State of New York Supreme Court, Appellate Division Third Judicial Department
July 21, 2011
IN THE MATTER OF JOHN M. STAGE,
OMAS P. DINAPOLI, AS STATE COMPTROLLER, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Kavanagh, J.
MEMORANDUM AND JUDGMENT
Calendar Date: May 31, 2011
Before: Mercure, J.P., Spain, Kavanagh, Garry and Egan Jr., JJ.
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 performance of duty disability retirement benefits.
Petitioner, a correction officer, applied for performance of duty disability retirement benefits after suffering two heart attacks. After it was determined that his disability was not work related, petitioner's application was denied. He subsequently requested a hearing and a redetermination, at which time petitioner sought to submit a medical report regarding his cardiac condition. Because the medical report had not been submitted by petitioner to respondent New York State and Local Retirement System within 45 days of the Retirement System acknowledging his request for a hearing, the Hearing Officer found that an administrative rule prevented him from considering it and denied petitioner's application (see generally 2 NYCRR 317.9 [b]). Respondent Comptroller accepted the Hearing Officer's findings and conclusions, and this CPLR article 78 proceeding ensued.
Respondents claim that the relief sought in the petition is moot because the Comptroller has agreed to administratively annul the determination made by the Hearing Officer and "return the matter to the hearing officer" so that the medical records can be considered in connection with petitioner's application. We agree, and conclude that petitioner has now been provided with all the relief he is entitled (see Matter of Neeley v Town of Colonie, 79 AD3d 1560, 1561 ; see also Matter of Duve v Richards, 81 AD3d 1226, 1227 ), namely, an annulment of the determination denying his application for benefits and a ruling stipulating that his medical reports would be admitted into evidence at the hearing. As for petitioner's claim that the matter is not moot, we note that should this administrative rule be used to bar the admission of medical reports in future proceedings, its application would be subject to appropriate appellate review (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 ; Matter of Cannon v City of Watervliet, 263 AD2d 920, 921 , lv denied 94 NY2d 756 ; Matter of Wellman v Surles, 185 AD2d 464, 466 ). Inasmuch as the determination denying petitioner's application has been vacated and his medical report will be considered at the hearing, the petition must be dismissed.*fn1
Mercure, J.P., Spain, Garry and Egan Jr., JJ., concur.
ADJUDGED that the petition is dismissed, as moot, without costs.
Robert D. Mayberger Clerk of the Court