State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 2, 2014 518425 

________________________________

In the Matter of JOHN P. 

DREHER,

Petitioner,

v MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State 

Comptroller, et al.,

Respondents.

________________________________

Calendar Date: September 5, 2014

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

__________

Max D. Leifer, PC, New York City (Max D. Leifer of

counsel), for petitioner.

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

Storrs of counsel), for respondents.

__________

Egan Jr., 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 which denied

petitioner's application for accidental disability retirement

benefits.

Petitioner worked as a senior court officer and was tasked

with, among other things, transporting a judge who needed

assistance to the courthouse. While traveling to the judge's

residence in October 2008, petitioner took a brief detour in

order to purchase a cup of coffee and was struck by a car while

crossing the street, sustaining various injuries. Petitioner
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obtained line of duty injury benefits provided under the

collective bargaining agreement applicable to him and thereafter 

applied for accidental disability retirement benefits, which were

denied. Following a hearing and redetermination, the Hearing

Officer upheld the denial of benefits, as did respondent

Comptroller, prompting petitioner to commence this CPLR article

78 proceeding.

We confirm. There is no question that the Comptroller "is

vested with exclusive authority to determine all applications for

retirement benefits, including the question of whether an

accidental injury was sustained while in service, and if

supported by substantial evidence, the determination must be

upheld" (Matter of Welch v Hevesi, 32 AD3d 564, 564 [2006]

[internal quotation marks and citations omitted]; see Retirement

and Social Security Law § 74 [b]). Although petitioner testified

that he was on duty when he was injured, the fact remains that he

"'was engaged in a personal activity rather than performing work

duties' at the time when the incident occurred" (Matter of Welch

v Hevesi, 32 AD3d at 564, quoting Matter of Economico v New York

State & Local Police & Fire Retirement Sys., 7 AD3d 913, 914

[2004], lv denied 3 NY3d 611 [2004]; see Matter of Gonzalez v New

York State & Local Employees' Retirement Sys., 79 AD3d 1562, 1563

[2010]; Matter of Mellor v Hevesi, 29 AD3d 1205, 1206 [2006]). 

Substantial evidence thus supports the Comptroller's

determination that petitioner was not in service when he was

injured (see Matter of Mellor v Hevesi, 29 AD3d at 1206),

notwithstanding the fact that he received line of duty injury

benefits under the terms of the collective bargaining agreement. 

Petitioner's remaining contention, to the extent that it is

preserved for our review, has been considered and found to be

lacking in merit.

Stein, J.P., McCarthy, Lynch and Clark, JJ., concur.
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ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court