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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:


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