Matter of Mulkern v. DiNapoli

Opinion

Matter of Mulkern v DiNapoli

2026 NY Slip Op 04802

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 Patrick J. Mulkern, Petitioner,

v

Thomas P. DiNapoli, as State Comptroller, Respondent.

Decided and Entered:July 30, 2026

CV-25-0579

Calendar Date: June 1, 2026

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

Law Firm of Alex Dell, PLLC, Albany (Sarah M. Bennett of counsel), for petitioner.

Letitia James, Attorney General, Albany (Sean P. Mix of counsel), for respondent.

[*1]

Powers, 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.

Petitioner was employed as a state trooper from 1996 until 2005. He was out on unpaid leave at the time of the September 11, 2001 attack upon the World Trade Center and was not assigned to assist in the aftermath by either the State Police or any volunteer organization. He nevertheless felt duty-bound to respond and went to lower Manhattan to offer his services on September 13, 2001, and he purportedly worked in various capacities at ground zero and other locations from that date through January 2002. Beginning in 2007, petitioner filed a series of applications requesting that the New York State and Local Retirement System take notice of that work so that, should he develop a qualifying condition or impairment of health, he could rely upon the presumption created by Retirement and Social Security Law § 363-bb (h) that the condition and his work were causally linked for purposes of seeking accidental disability retirement benefits. The Retirement System declined to do so because petitioner had not demonstrated, as required, that he "participated in operations at one of the enumerated locations for 'any period of time within the [48] hours after the first airplane hit the towers' or 'a total of [40] hours accumulated any time between' " September 11, 2001 and September 12, 2002 (Matter of Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II, 20 NY3d 268, 276-277 [2012], quoting Retirement and Social Security Law § 2 [36] [g]; see Retirement and Social Security Law § 363-bb [h] [1] [d]). Petitioner sought a hearing and redetermination after the Retirement System rendered a final determination upon his 2021 application. Following that hearing, the Hearing Officer found that petitioner had not proven his entitlement to the presumption and recommended that the application be denied. Respondent accepted the Hearing Officer's findings of fact and conclusions of law and denied the application, and this CPLR article 78 proceeding ensued.

We confirm. Retirement and Social Security Law § 363-bb (h) (1) (a) provides that "any condition or impairment of health caused by a qualifying condition or impairment of health resulting in disability to a member [of the State Police] who participated in World Trade Center rescue, recovery or cleanup operations for a minimum of [40] hours shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member's own willful negligence, unless the contrary be proved by competent evidence" (accord Matter of Kennedy v DiNapoli, 106 AD3d 1429, 1429-1430 [3d Dept 2013], lv denied 22 NY3d 851 [2013]; see also Matter of Bitchatchi v Board of Trustees of the N.Y. City [*2]Police Dept. Pension Fund, Art. II, 20 NY3d at 276-277). In order to be considered for that presumption, however, an applicant must first demonstrate his or her eligibility by "fil[ing] either a written and sworn statement . . . [or] electronically submit[ting] a statement on a form provided by [the Retirement System] . . . that has duly validated [his or her] identity, indicating the dates and locations of employment" that satisfy the statutory requirements (Retirement and Social Security Law § 363-bb [h] [1] [e]; see Retirement and Social Security Law § 2 [36] [a]). Respondent determined that petitioner had failed to meet that burden and, as respondent has the "exclusive authority to determine all applications for any form of retirement or benefit provided for in" the Retirement and Social Security Law, that determination must be upheld so long as respondent's interpretation of the controlling statute is reasonable and his factual findings are supported by substantial evidence in the record (Retirement and Social Security Law §§ 74 [b]; 374 [b]; see Matter of Lurry-Carter v New York State & Local Retirement Sys., 248 AD3d 1471, 1472 [3d Dept 2026]).

An application for retirement allowances or benefits "shall contain such information as [respondent] shall deem necessary" (Retirement and Social Security Law §§ 74 [a]; 374 [a]), and the application forms at issue here specified that petitioner's employer would "be contacted to verify [his] involvement" in World Trade Center rescue, recovery or cleanup operations. The hearing evidence and testimony reflected that petitioner's employer could not verify his claims of work because he had been on leave for an off-duty injury during the relevant period and "went to the World Trade Center [s]ite to offer his assistance . . . without authorization or approval," resulting in the denial of his applications. At that point, petitioner was obliged to provide other proof to corroborate his claims, and respondent was free to demand as much given his authority to "examine into the facts of" an application by, among other things, obtaining testimony from the applicant and others as well as requiring the production of relevant "books, papers, documents and other records" (Retirement and Social Security Law §§ 74 [b]; 374 [b]). Petitioner sought to do so at the hearing via affidavits and testimony from several individuals who had intermittently seen and interacted with him in the area around the World Trade Center site in the months after September 11, 2001. However, the Retirement System presented testimony from the assistant director of its disability processing unit describing why such proof was inadequate, accurately observing that the affidavits and testimony failed to detail when and how long petitioner had been working so as to permit verification that he had been engaged "in World Trade Center rescue, recovery or cleanup operations for a minimum of [40] hours" as required (Retirement and Social Security Law [*3]§ 363-bb [h] [1] [a]). Accordingly, there is substantial evidence in the record to support the Hearing Officer's finding, as adopted by respondent, that "petitioner failed to meet the threshold requirement showing that [he] participated in the rescue, recovery, or cleanup operations at the World Trade Center site . . . for 40 hours" between September 11, 2001 and September 12, 2002 (Matter of DiMartini v Sewell, 233 AD3d 435, 435 [1st Dept 2024]; see Retirement and Social Security Law §§ 2 [36] [g]; 363-bb [h] [1] [a]). Petitioner's contentions, to the extent that they are not addressed by the foregoing, have been examined and found to lack merit.

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

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