Matter of McCarey v. DiNapoli

Opinion

Matter of McCarey v DiNapoli

2026 NY Slip Op 04803

July 30, 2026

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

In the Matter of Adam McCarey, Petitioner,

v

Thomas P. DiNapoli, as State Comptroller, Respondent.

Decided and Entered:July 30, 2026

CV-25-1157

Calendar Date: June 1, 2026

Before: Clark, J.P., Fisher, Powers, Mackey And Corcoran, JJ.

Thomas J. Jordan, Albany, for petitioner.

Letitia James, Attorney General, Buffalo (Sarah L. Rosenbluth of counsel), for respondent.

[*1]

Fisher, 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 denying petitioner's application for accidental disability retirement benefits.

From 2000 to 2020, petitioner was a city fire inspector/firefighter for the City of Middletown, Orange County, who was responsible for, among other things, conducting annual inspections of commercial properties and multifamily and residential units. On September 23, 2010 around 6:15 a.m., petitioner put his uniform on and left his home in a city-issued vehicle to investigate a complaint at a senior living complex. While allegedly on the way to the next site inspection, and stopped behind a school bus with its lights on, petitioner was injured in a motor vehicle accident at 6:54 a.m. when he was struck from behind by a truck. In 2022, petitioner filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of the injury that he sustained in the 2010 accident, which resulted in anterior cervical neck fusion. The application was denied, and, following a hearing, a Hearing Officer upheld the denial of petitioner's application, finding that, at the time of the accident, petitioner was not engaged in the performance of his ordinary duties as a fire inspector/firefighter within the meaning of Retirement and Social Security Law § 363. Respondent adopted the Hearing Officer's findings of fact and conclusions of law and denied petitioner's application. This CPLR article 78 proceeding ensued.

We confirm. "In order to be entitled to accidental disability retirement benefits, the burden is on the applicant to demonstrate that his or her incapacitation was the natural and proximate result of an accident sustained while in service" (Matter of Gilden v DiNapoli, 183 AD3d 1100, 1101 [3d Dept 2020] [internal quotation marks, ellipses, brackets and citations omitted]; see Retirement and Social Security Law §§ 363 [a] [1], [2]; 605 [b] [3]; Matter of Arroyo v DiNapoli, 195 AD3d 1290, 1291 [3d Dept 2021]). "Resolution of the threshold issue of whether [a] petitioner was in service at the time that his [or her] injury occurred turns on whether he [or she] was performing job duties at the time of the injury" (Matter of Verille v Gardner, 177 AD3d 1068, 1069 [3d Dept 2019] [internal quotation marks, ellipsis and citations omitted]; see Matter of Gilden v DiNapoli, 183 AD3d at 1102). We have routinely upheld the denial of benefits when an employee is injured while on break, while outside of normal working hours or otherwise engaged in a personal activity (see Matter of Thompson v DiNapoli, 161 AD3d 1421, 1423 [3d Dept 2018] [collecting cases]; Matter of Jetter v Hevesi, 5 AD3d 941, 942 [3d Dept 2004]). Respondent "is vested with exclusive authority to determine all applications for retirement benefits, including the question of whether an accidental injury was sustained while [*2]in service, and if supported by substantial evidence, the determination must be upheld" (Matter of Arroyo v DiNapoli, 195 AD3d at 1291 [internal quotation marks and citations omitted]; see Matter of Pileggi v DiNapoli, 221 AD3d 1157, 1158 [3d Dept 2023], lv denied 42 NY3d 905 [2024]; Matter of Verille v Gardner, 177 AD3d at 1069; Matter of Dreher v DiNapoli, 121 AD3d 1145, 1146 [3d Dept 2014]). "[T]he substantial evidence standard is a minimal standard . . . [requiring] less than a preponderance of the evidence, and demands only that a given inference is reasonable and plausible, not necessarily the most probable" (Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, 1045-1046 [2018] [internal quotation marks and citations omitted]).

Petitioner testified that his normal work schedule was from 8:00 a.m. to 4:00 p.m., Monday through Friday, with considerable leeway and flexibility for conducting inspections outside of those hours in the event that the business to be inspected operated outside of those hours. The hearing testimony reflected that petitioner informed the fire chief that he had been traveling directly from the first inspection to the second inspection when the accident occurred and that he was not aware of any information suggesting that petitioner was engaged in any personal business at the time of the accident. Although petitioner claimed that he was traveling directly to the second site inspection at the time of the accident, emails from the employer show that petitioner's shift had not yet commenced.^FN1 A weekly activity report submitted at the hearing confirms the locations of the inspections but does not reflect the time for which those inspections were scheduled. Significantly, although petitioner contends that he was traveling directly from the first inspection site toward the second inspection site at the time of the accident, a map contained in the record of the area in question reveals that the location of the accident was significantly off the direct route between the two inspection sites. Given the conflicting evidence as to whether petitioner had started his shift at the time of the accident, and the lack of explanation for his trip deviation or why he was at the site of the accident, respondent was entitled to reject petitioner's testimony in this respect as incredible (see Matter of Verille v Gardner, 177 AD3d at 1070; Matter of Rajcoomar v New York State Comptroller, 159 AD3d 1323, 1324 [3d Dept 2018]; Matter of Dreher v DiNapoli, 121 AD3d 1145, 1146 [3d Dept 2014]; Matter of Jetter v Hevesi, 5 AD3d at 942; Matter of Triolo v New York State Employees' Retirement Sys., 118 AD2d 926, 928 [3d Dept 1986]; Matter of Smith v Regan, 115 AD2d 161, 161 [3d Dept 1985]; compare Matter of De Zago v New York State Police & Firemen's Retirement Sys., 157 AD2d 957, 958 [3d Dept 1990]). According due deference to respondent's credibility assessments, we find that substantial evidence supports the determination that petitioner [*3]failed to show that he was injured while in service and that he was not engaged in a personal activity (see Matter of Pileggi v DiNapoli, 221 AD3d at 1158; Matter of Verille v Gardner, 177 AD3d at 1070). To the extent that petitioner relies upon any decision made by the Workers' Compensation Board, such reliance is misplaced, as decisions decided thereunder are not binding on respondent (see Matter of Pileggi v DiNapoli, 221 AD3d at 1158; Matter of Walsh v New York State & Local Empls. Retirement Sys., 176 AD3d 1430, 1432 [3d Dept 2019]; Matter of Zuckerberg v New York State Comptroller, 46 AD3d 1057, 1059 [3d Dept 2007], lv denied 10 NY3d 712 [2008]). Petitioner's remaining procedural and/or evidentiary contentions are either not properly before us or they have been considered and found to be without merit.

Clark, J.P., Powers, Mackey and Corcoran, JJ., concur.

ADJUDGED that determination is confirmed, without costs, and petition dismissed.

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Footnotes

Footnote 1

Although petitioner argues on appeal that this document was improper hearsay evidence, the record reveals that he only raised "concerns as to its relevancy" without objecting. By failing to object or call the authors of the emails as witnesses, petitioner waived any objection to their admissibility as well as his claim that he was deprived of the opportunity for cross-examination (see Matter of Romano v DiNapoli, 228 AD3d 1195, 1198 [3d Dept 2024]; Matter of Dowling v Gardner, 198 AD3d 1056, 1057 [3d Dept 2021]).