| Matter of Perry v DiNapoli |
| 2011 NY Slip Op 06969 [88 AD3d 1047] |
| October 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kevin C. Perry, Petitioner, v Thomas P.DiNapoli, as State Comptroller, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondents.
McCarthy, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondentComptroller which denied petitioner's application for performance of duty disability retirementbenefits.
Petitioner, a correction officer, allegedly sustained an injury when he tripped over a bucketwhile supervising two inmates mopping the locker room floor. Following a hearing, respondentComptroller denied petitioner's application for performance of duty disability retirement benefits(see Retirement and Social Security Law § 607-c) on the ground that the injury wasnot caused by an act of an inmate. Thereafter, petitioner commenced this CPLR article 78proceeding challenging that determination.
We confirm. In order to be entitled to performance of duty disability retirement benefits, apetitioner must demonstrate that he or she is "physically or mentally incapacitated for theperformance of duties as the natural and proximate result of an injury, sustained in theperformance or discharge of his or her duties by, or as the natural and proximate result of any act[*2]of any inmate" (Retirement and Social Security Law §607-c [a]). This requires that the petitioner demonstrate that his or her injuries were " 'caused bydirect interaction with an inmate' " (Matter of Koziuk v New York State Comptroller, 78 AD3d 1458,1459 [2010], quoting Matter of Escalerav Hevesi, 9 AD3d 666, 667 [2004], lv denied 3 NY3d 608 [2004]). Here,petitioner was injured while supervising inmates mopping the floor. According to petitioner, hewalked backwards in order to move out of the way of one of the inmates and fell backwards overthe mop bucket. The other inmate then grabbed petitioner's arm in an attempt to break his fall. Inview of this testimony, there exists a rational basis for the Comptroller's conclusion that theincident was not directly caused by acts of the inmates. Accordingly, substantial evidencesupports the determination and it will not be disturbed, even though testimony at the hearing, ifcredited, could support a contrary result (see Matter of Koziuk v New York StateComptroller, 78 AD3d at 1460; Matter of Esposito v Hevesi, 30 AD3d 667, 668 [2006]).
Petitioner's remaining contentions have been reviewed and found to be without merit.
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.