Opinion
May 18, 1971
Proceeding under CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Comptroller which disapproved petitioner's application for ordinary disability retirement benefits pursuant to section 62 Retire. Soc. Sec. of the Retirement and Social Security Law. Petitioner, a member of the New York State Employees' Retirement System, filed an application for accidental disability retirement on April 3, 1963. After hearings were held, the application was disapproved by the State Comptroller upon the ground that petitioner failed to establish an "accident" within the meaning of section 63. An article 78 proceeding instituted to review the final determination was thereafter discontinued upon a stipulation which provided that petitioner's application be reopened for consideration of additional evidence. Upon the reopening, petitioner moved during the subsequent hearing that his accidental disability retirement application be amended to one for ordinary disability under section 62. Although the motion was denied, it was stipulated between petitioner and the Deputy Comptroller that the application for accidental benefits be withdrawn and that an application for ordinary disability retirement be substituted therefor, which application would be deemed to have been filed April 3, 1963. A written stipulation to this effect was entered into by petitioner and counsel for the Retirement System on November 21, 1967. Petitioner's application for ordinary retirement benefits was subsequently disapproved by the Comptroller on May 15, 1968 upon the ground that petitioner was not physically incapacitated for the performance of his work. The determination was upheld by the Comptroller after a hearing upon petitioner's request for a redetermination. Petitioner contends that respondent is required to award ordinary disability benefits according to the terms of the November, 1967 stipulation. However, this stipulation which provided that "the new application as stipulated, shall be submitted to the Comptroller of the State of New York for a decision" (emphasis added) merely authorized petitioner to submit an application for ordinary benefits and in no way freed him from the statutory obligation of demonstrating entitlement thereto. Petitioner's claim that he is entitled to the benefits as a result of an oral agreement reached with the Deputy Comptroller prior to the stipulation is also unavailing. Benefits are payable only upon a determination by the Comptroller that the member is physically or mentally incapacitated for the performance of his duty (Retirement and Social Security Law, § 62, subd. aa), and no such determination had ever been made. Moreover, petitioner admits that the agreement reached was specifically subject to a "formal decision * * * at a hearing * * * to comply with the Comptroller's direction." Furthermore, we note that on January 20, 1970, we denied petitioner's motion for a trial on the issue of the alleged oral stipulation. Petitioner also contends that respondent has previously conceded the matter of his disability and is therefore bound by such admission. We disagree. The alleged admission consists of statements made by a hearing officer shortly after the opening of the initial hearing in June, 1965 in a proceeding brought upon an application for accidental benefits. The officer stated that he did not think that petitioner's disability was "questioned" since he is an "ordinary disability retirement" and that he was "willing to assume for the purpose of the record that he does have a heart condition and that this does disable him." This, however, was not an admission made by a party but rather a conclusion offered by the hearing officer, who represented neither party, for the purpose of narrowing the issue of the hearing. The officer was apparently under the mistaken impression that petitioner had been retired on the basis of "ordinary" disability retirement and that the only issue remaining was whether such disability derived from an accident attributable to his employment. Although petitioner was incorrectly advised that payments for ordinary disability would be less than those under the 55-year retirement plan which he was currently receiving, any possible prejudice which might otherwise have been caused thereby was avoided by the stipulation which permitted petitioner to initiate a claim for such benefits which would otherwise have been barred by statute. Although the record indicates that petitioner suffered from arteriosclerotic heart disease and certain orthopedic infirmities, there was testimony from two medical experts that neither condition incapacitated him from performing his work. Since the Comptroller's determination finds medical support in the record, his determination as to the factual issue of petitioner's alleged disability is final and must be upheld ( Matter of Demma v. Levitt, 11 N.Y.2d 735; Matter of Raab v. Levitt, 24 A.D.2d 912). Determination confirmed and petition dismissed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.