Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
Text of Advisory Memorandum, Memorandum 2021-01 are posted at: https://www.cs.ny.gov/attendance_leave/AdvMemo21-01.cfm
If you wish to print Advisory Memorandum 2021-01 there is a version in PDF format at:
https://www.cs.ny.gov/attendance_leave/am21-01.pdf
To view earlier Attendance and Leave bulletins issued by the Department, visit: https://www.cs.ny.gov/attendance_leave/index.cfm
The Court Officer [Petitioner] bring this CPLR Article 78 action was assigned to a criminal court. In the course of Petitioner's escorting an inmate who had become unruly during his sentencing hearing from the courtroom to a downstairs detention area, the inmate attempted to go back upstairs to the courtroom. Petitioner and two other court officers took action to restrain him.
Petitioner was injured in the course of his efforts to restrain the inmate. He did not returned to work and applied for accidental disability retirement benefits, citing injuries to his neck, right arm, right wrist and both shoulders. Plaintiff's application was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law [RSSL] §605-a, which decision was subsequently sustained by a Hearing Officer. Ultimately the Comptroller adopted the Hearing Officer's findings and decision and Petitioner filed a CPLR Article 78 proceeding challenging the Comptroller's determination.
The job description for the title "court officer" contains a list of "typical duties" that includes providing security in the courtroom, guarding criminal defendants while they are in the courtroom and escorting them to and from the detention area, removing disruptive individuals from the courtroom and physically restraining unruly individuals. This job description for "court officer" proved to be a key element in the Appellate Division's review of a determination of the New York State Comptroller denying a court officer's [Petitioner] application for accidental disability retirement benefits.
Point out that the applicant for disability retirement benefits bore the burden of establishing that his disability arose from an accident within the meaning of the RSSL, the Appellate Division explained that the Comptroller's determination denying such benefits will be upheld if supported by substantial evidence.*
Although the reports of the incident submitted to the responsible human resources administrator indicated that Petitioner was injured when he and other officers were restraining an inmate attempting to return to the courtroom, Petitioner testified that he was not attempting to restrain the inmate when he was injured but that, instead, he was "a passive victim of a sudden and unexpected assault."
Here the Comptroller had credited the earlier written accounts of the incident over Petitioner's contradictory testimony at the hearing. The Appellate Division said that it would defer to the Comptroller's "credibility assessment."
Further, said the court, as there was substantial evidence supporting the Comptroller's finding that Petitioner's injury arose out of a risk that was foreseeable and inherent in the performance of his regular employment duties rather than an accident within the meaning of RSSL, "it will not be disturbed."
* For purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." An injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental"
Click HERE to access the Appellate Division's decision.
State Comptroller Thomas P. DiNapoli and Westchester County District Attorney Miriam E. Rocah announced the sentencing of Annette Bigelow, 61, and Mary Nash, 59, who hid their mother’s death to pocket nearly $22,000 from the New York State and Local Employees Retirement System, which DiNapoli administers, from 2013 to 2015.
The two daughters pleaded guilty to felony grand larceny in September, 2020. They were sentenced to a three-year conditional discharge and ordered to pay full restitution of $22,000.
“Annette Bigelow and Mary Nash hid their mother’s death and tried to cheat the state retirement system,” DiNapoli said. “Now they have been brought to justice and will have to repay the $22,000 they stole. I thank Westchester County District Attorney Rocah’s office for aggressively pursuing this case.”
“Our office is committed to pursuing wrongdoing in Westchester, whether the victim is a person or an entity like the state retirement system,” Rocah said. “Theft like this from the pension system is ultimately stealing from New York taxpayers, and we are glad to work with the Office of the State Comptroller to help ensure that public funds are safeguarded.”
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State Comptroller DiNapoli is committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be submitted to the Comptroller by calling a toll-free Fraud Hotline at 1-888-672-4555, by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236, or by emailing a complaint to investigations@osc.ny.gov.