Pucillo v. Regan

98 A.D.2d 877, 470 N.Y.S.2d 857, 1983 N.Y. App. Div. LEXIS 21192

Opinions

— Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County), to review a determination of the State Comptroller which denied petitioner’s application for accidental disability retirement benefits. On Saturday, October 25, 1980, petitioner was employed as chief of operations for the Nassau County Police Department. On that date, after spending a portion of the morning at police headquarters, petitioner drove through a rainstorm to a shopping center to meet his daughter and transport her home. While en route from the shopping center to their home, a tree fell upon the car and severely injured petitioner. In due course, petitioner applied for accidental disability retirement benefits. This application was disapproved by the Comptroller on the ground that the above accident was not sustained in the performance of petitioner’s duties (Retirement and Social Security Law, § 363, subd a). The instant transferred CPLR article 78 proceeding ensued. The sole issue raised in this proceeding is whether the Comptroller’s determination is supported by substantial evidence. Petitioner’s position is that because he was in command for 24 hours a day, seven days a week, and was required to maintain communication at all times, he was on duty all the time. Respondents, however, contend that when petitioner left police headquarters on October 25, 1980, he was no longer engaged in the performance of his duties. On the instant record, we are constrained to find that the Comptroller’s determination is supported by substantial evidence (see Matter of Shafron v New York State Retirement System, 87 AD2d 695; Matter of Maso v Regan, 81 AD2d 734; Matter ofSorli v Levitt, 77 AD2d 773, app dsmd 52 NY2d 897). The Comptroller’s determination in this tragic case must, therefore, be confirmed. Determination confirmed, and petition dismissed, without costs. Sweeney, J. P., Kane, Casey and Weiss, JJ., concur.