Welch v. Hevesi

Peters, 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 which denied petitioner’s application for accidental disability retirement benefits. Petitioner, a correction officer at Green Haven Correctional Facility in Dutchess County, was assigned to the annex compound located outside of the actual prison, adjacent to the parking lot. In January 2002, she suffered an injury to her back when she slipped and fell on ice in the parking lot as she walked from the annex compound to her car in order to retrieve her cell phone so that a fellow correction officer could use it to make a personal call. Her subsequent application for accidental disability retirement benefits was denied, prompting this CPLR article 78 proceeding. We confirm. The law is settled that respondent is “ ‘vested with exclusive authority to determine all applications for retirement benefits, including the question of whether an accidental injury was sustained while in service, and if supported by substantial evidence, the determination must be upheld’ ” (Matter of Waldron v McCall, 302 AD2d 742, 743 [2003], lv denied 100 NY2d 503 [2003], quoting Matter of Curtis v New York State Comptroller, 281 AD2d 780, 781 [2001]). Although petitioner testified that she was on duty and authorized to be in the area where she fell, the record is clear that she “was engaged in a personal activity rather than performing work duties” at the time when the incident occurred (Matter of Economico v New York State & Local Police & Fire Retirement Sys., 7 AD3d 913, 914 [2004], lv denied 3 NY3d 611 [2004]; see Matter of Mellor v Hevesi, 29 AD3d 1205 [2006]). Thus, substantial evidence supports respondent’s factual determination that petitioner was not in service when she injured herself (see Matter of Economico v New York State & Local Police & Fire Retirement Sys., supra at 914). Petitioner’s remaining contentions are either without merit [565] or have been rendered academic in light of the above disposition. Cardona, P.J., Mercure, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.