Opinion
2011-10-6
In the Matter of Kevin C. PERRY, Petitioner,v.Thomas P. DiNAPOLI, as State Comptroller, et al., Respondents.
Bartlett, McDonough & Monaghan, L.L.P., White Plains (Ryan K. Allen of counsel), for petitioner.Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondents.
Bartlett, McDonough & Monaghan, L.L.P., White Plains (Ryan K. Allen of counsel), for petitioner.Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondents.
McCARTHY, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner's application for performance of duty disability retirement benefits.
Petitioner, a correction officer, allegedly sustained an injury when he tripped over a bucket while supervising two inmates mopping the locker room floor. Following a hearing, respondent Comptroller denied petitioner's application for performance of duty disability retirement benefits ( see Retirement and Social Security Law § 607–c) on the ground that the injury was not caused by an act of an inmate. Thereafter, petitioner commenced this CPLR article 78 proceeding challenging that determination.
We confirm. In order to be entitled to performance of duty disability retirement benefits, a petitioner must demonstrate that he or she is “physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties by, or as the natural and proximate result of any act of any inmate” (Retirement and Social Security Law § 607–c[a] ). This requires that the petitioner demonstrate that his or her injuries were “ ‘caused by direct interaction with an inmate’ ” ( Matter of Koziuk v. New York State Comptroller, 78 A.D.3d 1458, 1459, 915 N.Y.S.2d 164 [2010], quoting Matter of Escalera v. Hevesi, 9 A.D.3d 666, 667, 780 N.Y.S.2d 92 [2004], lv. denied 3 N.Y.3d 608, 786 N.Y.S.2d 811, 820 N.E.2d 290 [2004] ). Here, petitioner was injured while supervising inmates mopping the floor. According to petitioner, he walked backwards in order to move out of the way of one of the inmates and fell backwards over the mop bucket. The other inmate then grabbed petitioner's arm in an attempt to break his fall. In view of this testimony, there exists a rational basis for the Comptroller's conclusion that the incident was not directly caused by acts of the inmates. Accordingly, substantial evidence supports the determination and it will not be disturbed, even though testimony at the hearing, if credited, could support a contrary result ( see Matter of Koziuk v. New York State Comptroller, 78 A.D.3d at 1460, 915 N.Y.S.2d 164; Matter of Esposito v. Hevesi, 30 A.D.3d 667, 668, 815 N.Y.S.2d 363 [2006] ).
Petitioner's remaining contentions have been reviewed and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
MERCURE, J.P., SPAIN, MALONE JR. and KAVANAGH, JJ., concur.