§ 361 — Accidental death benefit

§ 361. Accidental death benefit. a. An accidental death benefit and\nthe reserve-for-increased-take-home-pay shall be payable upon the death\nof a member if, upon application, filed within five years after the\ndeath of such member the comptroller shall determine, on the basis of\nthe evidence, that such member:\n 1. Died before the effective date of his retirement, as the natural\nand proximate result of an accident sustained in the performance of duty\nin the service upon which his membership was based, and\n 2. Did not cause such accident by his own willful negligence, and\n 3. At the time of such accident was actually a member of the police\nand fire retirement system.\nWhere the claimant is an infant or is mentally or physically\nincapacitated, and because of the aforesaid disability application for\naccidental death benefit is not filed within the time specified by this\nsubdivision, or where a person entitled to make a claim dies before the\nexpiration of the time so specified, the comptroller in his or her\ndiscretion may grant leave to file such application within a reasonable\ntime after the expiration of the time specified in this subdivision.\n Notwithstanding the provisions of section two hundred forty-two, two\nhundred forty-three or two hundred forty-four of the military law or the\nprovisions of any other law to the contrary and solely for the purpose\nof determining eligibility for an accidental death benefit and/or\nspecial accidental death benefit, a member shall be considered to have\ndied as the natural and proximate result of an accident sustained in the\nperformance of duty provided such member was on the payroll in the\nservice upon which membership is based at the time he or she was ordered\nto active duty pursuant to Title 10 of the United States Code, with the\narmed forces of the United States or to service in the uniformed\nservices pursuant to Chapter 43 of Title 38 of the United States Code\nand died while on such active duty or service in the uniformed services\non or after June fourteenth, two thousand five.\n b. The accidental death benefit and the\nreserve-for-increased-take-home-pay shall be payable from the pension\nreserve fund. Such accidental death benefit shall consist of a pension\nof one-half of the member's final average salary. The payment of such\npension shall be subject to the provisions of section three hundred\nsixty-four of this article. The reserve-for-increased-take-home-pay\nshall be paid in a lump sum to those entitled thereto in accordance with\nsubdivision d of this section. The member's accumulated contributions\nshall be refunded in accordance with subdivision d of section three\nhundred fifty-one of this article.\n c. The accidental death benefit payable pursuant to this section on\naccount of a member whose:\n 1. Service was on other than a full-time basis at the time of his\ndeath, and\n 2. Death was the natural and proximate result of an accident sustained\nwhile a member and while in the performance of duty, shall be equal to\nthe benefit that would be paid on account of such member were his\nservice on a full-time basis.\n d. The pension on account of accidental death and the\nreserve-for-increased-take-home-pay shall be paid to:\n 1. The member's widow or widower to continue during his or her\nlifetime. If he or she shall leave no widow or widower, or if his or\nher widow or widower shall die before all his or her children shall have\nattained age eighteen, or if students, before all of his or her children\nshall have attained age twenty-three, or sooner die, then to\n 2. His or her child or children under age eighteen, or, if students,\nhis or her children under age twenty-three, divided in such manner as\nthe comptroller, in his discretion, shall determine. Such pension shall\ncontinue as a joint and survivor pension until every such child shall\nhave attained age eighteen, or, if a student, shall have attained age\ntwenty-three, or sooner die. If no widow or widower or child under age\neighteen, or, if a student, under age twenty-three, shall survive such\nmember, at the time of his or her death, then to\n 3. His or her dependent father or dependent mother, as he or she shall\nhave nominated by written designation duly acknowledged and filed with\nthe comptroller. Such pension shall continue for the life of the parent\nso designated. If there be no such designation, then to\n 4. His or her dependent father or dependent mother, as the\ncomptroller, in his discretion, shall determine. Such pension shall\ncontinue for the life of the parent so elected.\n For purposes of this subdivision, student shall mean a person enrolled\nin an accredited institution of higher education for at least twelve\nsemester hours for a semester of not less than fifteen weeks, inclusive\nof examination periods; or eight semester hours a quarter; or, in\nprograms not organized on a semester or quarter basis, twenty-four\nsemester hours for an academic year of not more than twelve months or\nthe equivalent, as determined by the commissioner of education. A\nstudent shall be considered full-time for a program organized on an\nacademic-year basis only if the student has filed a plan of study with\nthe institution for the entire academic year.\n