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Warshawsky v. DiNapoli

December 22, 2008

IN THE MATTER OF THE APPLICATION OF PHILIP WARSHAWSKY, PETITIONER, FOR A JUDGMENT PURSUANT TO ARTICLE 78 OF THE CIVIL PRACTICE LAW AND RULES,
v.
THOMAS P. DINAPOLI, NEW YORK STATE COMPTROLLER AND THE NEW YORK AND THE NEW YORK STATE AND LOCAL RETIREMENT SYSTEM, RESPONDENTS.



The opinion of the court was delivered by: George B. Ceresia, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

The petitioner Philip Warshawsky commenced the above-captioned CPLR article 78 proceeding for review of a determination by the New York State and Local Employees' Retirement System denying him Unified Court Officers accidental disability retirement benefits. Respondents Thomas P. DiNapoli, New York State Comptroller, and the New York State and Local Employees' Retirement System (hereinafter the Retirement System) oppose the petition, seeking its dismissal.*fn1

Petitioner began his employment with the New York State Court System in November 1979. Prior to such employment, petitioner underwent a physical examination, which did not reveal any signs of heart disease. In 1996, petitioner suffered a heart attack while at work, and, after a four-month recovery period following bypass surgery, petitioner returned to work. By 1998, petitioner had been promoted to rank of Sergeant.

Following the tragic events of September 11, 2001, petitioner avers in the petition that his duties became increasingly stressful, especially since his command at 100 Centre Street was approximately eight blocks from the World Trade Center site and he was working additional shifts. On January 5, 2003, petitioner suffered a second heart attack, after which he never returned to work.

On January 23, 2003, petitioner submitted an application for accidental disability retirement benefits to the Retirement System. Although the application form used by petitioner was labeled "Application for 605A Accidental Disability [Available for Uniformed Court Officers], petitioner marked through 605A and wrote in "605B" and also noted "Heart Bill" on the application. He stated that he was "permanently disabled because of heart disease, prior heart attack" (Application Form at ¶ 13 [Executed 1-15-03], Petition, Exhibit A).

Thereafter, the Retirement System denied the application in a determination that provided:

It is hereby found that the incidents alleged to have occurred on 03/06/96 and 01/05/03 do not constitute an accident' as this term is used in Section 605-a of the Retirement and Social Security Law.

It is further found that the alleged accident on 01/05/03 was not caused by nor did it occur during the course of the applicant's duties.

It is hereby determined and directed that the application for UCO Disability Retirement be and the same is hereby denied (Determination [dated 12-24-03], id., Exhibit C).

Petitioner then requested an administrative hearing, which took place on March 29, 2006 and February 28, 2007.

At that hearing, the Retirement System took the position and submitted evidence that an applicant, such as petitioner, seeking benefits pursuant to Retirement and Social Security Law § 605-B had to allege an incident or incidents constituting an accident. In other words, the Retirement System argued that section 605-B had to be read in conjunction with section 605-A, which requires an accident be shown before a petitioner is entitled to accident benefits. Petitioner argued that he was entitled to the statutory presumption of accidental causation afforded under section 605-B.

On July 6, 2007, the Hearing Officer issued his decision, in which noted:

In his memorandum, the applicant has argued in some detail that the statutory presumptions set forth in Section 605-b of the RSSL [Retirement and Social Security Law] due to heart disease qualifies him for Accidental Disability Retirement benefits without the need to submit notice of an accident, description of an injury and permanent disability, while the Retirement System contends that the threshold provisions, i.e. proper notice of permanent incapacitation and injuries incurred through an accident in the performance of duty as required by Section 605-a must first be met prior to any consideration of the statutory presumption set forth under Section 605-b, ...


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