| Matter of Cavanaugh v DiNapoli |
| 2012 NY Slip Op 07177 [99 AD3d 1154] |
| October 25, 2012 |
| Appellate Division, Third Department |
| In the Matter of John Cavanaugh, 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.
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 which deniedpetitioner's application for accidental disability retirement benefits.
Petitioner retired from his position as a firefighter for the City of Syracuse in 2004 and, in2007, he filed an application for World Trade Center (hereinafter WTC) accidental disabilityretirement benefits. Respondent ultimately denied petitioner's application, concluding thatpetitioner failed to establish that he was performing duties in his official capacity at the time thathe was working at the WTC site following the September 11, 2001 terrorist attacks. Petitionerthereafter commenced this CPLR article 78 proceeding challenging the determination.
Initially, petitioner argues that it was not his burden to establish that he was working in hisofficial capacity as a firefighter at the time of his injury because the rebuttable presumption setforth in Retirement and Social Security Law § 363 (g) (2) (a) placed that burden upon theNew York State and Local Retirement System. Respondent counters that the "in . . .service" requirement of Retirement and Social Security Law § 363 (a) (1) is a thresholddetermination that [*2]petitioner was required to meet. We neednot reach this issue, however, because, regardless of the burden and despite evidence thatpetitioner was performing firefighter duties at the WTC site, there is substantial evidence that histrip there was a personal pursuit rather than part of his job as a Syracuse firefighter.
The Retirement System submitted proof that petitioner was granted a leave of absence to goto the WTC and was considered to be on vacation during the time he was there. Moreover,petitioner testified that he was not working when the attacks occurred and he went to the WTCthe next day at the invitation of a friend who owned a private ambulance service. Althoughpetitioner requested and received approval from the fire chief to go and took his firefighting gearwith him, substantial evidence supports the finding that petitioner was engaged in a personalactivity and not performing or discharging his official duties as a Syracuse firefighter while at theWTC site (see Matter of Economico vNew York State & Local Police & Fire Retirement Sys., 7 AD3d 913, 914 [2004], lvdenied 3 NY3d 611 [2004]; Matter of Spencer v New York State & Local Employees'Retirement Sys., 220 AD2d 792, 793-794 [1995]; see also Matter of McDonald vLevitt, 67 AD2d 778, 779 [1979], lv denied 47 NY2d 708 [1979]).
Peters, P.J., Spain, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.