| Matter of Wright v Hevesi |
| 2007 NY Slip Op 10009 [46 AD3d 1184] |
| December 20, 2007 |
| Appellate Division, Third Department |
| In the Matter of Paul A. Wright, Petitioner, v Alan G. Hevesi, asState 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 at the Westchester County Department of Correction, appliedfor performance of duty disability retirement benefits for injuries he sustained when he fell in apipe and sewage area of the facility where he was working. Upon the denial of the application,petitioner requested a hearing and a redetermination. The Hearing Officer upheld the initialdenial and found that petitioner did not sustain his burden of proving that his injuries were thenatural and proximate result of an act of any inmate (see Retirement and Social SecurityLaw § 607-c). Respondent accepted the findings and conclusions of the Hearing Officer,prompting the commencement of this CPLR article 78 proceeding.
We confirm. Contrary to petitioner's assertions, the record before us provides substantialevidence to support the finding that petitioner's injuries were not proximately caused [*2]by the act of an inmate (see Matter of Mruczek v McCall,299 AD2d 638 [2002]). As this Court has noted, the applicable statute (Retirement and SocialSecurity Law § 607-c) requires that "a correction officer's injuries be caused by directinteraction with an inmate" (Matter ofEscalera v Hevesi, 9 AD3d 666, 667 [2004], lvs denied 3 NY3d 608 [2004]; see Matter of Egiziaco v Office ofComptroller of State of N.Y., 15 AD3d 747 [2005]).
According to petitioner, he was ordered to retrieve property of an inmate from the area inquestion. He testified that there was soapy water dripping from the floor above the area onto thebag containing the inmate's property and that the water dripped on the floor causing petitioner toslip and fall and to hurt his knee. Petitioner claims that the inmate hid the property there, thuscreating the circumstances which set the stage for his accident. However, as the Hearing Officernoted, there was no testimony that an inmate was present when the event occurred. Petitioner'stestimony as to who put the inmate's property in the pipe and sewage area was inconsistent; atone point he stated that the inmate had done it, while at another point he testified that he did notknow who placed the property there. In addition, the Hearing Officer noted that when petitionerfirst reported the accident, no mention was made of water being present. Other contemporaneousreports described the accident in the same fashion. It was not until over two years later whenpetitioner applied for disability benefits that he claimed water was the cause of the fall. As topetitioner's contention that soapy water had leaked from the inmate showers above onto the floorwhere he slipped, the Hearing Officer cited to the fact that the showers were operated bycorrection officers, not inmates.
Based on these circumstances, the Hearing Officer was entitled to conclude that petitioner'sversion of the events was not credible and that even if water had leaked into the area, it could notbe attributed to the direct interaction of an inmate, but rather to intervening acts (see Matter of Ritsi v Hevesi, 15 AD3d832 [2005]). The Hearing Officer, and in turn respondent, were vested with the authority toassess witness credibility (see Matter of Jonigan v McCall, 291 AD2d 766 [2002]) andwe find the factual conclusions to have a rational basis in the record (see Matter of Esposito v Hevesi, 30AD3d 667 [2006]). This is true even though the evidence in the record may have supported adifferent result (see Matter of Dann v McCall, 300 AD2d 790 [2002], appealdismissed 100 NY2d 553 [2003]). Accordingly, we find no basis to disturb the determinationrendered.
Cardona, P.J., Mercure, Crew III and Carpinello, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.