Law, the two percent funds are to be paid, inter alia, to the fiscal officer of the fire department of the municipality or the fiscal officer of the municipality, and “the Union has no right to receive a portion of the funds directly from the State” (Watt v. Richardson, 6 A.D.3d 1117, 1118, 776 N.Y.S.2d 418, lv. denied in part and dismissed in part 3 N.Y.3d 735, 786 N.Y.S.2d 808, 820 N.E.2d 287).   Defendants therefore established as a matter of law that plaintiff was not entitled to the sole relief sought in the complaint, and plaintiff failed to raise a triable issue of fact in response (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In light of our determination, we do not address the parties' remaining contentions.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, the cross motion is granted and the complaint is dismissed.

MEMORANDUM: