State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 31, 2016 521493 

________________________________

In the Matter of RONALD DeMAIO,

Petitioner,

v

MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as New York

State Comptroller, et al.,

Respondents.

________________________________

Calendar Date: February 9, 2016

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

__________

Sherman, Federman, Sambur & McIntyre, New York City (Sean

Patrick Riordan of counsel), for petitioner.

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

Storrs of counsel), for respondents.

__________

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 Comptroller denying

petitioner's request for performance of duty disability

retirement benefits.

Petitioner, a correction officer, applied for performance

of duty disability retirement benefits alleging that he was

injured while escorting an inmate away from an altercation

between the inmate and another correction officer during an

institutional search for contraband. Petitioner claimed that, as

he escorted the inmate down stairs by holding onto the inmate's

right arm, the inmate pulled away from him, causing him to injure
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his lower back. The application was initially denied and

petitioner requested a hearing and redetermination. Following

the hearing, the Hearing Officer upheld the initial denial,

concluding that petitioner did not meet his burden of proof of

establishing each and every element necessary to sustain his

application and that the initial determination was supported by

substantial evidence. Respondent Comptroller accepted the

findings and conclusions of the Hearing Officer, and this CPLR

article 78 proceeding ensued. 

The Hearing Officer's determination, which was adopted by

the Comptroller, was affected by errors of law. Specifically,

the Hearing Officer improperly noted that the applicable standard

of review was whether the initial determination was "supported by

substantial evidence." "[R]ather than a review of the initial

determination, a hearing is conducted to allow the Comptroller to

make a 'redetermination' with 'the same powers upon such hearing

as upon the original application'" (Matter of Britt v DiNapoli,

91 AD3d 1102, 1103 [2012], quoting Retirement and Social Security

Law § 74 [d]). 

Moreover, the Hearing Officer's determination misstated the

applicable burden. Here, petitioner was required to establish

that he is incapacitated from performing his work-related duties

"as the natural and proximate result of an injury, sustained in

the performance . . . of his or her duties by, or as the natural

and proximate result of any act of any inmate" (Retirement and

Social Security Law § 607-c [a] [emphasis added]). While we have

repeatedly held that the statute requires that the petitioner

demonstrate that his or her injuries were "caused by direct

interaction with an inmate" (Matter of Perry v DiNapoli, 88 AD3d

1047, 1048 [2011] [internal quotation marks and citation

omitted]; see Matter of Laurino v DiNapoli, 132 AD3d 1057, 1058

[2015]; Matter of Naughton v DiNapoli, 127 AD3d 137, 140-141

[2015]; Matter of Palmateer v DiNapoli, 117 AD3d 1228, 1229

[2014], lv denied 24 NY3d 901 [2014]), and have specified that

such injuries must be caused by some "affirmative act on the part

of the inmate" (Matter of Laurino v DiNapoli, 132 AD3d at 1059;

see Matter of Esposito v Hevesi, 30 AD3d 667, 668 [2006]), there

is no legal support for the Hearing Officer's enhancement of such

burden by indicating that petitioner was required to demonstrate
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"an intentional overt act of an inmate" (emphasis added). Under

these circumstances, and given the Comptroller's failure to

recognize such errors prior to accepting the Hearing Officer's

decision, we find that the determination must be annulled and the

matter remitted to the Comptroller for a new hearing. 

McCarthy, Egan Jr. and Lynch, JJ., concur.

ADJUDGED that the determination is annulled, without costs,

and matter remitted to respondent Comptroller for further

proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court