Wilson v. New York State & Local Policemen's & Firemen's Retirement System

Lahtinen, 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 Comptroller which denied petitioner’s applications for accidental and performance of duty disability retirement benefits. Petitioner challenges only the denial of his application for [603] performance of duty disability retirement benefits, which was based upon petitioner’s failure to provide the written notice required by Retirement and Social Security Law § 363-c (e) (a). Petitioner relies on the exception to the notice requirement applicable where notice in accordance with the Workers’ Compensation Law was given (see, Retirement and Social Security Law § 363-c [e] [b] [1]), but petitioner did not file his written claim for workers’ compensation benefits within the 30-day period provided by Workers’ Compensation Law § 18. Although petitioner apparently gave oral notice of the occurrence and thereby provided the employer with actual knowledge of the occurrence within the 30-day period, which would be sufficient to permit the Workers’ Compensation Board to excuse the lack of timely written notice (see, Workers’ Compensation Law § 18), “[t]his court has repeatedly stated that a decision of the Workers’ Compensation Board to excuse a petitioner’s failure to comply with the provisions of Workers’ Compensation Law § 18 is not binding upon respondent [Comptroller] for accidental disability retirement purposes and does not alter the fact that timely notice of the compensation claim was not given” (Matter of Spahn v Regan, 163 AD2d 642, 643). We see no reason to reach a different conclusion where, as here, the application is for performance of duty disability retirement benefits. Accordingly, inasmuch as none of the exceptions provided by Retirement and Social Security Law § 363-c (e) (b) is applicable, there is no basis to disturb the determination. Crew III, J. P., Peters, Spain and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.