| Matter of Parish v DiNapoli |
| 2011 NY Slip Op 08271 [89 AD3d 1315] |
| November 17, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kim Parish, Petitioner, v Thomas P. DiNapoli,as Comptroller of the State of New York, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
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 which deniedpetitioner's applications for disability and performance of duty disability retirement benefits.
Petitioner, a correction officer, was injured in April 1999 when she slipped on a floor that had justbeen waxed by an inmate. She returned to work but was apparently injured again in May 2004 and hasapparently not worked thereafter. She was last paid by her employer on December 1, 2005 and wassubsequently placed on leave without pay. On July 25, 2006, petitioner applied for disability retirementbenefits pursuant to Retirement and Social Security Law article 15, based upon her April 1999 injury.In September 2007, petitioner also applied for performance of duty disability retirement benefits relatedto the April 1999 injury. Both applications were initially denied, and petitioner requested a hearing andredetermination. Following hearings, the Hearing Officer upheld the denial of the applications, findingthat the application for disability retirement benefits was not timely filed and that petitioner was noteligible for performance of duty disability benefits due to the fact that her injury was not the [*2]result of a direct act of an inmate. Respondent adopted the findings andconclusions of the Hearing Officer, prompting this CPLR article 78 proceeding.
Pursuant to Retirement and Social Security Law article 15, an application for disability retirementbenefits must be filed, as relevant here, "within three months from the last date the member was beingpaid on the payroll or, . . . in the case of a member who was placed on a leave of absencefor medical reasons without pay, either voluntarily or involuntarily, at the time he [or she] ceased beingpaid, . . . not later than [12] months after the date the employee receives notice that his[or her] employment status has been terminated" (Retirement and Social Security Law § 605 [b][2]). Here, petitioner applied for disability retirement benefits in July 2006, which was beyond threemonths from the date she was last paid in December 2005. Further, the extended time limitationspertaining to applicants who were placed on a medical leave of absence are inapplicable here, aspetitioner testified that she was never placed on a medical leave of absence.
Finally, contrary to petitioner's contention, the fact that she was awarded workers' compensationbenefits does not make her application timely. Petitioner relies on the New York State and LocalRetirement System's published guidelines, which allow that an application for disability retirementbenefits may be filed within "12 months after receiving notification of termination of employment,provided [the applicant was] on an authorized medical leave of absence or receiving [w]orkers'[c]ompensation benefits." Here, petitioner was found to be permanently partially disabled in 2009 andwas awarded workers' compensation benefits for lost time beginning in July 2005, with intermittentbreaks in compensation, with the benefits apportioned between the April 1999 injury, an injurysustained in December 1999 and the May 2004 injury. It is undisputed, however, that petitioner'semployment had not been terminated at the time of her application, nor does the record contain anyevidence that her employment has been terminated subsequent to her application. Accordingly, the12-month time limitation relative to a notice of termination is not applicable here. Inasmuch as petitionerdid not file her application within three months of last being paid by her employer, we find thatrespondent's determination that petitioner's application for disability retirement benefits was untimely issupported by substantial evidence.
Regarding the application for performance of duty disability retirement benefits, petitioner "bore theburden of demonstrating that [her] injuries were the natural and proximate result of an act of an inmate"(Matter of Koziuk v New York StateComptroller, 78 AD3d 1458, 1459 [2010]; see Retirement and Social Security Law§ 607-c [a]). The phrase "act of an inmate" is not defined in Retirement and Social Security Law§ 607-c, which provides the added protection of performance of duty disability retirementbenefits to county-employed correction officers (see Retirement and Social Security Law§ 607-c [a]). We have recently held, however, that the phrase "act of an inmate" as used inRetirement and Social Security Law § 507-b—which provides performance of dutydisability retirement benefits for correction officers employed by the Department of Corrections andCommunity Supervision (see Retirement and Social Security Law § 507-b[a])—does not include "a benign chore routinely performed in penal institutions by inmates" (Matter of Kaler v DiNapoli, 86 AD3d898, 899 [2011]). Clearly, the Legislature intended that Retirement and Social Security Law§ 607-c provide the same benefits to county employees, who serve in the same capacity andface the same dangers resulting from increased altercations among inmates and between inmates andcorrection officers, as those provided by Retirement and Social Security Law § 507-b(see Senate Mem in Support, 1999 McKinney's Session Laws of NY, at 2015-2016).Accordingly, inasmuch as the Legislature did not intend for routine chores performed by inmates totrigger the added protection afforded to correction [*3]officers (seeMatter of Kaler v DiNapoli, 86 AD3d at 899), we find that the waxing of a floor does notconstitute an act of an inmate for the purposes of awarding performance of duty disability retirementbenefits pursuant to Retirement and Social Security Law § 607-c.
Mercure, J.P., Spain, Lahtinen and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.