MATTER OF CUNNINGHAM v. Regan

66 N.Y.2d 628 (1985)

In the Matter of Alice Cunningham, Appellant, v. Edward V. Regan, as Comptroller of the State of New York, Respondent.

Court of Appeals of the State of New York.

Argued September 6, 1985.

Decided October 8, 1985.

Geoffrey H. Lewis and Stephen P. Cunningham for appellant.

Robert Abrams, Attorney-General (William J. Kogan, Robert Hermann and Peter H. Schiff of counsel), for respondent.

Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur.

*629MEMORANDUM.

The judgment of the Appellate Division should be affirmed, with costs.

We agree with the majority below that there is substantial evidence to support the Comptroller's determination that petitioner was not "actually in service" at the time of the filing of her application for ordinary disability as was then required by Retirement and Social Security Law § 62. Petitioner was neither actually working nor on authorized leave when she filed her application on January 7, 1981, and the determination of her grievance in April 1981 resulted in her service being deemed to have terminated on December 31, 1980, the date on which her disability leave without pay was ended by her employer. Thus, the Comptroller, acting on petitioner's application in June 1981, reasonably concluded that she did not meet the statutory requirement as of the date of her application.

Judgment affirmed, with costs, in a memorandum.