| Matter of Keil v New York State Comptroller |
| 2009 NY Slip Op 07732 [66 AD3d 1317] |
| October 29, 2009 |
| Appellate Division, Third Department |
| In the Matter of Robert W. Keil, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General (Frank K. Walsh of counsel), forrespondents.
Rose, 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 sustained a shoulder injury in the line of duty as a police officer. After recoveringfor two months on sick leave, he was found able to perform limited-duty work. He worked inthat capacity for about 10 months before undergoing surgery. He was then absent whilerecovering for four months, again on sick leave. Upon his return to work, he was again assignedlimited-duty work. One year and 11 months later, petitioner applied for accidental disabilityretirement benefits. Respondent Comptroller applied a limited-duty standard (see 2NYCRR 364.3 [b]), concluded that petitioner had not shown an inability to perform the limitedduties to which he had been assigned and denied his application. Petitioner then commenced thisCPLR article 78 proceeding.
Where the employee "has been continuously assigned to light, limited or restricted duties forat least two years prior to the date [of] application," the determination of permanent incapacity isto be based upon "such light, limited or restricted duty assignment" rather than full duties (2NYCRR 364.3 [b]; see Matter of Perez-Dunham v McCall, 279 AD2d 884, 885 [2001]).Petitioner contends that his employer considered his absence on sick leave to be an assignmentand that the sick leave assignment interrupted his assignment to limited-duty work. Thus, heargues that there was no two-year period of continuous assignment to limited duty. We disagree.The Comptroller has previously determined that "continuously assigned" in this context does notmean continuous performance and is not interrupted by absence from work while on sick leave,and this Court has found that to be a rational, reasonable reading of the regulation (see Matter of Vicks v Hevesi, 45AD3d 1036, 1037-1038 [2007]). Nor has there been any change in the Comptroller'streatment of sick leave which affected the calculation of the duration of petitioner's limited-dutyassignment here.
Also unavailing is petitioner's contention that, since his accident, he was actually assigned tolimited-duty work for a total of only 16 months due to additional sick-leave periods that were notconsidered by the Comptroller. At the hearing on petitioner's retirement application, the partiesstipulated that he had been assigned to limited-duty work from September 27, 2000 through June22, 2001 (268 days) and from October 23, 2001 through September 16, 2003 (693 days), for atotal of 961 days or more than two years. Having failed to demonstrate that his counsel lackedauthority to stipulate to those facts or some other ground for being relieved from that stipulation,petitioner is bound by it (see Javarone v Pallone, 234 AD2d 814, 815 [1996], appealsdismissed 89 NY2d 1030 [1997], 90 NY2d 884 [1997]).
Petitioner's remaining contentions regarding the conduct of the hearing and the Comptroller'srefusal to reopen it have been examined and rejected.
Peters, J.P., Spain, Kane and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.