SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

92 

CA 10-01993 

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ. 

 

IN THE MATTER OF ROBERT P. MEEGAN, JR., 

INDIVIDUALLY AND AS PRESIDENT OF BUFFALO 

POLICE BENEVOLENT ASSOCIATION, AND BUFFALO 

POLICE BENEVOLENT ASSOCIATION, 

PETITIONERS-RESPONDENTS, 

 

V MEMORANDUM AND ORDER

BYRON W. BROWN, AS MAYOR OF CITY OF BUFFALO, 

H. MCCARTHY GIPSON, AS COMMISSIONER OF POLICE, 

AND CITY OF BUFFALO, RESPONDENTS-APPELLANTS. 

GOLDBERG SEGALLA LLP, BUFFALO (MATTHEW C. VAN VESSEM OF COUNSEL), FOR

RESPONDENTS-APPELLANTS. 

LAW OFFICES OF W. JAMES SCHWAN, BUFFALO (W. JAMES SCHWAN OF COUNSEL), 

FOR PETITIONERS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Erie County (Timothy

J. Drury, J.), entered February 22, 2010 in a proceeding pursuant to

CPLR article 75. The order, insofar as appealed from, denied the

motion of respondents for a stay of arbitration and directed

respondent H. McCarthy Gipson, as Commissioner of Police promptly to

conduct a Step 3 grievance hearing and issue a Step 3 response in

accordance with the contract. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs. 

Memorandum: Respondents appeal from an order denying their

motion seeking, inter alia, to stay arbitration of a grievance filed

by petitioners with respect to respondents’ refusal to pay certain

collective bargaining agreement (CBA) benefits to police officers

receiving General Municipal Law § 207-c benefits. Respondents had

notified petitioners that respondents were unilaterally discontinuing

payment of “[a]ny contractual benefits [that] are not expressly

provided by the [CBA]” to individuals receiving section 207-c

benefits. Supreme Court denied petitioners’ application for a

preliminary injunction prohibiting respondents from discontinuing the

benefits at issue until the arbitrator rendered a decision with

respect to the grievance, and the court also denied respondents’

motion. We affirm. 

We reject respondents’ contention that the court erred in denying
-2- 92 

CA 10-01993 

that part of their motion seeking to stay the arbitration of

petitioners’ grievance. It is well settled that the benefits provided

to a police officer pursuant to General Municipal Law § 207-c are

exclusive, and a CBA will not be construed as impliedly expanding such

benefits (see generally Matter of Uniform Firefighters of Cohoes,

Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, 694-695). 

There is, however, no prohibition against a CBA that provides for the

extension of the benefits set forth therein to police officers (see

generally id.). Here, respondents conceded at oral argument on the

application and the motion that respondent City of Buffalo (City) had

been paying CBA benefits to police officers receiving General

Municipal Law § 207-c benefits for over 40 years. “[A] past practice

concerning [fringe] benefits for current employees, even where

unrelated to any specific contractual provision, cannot be

unilaterally modified by the public employer” (Matter of Aeneas

McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, 332). 

The public employer has “a duty to negotiate with the bargaining

representative of current employees regarding any change in past

practice affecting [such] benefits” (id.). 

In addition, the CBA contains a “Maintenance of Benefits” clause

pursuant to which “[a]ll conditions or provisions beneficial to

employees now in effect [that] are not specifically provided for in

[the CBA] or [that] have not been replaced by provisions of [the CBA]

shall remain in effect for the duration of [the CBA], unless mutually

agreed otherwise between the City and [petitioner Buffalo Police

Benevolent Association].” Thus, respondents also had a contractual

duty to negotiate a change in the past practice and lacked the

authority to discontinue unilaterally the payment of the benefits at

issue to police officers receiving General Municipal Law § 207-c

benefits. Questions with respect to the scope and intent of the

“Maintenance of Benefits” clause and the past practice are the proper

subjects of arbitration, and past practice may be relied upon by the

arbitrator in rendering a decision (see generally Matter of Board of

Educ. of Norwood-Norfolk Cent. School Dist. [Hess], 49 NY2d 145, 153;

Matter of Village of Spring Val. v Policemen’s Benevolent Assn. of

Vil. of Spring Val., 271 AD2d 615, lv denied 95 NY2d 760; Matter of

Board of Educ. of N. Babylon Union Free School Dist. v North Babylon

Teachers’ Org., 155 AD2d 599).

We reject respondents’ further contention that petitioners are

improperly seeking to arbitrate issues with respect to respondents’

obligation to pay General Municipal Law § 207-c benefits. 

Petitioners’ grievance arises out of the CBA and respondents’

unilateral discontinuance of a past practice spanning 40 years. The

result of arbitration with respect to that grievance will have no

impact upon respondents’ obligation to pay section 207-c benefits. 

Entered: February 18, 2011 Patricia L. Morgan

Clerk of the Court