Opinion
February 27, 1992
Appeal from the Supreme Court, Albany County.
Petitioner contends that as a result of his alcohol addiction, decedent, petitioner's husband, was incompetent at the time he selected his retirement benefits option, which gave decedent maximum benefits during his lifetime with no benefits to petitioner upon his death. Contrary to petitioner's contention, there was no evidence in the record that decedent's mental condition was impaired at the time he selected the option. In fact, petitioner's own testimony established that decedent told her that he was specifically selecting the retirement option that would pay him the most money during his lifetime. In addition, there was testimony that, although decedent was a heavy drinker, he had lucid moments, he held down a regular job and he did not come home from work in an intoxicated condition. The testimony of petitioner's expert witness, who never treated decedent, was highly speculative. Under these circumstances, the conclusion by the Comptroller that petitioner failed to meet her burden of proving that decedent was incompetent at the time of the option election was rational and supported by substantial evidence (see, Matter of Ortelere v. Teachers' Retirement Bd., 25 N.Y.2d 196; Matter of Allaway v. Regan, 133 A.D.2d 962, 964; Matter of Boucher v. Regan, 88 A.D.2d 1066, 1067).
Weiss, P.J., Levine, Mercure, Mahoney and Casey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.