From Casetext: Smarter Legal Research

Matter of DeFilippo v. Mccall

Appellate Division of the Supreme Court of New York, Third Department
Nov 3, 1994
209 A.D.2d 768 (N.Y. App. Div. 1994)

Opinion

November 3, 1994

Appeal from the Supreme Court, Albany County.


Petitioner's application for accidental disability retirement benefits alleged that she was disabled as the result of injuries she sustained in the course of her employment as a food service worker in December 1983 and August 1988. Respondent Comptroller denied petitioner's application based upon two conclusions: (1) that the August 1988 incident did not constitute an accident within the meaning of Retirement and Social Security Law § 63, and (2) that petitioner had failed to sustain the burden imposed upon her by State Administrative Procedure Act § 306 (1) of proving she was permanently incapacitated from performing the duties of a food service worker as the result of an accident sustained in the performance of her duties.

Petitioner's testimony that she was injured while lifting a stack of trays, which was part of her regular duties, provides substantial evidence to support the first conclusion (see, Matter of Beachy v. Regan, 119 A.D.2d 967, lv denied 68 N.Y.2d 604). As to the second conclusion, the expert for the New York State and Local Employees' Retirement System found no objective evidence of a condition that would prevent petitioner from performing her duties. In any event, petitioner's expert attributed her incapacity to the August 1988 incident which, as already noted, the Comptroller properly determined not to be an accident within the meaning of the Retirement and Social Security Law. The Comptroller's determination is supported by substantial evidence and, therefore, it cannot be disturbed (see, Matter of Mazur v. Regan, 188 A.D.2d 820).

Cardona, P.J., Mikoll, Mercure and White, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.


Summaries of

Matter of DeFilippo v. Mccall

Appellate Division of the Supreme Court of New York, Third Department
Nov 3, 1994
209 A.D.2d 768 (N.Y. App. Div. 1994)
Case details for

Matter of DeFilippo v. Mccall

Case Details

Full title:In the Matter of DEBRA A. DeFILIPPO, Petitioner, v. H. CARL McCALL, as…

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

Date published: Nov 3, 1994

Citations

209 A.D.2d 768 (N.Y. App. Div. 1994)
617 N.Y.S.2d 987

Citing Cases

Klug v. McCall

As petitioner did not prove that his fall was the product of anything other than an ordinary misstep,…