| Matter of Hughes v Hevesi |
| 2008 NY Slip Op 08590 [56 AD3d 934] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Heath C. Hughes, Petitioner, v Alan G. Hevesi, asComptroller of the State of New York, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Spain, 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 Comptrollerwhich denied petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer in the Town of Hempstead, Nassau County, sustained a right handinjury on two separate occasions, in December 2002 and April 2003. During the December 2002incident, petitioner was in the process of apprehending a suspect who had alighted from a car thathad been reported stolen. In April 2003, petitioner was again apprehending a suspect, wanted ona person in need of supervision petition, when he grabbed her as she leapt out of a window andthe two fell to the ground amid construction debris. Petitioner applied for accidental disabilitybenefits in September 2004, but his request was denied. After petitioner requested aredetermination, a Hearing Officer ultimately concluded that petitioner's injuries were not theresult of accidents within the meaning of Retirement and Social Security Law § 363 anddenied the application. Respondent Comptroller adopted the Hearing Officer's findings,prompting petitioner to commence this CPLR article 78 proceeding.[*2]
A petitioner bears the burden of proving entitlement tobenefits under Retirement and Social Security Law § 363 and the Comptroller's decisionwill be upheld if supported by substantial evidence (see Matter of Brennan v New York State & Local Empls. RetirementSys., 50 AD3d 1374, 1375 [2008]; Matter of Sweeney v Hevesi, 50 AD3d 1366, 1366 [2008]; Matter of Franks v New York State &Local Retirement Sys., 47 AD3d 1115, 1116 [2008]). The report from petitioner'sDecember 2002 incident stated that his injury occurred as he fell to the ground attempting to gaincontrol over a suspect who was resisting arrest. Similarly, the report from his April 2003 incidentstated that petitioner fractured his hand as a result of the suspect's resistance. Petitioner testifiedduring the hearing that both reports were prepared on his behalf from information that he hadsupplied, and notably absent from both reports was any reference to petitioner slipping on iceduring the first incident, or slipping on aluminum siding during the second incident, explanationswhich he proffered at the hearing. Inasmuch as petitioner's job duties included "making arrests,by forceful means if necessary," we find that the Comptroller's determination that petitioner'sinjuries were not the result of an accident was supported by substantial evidence (see Matter of Quigley v Hevesi, 48AD3d 1023, 1024 [2008]). Nor do we find the decision to credit the reports over petitioner'stestimony to be error, inasmuch as such inconsistency presented a credibility issue to be resolvedby the Comptroller (see Matter ofZuckerberg v New York State Comptroller, 46 AD3d 1057, 1058 [2007], lvdenied 10 NY3d 712 [2008]; Matterof Pappalardo v Hevesi, 34 AD3d 1021, 1022 [2006]).
Mercure, J.P., Carpinello, Kane and Kavanagh, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.