IN RE: Christopher J. AMARENA

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

IN RE: Christopher J. AMARENA, Petitioner, v. Thomas P. DiNAPOLI, as Comptroller of the State of New York, Respondent.

Decided: November 23, 2011

Before:  PETERS, J.P., LAHTINEN, STEIN, McCARTHY and GARRY, JJ. Matthew P. Ryan, New York State Law Enforcement Office Council 82, AFSCME, AFL–CIO, Albany, for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), 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 performance of duty disability retirement benefits.

Petitioner, a correction officer, suffered a heart attack in May 2002.   He thereafter applied for performance of duty disability retirement benefits, contending that he was permanently disabled due to a heart condition.   The New York State and Local Retirement System found that petitioner was permanently incapacitated from performing his job duties, but nonetheless denied his application.   Following a hearing, the Hearing Officer upheld the denial, finding that the Retirement System had rebutted the “heart presumption” (see Retirement and Social Security Law § 507–b[c] ) and that petitioner had not established that he was permanently disabled from the performance of his job duties.   Respondent made supplemental findings of fact and denied the application solely on the ground that the heart presumption had been rebutted and petitioner had not established that his permanent incapacity was caused by the direct act of an inmate.   Petitioner thereafter commenced this CPLR article 78 proceeding seeking to annul respondent's determination.

The Attorney General has advised this Court that respondent has agreed to annul his determination and return the matter to the Retirement System for further proceedings.   We therefore conclude that this matter is moot, inasmuch as petitioner has been afforded all the relief that he is entitled (see Matter of Stage v. DiNapoli, 86 A.D.3d 857, 858, 926 N.Y.S.2d 922 [2011];  Matter of Neeley v. Town of Colonie, 79 A.D.3d 1560, 1561, 914 N.Y.S.2d 735 [2010] ).

ADJUDGED that the petition is dismissed, as moot, without costs.

PETERS, J.P.

LAHTINEN, STEIN, McCARTHY and GARRY, JJ., concur.

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