Di Guida v. McCall

244 A.D.2d 756, 665 N.Y.S.2d 103, 1997 N.Y. App. Div. LEXIS 11756

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1997
• Status: Published

Opinion

—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 which denied petitioner’s request for accidental and ordinary disability retirement benefits.

Petitioner, a food service worker, was injured when she fell on milk crates which were being used as stairs at the door of her assigned work place. The record establishes that the injury occurred at the end of petitioner’s shift as she was leaving for the day. In view of this, we find that substantial evidence supports respondent’s determination denying petitioner’s application for accidental disability retirement benefits on the ground that she was not “in service” at the time she was injured (see, Matter of Nappi v Regan, 186 AD2d 855, lv denied 81 NY2d 703). Although petitioner testified that she was injured five minutes before the end of her shift while she was en route to another building to sign out, this testimony presented a credibility issue for respondent to resolve (see, Matter of Martinson v Regan, 176 AD2d 1121, 1121-1122).

Substantial evidence further supports the denial of petitioner’s application for ordinary disability retirement benefits. The report by the physician who examined petitioner on behalf of the New York State and Local Employees’ Retirement System found no indication that petitioner had suffered either a neck or shoulder injury; the report also concluded that petitioner did not exhibit any significant functional disability which would render her unable to perform her work.

Mercure, J. P., White, Casey, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.