Opinion
525550
03-29-2018
In the Matter of Fred HEIDELMARK, Petitioner, v. NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM, et al., Respondents.
Tully Rinkey, PLLC, Albany (Michael Macomber of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondents.
Tully Rinkey, PLLC, Albany (Michael Macomber of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondents.
Before: Garry, P.J., Devine, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND JUDGMENT
Mulvey, J.Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller denying petitioner's application for disability retirement benefits.
Petitioner, a construction equipment operator for the Office of General Services, was injured when the break room chair he sat in flipped backward. Thereafter, petitioner applied for disability retirement benefits alleging that he was disabled as a result of the injury sustained. After a hearing, the Hearing Officer found that petitioner met his burden of establishing that the event was an accident within the meaning of Retirement and Social Security Law § 605. Upon administrative appeal, respondent Comptroller superceded the Hearing Officer's determination and denied the application, finding that petitioner was not in the performance of his duties when the injury occurred. This CPLR article 78 proceeding ensued.
We confirm. "To be entitled to benefits pursuant to Retirement and Social Security Law § 605(b)(3), a petitioner must demonstrate that an accidental injury was sustained while in the performance of his or her duties" ( Matter of Curtin v. Hevesi, 57 A.D.3d 1178, 1178, 869 N.Y.S.2d 659 [2008] [citations omitted] ). Here, the record unequivocally establishes that petitioner was on a break when the injury occurred, "and this Court has upheld the denial of benefits where an employee is injured while on a break or otherwise engaged in a personal activity" ( Matter of Gonzalez v. New York State & Local Employees' Retirement Sys., 79 A.D.3d 1562, 1563, 914 N.Y.S.2d 736 [2010] ; see Matter of Curtin v. Hevesi, 57 A.D.3d at 1178, 869 N.Y.S.2d 659 ; Matter of Cossifos v. New York State & Local Employees' Retirement Sys., 275 A.D.2d 879, 879, 713 N.Y.S.2d 568 [2000] ; Matter of Eckerson v. New York State & Local Retirement Sys., 270 A.D.2d 705, 705, 704 N.Y.S.2d 713 [2000], lv denied 95 N.Y.2d 756, 712 N.Y.S.2d 448, 734 N.E.2d 760 [2000] ; see also Matter of Economico v. New York State & Local Police & Fire Retirement Sys., 7 A.D.3d 913, 914, 776 N.Y.S.2d 632 [2004], lv denied 3 N.Y.3d 611, 787 N.Y.S.2d 714, 821 N.E.2d 140 [2004] ). Contrary to petitioner's contention, whether petitioner was in the performance of his duties at the time of the event was properly considered by the Comptroller inasmuch as it is a threshold issue in determining entitlement to disability retirement benefits (see Matter of Curtin v. Hevesi, 57 A.D.3d at 1178, 869 N.Y.S.2d 659 ). Petitioner's remaining contentions are without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Garry, P.J., Devine, Aarons and Pritzker, JJ., concur.