Supreme Court denied Plaintiff's petition to vacate a determination of Respondents, which denied Plaintiff's application for World Trade Center Accidental Disability Retirement (WTC ADR) benefits, and dismissing the proceeding brought pursuant to CPLR article 78. The Court of Appeals unanimously affirmed the lower court's ruling, without costs.
The Court of Appeals noted this was the third CPLR Article 78 proceeding brought by Plaintiff' seeking to vacate the denial of her application for WTC ADR benefits, based on her failure to demonstrate that she engaged in rescue, recovery and cleanup operations at the statutorily defined WTC site during the statutory period. The Court of Appeals had affirmed the denial of those benefits by Respondents in connection with the evidence submitted on her first two applications, Matter of Salerno v Kelly, 139 AD3d 516.
In support of her third attempt, Plaintiff submitted the affidavit of a retired colleague, stating that at the time of the terrorist attack, he was stationed with Plaintiff at the offices of the Internal Affairs Bureau. However, the location so identified "was outside the qualifying area."
Accordingly, said the Court, Respondents had a rational basis for denying Plaintiff's application, and for concluding that the colleague's affidavit was not persuasive, in light of the other contrary evidence, including overtime slips signed by Plaintiff indicating that she worked at IAB and/or command and control during the relevant period.
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