MATTER OF McKENNA v. COUNTY OF NASSAU OFFICE OF THE COUNTY ATTORNEY


75 A.D.2d 815 (1980)

In the Matter of Richard C. McKenna, Appellant, v. County of Nassau Office of the County Attorney, Respondent

Appellate Division of the Supreme Court of the State of New York, Second Department.

May 5, 1980


Judgment reversed, on the law, with $50 costs and disbursements, petitioner's application to modify the arbitrator's award is granted and respondent's cross application to vacate the award is denied.

Petitioner, a Nassau County police officer, received payment of his full salary pursuant to section 207-c of the General Municipal Law while he was unable to work and was recovering from injuries sustained during a job-related traffic accident. He also filed for first-party benefits under New York's no-fault law (Insurance Law, § 670 et seq.). At the time of the accident the no-fault law required that any recovery for basic economic loss be reduced by amounts recovered or recoverable pursuant to State or Federal Social Security disability benefits or workers' compensation benefits (Insurance Law, § 671, subd 2, par [b]). There was no express requirement that payments under wage continuation programs, such as provided for in section 207-c of the General Municipal Law, be deducted. The arbitrator's award did not include a deduction of the payments petitioner received under section 207-c. Special Term vacated the award to avoid the double recovery. We find that the award was not so irrational as to warrant vacatur and, accordingly, the judgment of Special Term must be reversed (see Matter of Garcia v Federal Ins. Co., 46 N.Y.2d 1040; Matter of Furstenberg [Aetna Cas. & Sur. Co.], 49 N.Y.2d 757; cf. Matter of Levine [Zurich Amer. Ins. Co.], 49 N.Y.2d 907). Apparently, a loophole existed in the original no-fault law which permitted the type of double recovery that petitioner sought. This loophole has since been eliminated by the Legislature (see Insurance Law, § 671, subd 1, as amd by L 1977, ch 892, § 6; see, also, Memorandum of State Executive Department, McKinney's Session Laws of NY, 1977, p 2448; Wellington v City of New York, 101 Misc.2d 970). It is also not disputed that in issuing his award, the arbitrator miscalculated the amount (see CPLR 7511, subd [c], par 1). Consequently petitioner's award should be modified so as to provide as follows:

            Basic Economic loss                         $4,988.97
            Less 20% (see Insurance Law, § 671,
                 subd 2, par [a])                        (997.72)
            Less Worker's Compensation payments        (1,950.00)
                                                       __________
            Total recomputed award                     $2,041.25.
                                                       ==========

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