IN RE: Lillian ROBERTS

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Lillian ROBERTS, etc., et al., Petitioners-Respondents, v. John J. MURPHY, etc., et al., Respondents-Appellants.

Decided: May 15, 2003

ANDRIAS, J.P., WILLIAMS, LERNER, FRIEDMAN and MARLOW, JJ. Mary J. O'Connell, for Petitioners-Respondents. Paul L. Herzfeld, for Respondents-Appellants.

Judgment, Supreme Court, New York County (Emily Goodman, J.), entered December 3, 2002, which, insofar as appealed from, declared in favor of petitioners civil service unions and against respondent New York City Employees' Retirement System that Tier IV Emergency Medical Technicians and Advanced Emergency Medical Technicians (EMTs), whose applications pursuant to Retirement and Social Security Law (RSSL) § 607-b for a service-related three-quarter disability pension have been denied by respondent, are entitled to a medical review of such adverse determinations pursuant to Retirement and Social Security Law § 605(e), unanimously affirmed, without costs.

RSSL § 607-b is not a “stand-alone” statute.   It gives EMTs an enhanced pension for a service-related disability but contains no procedures for obtaining that benefit.   Instead, it incorporates by reference RSSL § 605(c), which authorizes retirement systems to adopt appropriate procedures, including conducting medical examinations, for determining whether an employee is disabled.   Since an EMT who applies for a § 607-b disability pension has resort to the procedures authorized by § 605(c), he or she should also have resort to any amendment to those procedures (see American Bank v. Goss, 236 N.Y. 488, 493, 142 N.E. 156).   Such an amendment was made by the enactment of § 605(e), which authorizes respondent to adopt rules for a post-determination medical review of disability applications made pursuant to § 605.   We reject respondent's argument that because the amendment to § 605 was not to subdivision (c), but created a new subdivision (e) to which no reference is made in § 607-b, the amendment does not apply to § 607-b applications.   By its terms, § 605(e) applies without exception to those of respondent's members who, like Tier IV EMTs, must “file” their disability applications “pursuant to this section,” i.e., utilize the procedures authorized by § 605(c).  We note that § 605(c) was enacted after § 607-b (compare RSSL § 605-b[b][3] ), and find that no legislative intent to deprive EMTs of the extra measure of medical review afforded by § 605(e) is evinced by the absence of an amendment to § 607-b incorporating § 605(e) (cf.  I-T-E Imperial Corp.-Empire v. Bankers Trust Co., 51 N.Y.2d 811, 433 N.Y.S.2d 96, 412 N.E.2d 1322).