| Matter of Vicks v Hevesi |
| 2007 NY Slip Op 08348 [45 AD3d 1036] |
| November 8, 2007 |
| Appellate Division, Third Department |
| In the Matter of David D. Vicks, Petitioner, v Alan G. Hevesi, asComptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Carpinello, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichdenied petitioner's applications for accidental and performance of duty disability retirementbenefits.
The facts underlying this CPLR article 78 proceeding, which has been transferred to thisCourt (see CPLR 7804 [g]), can be succinctly stated. Petitioner was a firefighter for over20 years when he was injured in the line of duty in September 1995. Although he attempted toresume work as a full-time firefighter, he was unable to do so because of his injuries, and his lastday of work in this capacity was on November 24, 1995. Between January 17, 1996 and August11, 1999, he was assigned modified/light duties. During this time period, he missed work onnumerous occasions for varying periods of time due to his injuries.[FN*] In 2000, he applied for [*2]accidental and performance of dutydisability retirement benefits. His applications were ultimately denied by respondent in October2004 after a hearing on the ground that, while he was permanently incapacitated from performinghis full duties as a firefighter, he was not so incapacitated from performing his modified duties.
The crux of respondent's determination was his application of 2 NYCRR 364.3 (b) topetitioner. As relevant here, this regulation provides: "In the case of an applicant who. . . has been continuously assigned to light, limited or restricted duties for at leasttwo years prior to [the filing of the application], . . . the Retirement System shallrender its determination on the issue of permanent incapacity on the basis of such light, limited orrestricted duty assignment" (2 NYCRR 364.3 [b]). To be sure, the disputed medical testimonyconcerning whether petitioner was capable of performing even modified duties was resolvedagainst him and he does not take issue with such finding in this proceeding. Rather, his solecontention is that respondent's interpretation and application of 2 NYCRR 364.3 (b) to him wasflawed because he was out of work on numerous occasions due to his injuries. In other words,petitioner argues that, because he did not perform his modified duties "continuously" fortwo years owing to his numerous absences from work, 2 NYCRR 364.3 (b) should not have beenapplied to him. We are unpersuaded.
Respondent's application of this regulation to petitioner—an applicant who mostcertainly had been "assigned" light duty work for a period well in excess of two years regardlessof whether he was present at work every day to perform such duties—was not irrational,arbitrary or capricious (see generally Matter of Nigro v McCall, 218 AD2d 846, 848[1995]; Matter of Natoli v Regan, 196 AD2d 945, 946 [1993]; Matter of Riggins vRegan, 167 AD2d 802, 803 [1990]). In other words, petitioner's "assignment" of modifiedduties was indeed continuous for over two years even though his actual performance of theseduties may have been interrupted at times and, therefore, the regulation was properly applied tohim (see e.g. Matter of Roache vHevesi, 38 AD3d 1036 [2007]; Matter of Riguzzi v Hevesi, 16 AD3d 822 [2005]; Matter ofPerez-Dunham v McCall, 279 AD2d 884 [2001]; Matter of Zajdowicz v New York State& Local Police & Fire Retirement Sys., 267 AD2d 863 [1999]).
Mercure, J.P., Peters, Spain and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: The precise amount of time thatpetitioner was absent from work during this period was somewhat disputed. Petitioner testifiedthat, while he did not know the exact number of days, he estimated that he generally missed twoto three weeks of work on 10 separate occasions. Petitioner's supervisor testified that, upon hisreview of his employment records, petitioner missed work on 17 occasions for periods rangingfrom one day to one week.