State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 30, 2016 522238 

________________________________

In the Matter of SHARON A.

CAETANO,

Petitioner,

v MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State

Comptroller, et al.,

Respondents.

________________________________

Calendar Date: May 31, 2016

Before: Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

__________

Flaherty & Shea, Buffalo (James P. Shea of counsel), for

petitioner.

Eric T. Schneiderman, Attorney General, Albany (William E.

Storrs of counsel), for respondents.

__________

Lahtinen, J.P.

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.

In September 2012, petitioner, a senior election clerk for

the Erie County Board of Elections, applied for disability

retirement benefits alleging that she was permanently

incapacitated from performing her job duties due to injuries she

suffered as the result of a fall she took at work in 2007. The

application was initially denied on the grounds that petitioner

had less than 10 years of service credit and that she had not
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established that the 2007 incident constituted an accident within

the meaning of the Retirement and Social Security Law. 

Petitioner requested a hearing and redetermination and, following

a hearing, the Hearing Officer upheld the denial. Upon review,

respondent Comptroller adopted the Hearing Officer's decision,

and petitioner then commenced this CPLR article 78 proceeding. 

We confirm. A member of respondent New York State and

Local Employees' Retirement System may apply for disability

retirement benefits if the member has "at least [10] years of

total service credit" (Retirement and Social Security Law § 605

[b] [1]). Members with less than 10 years of total service

credit may also apply for disability retirement benefits if they

can show that their disability was "the natural and proximate

result of an accident not caused by his [or her] own willful

negligence sustained in the performance of his [or her] duties"

(Retirement and Social Security Law § 605 [b] [3]; see Matter of

Quevedo v Office of the N.Y. State Comptroller, 101 AD3d 1209,

1209 [2012]). 

 Initially, petitioner contends that the Comptroller erred

in calculating her total service credit. "The Comptroller is

charged with the responsibility of determining service credits

for retirement purposes and his determination will be upheld if

rational and supported by substantial evidence" (Matter of Cohen

v New York State & Local Employees' Retirement Sys., 117 AD3d

1370, 1370 [2014] [internal quotation marks and citation

omitted], lv dismissed and denied 24 NY3d 1028 [2014]; see Matter

of Westmorland v New York State & Local Retirement Sys., 129 AD3d

1402, 1403 [2015]). Moreover, petitioner has the burden of

establishing an entitlement to additional service credit (see

Matter of Westmorland v New York State & Local Retirement Sys.,

129 AD3d at 1403-1404; Matter of DeLuca v New York State & Local

Employees' Retirement Sys., 48 AD3d 876, 877 [2008]). 

Based upon petitioner's employment records, the Comptroller

determined that she had only attained 9.95 years of total service

credit. Petitioner contends that the yearly service credits in

her records were inaccurate because they did not take into

account time that she was out of work and being paid workers'

compensation benefits in lieu of her salary. Although she based
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her contention on her belief that Erie County credited her with

that time for retirement purposes, the employment records do not

reflect that, and she did not present any authority supporting

her contention. Petitioner further relies on an October 2010

form letter from the Comptroller informing her that she had

reached or was about to reach "[10] or more years of membership

or credited service" (emphasis added) with the Retirement System. 

The letter pertains to the fact that petitioner would no longer

have contributions to the Retirement System taken out of her

paycheck. Inasmuch as this letter may only have acknowledged

that petitioner had been a member of the Retirement System for 10

years, it is not necessarily indicative of petitioner having

reached 10 years of total service credit. In light of

petitioner's employment records, the Comptroller's determination

that she had not attained 10 years of total service credit is

rational and supported by substantial evidence and, in our view,

petitioner did not satisfy her burden of establishing that she

was entitled to additional service credit. 

Petitioner was, therefore, required to demonstrate that her

disability was the natural and proximate result of a work-related

accident and the Comptroller's determination in that regard will

be upheld if supported by substantial evidence (see Matter of

Quevedo v Office of the N.Y. State Comptroller, 101 AD3d at 1209;

Matter of Gonzalez v New York State & Local Employees' Retirement

Sys., 79 AD3d 1562, 1562-1563 [2010]). For purposes of the

Retirement and Social Security Law, an accident is "a sudden,

fortuitous mischance, unexpected, out of the ordinary, and

injurious in impact" (Matter of Kenny v DiNapoli, 11 NY3d 873,

874 [2008] [internal quotation marks and citations omitted]; see

Matter of Schoales v DiNapoli, 132 AD3d 1184, 1185 [2015]). 

"[A]n injury is not accidental in nature if it occurs as the

result of an applicant's routine employment duties and does not

involve an unexpected event" (Matter of Cirrone v DiNapoli, 80

AD3d 1069, 1070 [2011]; see Matter of Kenny v DiNapoli, 11 NY3d

at 874). Petitioner testified that, on the day of the incident,

she was walking down a hallway at work when she suddenly slipped

and fell. According to petitioner, she did not know what she

slipped on but that the floor must have been wet from a leaking

garbage bag. She acknowledged, however, that she did not observe

that the floor was wet before or after she fell and her clothes
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were not wet after she fell. We note that incident reports

prepared by petitioner and her supervisor on the day of the

incident do not reference the floor being wet, only that the

floor was dirty and had a dried stain on it. In light of this

evidence, the Comptroller's determination that petitioner's

injuries were sustained as the result of her own misstep or

inattention, and not because of an accident, is supported by

substantial evidence and will not be disturbed (see Matter of

Magliato v DiNapoli, 78 AD3d 1457, 1458 [2010]; Matter of Bergin

v McCall, 284 AD2d 792, 792 [2001]). Petitioner's remaining

claims have been considered and found to be without merit.

Egan Jr., Lynch, Devine and Mulvey, JJ., concur.

ADJUDGED that the determination is confirmed, without 

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court