Opinion
12254 Index No. 101751/18 Case No. 2019–4618
10-29-2020
In re Mariama AMAR, Petitioner-Appellant, v. NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent.
Mariama Amar, appellant pro se. James E. Johnson, Corporation Counsel, New York (Zachary S. Shapiro of counsel), for respondent.
Mariama Amar, appellant pro se.
James E. Johnson, Corporation Counsel, New York (Zachary S. Shapiro of counsel), for respondent.
Manzanet-Daniels, J.P., Mazzarelli, Moulton, Kennedy, JJ.
Judgment (denominated an order), Supreme Court, New York County (Carol R. Edmead, J.), entered on or about April 24, 2019, denying the petition to annul respondent's determination, issued on or about September 27, 2018, which denied petitioner's request for accidental disability retirement, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The denial of petitioner's application for accidental disability retirement is not arbitrary and capricious, but is based on credible evidence in the record (see Matter of Borenstein v. New York City Employees' Retirement Sys. , 88 N.Y.2d 756, 760, 650 N.Y.S.2d 614, 673 N.E.2d 899 [1996] ). The finding that petitioner was neither physically nor mentally incapacitated is based on her medical and mental health records, the independent psychiatric examination, and her interview before respondent's Medical Board (see Retirement & Social Security Law § 605[c] ; Matter of DeMeo v. Teachers Retirement Sys. of the City of N.Y. , 180 A.D.3d 560, 121 N.Y.S.3d 6 [1st Dept. 2020] ; Matter of Dominguez v. O'Neill , 179 A.D.3d 574, 574, 114 N.Y.S.3d 633 [1st Dept. 2020] ). There is no contemporaneous evidence showing the circumstances of a physical assault on petitioner by her coworker, as described by petitioner during the administrative proceeding, on the date she asserted in her application (see e.g. Matter of Canonico v. Kelly , 38 A.D.3d 444, 445, 834 N.Y.S.2d 19 [1st Dept. 2007] ). In any event, the physical and psychological injuries caused by the physical assault did not result from an accident or arise from the performance of petitioner's duties (see Retirement & Social Security Law § 605[b][3] ; Matter of Walsh v. Scopetta , 73 A.D.3d 1192, 1193–1194, 902 N.Y.S.2d 600 [2d Dept. 2010], affd 18 N.Y.3d 850, 939 N.Y.S.2d 280, 962 N.E.2d 771 [2011] ;see generally Matter of Lichtenstein v. Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II , 57 N.Y.2d 1010, 1012, 457 N.Y.S.2d 472, 443 N.E.2d 946 [1982] ).
Petitioner's argument that she was deprived of due process is belied by the record showing that she was given an adequate opportunity to present her case before respondent (see Matter of Calzerano v. Board of Trustees of N.Y. City Police Pension Fund, Art. II , 245 A.D.2d 84, 85, 664 N.Y.S.2d 451 [1st Dept. 1997] ).
We have considered petitioner's remaining contentions and find them unavailing.