Dormeyer v. McCall

289 A.D.2d 774, 733 N.Y.S.2d 658, 2001 N.Y. App. Div. LEXIS 11954

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 2001
• Status: Published

Opinion

Carpinello, 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 which denied petitioner’s application for performance of duty disability retirement benefits.

Petitioner’s application for performance of duty disability retirement benefits was denied on the basis of his failure to provide the written notice required by Retirement and Social Security Law § 363-c (e) (a). In this CPLR article 78 proceeding to review the determination, petitioner contends that his failure to comply with the written notice requirement should have been excused for good cause (see, Retirement and Social Security Law § 363-c [e] [b] [3]). At the administrative hearing, however, petitioner did not raise the good cause issue and, therefore, it was not preserved for our review (see, Matter of Puterio v Regan, 161 AD2d 1109). Nor can respondent be faulted for failing to consider the issue sua sponte, for the facts of this case do not appear to fall within any of the categories of good cause defined by the relevant regulation (see, 2 NYCRR 344.2).

At the hearing, petitioner expressly relied on the exception to the notice requirement for notice given in accordance with the Workers’ Compensation Law (see, Retirement and Social Security Law § 363-c [e] [b] [1]). As to this issue, however, we find no basis to disturb respondent’s determination that the oral notice to petitioner’s employer was insufficient to trigger this exception (see, Matter of Wilson v New York State & Local Policemen’s & Firemen’s Retirement Sys., 288 AD2d 602).

Mercure, J. P., Crew III, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.