NY Ret & SS L § 363 (2021)
2021 New York Laws RSS - Retirement and Social Security Article 8 - New York State and Local Police and Fire Retirement System Title 8 - Death Benefits and Disability Retirement 363 - Accidental Disability Retirement.

§ 363. Accidental disability retirement. a. A member shall be entitled to  an  accidental  disability  retirement  allowance  if,  at  the time application therefor is filed, he is:   1. Physically or mentally incapacitated for performance of duty as the natural and proximate result of an accident not caused by his or her own willful negligence sustained in such service and while actually a member of the police and fire retirement system, and   2. Actually in service upon which his membership is based. However, in a case where a member is discontinued from  service  subsequent  to  the accident,  either  voluntarily  or  involuntarily, and provided that the member meets the requirements of  paragraph  one  of  this  subdivision, application  may be made, either (a) by a vested member incapacitated as the result of a qualifying World Trade Center condition  as  defined  in section two of this chapter at any time, or (b) not later than two years after  the  member  is first discontinued from service. Provided further that in the case of  an  application  filed  for  accidental  disability benefits  pursuant to section three hundred sixty-three-d of this title, the requirements for filing for such benefits shall be five years.   b. Application for an accidental disability retirement  allowance  for such a member may be made by:   1. Such member, or   2. The head of the department in which such member is employed, or   3. Some person acting on behalf of and authorized by such member.   c.  (a)  After  the filing of such an application such member shall be given one or more medical examinations. No  such  application  shall  be approved,  however, unless the member or some other person on his behalf shall have filed written notice in the office of the comptroller  within ninety days after the accident, setting forth:   1. The time when and the place where such accident occurred, and   2. The particulars thereof, and   3. The nature and extent of the member's injuries, and   4. His alleged incapacity.  (b) The notice herein required need not be given:   1.  If  notice  of such accident shall be filed in accordance with the provisions of the workers' compensation law of any state within which  a participating  employer  shall  have its employees located or performing functions and duties within the normal scope of their employment, or   2. If the application for accidental disability  retirement  is  filed within one year after the date of such accident, or   3.  If  a failure to file notice has been excused for good cause shown as provided by rules and regulations promulgated by the comptroller.   d. If the comptroller determines that  the  member  is  physically  or mentally  incapacitated  for  the  performance  of  duty and ought to be retired for accidental disability, such member shall be so retired. Such retirement shall be effective as of a date approved by the comptroller.   e.  The  retirement  allowance  payable  upon  accidental   disability retirement shall consist of:   1.  An annuity which shall be the actuarial equivalent of the member's accumulated contributions, plus   2.  A   pension   which   is   the   actuarial   equivalent   of   the reserved-for-increased-take-home-pay  to  which  he  may be entitled, if any, plus   3. A pension of  three-quarters  of  his  final  average  salary.  The payment  of  such  pension shall be subject to the provisions of section three hundred sixty-four of this article.   f. If the member, at the time of the filing of  an  application  under the  provisions  of  subdivision  b  hereof,  is  eligible for a service retirement benefit, then and in that event, he may  simultaneously  file  an  application for service retirement in accordance with the provisions of section seventy of this chapter, provided that the  member  indicates on the application for service retirement that such application is filed without   prejudice   to   the  application  for  accidental  disability retirement.   g. 1. (a) Notwithstanding any provisions of this  chapter  or  of  any general,  special  or local law, charter, administrative code or rule or regulation to the contrary, if any condition or impairment of health  is caused  by  a  qualifying  World  Trade  Center  condition as defined in section two of this chapter, it shall be presumptive  evidence  that  it was  incurred  in  the performance and discharge of duty and the natural and proximate result of an accident not  caused  by  such  member's  own willful negligence, unless the contrary be proved by competent evidence.  (b)  The  comptroller  is  hereby  authorized  to promulgate rules and regulations to implement the provisions of this paragraph.   2. (a) Notwithstanding the  provisions  of  this  chapter  or  of  any general,  special  or local law, charter, administrative code or rule or regulation to the contrary, if a member who participated in World  Trade Center rescue, recovery or cleanup operations, as defined in section two of  this  chapter,  and subsequently retired on a service retirement, an ordinary disability retirement  or  a  performance  of  duty  disability retirement  and  subsequent  to  such  retirement  is  determined by the comptroller to have  a  qualifying  World  Trade  Center  condition,  as defined  in  section two of this chapter, upon such determination by the comptroller it shall be presumed that such disability  was  incurred  in the  performance  and  discharge  of  duty  as the natural and proximate result  of  an  accident  not  caused  by  such  member's  own   willful negligence,  and  that the member would have been physically or mentally incapacitated for the performance and discharge of duty of the  position from  which  he  or  she  retired had the condition been known and fully developed at the time of the member's retirement, unless the contrary is proven by competent evidence.  (b) The comptroller shall consider a reclassification of the  member's retirement  as  an  accidental disability retirement effective as of the date of such reclassification.  (c) Such member's retirement option shall not be changed as  a  result of such reclassification.  (d)  The  member's  former  employer  at  the  time  of  the  member's retirement shall have  an  opportunity  to  be  heard  on  the  member's application   for  reclassification  by  the  comptroller  according  to procedures developed by the comptroller.  (e) The comptroller is  hereby  authorized  to  promulgate  rules  and regulations to implement the provisions of this paragraph.   h.  Notwithstanding  any  other  provision  of  this chapter or of any general, special or local law, charter, administrative code or  rule  or regulation  to  the contrary, if a retiree who: (1) has met the criteria of subdivision g of this section and retired on a service or  disability retirement,  or would have met the criteria if not already retired on an accidental disability; and (2)  has  not  been  retired  for  more  than twenty-five  years;  and  (3)  dies from a qualifying World Trade Center condition, as defined in section two of this chapter, as  determined  by the  applicable  head  of  the  retirement  system or applicable medical board, then unless the contrary be proven by  competent  evidence,  such retiree  shall  be deemed to have died as a natural and proximate result of an accident sustained in the performance of duty and not as a  result of  willful  negligence  on  his  or  her  part. Such retiree's eligible beneficiary, as set forth in section three  hundred  sixty-one  of  this title,  shall  be entitled to an accidental death benefit as provided by  section three hundred sixty-one of this title, however, for the purposes of determining the salary base upon which the accidental  death  benefit is  calculated,  the retiree shall be deemed to have died on the date of his   or   her  retirement.  Upon  the  retiree's  death,  the  eligible beneficiary shall  make  a  written  application  to  the  head  of  the retirement  system  within  the  time  for  filing an application for an accidental death benefit as set forth in section three hundred sixty-one of this  title  requesting  conversion  of  such  retiree's  service  or disability  retirement  benefit  to  an accidental death benefit. At the time of such conversion, the eligible beneficiary shall  relinquish  all rights  to  the  prospective  benefits  payable  under  the  service  or disability  retirement  benefit,  including  any  post-retirement  death benefits,  since the retiree's death. If the eligible beneficiary is not the only beneficiary receiving or entitled to receive  a  benefit  under the service or disability retirement benefit (including, but not limited to,  post-retirement death benefits or benefits paid or payable pursuant to  the  retiree's  option  selection),  the  accidental  death  benefit payments to the eligible beneficiary will be reduced by any amounts paid or payable to any other beneficiary.   i.  Notwithstanding  any  other  provision  of  this chapter or of any general, special or local law, charter, administrative code or  rule  or regulation to the contrary, if a member who: (1) has met the criteria of subdivision  g  of  this  section; and (2) dies in active service from a qualifying World Trade Center condition, as defined in  section  two  of this  chapter,  as  determined  by the applicable head of the retirement system or applicable medical board to have been caused by such  member's participation  in  the  World  Trade  Center rescue, recovery or cleanup operations, as defined in section two of this chapter, then  unless  the contrary be proven by competent evidence, such member shall be deemed to have  died as a natural and proximate result of an accident sustained in the performance of duty and not as a result of willful negligence on his or her part. Such member's eligible beneficiary, as set forth in section three  hundred  sixty-one  of  this  title,  shall  be  entitled  to  an accidental death benefit provided he or she makes written application to the  head  of  the  retirement  system  within  the  time  for filing an application for an accidental death benefit  as  set  forth  in  section three hundred sixty-one of this title.