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Supreme Court, Appellate Division, Third Department, New York.

IN RE: William F. MEISLAHN, Petitioner, v. H. Carl McCALL, as Comptroller of the State of New York, Respondent.

Decided: September 30, 1999

Before:  CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ. Maureen McNamara, Garnerville, for appellant. Eliot Spitzer, Attorney-General (Francis V. Dow of counsel), Albany, for respondent.

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 police officer for the Town of Clarkstown in Rockland County, was injured during the course of his employment when he fell on a stairway.   He subsequently applied for accidental disability retirement benefits and, following a hearing, respondent denied the application upon the ground that petitioner had not sustained an accident within the meaning of the Retirement and Social Security Law. Petitioner thereafter commenced this CPLR article 78 proceeding to review the determination.

It is undisputed that, following the conclusion of the hearing, the Hearing Officer sent her decision to the attorney for the New York State and Local Retirement System but not to petitioner's attorney.   Based on the decision, the attorney for the Retirement System drafted a proposed final determination and sent it to the Hearing Officer, who signed it on behalf of respondent and returned it to the attorney for the Retirement System.   The attorney for the Retirement System then sent the Hearing Officer's decision and respondent's determination to petitioner's attorney.   Petitioner contends that the procedure violated his rights.

In Matter of Le Pore v. McCall, 262 A.D.2d 919, 694 N.Y.S.2d 185, we concluded that a similar procedure violated State Administrative Procedure Act § 307(2) and “created such an appearance of impropriety and bias to warrant an annulment of the determination” and remittal of the matter to respondent for a de novo determination on the record presented (id., at 920, 694 N.Y.S.2d 185).   We see no reason to reach a different conclusion in this case.

ADJUDGED that the determination is annulled, with costs, petition granted and matter remitted to respondent for further proceedings not inconsistent with this court's decision.



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