Dysard v. McCall

222 A.D.2d 927, 635 N.Y.S.2d 345, 1995 N.Y. App. Div. LEXIS 13368

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1995
• 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 application for ordinary disability retirement benefits.

On June 2, 1992, petitioner was terminated from her employment as a mental hygiene therapy aide. On June 24, 1992, she filed an application for accidental disability retirement benefits which was subsequently denied on August 24, 1992. Thereafter, on November 12, 1992, petitioner filed an application for ordinary disability retirement benefits. This application was denied as untimely. Petitioner claims that she was misinformed as to when she was supposed to apply for ordinary disability retirement benefits and that, therefore, respondent’s determination denying her application is not supported by substantial evidence. Inasmuch as petitioner concedes that she was advised' by a personnel representative of her former employer that she could not file her application for ordinary disability retirement benefits until after a determination was made with respect to her application for accidental disability retirement benefits, we find petitioner’s argument to be without merit. Her application was clearly untimely as it was filed more than 90 days after her termination (see, Matter of Truly v Regan, 172 AD2d 966, 967-968; Matter of Williams v Regan, 145 AD2d 884, 885-886) and her late filing is not attributable to any actions by respondent. In view of this, respondent’s determination must be confirmed.

Mikoll, J. P., Mercure, Crew III, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.