IN RE: Jesse HUGHES

Reset A A Font size: Print

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

IN RE: Jesse HUGHES, Petitioner, v. NEW YORK STATE POLICE AND FIREMEN'S RETIREMENT SYSTEMS et al., Respondents.

Decided: December 24, 1997

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and CARPINELLO, JJ. Schlachter & Mauro (Reynold A. Mauro, of counsel), Commack, for petitioner. Dennis C. Vacco, Attorney-General (Robert M. Goldfarb, of counsel), Albany, for respondents.

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

Substantial evidence supports the determination which disapproved the application of petitioner, a former police officer, for ordinary retirement disability benefits because he was not permanently incapacitated from performing his duties.   Although the record contains a 1980 medical report which concluded that petitioner suffered from a personality disorder which rendered him mentally impaired to perform the duties of a police officer, petitioner failed to proffer any medical evidence attesting to this disability contemporaneous with his 1991 application for retirement benefits.   Nevertheless, the record contains the 1993 medical report of the psychiatrist who examined petitioner on behalf of the State Retirement System and who was unable to establish a diagnosis and concluded that petitioner was not permanently physically or mentally incapacitated for the performance of his duties as a police officer.   Under the circumstances, we find that substantial evidence supports the finding that petitioner failed to sustain his burden of establishing his entitlement to ordinary disability retirement benefits and, accordingly, confirm the denial of his application (see, Matter of Delson v. Regan, 190 A.D.2d 984, 985, 594 N.Y.S.2d 88).

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

MEMORANDUM DECISION.

Copied to clipboard