IN RE: Elizabeth A. CURTIN (2008)

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 which denied petitioner's application for accidental disability retirement benefits.

Petitioner, a court reporter employed by the State Office of Court Administration and working at Manhattan Criminal Court, was injured when she tripped and stumbled down several steps outside the courthouse during her lunch break.   Thereafter, petitioner filed an application for accidental disability retirement benefits.   Following the initial denial of her application, petitioner timely requested a hearing and redetermination.   After a hearing, the Hearing Officer denied the application, finding that the incident did not occur while petitioner was engaged in the performance of her duties and that the incident was not an accident within the meaning of Retirement and Social Security Law § 63(a).   Respondent upheld the denial and this CPLR article 78 proceeding ensued.

 We confirm.   Respondent is vested with exclusive authority to determine all applications for retirement benefits and such determination must be upheld if supported by substantial evidence (see Retirement and Social Security Law § 74[b];  Matter of Port Auth. Police Benev. Assn., Inc. v. Anglin, 54 A.D.3d 495, 496, 863 N.Y.S.2d 298 [2008], lv. granted 11 N.Y.3d 710, --- N.Y.S.2d ----, --- N.E.2d ---- [Nov. 20, 2008];  Matter of Franks v. DiNapoli, 53 A.D.3d 897, 897-898, 861 N.Y.S.2d 848 [2008] ).   To be entitled to benefits pursuant to Retirement and Social Security Law § 605(b)(3), a petitioner must demonstrate that an accidental injury was sustained while in the performance of his or her duties, and this Court has upheld the denial of benefits when a petitioner is injured while on a lunch break (see Matter of Economico v. New York State & Local Police & Fire Retirement Sys., 7 A.D.3d 913, 914, 776 N.Y.S.2d 632 [2004], lv. denied 3 N.Y.3d 611, 787 N.Y.S.2d 714, 821 N.E.2d 140 [2004];  Matter of Cossifos v. New York State & Local Employees' Retirement Sys., 275 A.D.2d 879, 879, 713 N.Y.S.2d 568 [2000];  Matter of Marino v. Regan, 117 A.D.2d 845, 846, 498 N.Y.S.2d 546 [1986] ).   Here, petitioner testified unequivocally that her fall occurred during her lunch break while she was leaving the building to get something to eat and, further, that she was not paid for her lunch break.   As such, substantial evidence supports respondent's determination that petitioner was not in service at the time she was injured (see Matter of Waldron v. McCall, 302 A.D.2d 742, 743, 755 N.Y.S.2d 479 [2003], lv. denied 100 N.Y.2d 503, 761 N.Y.S.2d 595, 791 N.E.2d 961 [2003] ).   We have examined petitioner's remaining contentions and find them to be without merit.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ROSE, J.

PETERS, J.P., LAHTINEN, KAVANAGH and STEIN, JJ., concur.