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In the Matter of Paul Puccini v. Thomas P. Dinapoli

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


January 19, 2012

IN THE MATTER OF PAUL PUCCINI, PETITIONER,
v.
THOMAS P. DINAPOLI, AS COMPTROLLER OF THE STATE OF NEW YORK, RESPONDENT.

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

MEMORANDUM AND JUDGMENT

Calendar Date: November 22, 2011

Before: Mercure, Acting P.J., Peters, Rose, Lahtinen 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 accidental disability retirement benefits.

Petitioner, a police officer, applied for accidental disability retirement benefits based upon incidents that occurred while he was working on April 6, 2006 and October 28, 2006. Petitioner's initial application was denied and, upon a hearing and redetermination, the Hearing Officer found that petitioner failed to give timely notice of the April 6 incident and the October 28 incident did not constitute an accident within the meaning of the Retirement and Social Security Law. Respondent adopted the findings of the Hearing Officer denying petitioner's application and this CPLR article 78 proceeding ensued.

We confirm. The internal department reports referenced by petitioner as the only proof of timely notice of the April 6, 2006 incident were not admitted into evidence at the hearing and are, therefore, not properly a part of the record herein. With regard to the October 28, 2006 incident, substantial evidence in the record supports the findings that the hazard that led to petitioner's injury existed for some time and the incident did not involve an unexpected event (see Matter of Kenny v DiNapoli, 11 NY3d 873, 875 [2008]; Matter of Sorrentino v DiNapoli, 74 AD3d 1694, 1695 [2010]).

Mercure, Acting P.J., Peters, Rose and Garry, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court

20120119

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