| Matter of Monachelli v DiNapoli |
| 2011 NY Slip Op 04356 [84 AD3d 1687] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of Peter Monachelli, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Stein, 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 applications for performance of duty disability retirement benefits.
Petitioner, a police sergeant, filed two applications for performance of duty disabilityretirement benefits.[FN*]The first—filed in November 2003—set forth an incident date of September 23,2003 and alleged that petitioner was permanently disabled as the result of a psychologicaldisorder. That application was denied upon the ground that the disability alleged did not occur asthe result of an incident sustained in service, and petitioner sought a rehearing andredetermination. The parties appeared before a Hearing Officer in May 2005, at which timepetitioner was granted an adjournment [*2]to amend hisapplication to set forth the particular dates that formed the basis for his alleged psychologicaldisorder.
Petitioner thereafter filed a second application for performance of duty disability retirementbenefits in June 2005, citing an incident date of June 8, 2000. This application subsequently wasdenied due to petitioner's failure to file the notice of accident required by Retirement and SocialSecurity Law § 363-c (e) (a). Following a combined hearing on both applications, theHearing Officer upheld the denials. Respondent adopted the Hearing Officer's findings andconclusions, prompting petitioner to commence this CPLR article 78 proceeding to challenge thatdetermination.
We confirm. In order to be entitled to performance of duty disability retirement benefits,"petitioner bore the burden of demonstrating that he was incapacitated from the performance ofduty as the natural and proximate result of [a] . . . disability sustained in service"(Matter of Micalizzi v DiNapoli, 81AD3d 1067, 1067 [2011] [internal quotation marks and citation omitted]; seeRetirement and Social Security Law § 363-c [b] [1]; Matter of Van Hasselt v NewYork State & Local Police & Fire Retirement Sys., 299 AD2d 687, 688 [2002]). That burdenwas not met here. As noted previously, petitioner's November 2003 application set forth anincident date of September 23, 2003. However, the record reflects, and the Hearing Officerexpressly found, that no actual incident occurred on that date—save petitioner's decision toapply for benefits under General Municipal Law § 207-c and the Workers' CompensationLaw. As neither petitioner's own testimony, which generically refers to numerous stressfulincidents and various cumulative events, nor his medical records are sufficient to establish thathe sustained a disability while in the performance of his duties, we cannot say that the HearingOfficer erred in denying his November 2003 application on this basis.
We reach a similar conclusion regarding the denial of petitioner's June 2005 application,which alleged an incident date of June 8, 2000. Pursuant to Retirement and Social Security Law§ 363-c (e) (a), petitioner was required to file written notice with the Office of theComptroller within 90 days of that incident date specifying the time, date and place of theunderlying incident, together with the particulars thereof, as well as the nature and extent of theinjuries sustained and the disability alleged. Although failure to file the required written noticemay be excused for "good cause shown" (Retirement and Social Security Law § 363-c [e][b] [3]), we agree that petitioner cannot avail himself of this exception. Even assuming that thepolice reports prepared in conjunction with the cited incident adequately set forth the time, date,place and particulars of the underlying event, none of those documents even remotely suggeststhat petitioner sustained any injury or disability as a result thereof as required by the applicableregulation (see 2 NYCRR 331.2 [b]; Matter of Koebel v New York State Comptroller, 66 AD3d 1307,1308 [2009]). "Nor is there anything irrational or unreasonable about the Comptroller'sconstruction of the statute as limiting the acceptable types of good cause of those listed in hisduly promulgated rules and regulations" (Matter of Koebel v New York StateComptroller, 66 AD3d at 1308 [citations omitted]). Accordingly, petitioner's 2005application was properly denied.
Petitioner's remaining contentions, including his assertion that he was denied due process,have been examined and found to be lacking in merit.
Mercure, J.P., Spain, Kavanagh and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner also filed butsubsequently withdrew an application for accidental disability retirement benefits.