Berbenich v. Regan

81 A.D.2d 732, 439 N.Y.S.2d 479, 1981 N.Y. App. Div. LEXIS 11291

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1981
• Status: Published

Opinions

— Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Comptroller which denied petitioner’s application for accidental disability retirement benefits. On March 1, 1976, as part of his duties as a police officer in the Spring Valley Police Department, petitioner responded to a burglar alarm call at the Dutch Reformed Church with Officer John Tallman. The officers found a broken pane of glass on the west side of the building and unlocked doors at the back of the building which had previously been found to be locked by petitioner. The officers entered the church and attempted unsuccessfully to reset its alarm system. Concerned that someone might still be on the premises, they proceeded to check its rooms. When they entered the darkened kitchen, its lights went on. Officer Tallman signaled to the petitioner that he heard sounds on the other side of the wall. Tallman moved to open the door and signaled the petitioner to cover him. Petitioner drew his gun. The door flew open unexpectedly and petitioner’s gun discharged, tragically killing the pastor of the church. Unbeknownest to the officers, the pastor had been summoned to the church by the police department. It is undisputed that, as a result of these events, petitioner has become emotionally disabled from performing his duties as a police officer. The Comptroller found that these tragic events which caused petitioner’s disability did not constitute an accident within the meaning of section 363 of the Retirement and Social Security Law. The Comptroller found that petitioner’s injuries resulted from petitioner’s expected and foreseeable duties and were not accidental in nature. The Comptroller has exclusive authority under section 374 of the Retirement and Social Security Law to determine all the applications for any form of retirement and his determination in such matters must be confirmed if supported by substantial evidence in the record (Matter of Deos v Levitt, 62 AD2d 1121; Matter of D’Alessandro v Levitt, 59 AD2d 967; Matter of Donahue v Levitt, 55 AD2d 240). There is substantial evidence in the record supporting the Comptroller’s findings and the determination must, therefore, be confirmed. Determination confirmed, and petition dismissed, without costs. Sweeney, J. P., Main, Mikoll and Yesawich, Jr., JJ., concur.