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In the Matter of Guy M. Massi v. Thomas P. Dinapoli

State of New York Supreme Court, Appellate Division Third Judicial Department


November 23, 2011

IN THE MATTER OF GUY M. MASSI, APPELLANT,
v.
THOMAS P. DINAPOLI, AS COMPTROLLER OF THE STATE OF NEW YORK, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Cahill, J.), entered July 23, 2010 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Comptroller denying petitioner's applications for accidental and performance of duty disability retirement benefits.

The opinion of the court was delivered by: Mercure, J.P.

MEMORANDUM AND ORDER

Calendar Date: October 17, 2011

Before: Mercure, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ.

Petitioner, a police sergeant, suffered a panic attack at home on April 15, 2004. He filed an application for performance of duty disability retirement benefits on June 28, 2004, alleging that he was permanently disabled due to posttraumatic stress disorder as the result of the April 2004 incident. That application was denied on the ground that the alleged disability did not result from an incident in the performance of petitioner's duties as a police officer. He thereafter applied for both accidental and performance of duty disability retirement benefits, alleging a permanent disability due to posttraumatic stress disorder stemming from a June 8, 2000 incident where he was confronted by an armed individual. The applications were initially denied and petitioner sought a hearing and a redetermination. Following a hearing, the Hearing Officer upheld the denials on, among other grounds, petitioner's failure to provide timely notice of an alleged disability regarding the June 8, 2000 incident. After respondent Comptroller adopted this determination, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition, prompting this appeal.

We affirm. To be eligible for accidental and performance of duty disability benefits, petitioner was required to file written notice with the Comptroller within 90 days after the occurrence upon which the disability is based; the notice must include the date, time and place of the occurrence and the nature of the injuries and the alleged incapacity (see Retirement and Social Security Law § 363 [c] [a]; § 363-c [e] [a]). Petitioner did not comply with this notice requirement, nor can he avail himself of the exceptions thereto (see Retirement and Social Security Law § 363 [c] [b] [2], [3]; § 363-c [e] [b] [2], [3], 2 NYCRR 331.2; 344.2; Matter of Monachelli v DiNapoli, 84 AD3d 1687, 1688 [2011]; Matter of Koebel v New York State Comptroller, 66 AD3d 1307, 1308 [2009]).

We have considered petitioner's remaining arguments and find them to be without merit. Accordingly, Supreme Court properly dismissed the petition.

Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20111123

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