| Matter of Kaler v DiNapoli |
| 2011 NY Slip Op 06068 [86 AD3d 898] |
| July 28, 2011 |
| Appellate Division, Third Department |
| In the Matter of Terry P. Kaler, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondents.
Stein, 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 performance of duty disability retirement benefits.
Petitioner, a correction officer, applied for performance of duty disability retirement benefitsbased upon injuries sustained after he slipped on a floor that had recently been mopped by aninmate. After the application was initially denied, petitioner requested a hearing and aredetermination. Following a hearing, the Hearing Officer found that petitioner's fall was causedby an act of an inmate (see Retirement and Social Security Law § 507-b [a]) andremanded his application to respondent New York State and Local Retirement System to resolveother necessary issues. On review, respondent Comptroller reversed the Hearing Officer'sdetermination and denied petitioner's application, prompting this CPLR article 78 proceeding.
We confirm. Petitioner bore the burden of establishing that he is incapacitated from [*2]performing his work-related duties "as the natural and proximateresult of an injury, sustained in the performance . . . of his or her duties by, or as anatural and proximate result of, an act of any inmate" (Retirement and Social Security Law§ 507-b [a]). Here, petitioner testified that, while walking in the correctional facility's messhall in the course of his duties, he turned a corner and slipped on a floor that was still wet afterhaving been mopped by an inmate. The issue before us distills to whether the routine mopping ofa floor constitutes an act of an inmate for purposes of the statute.
The phrase "act of any inmate" is not defined in Retirement and Social Security Law §507-b. It is fundamental that, in interpreting the statute, we must " 'ascertain and give effect to theintention of the Legislature' " (Roberts vTishman Speyer Props., L.P., 62 AD3d 71, 81 [2009], affd 13 NY3d 270 [2009],quoting McKinney's Cons Laws of NY, Book 1, Statutes § 92 [a]). The legislativejustification for the enactment of Retirement and Social Security Law § 507-b was that theincreased inmate population of the state's prison system created strain and tension, manifestingitself in an increase in altercations among inmates and between inmates and correction officers(see Assembly Mem in Support, 1996 McKinney's Session Laws of NY, at 2655-2656).These conditions resulted in injuries to correction officers who, in many cases, were forced toretire because their injuries prevented them from performing the duties of their job (seeAssembly Mem in Support, 1996 McKinney's Session Laws of NY, at 2655-2656). Thus, thestatute was clearly intended to compensate correction officers who, because of the risks createdby their "daily contact with certain persons who are dangerous [and] profoundly anti-social"(Governor's Mem approving L 1996, ch 722, 1996 McKinney's Session Laws of NY, at 1943),become permanently disabled "as a natural and proximate result of[ ] an act of any inmate"(Retirement and Social Security Law § 507-b [a]). Notably, the decisions issued by theComptroller interpreting this statute have not been the model of consistency.[FN*] However, petitioner's reliance on this inconsistency is misplaced. In our view, the Comptroller'sdetermination in Matter of Joseph Kozak (New York State & Local Retirement Sys.,Registration No. 3339284-6, Hearing Case No. 03-0371 [June 4, 2004]) is questionable.However, that case has never been reviewed by this Court and is not now before us. In any event,mopping a floor—a benign chore routinely performed in penal institutions byinmates—is clearly not, in and of itself, the type of activity that was intended to trigger theextra protections afforded correction officers by this statute. Accordingly, the determination isconfirmed.
Mercure, J.P., Peters, Malone Jr. and Kavanagh, JJ., concur. Adjudged the determination isconfirmed, without costs, and petition dismissed.
Footnote *: As relevant here, in aninteroffice memorandum describing the Retirement System's guidelines for determining whatqualifies as an "act of an inmate" and a subsequent addendum thereto, respondents attempt todraw a distinction between the situation where a correction officer slips on a floor that was wetfrom just having been mopped by an inmate—indicating that this would not qualify thecorrection officer for benefits—and one where there was a puddle or some unforeseen spillcaused by the inmate who had been mopping—which would so qualify the correctionofficer (see e.g. Matter of Joseph Kozak [New York State & Local Retirement Sys.,Registration No. 3339284-6, Hearing Case No. 03-0371 (June 4, 2004)]).