TO SEARCH this database type in a key word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.

State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.

N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

November 2, 2016

A discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer


A discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer
Bevilacqua v DiNapoli, 2016 NY Slip Op 07077, Appellate Division, Third Department

Police Captain Larry A. Bevilacqua applied for accidental disability retirement benefits alleging that he was permanently incapacitated from performing his job duties as the result of an incident that occurred in the course of his investigating an armed robbery.

Captain Bevilacqua testified that he fallen because certain steps had been painted with glossy paint and the top step was sloped in a downward angle. He also testified that, after he fell, he observed that his boots were damp from crossing “the neighbors' lawns.”

However, both the police department's incident report and two other reports signed by Captain Bevilacqua that were created on the day of the incident attribute the fall to his wet boots slipping on the painted porch, with no mention of the sloped step.

The Appellate Division explained that such a discrepancy between the contemporaneous incident reports and disabled individual's testimony at the subsequent hearing presented a credibility issue for the Hearing Officer* and State Comptroller to resolve.

The Hearing Officer denied Captain Bevilacqua’s application, concluding [1] that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law and [2] that the earlier written descriptions of the accident were more credible than Captain Bevilacqua’s testimony attributing his fall to the sloped step. The State Comptroller sustained the Hearing Officer’s determination** and Captain Bevilacqua appealed the Comptroller’s decision.

The Appellate Division sustained the Comptroller’s determination, explaining that “[e]ven accepting [Captain Bevilacqua’s] testimony, the Hearing Officer concluded that [Captain Bevilacqua], who grew up in the area and described the porch as ‘one of those big old North Buffalo porches,’ should have reasonably anticipated that the ‘steps might have not been level.’"

As, in the Appellate Division’s view, substantial evidence supported the Comptroller’s determination that the conditions that caused Captain Bevilacqua 's fall and “the painted surface of the steps, his wet boots and even the sloped step — were readily observable  and that the fall resulted from Captain Bevilacqua 's own misstep or inattention.” The court explained that an application for accidental disability retirement bears the burden of demonstrating his or her entitlement to such benefits and the Comptroller’s determination will be upheld if supported by substantial evidence.

Further, said the court, "an incident does not qualify as an accident justifying the award of accidental disability retirement benefits where the injury results from an expected or foreseeable event arising during the performance of routine employment duties."

* A hearing officer’s determinations regarding the credibility of witnesses "are largely unreviewable" by a court [see Board of Educ. of the City School Dist. of the City of New York v Ostrin, 120 AD3d 1105].

** Although Captain Bevilacqua’s application for accidental disability retirement was denied, he was awarded performance of duty disability retirement benefits.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_07077.htm

__________________



The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

__________________


Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on https://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. Click on http://booklocker.com/books/7401.html for more information.

The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on disability benefits available to public officers and employees employed by New York State and its political subdivisions. For more information click on http://booklocker.com/books/3916.html