| Matter of Hernandez v New York City Employees' RetirementSys. |
| 2017 NY Slip Op 01553 [148 AD3d 706] |
| March 1, 2017 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Minerva Hernandez,Respondent, v New York City Employees' Retirement System,Appellant. |
Zachary W. Carter, Corporation Counsel, New York, NY (Richard Dearing and Kathy ChangPark of counsel), for appellant.
Jeffrey L. Goldberg, P.C., Port Washington, NY, for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board ofTrustees of the New York City Employees' Retirement System dated July 10, 2014, which deniedthe petitioner's application for performance of duty disability retirement benefits pursuant toRetirement and Social Security Law § 507-c, the New York City Employees'Retirement System appeals from a judgment of the Supreme Court, Kings County (Velasquez,J.), dated June 30, 2015, which granted the petition, annulled the determination, and directed theBoard of Trustees of the New York City Employees' Retirement System to award the petitionerperformance of duty disability retirement benefits retroactive to the date of her retirement.
Ordered that the judgment is reversed, on the law, with costs, the determination is confirmed,the petition is denied, and the proceeding is dismissed on the merits.
The petitioner was injured while working as a correction officer in New York City.Thereafter, she applied for performance of duty disability benefits under Retirement and SocialSecurity Law § 507-c, and the Board of Trustees of the New York City Employees'Retirement System (hereinafter the Board of Trustees) denied her application. The petitioner thencommenced this CPLR article 78 proceeding to review the determination of the Board ofTrustees. In the judgment appealed from, the Supreme Court, inter alia, granted the petition andannulled the Board of Trustees' determination. We reverse.
Retirement and Social Security Law § 507-c allows for enhanced disabilityretirement benefits for members of the New York City Employees' Retirement System who areemployed as correction officers (see Retirement and Social Security Law§ 507-c [a]). As relevant here, the statute provides that a correction officer isentitled to "a performance of duty disability retirement allowance equal to three-quarters of [hisor her] final average salary" if the officer becomes physically incapacitated as a result of an injurythat was "sustained in the performance or discharge of his or her duties by, or as a natural andproximate result of, an act of any inmate" (Retirement and Social Security Law§ 507-c [a]).
"[T]he decision of the [B]oard of [T]rustees as to the cause of an officer's disability [*2]will not be disturbed unless its factual findings are not supported bysubstantial evidence or its final determination and ruling is arbitrary and capricious" (Matterof Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art.II, 60 NY2d 347, 351 [1983]). "Substantial evidence" in this context means "some credibleevidence" (Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d756, 760-761 [1996]; see Matter ofJones v New York City Employees' Retirement Sys., 138 AD3d 852, 852 [2016]; see also Matter of Fragale vD'Alessandro, 55 AD3d 607, 607-608 [2008]; Matter of Picciurro v Board of Trustees of N.Y. City Police Pension Fund,Art. II, 46 AD3d 346, 348 [2007]).
Here, the Board of Trustees' determination that the petitioner's injury was not "sustained. . . by, or as a natural and proximate result of, an act of any inmate" within themeaning of Retirement and Social Security Law § 507-c was supported by somecredible evidence in the record and was not arbitrary and capricious (see Matter of Borensteinv New York City Employees' Retirement Sys., 88 NY2d at 761; Matter of Jones v NewYork City Employees' Retirement Sys., 138 AD3d at 852). Contrary to the petitioner'scontention, the Board of Trustees was not required, as a matter of law, to credit her testimonythat her injury occurred when she was pushed by an inmate. Indeed, her testimony conflictedwith the account of the accident that was given in written reports that were prepared inconnection with the incident. "[I]nconsistencies between a petitioner's sworn testimony andwritten documents present a credibility issue for the factfinder to resolve" (Matter of Stimmer v DiNapoli, 98AD3d 1216, 1217 [2012]; seeMatter of Naughton v DiNapoli, 127 AD3d 137, 139 [2015]). "As with anyadministrative determination of fact, [the Board of Trustees'] assessment of the credibility ofwitnesses and the inferences to be drawn from the evidence presented are conclusive if supportedby substantial evidence" (Matter of Di Maria v Ross, 52 NY2d 771, 772 [1980]). TheBoard of Trustees' credibility determinations were supported by substantial evidence. Deferringto the credibility determinations of the Board of Trustees, as we must when those determinationsare supported by substantial evidence, there was no "affirmative act" attributable to an inmate (Matter of Laurino v DiNapoli, 132AD3d 1057, 1059 [2015]; seeMatter of DeMaio v DiNapoli, 137 AD3d 1545, 1546 [2016]). The mere fact that thepetitioner was injured while she was in the presence of an inmate, or while she was engaged inproviding a service for the benefit of an inmate, is insufficient, without more, to satisfy thestatutory standard which requires that the injury be sustained "by, or as a natural and proximateresult of, an act of any inmate" (Retirement and Social Security Law § 507-c[a] [emphasis added]; cf. Matter ofPalmateer v DiNapoli, 117 AD3d 1228, 1230 [2014]; Matter of Davis v DiNapoli, 56 AD3d933, 934 [2008]; Matter of Egiziacov Office of Comptroller of State of N.Y., 15 AD3d 747, 748 [2005]). Accordingly,under the circumstances of this case, the Supreme Court should have denied the petition anddismissed the proceeding. Rivera, J.P., Cohen, Miller and Brathwaite Nelson, JJ., concur.