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In the Matter of William A. Whipple v. New York State and Local Retirement System et al

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


January 5, 2012

IN THE MATTER OF WILLIAM A. WHIPPLE, PETITIONER,
v.
NEW YORK STATE AND LOCAL RETIREMENT SYSTEM ET AL., RESPONDENTS.

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

MEMORANDUM AND JUDGMENT

Calendar Date: November 14, 2011

Before: Mercure, Acting P.J., Rose, Lahtinen, Kavanagh and McCarthy, 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 accidental disability retirement benefits.

Petitioner applied for accidental disability retirement benefits after he was injured at work. His application was initially denied and petitioner sought a hearing and redetermination. Petitioner sought to submit medical records in support of his claim but, as the Hearing Officer found, because he had not submitted the records to respondent New York State and Local Retirement System within the 45-day deadline set forth by the Retirement System, they could not be considered (see 2 NYCRR 317.9 [b]). The Hearing Officer denied petitioner's application on the basis that petitioner's disability was not due to the workplace accident. Respondent Comptroller accepted the Hearing Officer's findings and conclusions, prompting petitioner to commence this CPLR article 78 proceeding.

Respondents advise this Court that the Comptroller has agreed to administratively annul the determination and return the matter to the Hearing Officer for further proceedings at which petitioner's medical records shall be admitted into evidence and considered in connection with petitioner's application. In light of the foregoing, petitioner has been provided with all the relief to which he is entitled and the petition must be dismissed as moot (see Matter of Stage v DiNapoli, 86 AD3d 857, 858 [2011]; Matter of Neeley v Town of Colonie, 79 AD3d 1560, 1561 [2010]).

Mercure, Acting P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120105

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