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In the Matter of Christopher J. v. Thomas P. Dinapoli

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


November 23, 2011

IN THE MATTER OF CHRISTOPHER J. AMARENA, PETITIONER,
v.
THOMAS P. DINAPOLI, AS COMPTROLLER OF THE STATE OF NEW YORK, RESPONDENT.

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

MEMORANDUM AND JUDGMENT

Calendar Date: October 12, 2011

Before: Peters, J.P., Lahtinen, Stein, McCarthy and Garry, 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 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 AD3d 857, 858 [2011]; Matter of Neeley v Town of Colonie, 79 AD3d 1560, 1561 [2010]).

Lahtinen, Stein, McCarthy and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger

Clerk of the Court

20111123

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