New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of Murphy v. New York State Comptroller

          Petitioner, a police officer who worked for the Port Authority of New York and New Jersey, who worked at John F. Kennedy International Airport as an emergency rescue worker, commenced an Article 78 proceeding to review determination by Respondent, Comptroller, denying Petitioner accidental disability retirement benefits. 

          Petitioner was injured in January of 1999 when exiting a rescue truck he slipped on black ice and fell injuring his leg, ankle, head and shoulders.  In May of 2007 a hearing officer approved Petitioner for accidental disability retirement benefits but, the Comptroller reversed and denied the benefits. 

          Accidental disability retirement benefits should be awarded when the incident was “a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular or routine employment duties.” Petitioner explained that on the date of his injury it was cold but “clear with no precipitation”, the “taxiway was dry” and that he saw “no ice as he was exiting from the truck’s cab.” 

          The Comptroller decision rested on the concept that “encountering slick or icy surfaces was “inherent” in petitioner’s performance of his job during the winter.”  Therefore, the event could have been “reasonably anticipated.”

          The Court determined that it could not hold that “any slip and fall during the course of work performed outside during winter renders that event foreseeable.”  Accordingly, the Court determined that the Comptroller’s decision was not supported by substantial evidence and the determination must be annulled.

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Matter of Britt v. DiNapoli

          This case was a CPLR Article 78, to review a determination made by respondent, New  York State Comptroller denying petitioner’s application for performance of duty disability retirement benefits.

          Petitioner was a deputy sheriff, who was injured on the job apprehending a suspect in 1999.  He returned to work in 2000 and was then again injured on the job when punched in the lower spine.  The New York State and Local Employee’s Retirement System denied his disability retirement benefits believing his incapacity was not the result of workplace injuries.  A Hearing Officer affirmed this decision. 

          The Court decided that the Comptroller’s decision lacked substantial evidence.  Both parties agreed that the petitioner was permanently incapacitated from further work.  Petitioner needed to prove that these injuries were the “natural and proximate result of his workplace injuries.”  Petitioner had never suffered back problems until his first incident in 1999.  Petitioner’s chiropractor, orthopedic surgeon and neurosurgeon all agreed that petitioner’s disability was caused by these two work-related accidents. 

          Respondent’s orthopedic surgeon argued that petitioner’s disability was caused originally by degenerative disc disease and osteoarthritis, rather than trauma.  But, the legal precept states that “when a preexisting dormant disease is aggravated by an accident, thereby causing a disability that did not previously exist, the accident is responsible for the ensuing disability.”

          Therefore the Court concluded that the Comptroller’s decision was without merit.  The determination was annulled and the petition granted. 

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Retirement Benefits Denied Due to Substantial Evidence Presented by New York State

In the Matter of Stephen C. Caruana v. Thomas P. DiNapoli, as Comptroller of the State of New York, et al..

Petitioner, Stephen C. Caruana, sought to review a decision of Respondent which denied his application for accidental disability retirement benefits.

In March 2006, Petitioner, a police officer, applied for accidental disability retirement benefits. Caruana claimed that he was permanently incapacitated due to neck and back injuries that were a result of three work-related incidents. Initially, his application was denied and petitioner requested a redetermination, therefore, a hearing was held. The Hearing Officer concluded that Petitioner “…failed to establish that such incapacity was caused by either 1987 incident or the 2003 incident, resulting in the denial of his application, an Article 78 followed.

The Appellate Division stated that the Petitioner has the burden of proving that his injuries were the results of the alleged incidents and in deciding whether Petitioner has fulfilled this burden, Respondent is entitled to produce “…conflicting medical evidence and to credit the opinion of one expert…” over the other.

In 2007, Petitioner had an orthopedic surgeon perform a spinal fusion surgery who agreed that Caruana condition was related to the 1987 incident and a chiropractor who agreed that his disability is related to the 1987 and 2003 incidents. Respondents brought in a board certified surgeon, Austin Leve, to examine Petitioner and review his medical records in August 2006. Leve concluded that Caruana’s injuries were not significant enough of an injury to permanently incapacitate him.

The court concluded that Respondent’s decision was supported by substantial evidence. Therefore the decision was confirmed, without costs and the petition is dismissed.

Read more about this Article 78 case here.

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Pitts II v City of New York Office of Comptroller

Pursuant to Article 78, petitioner sought the court to review a decision of the New York City Department of Health and Mental Hygiene (DOHMH) stating that he had violated New York City Health Code.

Petitioner received a violation notice from the DOHMH which cited him for violations of the New York City Health Code. A DOHMH hearing examiner determined that petitioner had two violations and he would be fined $500 total. Petitioner brought suit but failed appeal the decision prior to suit.  Due to the petitioner not exhausting all administrative remedies the Supreme Court granted DOHMH’s motion to dismiss.

The court stated that in order for a proceeding to be litigate in a court of law, petitioner must exhaust all available administrative remedies

The Supreme Court ordered that the order and judgment is affirmed, without costs or disbursements.

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

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Matter of Brian A. Herlihy v. Thomas P. DiNapoli, as State Comptroller

In this Article 78 case, the court reviewed a decision of the State Comptroller which denied the petitioner’s application for accidental disability retirement benefits.

In 1995, petitioner started working as a police officer for the Town of Bedford, Westchester County. From 2001 to 2005, petitioner sustained three work related injuries. In 2001, while lifting a speed trailer, petitioner felt a pop in his back. In 2002, he injured his upper back and shoulder while aiding burglary arrest. In 2005, petitioner tripped on a step in the police station while trying to answer the phone and work desk duty.

Two years later, in 2007, Petitioner applied for accidental disability retirement benefits. The application was denied due to none of the incidents encompassed an accident within the meaning of Retirement and Social Security Law § 363. The court confirmed stating that the petitioner bears the burden of proving that his injuries were unintentional. This meant that the injuries were sudden and unusual and completely not linked to ordinary risks of employment.

The court confirmed the initial determination, without costs and dismissed the petition.

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78

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Matter of David A. Hoover v Thomas P. DiNapoli, as Comptroller of the State of New York, et al.

In this Article 78 case, petitioner sought to rescind a determination of Comptroller terminating petitioner’s service credits in New York State and Local Employees’ Retirement System.

Petitioner received service credit from New York State and Local Employees’ Retirement System between 1988 and 1995 for part time employment as a labor regulations specialist for Erie 1 BOCES. In 2008, the respondent declared new regulation for the Retirement System. The new regulations stated how to classify professional service providers as employees or independent contractors.

According to the new regulations, petitioner’s service credits were revoked because he was classified and being an independent contractor and was not entitled to the service credits under the independent contractor title. Petitioner sought reinstatement of his service credits on the grounds that Comptroller improperly applied the new regulations and violated his due process rights. The court granted the petition on the due process claim and order that “… the determination to revoke petitioner’s service credit with Erie 1 BOCES for the years prior to 1995 is vacated and annulled.”

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78

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