Matter of Whitehead v DiNapoli

Matter of Whitehead v DiNapoli 2015 NY Slip Op 07900 Decided on October 29, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 29, 2015
520745

[*1]In the Matter of GARY S. WHITEHEAD, Petitioner,

v

THOMAS P. DiNAPOLI, as State Comptroller, et al., Respondents.

Calendar Date: September 16, 2015
Before: Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

Sheehan Greene Golderman & Jacques, Albany (Thomas D. Latin of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondents.

Egan Jr., J.

MEMORANDUM AND JUDGMENT

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 denying petitioner's application for performance of duty disability retirement benefits.

Petitioner, a correction officer, was injured in September 2009 when he struck his head on a wall-mounted metal toolbox while attempting to subdue an inmate. Petitioner did not return to work and, in April 2011, applied for performance of duty disability retirement benefits. The application was denied, and petitioner sought a hearing and redetermination. At the

conclusion of the hearing that followed, the Hearing Officer upheld the initial denial, finding that petitioner's permanent incapacitation was not the natural and proximate result of the September 2009 incident. Respondent Comptroller agreed, prompting petitioner to commence this CPLR article 78 proceeding to challenge the Comptroller's determination.

By letter dated May 14, 2015, respondents conceded that the Comptroller's determination is not supported by substantial evidence. Upon our independent review of the record, we agree. Accordingly, the underlying determination is annulled (see Matter of Hokes v DiNapoli, 106 AD3d 1365, 1365 [2013]).

Lahtinen, J.P., Devine and Clark, JJ., concur.

ADJUDGED that the determination is annulled, with costs, petition granted and matter remitted to respondents for further proceedings not inconsistent with this Court's decision.