| Matter of Palmateer v DiNapoli |
| 2014 NY Slip Op 03322 [117 AD3d 1228] |
| May 8, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Lawrence Palmateer III,Petitioner, v Thomas P. DiNapoli, as State Comptroller, et al.,Respondents. |
Thomas J. Jordan, Albany, for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
McCarthy, J. Proceeding pursuant to CPLR article 78 (transferred to this Court byorder of the Supreme Court, entered in Albany County) to review a determination ofrespondent Comptroller which denied petitioner's applications for performance of dutydisability retirement benefits.
Petitioner, a correction officer, filed applications for performance of duty disabilityretirement benefits pursuant to Retirement and Social Security Law§ 507-b, alleging that he was permanently incapacitated due to injuries tohis knees sustained in August 2007 and July 2009.[FN*]
The applications were initially denied and petitioner requested a redetermination.Following a hearing, the Hearing Officer upheld the denial, concluding that petitioner'spermanent disability was not the result of an act of an inmate. Respondent Comptrolleradopted the Hearing Officer's [*2]determination and thisCPLR article 78 proceeding ensued.
We confirm. It is uncontroverted that petitioner is permanently incapacitated fromperforming the duties of a correction officer. Therefore, petitioner bore the burden ofdemonstrating that his incapacity was the natural and proximate result of "an act of anyinmate" (Retirement and Social Security Law § 507-b [a]; see Matter of Stimmer vDiNapoli, 98 AD3d 1216, 1216-1217 [2012]). Although interpreting themeaning of an "act of any inmate" is an issue of first impression relative to Retirementand Social Security Law § 507-b, which provides performance of dutydisability retirement benefits for correction officers employed by the Department ofCorrections and Community Supervision, this Court has previously interpreted theidentical language found in Retirement and Social Security Law § 607-c,which provides such benefits for county-employed correction officers (seeRetirement and Social Security Law § 607-c [a]). This Court has held thatthe phrase "act of any inmate" as used in Retirement and Social Security Law§ 607-c requires that the petitioner demonstrate that his or her injuries were"caused by direct interaction with an inmate" (Matter of Escalera v Hevesi, 9 AD3d 666, 667 [2004],lv denied 3 NY3d 608 [2004]; see Matter of Davis v DiNapoli, 56 AD3d 933, 934[2008]).
Petitioner testified that, in August 2007, he was seated at a desk when he heard aninmate cry out for help. As he went to get up quickly, he planted his right leg; his rightknee gave out and he fell, injuring both knees. In July 2009, petitioner was seated at adesk when he heard a commotion in the shower room that he believed to be analtercation between inmates. Again, he got up quickly and, when he planted his right leg,his right knee gave out, causing him to fall. We reject petitioner's contention that,inasmuch as he was responding to a potential emergency involving inmates, his injurieswere the natural and proximate result of an act of an inmate. Any connection between hisinjuries and the inmate conduct here is too attenuated to form a basis for an award ofperformance of duty disability retirement benefits (see Matter of Davis vDiNapoli, 56 AD3d at 934; Matter of Egiziaco v Office of Comptroller of State of N.Y., 15AD3d 747, 748 [2005]; Matter of Escalera v Hevesi, 9 AD3d at 667).Accordingly, the Comptroller's determination will not be disturbed.
Peters, P.J., Lahtinen and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *:Although petitioneroriginally alleged that he was also entitled to performance of duty disability retirementbenefits as the result of various injuries to his neck, back, shoulder, groin and hand,sustained between 1991 and 2009, those claims were withdrawn.