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Volume 11 - Opinions of Counsel SBRPS No. 66

Opinions of Counsel index

Un-remarried spouses of volunteer firefighters or volunteer ambulance workers killed in the line of duty exemption (service requirement) (death of non-member volunteer while in the performance of duties) - General Municipal Law, § 209-i; Real Property Tax Law, § 466-f:

The un-remarried surviving spouse of a volunteer firefighter or ambulance worker killed in the performance of duties on behalf of another company, which accepted his or her service, may benefit from the exemption offered by section 466-f of the RPTL.

Our opinion has been requested concerning the exemption for un-remarried spouses of volunteer firefighters or volunteer ambulance workers killed in the line of duty (Real Property Tax Law, §466-f [added L.2005, c.324]). That section permits municipalities, that grant the volunteer firefighters/ambulance workers exemption under section 466, {1} 466-a, 466-b, 466-c, 466-d, or 466-e of the RPTL, {2} to amend their local law, ordinance, or resolution authorizing the exemption or to adopt a new authorization to extend the exemption to the un-remarried surviving spouse of a “deceased enrolled member[]” who was “killed in the line of duty.” {3}  We are asked for clarification of the “killed in the line of duty” standard. The requester understands that that standard would seem satisfied if the volunteer were to die while performing his or her duties within the town that offers the exemption, but asks whether it would be met if the volunteer died while serving in another town.

The RPTL does not define the phrase “killed in the line of duty,” but such standard is similar to that in other provisions of law relating to benefits payable to injured firefighters or representatives of deceased volunteer firefighters (e.g., “dies from injuries incurred while in the performance of his duties as such fireman...” (General Municipal Law, §205)). It would seem reasonable to assume that the Legislature considered such programs in enacting section 466-f.

Addressing the specific question, section 209-i(1) of the General Municipal Law provides, in part, as follows:

Whenever a volunteer fireman is within this state, but outside the area regularly served by the fire company or fire department of which he is a member and has knowledge of a fire or other emergency at or near the place where he is for the time being, such volunteer fireman may report to the officer in command of the paid or volunteer fire company ... engaged in the handling of any such fire or other emergency and, on an individual basis, offer his services to assist such fire company or fire department. After his services are so accepted, the volunteer fireman shall then be entitled to all powers, rights, privileges and immunities granted by law to volunteer firemen during the time such services are rendered, in the same manner and to the same extent as if he were a volunteer member of the fire company or fire department which he is assisting, including benefits under the volunteer firemen’s benefit law. Any such commanding officer shall have power, in his discretion, to so accept the services of a volunteer fireman unless the legislative body [resolves otherwise].

In other words, a volunteer firefighter, who happens to be outside the area served by his or her company, may offer his or her services to the officer in charge of responding to a fire or other emergency, and, if those services are accepted, such volunteer is entitled to various benefit programs available to members of the company responding to the emergency. As one court put it, “That section [i.e., 209-i] manifests a legislative intention to place the injured plaintiff in the same legal position a [hometown] fireman would have occupied with respect to rights and liabilities” (Smith v. Plandome, 28 Misc.2d 793, 795, 213 N.Y.S.2d 119, 121 (Sup.Ct., Nassau Co., 1961); see also, Op.State Compt. 98-24; 27 NY Jur2d, Counties, etc., §1176). Given this provision of the General Municipal Law and its judicial and administrative interpretations, in the absence of a judicial finding to the contrary, we think it reasonable to assume that the Legislature intended that the un-remarried surviving spouse of a volunteer firefighter or ambulance worker killed in the performance of duties on behalf of another company, which accepted his or her service, could benefit from the exemption offered by section 466-f of the RPTL.

October 18, 2005


{1}  This exemption, available only in villages, authorizes a partial exemption for volunteer firefighters only, not ambulance workers.

{2}  Note then, as it has been enacted, new section 466-f does not apply to a municipality in a county whose volunteer firefighter/ ambulance worker exemption is governed by any other section of the RPTL such as section 466-f or section 466-g. That is, since 1999, numerous exemptions have been enacted for volunteer firefighters and ambulance workers, generally on a county-by-county basis. They have been denominated as sections 466-a, 466-b, etc., with many duplicative section numbers having been assigned. Thus far, during the 2005 session, in addition to the section 466-f discussed herein, exemptions for the following counties have been enacted: Jefferson and St. Lawrence (§466-f; c.208), Montgomery (§466-f; c.244), Onondaga (§466-g; c.419), Orange (§466-f; c.74), Saratoga (§466-g; c.712), and Sullivan (§466-f; c.189). [Editor’s Note: Exemptions have since been added for Ulster (§466-h; L.2006, c.250) and Albany (§466-i; L.2007, c.424).]

{3}  There are several additional criteria which must be satisfied: (1) the volunteer company must certify as to the applicant’s status as the un-remarried surviving spouse of its former member killed in the line of duty, (2) such deceased volunteer must have been a member of the company for at least five years, and (3) the deceased volunteer must have been receiving the exemption at the time of his or her death.
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Editor’s Note: Another opinion denominated as 11 Op.Counsel SBRPS No. 66, concerning the assessment of family day care centers, was withdrawn given legislative resolution of the issue.

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