Retired NY Assistant Chief Sued For Wage Overpayment

The City of Yonkers has filed suit against a retired Assistant Chief claiming it overpaid him by more than $300,000, and he has refused to refund the amount in question. The suit names Assistant Chief Thomas Cavallo, who was awarded a disability retirement on March 26, 2019.

The overpayment problem stems from several aspects of Chief Cavallo’s retirement. As explained in the complaint:

  • On or about March 12, 2018, Cavallo filed for a disability retirement claiming that he was permanently disabled from performing the full duties of an Assistant Fire Chief.
  • By a determination of the New York State Comptroller dated March 26, 2019, Cavallo received a disability retirement retroactive to March 13, 2018.
  • Pursuant to the Comptroller’s Determination, Cavallo should have been removed from payroll effective April 2, 2019.
  • Notwithstanding the Comptroller’s Determination, Cavallo was not removed from payroll on April 2, 2019 and Cavallo continued to receive and improperly retain the City’s payment of his regular wages and salary.
  • Following receipt of the Comptroller’s Determination, Cavallo received payment from the Comptroller for disability retirement benefits, including a payment for disability benefits retroactive to March 13, 2018.
  • Despite receiving payment from the Comptroller for disability retirement benefits, including a payment for disability benefits retroactive to March 13, 2018, Cavallo continued to receive and improperly retain the City’s payment of his regular wages and salary.
  • The City’s payments to Cavallo of his regular wages and salary continued until Cavallo was removed from the City’s payroll on November 28, 2019.
  • Upon information and belief, at no time prior to November 28, 2019 did Cavallo advise the City that he was receiving and retaining concurrent payments from the Comptroller for a disability retirement and payments from the City of his regular wages and salary.
  • At no time prior to November 28, 2019 did Cavallo offer to return the payments from the City of his regular wages and salary.
  • Cavallo received and improperly retained the City’s payment of his regular wages and salary during the period from March 13, 2018 through November 28, 2019, which amounted to the sum of Two Hundred and Fifty-Eight Thousand, Eight Hundred and Nineteen Dollars and Sixty One Cents ($258,819.61).
  • The City paid Cavallo the sum of $258,819.61 in error, as Cavallo had no legal right to receive or retain concurrent payments both from the Comptroller for a disability retirement and payments from the City of his regular wages and salary.
  • Cavallo has refused to repay the regular wages and salary paid to him by the City in error despite due demand therefore.
  • Following his separation … the City also erroneously paid Cavallo for his accrued but unused vacation leave in the sum of Twenty-Two Thousand and Four Hundred and Twenty-Two Dollars and Fourteen Cents ($22,422.14).
  • Because Cavallo neither retired nor resigned from his position with the City, and instead was separated under CSL 71, he was not entitled to receive payment for any unused vacation leave pursuant to the CBA, Art. 7 § 7:01.07.
  • In the City’s Repayment Demand, the City demanded that Cavallo repay the vacation payout paid to him by the City in error.
  • Cavallo has refused to repay the vacation payout paid to him by the City in error despite due demand therefore.
  • By correspondence dated April 23, 2018, the City notified Cavallo that his City subsidized health insurance as a member of the UFOA would terminate, and that he would be required to pay the full share of his health insurance premium to maintain his health insurance benefits.
  • Thereafter, Cavallo elected to continue health insurance, and began paying the applicable premium for that coverage.
  • Following the Comptroller’s Determination, the City erroneously returned to Cavallo insurance premiums paid by him to the City in the amount of Twenty-Four Thousand and Four Hundred and Twenty Nine Dollars and Eighty-Eight Cents ($24,429.88), and did not collect Cavallo’s health insurance premiums in the sum of Thirteen Hundred and Ninety-Five Dollars and Forty-Two Cents ($1,395.42) for January 2020 and $1,395.42 for February 2020.

The complaint contains three counts, Money Had and Received, Unjust Enrichment, and Declaratory Relief. Here is a copy of the complaint:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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