MATTER OF CUNNINGHAM v. Regan

485 N.E.2d 1019, 66 N.Y.2d 628, 495 N.Y.S.2d 354, 1985 N.Y. LEXIS 17162

Opinion

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs.

We agree with the majority below that there is substantial evidence to support the Comptroller’s determination that petitioner was not "actually in service” at the time of the filing of her application for ordinary disability as was then required by Retirement and Social Security Law § 62. Petitioner was neither actually working nor on authorized leave when she filed her application on January 7,1981, and the determination of her grievance in April 1981 resulted in her service being deemed to have terminated on December 31,1980, the date on which her disability leave without pay was ended by her employer. Thus, the Comptroller, acting on petitioner’s application in June 1981, reasonably concluded that she did not meet the statutory requirement as of the date of her application.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Judgment affirmed, with costs, in a memorandum.