Shaw v. New York State Employees' Retirement System

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 the State Comptroller denying petitioner’s application for accidental disability retirement benefits. Petitioner based her application for accidental disability retirement 709 benefits on injuries she allegedly sustained on August 23, 1973 and September 24, 1975 while working as a nurse at the Brooklyn State Hospital. It was denied by the respondent Comptroller on findings that neither incident constituted an accident within the meaning of section 63 of the Retirement and Social Security Law and, in any event, that her present incapacity was not the result of these occurrences. While we might be inclined to agree with petitioner that the events of August 23, 1973 were truly accidental in nature (cf. Matter of Donahue v Levitt, 55 AD2d 240), it seems rational for the Comptroller to conclude that her struggle with a patient and consequent injury on September 24, 1975 arose from the performance of ordinary nursing responsibilities (cf. Matter of Chayut v Levitt, 53 AD2d 322; 70 AD2d 701). However, we need not resolve those issues since it further appears that respondent’s alternative finding is supported by substantial evidence. The medical proof was conflicting, but it was within the Comptroller’s province to accept the expert opinion that petitioner’s current disability is the result of a pre-existing osteoarthritic condition and not the foregoing work experiences. Determination confirmed and petition dismissed, without costs. Mahoney, P. J., Sweeney, Kane, Casey and Herlihy, JJ., concur.