N.Y. Military Law § 217: Pensions

§ 217. Pensions. 1. Any member of the organized militia who (a) shall

be disabled or has been so disabled in the performance of any actual

service of this state within three years preceding the application for a

pension under this chapter, in case of riots, tumults, breach of the

peace, resistance to process, invasion, insurrection or imminent danger

thereof, or whenever called upon in aid of the civil authorities, or

while engaged in any lawfully ordered parade, drill, encampment or

inspection, shall, upon proof of the fact, as hereinafter provided, be

placed on the disability retired roll of the state and shall receive out

of any moneys in the treasury of the state, not otherwise appropriated,

upon the approval of the chief of staff and approval of the governor,

the same pension or reward that persons under similar circumstances

receive from the United States, or

(b) was activated on state active duty on or after September eleventh,

two thousand one, to participate in World Trade Center site rescue,

recovery, or cleanup operations as part of such state active duty, and

who is determined to have incurred a qualifying World Trade Center

condition, as hereinafter provided, shall be entitled to a performance

of duty disability pension equivalent to three-quarters of the member's

final annual pay as provided for under this chapter. The deadline for

submitting any qualifying claim under this paragraph shall be on or

before September eleventh, two thousand thirty. The adjutant general of

the division of military and naval affairs is authorized to promulgate

regulations to implement the provisions of this section.

2. In case any such member of the organized militia (a) shall die as

the result of any such wound, injury or disease within one year after it

has been incurred or contracted, the surviving spouse, children under

twenty-one years of age or dependent parent of such member of the

organized militia shall receive such pension and reward as persons under

similar circumstances receive from the United States, or

(b) was activated on state active duty on or after September eleventh,

two thousand one, to participate in World Trade Center site rescue,

recovery, or cleanup operations as part of such state active duty, and

whose death is determined to be the result of incurring a qualifying

World Trade Center condition, as hereinafter provided, the surviving

spouse, children under twenty-one years of age or dependent parent of

such member of the organized militia shall be entitled to an accidental

death benefit equivalent to one-half of the member's final annual pay as

provided under this chapter. The deadline for submitting any qualifying

claim under this paragraph shall be on or before September eleventh, two

thousand thirty. The adjutant general of the division of military and

naval affairs is authorized to promulgate regulations to implement the

provisions of this section.

3. None of the benefits provided by subdivision two of this section

shall be paid or allowed unless a claim therefor is presented to the

chief of staff within one year after the date of death of the member of

the organized militia. None of the benefits provided by subdivision one

of this section or on a rehearing of a pension claim under section two

hundred nineteen of this article shall be paid or allowed while the

applicant is on the active list.

4. If any member of the militia shall die while in the active service

of the state, his reasonable funeral expenses, in the same amount as is

paid under similar circumstances by the United States shall be paid by

the state, in such manner as the governor may direct.

5. None of the benefits provided by this section and by section two

hundred nineteen of this article shall be allowed or paid by the state

when such benefits are paid from federal funds. Nothing contained in

this article shall be deemed to make applicable any of the provisions of

the war risk insurance law of the United States. The pension or reward

to be allowed under this section shall be that provided for by the

appropriate retirement or pension laws of the United States so far as

the same may be applicable in substance, without regard to form.

6. Before the name of any person is placed upon the disability retired

roll of the state under this section, proof shall be made under

regulations issued pursuant to this chapter that the applicant is

entitled to such pension or reward; provided, however, that in the case

of the death or disability of a member of the organized militia who

participated in World Trade Center rescue, recovery, or cleanup

operations, and in which such death or disability is determined,

pursuant to regulations issued under this chapter, to have been the

result of a qualifying World Trade Center condition, then unless the

contrary is proved by competent evidence, it shall be presumed that such

death or disability was the natural and proximate result of an accident

sustained in the performance of actual service of this state and not as

a result of willful negligence on the part of such member. The chief of

staff, with the approval of the governor, shall cause to be stricken

from such roll the name of any person whenever it appears by

satisfactory proof that such name was put upon such roll through false

or fraudulent representations. The chief of staff, with the approval of

the governor, may increase, reduce or withdraw any pension or reward

according to the right and justice and the practice under the laws and

regulations of the United States.

7. Any member of the organized militia who on or after the effective

date of this article is awarded a pension under the provisions of this

section and who subsequent to such award requires further care and

medical attendance by reason of such wound, injury, disease or

disability, may, upon application to and upon approval by the chief of

staff, be allowed, in addition to such pension, actual and necessary

expenses for care and medical attendance resulting from such wound,

injury, disease or disability until such time as the disability upon

which the pension was awarded cannot be materially improved by such

further care or treatment.

8. For the purposes of this section:

(a) "Qualifying World Trade Center condition" shall mean a qualifying

condition or impairment of health resulting in disability to a member of

the organized militia who participated in World Trade Center rescue,

recovery, or cleanup operations for a qualifying period.

(b) "Qualifying condition or impairment of health" shall mean a

qualifying physical condition, or a qualifying psychological condition,

or both.

(c) "Qualifying physical condition" and "qualifying psychological

condition" shall have the same meaning as such terms are defined in

subdivision thirty-six of section two of the retirement and social

security law.

(d) "Participated in World Trade Center rescue, recovery, or cleanup

operations" shall mean any member of the organized militia who: (i)

participated in the rescue, recovery, or cleanup operations at the World

Trade Center site; (ii) worked at the Fresh Kills Land Fill in New York;

(iii) worked at the New York city morgue or the temporary morgue on pier

locations on the west side of Manhattan; (iv) manned the barges between

the west side of Manhattan and the Fresh Kills Land Fill in New York; or

(v) repaired, cleaned or rehabilitated vehicles or equipment, including

emergency vehicle radio equipment owned by the city of New York that

were contaminated by debris in the World Trade Center site, regardless

of whether the work on the repair, cleaning or rehabilitation of said

vehicles and equipment was performed within the World Trade Center site,

provided such work was performed prior to decontamination of such

vehicles or equipment.

(e) "World Trade Center site" shall mean anywhere below a line

starting from the Hudson River and Canal Street; east on Canal Street to

Pike Street; south on Pike Street to the East River; and extending to

the lower tip of Manhattan.

(f) "Qualifying period" shall mean: (i) any period of time within the

forty-eight hours after the first airplane hit the towers; or (ii) a

total of forty hours accumulated any time between September eleventh,

two thousand one and September twelfth, two thousand two.