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Kushner v. New York State Comptroller

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


May 7, 2009

IN THE MATTER OF AILEEN KUSHNER, PETITIONER,
v.
NEW YORK STATE COMPTROLLER ET AL., RESPONDENTS.

The opinion of the court was delivered by: Stein, 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 Official Reports.

Calendar Date: March 24, 2009

Before: Rose, J.P., Kane, Kavanagh, Stein and McCarthy, JJ.

MEMORANDUM AND JUDGMENT

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 disability retirement benefits.

Petitioner was formerly employed as a nurse at Nassau University Medical Center. In the course of her employment, she suffered a neck and shoulder strain while attempting to relocate several patients. In light of her injuries, petitioner's physician recommended that she cease her work activities.

Approximately two months later, petitioner applied to respondent New York State and Local Employees' Retirement System for disability retirement benefits. Her application was denied and she requested an administrative hearing for reconsideration of her application. The Judicial Hearing Officer (hereinafter JHO) again denied the application, finding that petitioner had not availed herself of all recommended safe and available treatment opportunities. Thereafter, respondent Comptroller adopted the findings of the JHO and issued a final determination denying petitioner's application. Petitioner then commenced the instant proceeding seeking annulment of the determination that she is ineligible for benefits. This proceeding was transferred to this Court pursuant to CPLR 7804 (g).

Notably, the parties agree that the JHO's decision lacks substantial evidentiary support for the determination that petitioner failed to avail herself of all recommended safe and available treatments — specifically, epidural injections (see generally Matter of Curtin v Hevesi, 57 AD3d 1178, 1178 [2008]) — and that the matter should be remitted. Thus, we agree that remittal is appropriate (see Retirement and Social Security Law § 74 [b]; Matter of Rossi v New York State Comptroller, 55 AD3d 1125, 1126-1127 [2008]; Matter of Bunting v McCall, 280 AD2d 774, 774-775 [2001]; see also Matter of Foos v Bausch & Lomb, 181 AD2d 951, 953 [1992]; cf. Matter of Varriano v Hevesi, 40 AD3d 1357, 1359 [2007], lv denied 9 NY3d 815 [2007]).

Rose, J.P., Kane, Kavanagh and McCarthy, JJ., concur.

ADJUDGED that the determination is annulled, without costs, and matter remitted to respondent Comptroller for further proceedings not inconsistent with this Court's decision.

20090507

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