Matter of Bodenmiller v DiNapoli

Matter of Bodenmiller v DiNapoli 2016 NY Slip Op 05894 Decided on August 25, 2016 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: August 25, 2016
522491

[*1]In the Matter of ROBERT BODENMILLER, Petitioner,

v

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

Calendar Date: August 18, 2016
Before: Garry, J.P., Egan Jr., Devine, Mulvey and Aarons, JJ.

Sherman Federman Sambur & McIntyre, LLP, New York City (Sean Patrick Riordan 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 accidental disability retirement benefits.

Petitioner worked as a police officer for the Suffolk County Police Department. On August 4, 2010, he received a call concerning a female patient who had left the grounds of a psychiatric facility. Petitioner found the woman at a nearby fast food restaurant and, while he was questioning her, a man, who appeared to be carrying a weapon and was yelling loudly,

rushed toward them. In response, petitioner turned toward the man, extended his left arm and fired his weapon twice, striking the man. Petitioner injured his left shoulder during the incident and subsequently filed an application for accidental disability retirement benefits. His application was denied upon the ground that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law. Petitioner requested a hearing and redetermination and, following further proceedings, a Hearing Officer upheld the denial, finding that the initial determination was supported by substantial evidence. Respondent Comptroller adopted the Hearing Officer's decision with supplemental findings of fact, and this CPLR article 78 proceeding ensued.

Respondents concede, and we agree, that the Hearing Officer applied the incorrect legal [*2]standard in rendering her decision. Specifically, the Hearing Officer confined her analysis to whether the initial determination was supported by substantial evidence, rather than undertaking a "'redetermination'" and exercising "'the same powers upon such hearing as upon the original application'" (Matter of Britt v DiNapoli, 91 AD3d 1102, 1103 [2012], quoting Retirement and Social Security Law § 74 [d]). As this Court recently noted in Matter of DeMaio v DiNapoli (137 AD3d 1545, 1545-1546 [2016]), such deficiency constitutes an error of law requiring annulment of the determination. Accordingly, the determination is annulled, and the matter is remitted to the Comptroller for a new hearing.

Garry, J.P., Devine, Mulvey and Aarons, JJ., concur.

ADJUDGED that the determination is annulled, without costs, and matter remitted to respondent Comptroller for further proceedings not inconsistent with this Court's decision.