| Matter of Koebel v New York State Comptroller |
| 2009 NY Slip Op 07727 [66 AD3d 1307] |
| October 29, 2009 |
| Appellate Division, Third Department |
| In the Matter of Teresa M. Koebel, Appellant, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Rose, J.P. Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered July 7,2008 in Albany County, which, among other things, dismissed petitioner's application, in aproceeding pursuant to CPLR article 78, to review a determination of respondent Comptrollerdenying petitioner's application for accidental disability retirement benefits.
On November 25, 2002, petitioner applied for accidental disability retirement benefits fromher employment with the Port Authority of New York and New Jersey. In her application,petitioner described her disabling condition as post-traumatic stress disorder that resulted fromher observation of the terrorist attacks on September 11, 2001 from a location in New Jersey andher subsequent performance of emergency management duties. Following a hearing, respondentComptroller denied petitioner's application based upon her failure to give timely written notice tohim as required by Retirement and Social Security Law § 63 (c). Petitioner challenged thisdetermination in a CPLR article 78 proceeding. Supreme Court dismissed her petition and thisappeal ensued.
Petitioner contends that the widely-known events of September 11, 2001 themselvessatisfied the notice requirements of Retirement and Social Security Law § 63 (c). Wecannot agree. Because that statute requires written notice of "[t]he nature and extent of themember's [*2]injuries, and [h]is [or her] alleged incapacity"(Retirement and Social Security Law § 63 [c] [a] [3], [4]), and the events of that daywould not give notice of petitioner's particular injury or disability, Supreme Court correctlydetermined that those events were insufficient to satisfy the notice requirements.
Nor is there merit in petitioner's alternate arguments that her oral notice to her supervisorwas sufficient or that her mental state following September 11, 2001 constituted good causeunder 2 NYCRR 331.2 (b) for not giving written notice. Timely written notice is statutorilymandated unless the application for retirement is filed within one year after the accident, theuntimeliness is excused for good cause shown as provided in the Comptroller's rules andregulations, or notice of the claimant's accident is filed in accordance with the Workers'Compensation Law (see Retirement and Social Security Law § 63 [b]). None ofthose exceptions allows for oral notice or is otherwise applicable here. Petitioner did not applyfor retirement within one year and her claim of good cause fails because her impairment does notcome within either of the two categories of good cause listed in 2 NYCRR 331.2. Nor is thereanything irrational or unreasonable about the Comptroller's construction of the statute as limitingthe acceptable types of good cause to those listed in his duly promulgated rules and regulations(see e.g. Matter of Johnson v Joy, 48 NY2d 689, 691 [1979]; Matter of Campanelli vMcCall, 288 AD2d 680, 681 [2001], lv denied 97 NY2d 611 [2002]). Petitioner alsoalleges that her employer was "alerted" to her psychological injury when she claimed workers'compensation benefits, but her excused untimely filing for those benefits was not binding on theComptroller and did not preclude him from denying her retirement application (see Matter ofWilson v New York State & Local Policemen's & Firemen's Retirement Sys., 288 AD2d602, 603 [2001]).
Finally, we are unpersuaded by petitioner's contention that Executive Order (Pataki) No.113.7 (9 NYCRR 5.113.7), by which the Governor temporarily suspended certain statutory timelimitations following September 11, 2001, tolled the 90-day time period allowed for givingnotice of her accident and injuries. Executive Order No. 113.7 suspended any legal limitationsperiod that would conclude while the order was in effect. Executive Order (Pataki) No. 113.28directed that Executive Order No. 113.7 would extend until October 12, 2001 and then terminate.When Executive Order No. 113.28 and its successors provided further extensions for certainspecific statutory limitations periods, they did not include the period applicable here. Inasmuchas petitioner's time to give notice did not conclude between September 11, 2001 and October 12,2001, her time to give notice was not extended (see Scheja v Sosa, 4 AD3d 410, 411 [2004]).
Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.