Calendar Date: April 23, 2013
The Sammarco Law Firm, Buffalo (Andrea L. Sammarco of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: Peters, P.J., Rose, McCarthy and Egan Jr., JJ.
MEMORANDUM AND JUDGMENT
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 applications for accidental disability and performance of duty disability retirement benefits.
Petitioner applied in 2002 for accidental disability and performance of duty disability retirement benefits as a result of various incidents that allegedly occurred in the course of his employment. The applications were ultimately denied on the basis that the "various injurious incidents" were not causally related to petitioner's disability. However, this Court, as set forth in our previous decision, found it necessary to remit the matter "so that respondent can render a determination that is sufficient for our review" (78 A.D.3d 1366, 1367 ). Subsequently, respondent reassigned the matter to a different Hearing Officer who thereafter set forth findings of fact and conclusions of law recommending that petitioner's applications be disapproved on the basis that he did not establish that his disability was caused by a work-related incident or accident. Respondent accepted that decision and petitioner commenced this proceeding pursuant to CPLR article 78 challenging that determination.
The Attorney General concedes that respondent's determination is not supported by substantial evidence in the record. Based upon our review of the record — in particular the proof provided by respondent's medical expert — we agree. Accordingly respondent's determination must be annulled. Given that result, all remaining issues briefed by petitioner have been rendered moot.
Peters, P.J., McCarthy and Egan Jr., JJ., concur.
ADJUDGED that the determination is annulled, with costs, petition granted, and matter remitted to respondent for further proceedings not ...