Hill v. N.Y. State and Local Retirement Sys

Full title: IN THE MATTER OF STEVEN HILL, Petitioner, v. NEW YORK STATE AND LOCAL…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: May 24, 2001

283 A.D.2d 846 (N.Y. App. Div. 2001)

724 N.Y.S.2d 663

Opinion

May 24, 2001.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent Comptroller which denied petitioner's application for disability retirement benefits.

Drew, Davidoff Edwards L.L.P. (Michael Davidoff of counsel), Monticello, for petitioner.

Eliot Spitzer, Attorney-General (Lew A. Millenbach of counsel), Albany, for respondents.

Before: Mercure, J.P., Peters, Spain, Carpinello and, Mugglin, JJ.

MEMORANDUM AND JUDGMENT

Peters, J.

Inasmuch as respondents concede that the Hearing Officer erred in issuing his decision prior to receipt of petitioner's brief and prior to the date scheduled for its submission, the appropriate remedy for this procedural defect is to remit the matter to respondent Comptroller for a de novo determination upon the existing record (see, Matter of Kaiser v. McCall, 262 A.D.2d 920).

Mercure, J.P., Spain, Carpinello and Mugglin, JJ., concur.

ADJUDGED that the determination is annulled, with costs, and matter remitted to respondent Comptroller for further proceedings not inconsistent with this Court's decision.