| Matter of DeMaio v DiNapoli |
| 2016 NY Slip Op 02505 [137 AD3d 1545] |
| March 31, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Ronald DeMaio,Petitioner, v Thomas P. DiNapoli, as New York State Comptroller, et al.,Respondents. |
Sherman, Federman, Sambur & McIntyre, New York City (Sean PatrickRiordan of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Peters, P.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 denying petitioner's request for performance of duty disabilityretirement benefits.
Petitioner, a correction officer, applied for performance of duty disability retirementbenefits alleging that he was injured while escorting an inmate away from an altercationbetween the inmate and another correction officer during an institutional search forcontraband. Petitioner claimed that, as he escorted the inmate down stairs by holdingonto the inmate's right arm, the inmate pulled away from him, causing him to injure hislower back. The application was initially denied and petitioner requested a hearing andredetermination. Following the hearing, the Hearing Officer upheld the initial denial,concluding that petitioner did not meet his burden of proof of establishing each andevery element necessary to sustain his application and that the initial determination wassupported by substantial evidence. Respondent Comptroller accepted the findings andconclusions of the Hearing Officer, and this CPLR article 78 proceeding ensued.
The Hearing Officer's determination, which was adopted by the Comptroller, wasaffected by errors of law. Specifically, the Hearing Officer improperly noted that theapplicable standard of review was whether the initial determination was "supported bysubstantial [*2]evidence." "[R]ather than a review of theinitial determination, a hearing is conducted to allow the Comptroller to make a'redetermination' with 'the same powers upon such hearing as upon the originalapplication' " (Matter ofBritt v DiNapoli, 91 AD3d 1102, 1103 [2012], quoting Retirement and SocialSecurity Law § 74 [d]).
Moreover, the Hearing Officer's determination misstated the applicable burden. Here,petitioner was required to establish that he is incapacitated from performing hiswork-related duties "as the natural and proximate result of an injury, sustained in theperformance . . . of his or her duties by, or as the natural and proximateresult of any act of any inmate" (Retirement and Social Security Law§ 607-c [a] [emphasis added]). While we have repeatedly held that thestatute requires that the petitioner demonstrate that his or her injuries were "caused bydirect interaction with an inmate" (Matter of Perry v DiNapoli, 88 AD3d 1047, 1048 [2011][internal quotation marks and citation omitted]; see Matter of Laurino v DiNapoli, 132 AD3d 1057, 1058[2015]; Matter of Naughton vDiNapoli, 127 AD3d 137, 140-141 [2015]; Matter of Palmateer v DiNapoli, 117 AD3d 1228, 1229[2014], lv denied 24 NY3d 901 [2014]), and have specified that such injuriesmust be caused by some "affirmative act on the part of the inmate" (Matter of Laurinov DiNapoli, 132 AD3d at 1059; see Matter of Esposito v Hevesi, 30 AD3d 667, 668[2006]), there is no legal support for the Hearing Officer's enhancement of such burdenby indicating that petitioner was required to demonstrate "an intentional overt actof an inmate" (emphasis added). Under these circumstances, and given the Comptroller'sfailure to recognize such errors prior to accepting the Hearing Officer's decision, we findthat the determination must be annulled and the matter remitted to the Comptroller for anew hearing.
McCarthy, Egan Jr. and Lynch, JJ., concur. Adjudged that the determination isannulled, without costs, and matter remitted to respondent Comptroller for furtherproceedings not inconsistent with this Court's decision.