IN RE: Sara SALERNO (2023)

Judgment (denominated an order), Supreme Court, New York County (Carol Edmead, J.), entered October 12, 2021, denying the petition to vacate a determination of respondents, dated March 11, 2020, which denied petitioner's application for World Trade Center Accidental Disability Retirement (WTC ADR) benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

This is the third article 78 proceeding brought by petitioner seeking to vacate the denial of her application for WTC ADR benefits, based on her failure to demonstrate that she engaged in rescue, recovery and cleanup operations at the statutorily defined WTC site during the statutory period.  This Court affirmed the denial of those benefits by respondents in connection with the evidence submitted on her first two applications (Matter of Salerno v. Kelly, 139 A.D.3d 516, 517, 30 N.Y.S.3d 114 [1st Dept. 2016]).  In support of her third attempt, petitioner submitted the affidavit of a retired colleague, stating that at the time of the terrorist attack, he was stationed with petitioner at the offices of the Internal Affairs Bureau at 315 Hudson Street, which was outside the qualifying area.  He stated that following the attack, he was deployed with other officers, including petitioner, to “Ground Zero;” between September 11 and September 13, 2001, that he saw petitioner taking photographs of the area;  and that she relieved him of duty face-to-face.  Petitioner also provided a statement from respondents’ General Counsel indicating that rules and regulations had not been promulgated concerning the proof necessary to establish service at the WTC site during the relevant period.

The court properly found that respondents had a rational basis for denying petitioner's application, and for concluding that the colleague's affidavit was not persuasive, in light of the other contrary evidence, including overtime slips signed by petitioner indicating that she worked at IAB and/or command and control during the relevant period (see Matter of Brennan v. Kelly, 111 A.D.3d 407, 408, 974 N.Y.S.2d 374 [1st Dept. 2013], lv denied 23 N.Y.3d 907, 2014 WL 2935906 [2014];  Matter of Velez v. Kelly, 84 A.D.3d 693, 694, 923 N.Y.S.2d 837 [1st Dept. 2011]).  Moreover, contrary to petitioner's claim, neither Administrative Code of City of N.Y. § 13–252.1(1)(b) nor § 13–252.1(2)(d) mandated that respondents promulgate rules regarding evidence necessary to demonstrate entitlement to WTC ADR benefits;  and petitioner was accorded the opportunity to be heard, as required by Administrative Code § 13–252.1(2)(d).

We have considered petitioner's remaining arguments and find them unavailing.