NY Ret & SS L § 558 (2021)
2021 New York Laws RSS - Retirement and Social Security Article 14-B - Special Retirement Plans for Sheriffs, Undersheriffs and Deputy Sheriffs Engaged in Law Enforcement Activities 558 - Retirement for Disability Incurred in Performance of Duty.

§  558.  Retirement for disability incurred in performance of duty. a. After January first, nineteen hundred eighty-five, a member who  becomes physically  or  mentally incapacitated for the performance of duty shall be covered by the provisions of this section in lieu of  the  provisions of  section five hundred fifty-six of this article; except, however, any such member who last entered or re-entered service prior  to  that  date shall  be  entitled  to apply for disability retirement pursuant to such section and to receive the benefit so payable in  lieu  of  the  benefit payable pursuant to this section.   b.   Eligibility.  A  member  shall  be  entitled  to  retirement  for disability  incurred  in  the  performance  of  duty  if,  at  the  time application therefor is filed, he or she is:   1. Physically or mentally incapacitated for performance of duty as the natural  and  proximate  result of a disability not caused by his or her own willful negligence sustained in such service and  while  actually  a member of the retirement system, and   2.  Actually  in  service  upon  which his or her membership is based. However, in a case where a member  is  discontinued  from  service,  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  discontinued  from service and provided that the member meets the requirements of subdivision a of this section and this subdivision.   An application for disability retirement shall not be  disapproved  on the  basis  of  a  deputy  sheriff  having  failed to engage directly in criminal law enforcement activities that aggregate fifty per centum of a deputy sheriff's service during a period preceding  the  filing  of  the application  provided  the  failure  to  do  so  was  the  result of the disability alleged in the application and further  provided  the  deputy sheriff  was  certified  as  so  engaged  in  criminal  law  enforcement activities by the county sheriff at the  time  the  physical  or  mental incapacitation for the performance of duty is alleged to have occurred.   c.  Application. Application for retirement for disability incurred in performance of duty may be made by:   1. Such member, or   2. The head of the department in which such member is employed.   d.  Verification  of  disability.  After  the  filing   of   such   an application,   such   member   shall   be  given  one  or  more  medical examinations.  If  the  comptroller  determines  that  the   member   is physically  or  mentally  incapacitated  for  the  performance  of  duty pursuant to subdivision b of this section and ought to be retired, he or she shall be so retired.  Such retirement shall be  effective  as  of  a date approved by the comptroller.   e.  1.  No  such  application  shall  be approved, however, unless the member or some other person on  his  or  her  behalf  shall  have  filed written notice in the office of the comptroller within ninety days after the  occurrence  which  is  the basis for the disability incurred in the performance of duty, setting forth:  (a) The time, date and place of such occurrence, and  (b) The particulars thereof, and  (c) The nature and extent of the member's injuries, and  (d) The alleged disability.   2. The notice herein required need not be given:  (a) If notice of such occurrence 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  (b)  If  the application for retirement for disability incurred in the performance of duty is filed within one  year  after  the  date  of  the occurrence which forms the basis for the application, or  (c)  If a failure to file notice has been excused for good cause shown as provided by rules and regulations promulgated by the comptroller.   3. Notwithstanding any other provision of law  to  the  contrary,  the provisions  of this subdivision shall apply to all occurrences before or after the effective date of this section.   f. The retirement allowance payable  upon  retirement  for  disability incurred  in  the  performance  of  duty  shall  consist of a pension of one-half of his or her final average salary plus an annuity which  shall be  the  actuarial equivalent of the member's accumulated contributions, if any.   g. If the member, at the time of the filing of  an  application  under the  provisions  of  subdivision  c  of  this section, is eligible for a service retirement benefit, then and  in  that  event,  he  or  she  may simultaneously  file an application for service retirement provided that the member indicates on the application for service retirement that such application is filed  without  prejudice  to  the  application  for  the retirement for disability incurred in performance of duty.   h.  Any  benefit  provided  pursuant  to  this  section  shall  not be considered as an accidental disability benefit  within  the  meaning  of section  five  hundred  fifty-six  of  this article. Any benefit payable pursuant to the workers'  compensation  law  to  a  member  receiving  a disability  allowance  pursuant  to this section shall be in addition to such  retirement  for  disability  incurred  in  performance   of   duty allowance.   i.  A  final  determination  of the comptroller that the member is not entitled to retirement benefits pursuant to this section  shall  not  in any  respect  be, or constitute, a determination with regard to benefits payable pursuant to section two hundred seven-c of the general municipal law.   j. 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.   k. 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 j 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 five hundred one of this article, shall be  entitled  to  an  accidental death  benefit as provided by section five hundred nine of this article, 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 five hundred nine of this article 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  respective  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 this  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.   l.  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 j 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, 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 five hundred one of this article, 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 five hundred nine of this article.