| Matter of Stevens v DiNapoli |
| 2017 NY Slip Op 08076 [155 AD3d 1294] |
| November 16, 2017 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Dwayne P. Stevens,Petitioner, v Thomas P. DiNapoli, as State Comptroller, et al.,Respondents. |
Lippes Mathias Wexler Friedman LLP, Albany (Thomas D. Latin of counsel), forpetitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Egan 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 Comptrollerdenying petitioner's application for performance of duty disability retirement benefits.
In February 2012, petitioner, then a correction officer at Moriah Shock Correctional Facility,was supervising a group of inmates who were clearing brush at a local YMCA camp. During thecourse of this work detail, an inmate was attempting to break a branch by pulling it between twotrees when he appeared to slip, allegedly causing the branch to "spring forward" and strikepetitioner's right knee. In October 2014, petitioner applied for performance of duty disabilityretirement benefits, asserting that his disability was caused by the act of an inmate within themeaning of Retirement and Social Security Law § 507-b (a). Respondent New YorkState and Local Retirement System disagreed and denied the application, and petitioner requesteda hearing and redetermination. Following that hearing, the Hearing Officer sustained the denial.Respondent Comptroller accepted the Hearing Officer's findings, prompting petitioner tocommence this CPLR article 78 proceeding to challenge the Comptroller's determination.
As the applicant, petitioner bore the burden of establishing—as a thresholdmatter—that [*2]his asserted incapacity "was the naturaland proximate result of 'an act of any inmate' " (Matter of Palmateer v DiNapoli, 117 AD3d 1228, 1229 [2014],lv denied 24 NY3d 901 [2014], quoting Retirement and Social Security Law§ 507-b [a]; see Matter ofLaurino v DiNapoli, 132 AD3d 1057, 1058 [2015]; cf. Matter of White v DiNapoli, 153 AD3d 1080, 1081 [2017]; Matter of Traxler v DiNapoli, 139AD3d 1314, 1314 [2016]; Matter ofDeMaio v DiNapoli, 137 AD3d 1545, 1546 [2016]). This Court—in the contextof interpreting an analogous statute (see Retirement and Social Security Law§ 607-c [a])—has held that, while the petitioner need not establish that theinmate engaged in "an intentional overt act," the statute nonetheless "requires that the petitionerdemonstrate that his or her injuries were caused by direct interaction with an inmate, and [we]have specified that such injuries must be caused by some affirmative act on the part of theinmate" (Matter of DeMaio v DiNapoli, 137 AD3d at 1546 [internal quotation marks,emphasis and citations omitted]; see Matter of White v DiNapoli, 153 AD3d at 1081;Matter of Traxler v DiNapoli, 139 AD3d at 1314; see also Matter of Hernandez v New York City Employees' RetirementSys., 148 AD3d 706, 708 [2017]). The Comptroller's determination, if supported bysubstantial evidence in the record as a whole, will not be disturbed (see Matter of Laurino vDiNapoli, 132 AD3d at 1059; Matter of Mruczek v McCall, 299 AD2d 638, 639[2002]; Matter of Dean v McCall, 270 AD2d 625, 626 [2000]).
Petitioner testified that, on the day in question, he observed a particular inmate attempting tobreak a tree limb by pulling it between two trees. According to petitioner, he ordered the inmateto stop and, as he approached the inmate to demonstrate the proper technique, the inmate "pulledthe log back again[,] . . . made it look like his feet slipped . . . and. . . let go of the log," causing the branch to strike petitioner's right knee and leadingpetitioner to conclude that he "got set up." However, the accident and investigativereports—completed shortly after the incident, endorsed by petitioner and admitted intoevidence without objection at the hearing—made no mention of petitioner ordering theinmate to stop, nor did those reports otherwise suggest that the inmate had committed a volitionalact. Rather, both the subject reports, the contents of which petitioner did not dispute, as well aspetitioner's application for performance of duty disability retirement benefits, merely indicatedthat as the inmate was pulling on the tree branch, his feet slipped, causing him to let go of thebranch.[FN*]Althoughpetitioner testified that the offending branch struck his right knee, causing it to hyperextend,certain of the remaining inmates comprising the work crew were interviewed following theincident, and each of those inmates denied that the branch struck petitioner—indicatinginstead that the branch fell "straight down to the ground."
In denying petitioner's application for benefits, the Hearing Officer expressly discreditedpetitioner's claim that the inmate disobeyed a direct order, thus distinguishing this matter fromour decision in Matter of Traxler v DiNapoli (139 AD3d at 1315). The Hearing Officeralso found—upon considering all of the evidence—"that the branch hit the groundand not [petitioner]," leading the Hearing Officer to conclude "that the alleged accident was notcaused by any direct interaction with an inmate." Although petitioner provided contrarytestimony, any "inconsistencies between a petitioner's sworn testimony and written documentspresent a credibility issue for the factfinder to resolve" (Matter of Hernandez v New YorkCity Employees' Retirement Sys., 148 AD3d at 707 [internal quotation marks, brackets andcitations omitted]; accord Matter ofNaughton v DiNapoli, 127 AD3d 137, 139 [2015]; see Matter of [*3]Walsh v New York State& Local Retirement Sys., 82 AD3d 1341, 1342 [2011]).
To the extent that petitioner's challenge to the quality of the proof adduced at the hearing ispreserved for our review, we find it to be unpersuasive. "[A]n administrative determination maybe based entirely upon hearsay evidence"—even where there is sworn testimony to thecontrary—"provided such [hearsay] evidence is sufficiently relevant and probative orsufficiently reliable and is not otherwise seriously controverted" (Matter of Watson v New York State JusticeCtr. for the Protection of People with Special Needs, 152 AD3d 1025, 1027 [2017][internal quotation marks and citations omitted]). Here, the Hearing Officer (and ultimately theComptroller) chose to credit the contemporaneous and investigative documentary evidence overpetitioner's sworn testimony. As it is not the role of this Court to weigh the evidence andsubstitute its judgment for that of the administrative factfinder (see id. at 1026-1027; Matter of Albany Police Officers Union,Local 2841, Law Enforcement Officers Union Dist. Council 82, AFSCME, AFL-CIO v NewYork Pub. Empl. Relations Bd., 149 AD3d 1236, 1238 [2017]), and inasmuch as therecord as a whole contains substantial evidence to support the denial of petitioner's applicationfor benefits, the Comptroller's determination will not be disturbed.
McCarthy, J.P., Lynch, Rose and Rumsey, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *:Those same reports concludedthat petitioner failed to properly instruct and supervise the inmates—particularly withrespect to the manner in which tree branches were to be cut.