This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 168 

In the Matter of James R. 

Diegelman et al.,

 Appellants,

 v.

City of Buffalo et al.,

 Respondents.

John A. Collins, for appellants.

David M. Lee, for respondents.

STEIN, J.:

In this appeal, we are asked to determine whether a

police officer who is entitled to receive benefits under General

Municipal Law § 207-c for a duty-related injury is barred from

bringing a claim against his or her employer under General

Municipal Law § 205-e. We conclude that, where the municipal

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employer has elected not to provide coverage pursuant to the

Workers' Compensation Law, a police officer who suffers a lineof-duty injury caused by the employer's statutory or regulatory

violations may pursue a section 205-e claim.

I.

Respondent City of Buffalo (the City) employed claimant

James R. Diegelman as a police officer from 1968 until 1995. On

August 9, 2012, he was diagnosed with mesothelioma, a cancer

caused by exposure to asbestos. Claimant and his wife, Andrea M.

Diegelman (hereinafter claimants), allege that exposure to

asbestos occurred during his employment at properties owned by

the City and respondent Board of Education, and used by the

Police Department. Claimants commenced this proceeding seeking

permission to serve a late notice of claim on the City. In

opposition, the City argued, among other things, that leave

should be denied on the ground that the claim was patently

without merit because General Municipal Law § 207-c provides the

exclusive remedy for the alleged work-related injuries.

Supreme Court granted claimants' application for

permission to serve a late notice of claim on the City. The City

appealed, and the Appellate Division reversed on the law and

denied the application (129 AD3d 1527 [4th Dept 2015]). The

Appellate Division agreed with the City that the claim was barred

by General Municipal Law § 207-c and, thus, held that claimants'

application should be denied because "leave to file a late notice

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of claim is not appropriate for a patently meritless claim" (129

AD3d at 1527 [internal quotation marks and citation omitted]). 

This Court granted claimants' motion for leave to appeal (26 NY3d

913 [2015]).

II.

This appeal turns on the interplay of General Municipal

Law §§ 205-e and 207-c, and the Workers' Compensation Law. "In

addition to any other right of action or recovery under any other

provision of law," section 205-e permits police officers to bring

tort claims for injuries sustained "while in the discharge or

performance at any time or place of any duty imposed by . . .

superior officers" where such injuries occur "directly or

indirectly as a result of any neglect, omission, willful or

culpable negligence of any person or persons in failing to comply

with the requirements of any of the statutes, ordinances, rules,

orders and requirements of the federal, state, county, village,

town or city governments" (General Municipal Law § 205-e [1]). 

Separately, section 207-c "provides for the payment of the full

amount of regular salary or wages," along with payment for

medical treatment and hospital care, "to a police officer or

other covered municipal employee who is injured 'in the

performance of his [or her] duties' or is taken ill 'as a result

of the performance of [such] duties'" (Theroux v Reilly, 1 NY3d

232, 239 [2003], quoting General Municipal Law § 207–c [1]). The

Workers' Compensation Law is, of course, "'the State's most

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general and comprehensive social program, enacted to provide all

injured employees with some scheduled compensation and medical

expenses, regardless of fault for ordinary and unqualified

employment duties'" (Theroux, 1 NY3d at 242, quoting Matter of

Balcerak v County of Nassau, 94 NY2d 253, 259 [1999]; accord

Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246, 255-256

[2013]).

It is well settled that workers' compensation benefits

are generally the "sole and exclusive remedy of an employee

against his [or her] employer for injuries in the course of

employment," and that the receipt of such benefits "precludes

suits against an employer for injuries in the course of

employment" (Weiner v City of New York, 19 NY3d 852, 854 [2012]). 

Thus, the right of action contained in section 205-e is subject

to a proviso that "nothing in th[at] section shall be deemed to

expand or restrict any right afforded to or limitation imposed

upon an employer, an employee or his or her representative by

virtue of any provisions of the workers' compensation law"

(General Municipal Law § 205-e [1]). In other words, the proviso

prohibits "recipients of workers' compensation benefits [from]

su[ing] their employers in tort under section 205-[e]" (Weiner,

19 NY3d at 855). 

Inasmuch as the City of Buffalo, like many other large

municipalities, has elected not to provide workers' compensation

benefits to its police officers (see generally Matter of Leone v

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Oneida County Sheriff's Dept., 80 NY2d 850, 851 [1992]),

claimants argue that the proviso in section 205-e (1) is

inapplicable to this action. They maintain that the Appellate

Division erred in extending the proviso's bar on suits to cover

not just recipients of workers' compensation benefits but, also,

recipients of General Municipal Law § 207-c benefits. The City

responds that section 207-c "is essentially a super workers'

compensation scheme for police officers" and, thus, workers'

compensation exclusivity rules should apply to police officers

who receive section 207-c benefits, regardless of whether they

are entitled to benefits under the Workers' Compensation Law.

Workers' Compensation Law § 30 (3) provides that "any

salary or wages paid . . ., or the cost of any medical treatment

or hospital care provided[,] . . . under and pursuant to the

provisions of section [207-c] shall be credited against any award

of [workers'] compensation." As this Court has previously

recognized, the purpose of Workers' Compensation Law § 30 (3) is

to "avoid duplication of benefits" inasmuch as there is some

overlap between workers' compensation benefits and section 207-c

benefits (Leone, 80 NY2d at 852).1 However, workers'

1 Workers' compensation benefits, where provided, are

awarded "[i]n addition to General Municipal Law § 207-c (1)

benefits" (Matter of Leone v Oneida County Sheriff's Dept., 80

NY2d 850, 851 [1992] [emphasis added]). Where a municipality

provides its police officers with workers' compensation benefits,

the "municipality's obligation to pay wages and medical costs

under General Municipal . . . [§] 207-c is in no way dependent

upon any determination made by the" Workers' Compensation Board,

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compensation benefits and General Municipal Law § 207-c benefits

are neither equivalent nor "mutually exclusive" such that the

payments of benefits under one statute forecloses payment under

the other statute (Matter of McKay v Town of W. Seneca, 51 AD2d

373, 378 [3d Dept 1976] [Mahoney, J., dissenting], revd on

dissenting op of Mahoney 41 NY2d 931 [1977]; see Leone, 80 NY2d

at 851). Rather, the two statutory compensation systems are

independent of each other and, contrary to the City's argument

that section 207-c is essentially a super workers' compensation

scheme, the Workers' Compensation Law "features a more lenient

and more inclusive standard of covered activity than is intended

to be covered and compensated in a General Municipal Law § 207-c

benefits universe" (Balcerak, 94 NY2d at 261). 

In enacting the two statutes, "the Legislature chose

different eligibility standards -- 'arising out of and in the

course of employment' for workers' compensation benefits; 'in the

performance of his [or her] duties' for section 207-c benefits"

and a police officer is "not required to exhaust [his or] her

administrative remedies in [a] workers' compensation proceeding

before pursuing" benefits under section 207-c (Matter of Davidson

v LaGrange Fire Dist., 82 AD3d 1227, 1230 [2d Dept 2011]). In

practice, when a police officer is awarded workers' compensation

benefits, those benefits may be made payable to the employer as a

credit for section 207-c benefits already paid (see Matter of

McCabe v Albany County Sheriff's Dept., 129 AD3d 1348, 1348 [3d

Dept 2015]), if the award of workers' compensation benefits would

constitute a duplication of the payment of medical expenses or

salary benefits awarded under section 207-c (cf. Leone, 80 NY2d

at 852 [no credit for section 207-c benefits is allowed against a

workers' compensation schedule loss of use award because such

award does not duplicate 207-c benefits]).

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(Theroux, 1 NY3d at 242). Pursuant to those differing standards,

"police . . . officers may be eligible for Workers' Compensation

benefits as a result of circumstances that might not entitle them

to General Municipal Law § 207-c benefits" (Balcerak, 94 NY2d at

260). Specifically, "[w]orkers' compensation benefits are

intended to be dispensed regardless of fault, for any injury

arising out of and in the course of one's employment . . .[,]

[while] [s]ection 207-c benefits . . . are more expansive, but

apply to a narrower class of work-related injury, relative to the

performance of law enforcement duties" (Auqui, 22 NY3d at 256). 

Moreover, separate bodies are charged with determining

entitlement to benefits under the Workers' Compensation Law and

General Municipal Law § 207-c, in proceedings involving

"significantly distinct" burdens and procedures (id. at 256-257;

accord Balcerak, 94 NY2d at 261). Indeed, we have repeatedly

explained that, because "the issue involving the entitlement to

benefits in the General Municipal Law setting is not . . . the

same one decided in a Workers' Compensation determination"

(Balcerak, 94 NY2d at 261), a finding by the Workers'

Compensation Board that an injury is work-related cannot be given

collateral estoppel effect against a municipality that denies an

application for section 207-c benefits (see Auqui, 22 NY3d at

256-257; Theroux, 1 NY3d at 242; Balcerak, 94 NY2d at 256-257).

Therefore, we reject the City's argument, also adopted

by the dissent, that General Municipal Law § 207-c benefits can

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be equated to workers' compensation benefits for purposes of

interpreting the proviso contained in General Municipal Law §

205-e.2 The language of section 205-e prohibits only recipients

of workers' compensation benefits from commencing suit against

their employers; it does not, by its terms, bar the commencement

of suits by recipients of section 207-c benefits -- which we have

repeatedly recognized to be separate and distinct from workers'

compensation benefits. In fact, section 205-e states that the

right contained therein is "[i]n addition to any other right of

action or recovery under any other provision of law" (General

Municipal Law § 205-e [1]). If the Legislature had intended the

proviso in section 205-e to extend to suits by recipients of

section 207-c benefits, "it easily could have and surely would

have written the statute to say so" (Theroux, 1 NY3d at 240). As

we recently explained in interpreting section 205-e in Gammons v

City of New York, we "cannot by implication supply in a statute a

provision which it is reasonable to suppose the Legislature

intended intentionally to omit because the failure of the

Legislature to include a matter within the scope of an act may be

2 The Appellate Division decisions relied upon by the

dissent ultimately flow from O'Dette v Parton (190 AD2d 1074 [4th

Dept 1993]), which is inapposite. In O'Dette, it was

uncontroverted that the plaintiff was entitled to workers'

compensation benefits (see id. at 1075). To the extent that the

Second and Fourth Departments routinely relied upon O'Dette for

the proposition that entitlement to General Municipal Law § 207-c

benefits for duty-related injuries bars a claim against an

employer under section 205-e even where workers' compensation

benefits are unavailable, that reliance was misplaced. 

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construed as an indication that its exclusion was intended" (24

NY3d 562, 570 [2014] [internal quotation marks and citations

omitted]; see McKinney's Cons Laws of NY, Book 1, Statutes § 74). 

In other words, "[w]e may not create a limitation that the

Legislature did not enact" (Theroux, 1 NY3d at 240).

III.

Extending the bar on suits by recipients of workers'

compensation benefits in General Municipal Law § 205-e to the

recipients of section 207-c benefits -- as the City and the

dissent urge us to do -- would not only be inconsistent with the

language of section 205-e itself; it would also be contrary to a

number of our prior cases acknowledging that the Legislature's

purpose in enacting section 205-e and subsequently amending it

was to "abrogate judicial decisions [of this Court] interpreting"

the right provided in "General Municipal Law § 205-e

restrictively" (Gammons v City of New York, 24 NY3d at 568; see

Williams v City of New York, 2 NY3d 352, 363-364 [2004];

Giuffrida v Citibank Corp., 100 NY2d 72, 76-79 [2003]; Gonzalez v

Iocovello, 93 NY2d 539, 548-549 [1999]; Schiavone v City of New

York, 92 NY2d 308, 313 [1998]). "General Municipal Law § 205-e

was originally enacted in 1989 for the express purpose of

'mitigat[ing] the effect of the common law "fireman's rule"' as

applied to police officers" (Schiavone, 92 NY2d at 313, quoting

Mem of State Exec Dept, L 1989, ch 346, 1989 McKinney's Session

Laws of NY, at 2140). Section 205-e "conferred on police

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officers the same benefits that section 205-a [had been enacted

to] offer[] firefighters, namely, a cause of action for line-ofduty injuries caused by statutory or regulatory violations"

(Giuffrida, 100 NY2d at 77). Because "some courts initially held

that section 205–e did not apply retroactively," the statute was

first amended in 1990 to "'ensure that causes of action not

time-barred or finally adjudicated can be brought under the new

law'" (Schiavone, 92 NY2d at 313, quoting Mem of State Exec Dept,

L 1990, ch 762, 1990 McKinney's Session Laws of NY, at 2494,

2495). The 1990 amendment also declared the statute to be

remedial in nature (see id.). 

In 1992, "the Legislature acted once again, this time

in response to court decisions that restricted a police officer's

cause of action under General Municipal Law § 205-e to situations

where the officer's injuries resulted from 'violations pertaining

to the safe maintenance and control of premises'" (Giuffrida, 100

NY2d at 77, quoting L 1992, ch 474, § 1). That amendment

clarified "that an officer would have a right of action for

injuries sustained 'in the discharge or performance at any time

or place of any duty imposed [by law, etc.]'" (Schiavone 92 NY2d

at 314, quoting General Municipal Law § 205–e[1]). 

The final substantive amendment took place in 1996,

again in response to court decisions that interpreted section

205-e restrictively. Specifically, the 1996 amendment added

subdivision (3) to section 205-e "to permit liability even in

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cases where the injury is due to a violation of a codified

common-law duty, constitut[ing] another rejection of a judicial

decision holding otherwise" (Gammons, 24 NY3d at 568-569; see

Gonzalez, 93 NY2d at 549). In addition, the 1996 amendment

provided that a claim lies under section 205-e even if the

violation did not increase the dangers inherent in a police

officer's job (see Giuffrida, 100 NY2d at 78). That amendment

was also accompanied by an express statement of "Legislative

intent" indicating that it was "intended to ensure once and for

all that section 205–e of the [G]eneral [M]unicipal [L]aw is

applied by the courts in accordance with its original legislative

intent to offer an umbrella of protection for police officers,

who, in the course of their many and varied duties, are injured

by the negligence of anyone who violates any relevant statute,

ordinance, code, rule and/or regulation" (L 1996, ch 703, § 1). 

As we explained in Williams, this "series of amendments to

section 205-e teaches us that we should apply this provision

'expansively' so as to favor recovery by police officers whenever

possible" (2 NY3d at 364 [emphasis added]; see Gammons, 24 NY3d

at 569). 

Moreover, the same 1996 enactment that amended General

Municipal Law § 205-e also created General Obligations Law § 11-

106, which "created a distinct right of action for police

officers and firefighters injured by the negligence or

intentional conduct of any person, except an employer or

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coemployee" (Gonzalez, 93 NY2d at 549), thereby largely

abolishing the firefighter's rule (see Giuffrida, 100 NY2d at

78), but maintaining the common-law bar on tort claims against

employers and coemployees (see Williams, 2 NY3d at 363). This

Court has long rejected the position of the dissent that the

enactment of General Obligations Law § 11-106 evinced a

legislative intent to prohibit tort claims against municipal

employers; rather, we recognized shortly after that provision was

enacted that the legislative history of the 1996 amendment made

clear "that the employer exemption in General Obligations Law

§ 11-106 should not be incorporated into 'the unambiguous terms'

of General Municipal Law § 205-e" (Gonzalez, 93 NY2d at 549,

quoting L 1996, ch 703, Sponsor's Mem in Support, 1996 NY Legis

Ann, at 529 [emphasis added]). Subsequently, we explained that

"while a police officer can assert a common-law tort claim

against the general public, liability against a fellow officer or

employer can only be based on the statutory right of action in

General Municipal Law § 205-e" (Williams, 2 NY3d at 363).3

Particularly because a police officer's right to sue his or her

employer is now derived solely from section 205-e, adoption of

the City's restrictive interpretation of the statute would

3 Contrary to the dissent's contention that suits by injured

police officers against municipal employers have never been

recognized in the 25 years since the enactment of General

Municipal Law § 205-e, this Court expressly recognized as a

general matter that such suits are permissible over a decade ago

in Williams v City of New York (2 NY3d 352, 363 [2004]).

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contravene the well-settled cannon of statutory construction that

remedial statutes -- such as section 205-e (see Schiavone, 92

NY2d at 313) -- "should be construed broadly so as to effectuate

their purpose" (Scanlan v Buffalo Pub. School Sys., 90 NY2d 662,

676 [1997]).

Finally, the City's construction of the statute is

inconsistent with the legislative history of the 1996 amendment,

which reveals that the New York State Conference of Mayors and

Municipal Officials, as well as the Mayors of New York City and

Rochester individually, specifically objected to the bill based

upon their recognition that General Municipal Law § 205-e, as

amended, would permit police officers to sue their employers

despite receiving generous benefits under section 207-c, thereby

greatly expanding the liability of cities such as Buffalo that do

not provide Workers' Compensation benefits for their police

officers (see Farrell Letter, July 10, 1996, Bill Jacket, L 1996,

ch 703, at 28-29; Johnson Letter, Oct. 8, 1996, Bill Jacket, L

1996, ch 703, at 4; Giuliani Letter, July 8, 1996, Bill Jacket, L

1996, ch 703, at 33). In signing the bill, however, Governor

Pataki observed that those municipalities, "by not providing

workers' compensation[,] . . . have avoided and will continue to

avoid substantial costs" (id.). In other words, the legislative

history demonstrates that the Governor, the Legislature and the

affected municipalities were aware at the time of the enactment

of the 1996 amendment that a municipality that does not provide

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workers' compensation could be sued by police officers despite

their receipt of section 207-c benefits.

IV.

In short, we conclude that General Municipal Law § 205-

e, when construed "in an unforced and natural manner" (Theroux, 1

NY3d at 240), cannot be read to bar suits by recipients of

General Municipal Law § 207-c benefits when those police officers

are employed by municipalities that have elected not to provide

workers' compensation coverage. The contrary interpretation

urged by the City and the dissent is inconsistent with the plain

words of the statute, as well as the express statement of

legislative intent and the legislative history of the statute. 

The City's interpretation also conflicts with our prior decisions

recognizing that the statute should be applied expansively and

disregards the distinctions between workers' compensation

benefits and section 207-c benefits long recognized by this

Court. Claimants' remaining argument is unpreserved.

Accordingly, the order of the Appellate Division should

be reversed, with costs, and the matter remitted to that court

for consideration of issues raised but not determined on the

appeal to that court.

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Matter of Diegelman v City of Buffalo, et al.

No. 168 

PIGOTT, J. (dissenting):

Section 205-e of the General Municipal Law -- the

provision under which plaintiff seeks to impose liability against

his municipal employer -- was passed by the Legislature in 1989

(see L 1989, ch 346, § 1). That section was enacted, in large

part, in response to this Court's decision in Santangelo v State

(71 NY2d 395 [1988]), where we held that on-duty police officers

were not entitled to recover for injuries sustained in the line

of duty as a result of the negligence of third parties (see

Senate Introducer's Mem in Support, Bill Jacket, L 1989, ch 346

at 5; see also Letter to Executive Chamber, June 30, 1989 at 6,

Bill Jacket, L 1989, ch 346). The statute provides that, so long

as the injured officer could show that the third party failed to

comply with the requirements of any statute, ordinance, rule or

order of a government entity, the injured officer could bring a

negligence cause of action against the third party.

When enacting section 205-e, the Legislature recognized

that permitting officers to bring negligence actions against

third parties could result in fiscal savings to the municipal

employer. Since the injured police officers (living in

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municipalities with a population of less than one million)1 were

already entitled to receive their salaries and payment of their

medical bills and hospital fees pursuant to General Municipal Law

§ 207-c, the municipality could now file a lien and recoup those

costs from the third party wrongdoer (see Senate Introducer's Mem

in Support, Bill Jacket, L 1989, ch 346 at 5).

Nowhere in the legislative history of the enactment of

section 205-e did the Legislature indicate that it intended for

the injured employee to commence a lawsuit against the municipal

employer providing section 207-c benefits. Indeed, appellate

courts routinely recognized that section 207-c benefits were the

injured police officer's exclusive remedy against his or her

municipal employer (see e.g. Nieves v City of Yonkers, 268 AD2d

412 [2d Dept 2000]; Damiani v City of Buffalo, 198 AD2d 814 [4th

Dept 1993]).

While elected officials expressed a fear during debate

concerning the 1996 amendments that section 205-e could be viewed

as giving injured officers a viable cause of action against their

municipal employer, the Legislature made clear that the

1All municipalities except New York City are compelled to

provide full salary and healthcare benefits to their firefighters

and police officers injured while on duty pursuant to the General

Municipal Law. Therefore, the Legislature has chosen to treat New

York City differently and there is no basis to compare section

207-c to the rules pertaining to that municipality. Nor is there

any basis to rely on prior precedent of this Court that involved

injured police officers suing the City of New York under section

205-e to determine the issue at hand.

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common-law bar on tort claims against municipal employers

remained (see General Obligations Law § 11-106), thereby

evidencing its continued intention to prohibit such suits. 

Further, the Legislature did not alter the language of section

205-e in any way to indicate a change in the statute's original

intent, which was to provide municipal employers paying 207-c

benefits a fiscal savings, not subject them to liability. In the

more than 25 years since the enactment of 205-e, an injured

police officer suing his or her municipal employer has remained

anathema.2

The majority spends much of its time distinguishing

worker's compensation from section 207-c benefits. But that

analysis begs the question: Why would an injured officer

receiving section 207-c benefits, as opposed to workers'

compensation, be entitled to sue his or her employer? Indeed,

this Court has recognized that section 207-c benefits are

expansive (even more so than workers' compensation benefits).

Injured officers receive their full amount of regular salary or

wages, and the municipality is "liable for all medical treatment

and hospital care necessitated by the injury or illness," which

payments "continue 'even' after the employee's retirement and are

2The majority notes our decision in Williams v City of New

York (2 NY3d 352, 363 [2004]) for the proposition that this Court

has recognized suits against municipal employers under section

205-e (see maj opn at n 3). Williams, however, involved lawsuits

against the City of New York and did not involve injured police

officers receiving section 207-c benefits. 

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bestowed in addition to any retirement allowance or pension"

(Theroux v Reilly, 1 NY3d 232, 239 [2003]). The fact that section

207-c provides different benefits than workers' compensation,

however, does not authorize an officer to bring a lawsuit against

his or her municipal employer. The more expansive benefits

available under section 207-c compels just the opposite

conclusion.

The legislative history of section 205-e provides no

explanation for the distinction the majority attempts to make

between workers' compensation and 207-c benefits because there is

none. In my view, injured officers are no more entitled to

commence an action against their municipal employer pursuant to

section 205-e when they are receiving section 207-c benefits,

than if they were receiving benefits under workers' compensation. 

Therefore, I dissent.

* * * * * * * * * * * * * * * * *

Order reversed, with costs, and matter remitted to the Appellate

Division, Fourth Department, for consideration of the facts and

issues raised but not determined on the appeal to that court. 

Opinion by Judge Stein. Chief Judge DiFiore and Judges Rivera,

Abdus-Salaam, Fahey and Garcia concur. Judge Pigott dissents and

votes to affirm in an opinion.

Decided November 21, 2016

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