Smith v. Regan

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 request for accidental disability retirement benefits. Although petitioner’s physician testified that, in his opinion, good cause existed for petitioner’s failure to timely file for accidental disability retirement benefits, he could not say with a reasonable degree of medical certainty that petitioner was unable to properly function during the entire 30 days following the May 17, 1978 incident. Furthermore, the physician did not evaluate petitioner until approximately three years after the incident had occurred. Under the circumstances, the rejection by respondent of petitioner’s claim that his psychiatric disability prevented him from timely filing is supported by substantial evidence and should not be disturbed (see, Matter of Heath v Regan, 95 AD2d 896; Matter of Nizzico v New York State Policemen’s & Firemen’s Retirement Sys., 46 AD2d 717; see also, Matter of Taylor v Regan, 103 AD2d 884). Petitioner’s remaining contentions have been considered and have been found to be lacking in merit. Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Casey, Levine, Mercure and Harvey, JJ., concur.