Matter of Alessio v. New York City Employees'ret. Sys.

67 N.Y.2d 978 (1986)

In the Matter of Joseph V. Alessio, Appellant, v. New York City Employees' Retirement System, Respondent.

Court of Appeals of the State of New York.

Decided May 6, 1986.

Arthur I. Strier and Simon Wynn for appellant.

Frederick A. O. Schwarz, Jr., Corporation Counsel (Fred Kolikoff of counsel), for respondent.

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

*979MEMORANDUM.

The order should be affirmed, with costs.

We agree with the Appellate Division that there is no basis for upsetting the determination denying petitioner's application for accident disability retirement. The restrictive language of Administrative Code of the City of New York § B3-40.0 permits retirement on accident disability only where the "time, place and conditions" of whatever "result[ed] in such disability" can be certified as "city-service". Here it is not disputed that petitioner's injury occurred while on the way to work rather than while actually engaged therein.

Petitioner's reliance on case law construing Workers' Compensation Law § 10 is misplaced. The language of that statute provides for benefits whenever the injury is one "arising out of and in the course of the employment". By contrast, the language of section B3-40.0 of the Code limits accident disability benefits to those situations where actual "city service performed" results in the employee's disability.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.