Legal Report

It's happened three times in the past two weeks. Three police officers came in to see me to discuss potential claims for accidental disability retirement benefits (¾'s). All three had most likely dealt fatal blows to their ¾ claims before they even set foot in my office. This Legal Report has discussed his matter in the past and it is something that has come up at PBA BOG meetings, but the message is not being heeded. It is imperative that everyone understand that a ¾ or a POD (50%) disability claim can be mortally wounded by working too much overtime while on restricted assignment. I believe I have said this very clearly, but in the event there is still some misunderstanding, let me try again. Working too much overtime while on restricted assignment, following a line of duty injury, can destroy your ¾ or POD disability claim.

The statute that controls this overtime situation is Section 364 of the Official Compilation of Codes, Rules and Regulations of the State of New York. It is entitled, “Job Duties to be Considered in Processing Disability Retirement Applications. "At Sect. 364.3(a), it is provided that: “In the case of a member who has been assigned to light, limited or restricted duties for less than two years prior to the date application for disability retirement benefits was filed with the Comptroller(and who has not performed at least 100 hours of paid overtime in any 12-month period within such two-year period), the employer shall provide a written description of the duties and/or physical or psychological job requirements of the full duty assignment that were applicable to the applicant immediately prior to such reassignment to light, limited or restricted duties. With respect to such applicants, the Retirement System shall render its determination on the issue of permanent incapacity on the basis of the duties and job requirements of such previous full duty assignment."

It is obvious that the preference is for the Retirement System to be required to use a full duty job description when deciding whether the applicant is entitled to disability benefits. Every applicant will be required to be examined by a doctor on behalf of the Retirement System, and while frequently these doctors find an applicant unable to perform the full duties of a cop, just as frequently these Retirement System doctors will find the applicant fully capable of performing restricted duty on a regular and consistent basis. It is much easier to prove you cannot do the full duties of a cop, particularly when assigned to restricted duty, as opposed to proving you cannot do a sedentary, restricted duty job that not only are you doing, but you have also been able to perform overtime at that assignment.

You must know that doing too much overtime can kill your case. So, keeping this maxim in mind, if you have a line of duty injury and you are placed on restricted duty, watch the overtime! The typical scenario is that a cop is injured and the seriousness of the injury, as well as the extent of the disability, is not readily apparent. However, if the injury is serious enough for the Police Surgeon to determine you are not fit for full duty, then remember that OVERTIME COUNTS. Until you have come to the irrevocable conclusion that you will NOT file for disability benefits, watch and monitor your overtime. Do not get trapped into the unenviable position of permitting the Retirement System to be able to defeat another wise excellent ¾ claim on the basis of using a restricted duty job description.

As I have done in the recent past, I have a guest author for this Legal Report also. Her name is Bari Lewis, Esq. She has been with my firm for almost 14 years and she practices in our Social Security, Workers' Compensation, Disability Retirement and Real Estate Departments. Her article follows, but before you get to it, I want to take this opportunity to wish all of you, your families and friends a wonderful holiday season, filled with joyous times, good health and good fortune. I want to also thank all of you, and you know who you are, for all the favors and courtesies extended to me and members of my firm and family, not only over the past year, but in all the years that we have had the honor and privilege of representing the Nassau County PBA. Since 1988, we have provided legal representation to members of the PBA in matters of Workers' Compensation, Social Security Disability, Disability Retirement, GML 207-c matters, Medical Review and Personal Injury. Working with you has been incredibly gratifying, both professionally and personally. I am delighted that the successes have far, far outweighed the disappointments, yet I am aware that we have not been perfect. There were times that it took a little longer than it should have to return a call, or get paperwork done or schedule an appointment. So long as you realize that we are always working to improve and grow, and we appreciate and value our relationship with the PBA and you - its members - then I am sure we will continue to be very successful.

THE CLOSING

The year was 1987 and it was the night before my very first real estate closing. I was too excited to sleep. I was barely 26 years old and admitted to the New York State Bar for less than six months. I had accompanied older, more experienced attorneys to real estate closings several times – only to sit and observe. Now it was finally my turn to be the lawyer. I could hardly contain my excitement.

All the real work was already done involving this real estate transaction. The contract was negotiated and signed. The title report was ordered and reviewed and showed completely clear title. The mortgage was obtained by the buyers without any problems. The sellers had already moved out of their house so there wasn't any need for a post closing possession agreement. The senior attorney in charge even prepared the closing adjustment numbers for me the day before the closing. There was really little for me to do other than sit back and make sure that my clients, the sellers, were getting all the money to which they were entitled.

The next morning I woke up early and put on my best suit with the accompanying floppy bow which was popular for professional woman in the 1980's. I tried to arrange my 1980's big hair and makeup in a way to make me appear older (I still looked like a teenager at the time – oh, if only time stood still!). I arrived at the closing ½ hour early with a big, goofy smile on my face reserved for new attorneys doing their very first real estate closings. To my surprise, I was not the first person there. The buyers and their attorney, my clients, the sellers, and even the real estate brokers were already present. I greeted everyone with a warm smile and a big hello. I got back angry stares and grunts. The tension in the room was unbearable. What was going on? Real estate closings are supposed to be pleasant. Everyone is supposed to be happy. The sellers are happy to get their money and move on, the buyers are happy to get a new house, the attorneys and real estate brokers are happy because it is payday for them. Why was everyone so miserable?

It turns out that the final inspection of the night before did not go smoothly. The buyers arrived determined to inspect every inch of their soon to be new home. They opened every window, turned on every single appliance, and plugged a portable hair dryer into every single outlet to make sure they all worked. As an aside, the buyers were being very clever. The legal concept of caveat emptor – let the buyer beware – applies to real estate transactions. In order to be compensated for most defects, the buyer must make a demand for compensation on or before the date of the closing.

The sellers were upset that the buyers were taking so much time. They tried, without success, to hurry the buyers along. The sellers started to insist that the buyers conclude their inspection. The buyers steadfastly refused to hurry up. The sellers ultimately called you guys, the Nassau County Police Department, to remove the buyers from their home. As you know, the police had no choice, but to ask the buyers to leave since the house still legally belonged to the sellers.

This was the situation I encountered at my very first real estate closing. The buyers were livid. They wanted a $100,000.00 to be held in escrow to cover any problems they may encounter because they were not able to complete their pre-closing inspection. (This, by the way, was absurd, as the entire purchase price was only $250,000.00!). The sellers wanted their full proceeds of the sale because the inspection was more than complete in their eyes, and they also wanted the buyers arrested for trespass.

I mention this story for a reason. Let this be a warning to everyone out there who shops around for the least expensive real estate attorney they can possibly find. Real estate transactions are becoming increasingly more complicated and a simple easy transaction seems to be something of the past. Most often, the extremely inexpensive attorney lets unlicensed legal assistants handle virtually every aspect of the real estate transaction. This may work in an easy, completely problem free real estate transaction. The problem arises in cases which are not routine. My first real estate transaction should have been routine. The negotiations were simple, the title report showed no problems whatsoever, the buyers easily and quickly qualified for a mortgage and the sellers were able to turn over vacant possession at the closing. However, even in a simple seemingly problem free real estate transaction, problems can and often do arise. The bottom line is you get what you pay for. Do not go cheap on such an important transaction. Real estate investments are generally one of the biggest investments you will ever make and it is important to obtain an experienced real estate attorney willing to take the time to personally deal with any and all problems.

Back to my first closing…ultimately, we were able to adjourn the closing a couple of hours without anyone having to pay the bank's attorney an additional fee (very unusual and lucky). The buyers were able to complete their inspection, they did not find any problems and the closing continued a couple of hours later without a hitch.

If you have any questions about real estate, please do not hesitate to contact me at Fusco, Brandenstein & Rada, P.C., 516-496-0400 and ask for Bari Lewis.

Best wishes for a happy and healthy holiday season.