| Matter of Koziuk v New York State Comptroller |
| 2010 NY Slip Op 08672 [78 AD3d 1458] |
| November 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Martin T. Koziuk, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Malone Jr., 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 Comptroller whichdenied petitioner's application for performance of duty disability retirement benefits.
Petitioner, a correction officer, applied for performance of duty disability retirement benefits forinjuries he sustained in a fall that occurred in the correctional facility's kitchen, where he had beenassigned to patrol. After his application was initially disapproved, petitioner requested a redeterminationand a hearing was held. Following the hearing, a Hearing Officer concluded that petitioner's disabilitywas not caused by an act of an inmate and denied his application. Respondent Comptroller adopted theHearing Officer's findings, prompting this CPLR article 78 proceeding.
We confirm. Petitioner bore the burden of demonstrating that his injuries were the natural andproximate result of an act of an inmate (see Retirement and Social Security Law § 607-c[a]; see generally Matter of Wright vHevesi, 46 AD3d 1184 [2007]; Matter of Esposito v Hevesi, 30 AD3d 667 [2006]). More specifically,petitioner was required to establish that his [*2]injuries were "caused bydirect interaction with an inmate" (Matter ofEscalera v Hevesi, 9 AD3d 666, 667 [2004], lv denied 3 NY3d 608 [2004]; accord Matter of Davis v DiNapoli, 56AD3d 933, 934 [2008]). Attempting to do so, petitioner—the lone witness totestify—stated that he slipped on the floor of the kitchen because it was covered with grease andwater, ostensibly the result of inmates cooking hamburgers and mopping the floor, respectively.However, petitioner could only speculate as to the cause of the grease and a report completed the dayfollowing the incident supports the conclusion that an inmate had recently finished removing water fromthe floor.
Moreover, that report, which is signed by petitioner, indicates that the incident was not "inmaterelated." While petitioner maintained that he did not complete that portion of the report, "[i]t is wellsettled that any apparent inconsistency between a petitioner's sworn testimony and written documentspresents a credibility issue for resolution by the finder of fact" (Matter of Allesandro v DiNapoli, 68 AD3d 1592, 1594 [2009] [internalquotation marks and citations omitted], lv denied 14 NY3d 705 [2010]). Here, the HearingOfficer specifically credited the incident report. Accordingly, as the foregoing constitutes substantialevidence supporting the Comptroller's determination that petitioner's injuries were not the result of hisdirect interaction with an inmate, we find no basis upon which to disturb it (see Matter of Davis vDiNapoli, 56 AD3d at 934; Matter of Wright v Hevesi, 46 AD3d at 1184-1185; Matter of Ritsi v Hevesi, 15 AD3d832, 833 [2005]; Matter of Egiziaco vOffice of Comptroller of State of N.Y., 15 AD3d 747, 748 [2005]). This is so despiteevidence in the record that could support a contrary result.
Petitioner's remaining arguments, including that the Comptroller's decision is inconsistent withadministrative precedent, have been reviewed and found to be unpersuasive.
Mercure, J.P., Peters, Rose and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.