Opinion
November 7, 1991
Appeal from the Supreme Court, Albany County.
Petitioner contends that due to the physical illness and unstable condition of decedent, her husband, he was not physically or mentally capable of making an intelligent, knowing and voluntary retirement option election and that she therefore should have been permitted to change that election. However, petitioner's own testimony shows that decedent was aware that he exercised his retirement option, and his physician conceded that decedent was capable of lucid periods and that he was not psychotic. Under these circumstances, the conclusion by respondent Comptroller that petitioner failed to sustain her burden of proving that decedent was incompetent and that she failed to establish psychosis at the time of the option election was rational and supported by substantial evidence (see, Matter of Allaway v. Regan, 133 A.D.2d 962; Matter of Boucher v. Regan, 88 A.D.2d 1066). In view of this result, petitioner's remaining argument is rendered academic.
Mahoney, P.J., Casey, Mikoll, Mercure and Crew III, JJ., concur. Adjudged that the determination is confirmed, and petition dismissed, without costs.