State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 15, 2016 522974 

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In the Matter of JESUS 

ECHEVARRIA, 

Petitioner,

v MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State

Comptroller, 

Respondent.

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Calendar Date: November 18, 2016

Before: Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

__________

Bartlett, McDonough & Monaghan, LLP, White Plains (Michael

Catallo of counsel), for petitioner.

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

Storrs of counsel), for respondent.

__________

Peters, P.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 denying petitioner's

application for performance of duty disability retirement

benefits. 

Petitioner filed an application for performance of duty

disability retirement benefits in which he alleged a permanent

disability from injuries sustained as a result of incidents that

occurred on September 14, 2001, January 4, 2006, February 15,

2007 and January 2, 2010 while employed as a correction officer

with the Department of Corrections and Community Supervision. 
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The application was initially denied, and petitioner requested a

hearing and redetermination. At the ensuing hearing, petitioner

conceded that the incidents in 2006, 2007 and 2010 were not the

"act[s] of an inmate" for purposes of obtaining benefits pursuant

to Retirement and Social Security Law § 507-b. With regard to

the September 2001 incident, which involved a physical

altercation with an inmate, the New York State and Local

Employees' Retirement System conceded that petitioner is

permanently disabled and that the incident was an "act of an

inmate." The only remaining contested issue was whether the

injuries sustained during the incident are the natural and

proximate cause of petitioner's disability. Following the

conclusion of the hearing, a Hearing Officer upheld the initial

denial of his application for benefits, finding that petitioner

did not meet his burden of establishing that the September 2001

incident was the natural and proximate result of his disability

and that the initial determination was supported by substantial

evidence. Respondent adopted the Hearing Officer's decision, and

this CPLR article 78 proceeding ensued. 

Respondent concedes, and we agree, that the Hearing

Officer's analysis and decision was affected by an error of law

inasmuch as he misstated and applied the incorrect legal standard

in rendering his decision. Specifically, the Hearing Officer

improperly analyzed whether the initial determination was

supported by substantial evidence, "rather than undertaking a

redetermination and exercising the same powers upon such hearing

as upon the original application" (Matter of Bodenmiller v

DiNapoli, 142 AD3d 752, 753 [2016] [internal quotation marks and

citations omitted]; see Retirement and Social Security Law § 74

[d]; Matter of DeMaio v DiNapoli, 137 AD3d 1545, 1545-1546

[2016]). Under these circumstances, given respondent's failure

to recognize this error of law prior to adopting the Hearing

Officer's decision, we conclude that the determination must be

annulled and the matter remitted to respondent for a new hearing.

McCarthy, Egan Jr., Lynch and Devine, JJ., concur.
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ADJUDGED that the determination is annulled, without costs,

and matter remitted to respondent for further proceedings not

inconsistent with this Court's decision. 

ENTER:

Robert D. Mayberger

Clerk of the Court