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November 01, 2012

Firefighter’s injury suffered at the World Trade Center after 9/11 ruled the result of a personal activity rather than the performance of official duties


Firefighter’s injury suffered at the World Trade Center after 9/11 ruled the result of a personal activity rather than the performance of official duties
Cavanaugh v DiNapoli, 2012 NY Slip Op 07177, Appellate Division, Third Department

A firefighter for the City of Syracuse filed an application for accidental disability retirement benefits following an injury he suffered at the World Trade Center [WTC] in the aftermath of 9/11.

The Comptroller denied the application on the grounds that the firefighter had not established he was performing duties in his official capacity at the time he was working at the WTC.

The firefighter appealed the Comptroller’s determination contending that it was not his burden to establish that he was working in his official capacity as a firefighter at the time of his injury because the rebuttable presumption set forth in Retirement and Social Security Law §363(g)(2)(a) placed that burden upon the New York State and Local Retirement System.

The Appellate Division never reached that issue as it found that there was substantial evidence that firefighter presence at the WTC following 9/11 was a “personal pursuit” rather than part of his job as a Syracuse firefighter.

According to the decision, the record showed that the firefighter had been granted a leave of absence from his position to go to the WTC and was considered to be on vacation during the time he was there. Thus, said the court, the firefighter was not working in an official capacity when the 9/11 attacks occurred and he went to the WTC the next day at the invitation of a friend who owned a private ambulance service.

The bottom line: Although the firefighter had the approval of his fire chief to go to the WTC and took his firefighting gear with him, the Appellate Division said that there was substantial evidence supports the Retirement System’s finding that he was engaged in a personal activity and not performing or discharging his official duties as a Syracuse firefighter while at the WTC site.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07177.htm

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