| Matter of Davis v DiNapoli |
| 2008 NY Slip Op 08589 [56 AD3d 933] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Lemuel A. Davis, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Lahtinen, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent which deniedpetitioner's application for performance of duty disability retirement benefits.
Petitioner, a correction officer for the Westchester County Department of Correction, appliedfor performance of duty disability retirement benefits after he injured his neck and back whilerising from a chair to answer a telephone.[FN1]Upon the denial of this application,[FN2]petitioner [*2]sought a hearing and redetermination. The HearingOfficer upheld the denial, finding that petitioner failed to demonstrate that his injuries were "thenatural and proximate result of any act of any inmate" (Retirement and Social Security Law§ 607-c [a]). Respondent thereafter accepted that finding, prompting petitioner tocommence this proceeding pursuant to CPLR article 78 to challenge that determination.
We confirm. Retirement and Social Security Law § 607-c (a) provides, in relevant part,that performance of duty disability retirement benefits shall be available to a correction officer"who becomes physically or mentally incapacitated for the performance of duties. . . as the natural and proximate result of any act of any inmate." This Courtpreviously has held that the statute requires that "a correction officer's injuries be caused bydirect interaction with an inmate" (Matter of Escalera v Hevesi, 9 AD3d 666, 667 [2004], lvdenied 3 NY3d 608 [2004]; seeMatter of Wright v Hevesi, 46 AD3d 1184 [2007]; Matter of Egiziaco v Office of Comptroller of State of N.Y., 15 AD3d747, 748 [2005]). In our view, respondent properly concluded that such interaction waslacking here.
At the time he was injured, petitioner was stationed in the central control room of the facilityand was responsible for staffing the security telephones, doors and alarms. When the telephonerang, signaling a potential emergency within the facility, petitioner, who was sitting at the controlpanel approximately 3½ feet away, "very abruptly" stood up to answer the call andexperienced pain radiating from his neck. As the call reported an altercation between twoinmates, necessitating the dispatch of a tactical response team, petitioner contends that hisinjuries were the natural and proximate result of an act by an inmate. We cannot agree. Simplyput, any connection between the inmates' conduct and petitioner's injuries is too attenuated tobring it within the coverage of Retirement and Social Security Law § 607-c (see Matterof Egiziaco v Office of Comptroller of State of N.Y., 15 AD3d at 748; Matter of Escalerav Hevesi, 9 AD3d at 667). Accordingly, we find no basis upon which to disturb respondent'sdetermination.
Peters, J.P., Rose, Kavanagh and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote 1: Petitioner's application alsocited a May 1993 incident, which is not at issue in this proceeding.
Footnote 2: The employer subsequently filedan application on behalf of petitioner for disability retirement benefits pursuant to Retirement andSocial Security Law article 15, which was granted. Although petitioner challenged the employer'sright to do so, that issue is not before us.