                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 25, 2016                   522491
________________________________

In the Matter of ROBERT
   BODENMILLER,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State
   Comptroller, et al.,
                    Respondents.
________________________________


Calendar Date:   August 18, 2016

Before:   Garry, J.P., Egan Jr., Devine, Mulvey and Aarons, JJ.

                             __________


      Sherman Federman Sambur & McIntyre, LLP, New York City
(Sean Patrick Riordan of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondents.

                             __________


Egan Jr., J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Albany County) to
review a determination of respondent Comptroller denying
petitioner's application for accidental disability retirement
benefits.

      Petitioner worked as a police officer for the Suffolk
County Police Department. On August 4, 2010, he received a call
concerning a female patient who had left the grounds of a
psychiatric facility. Petitioner found the woman at a nearby
fast food restaurant and, while he was questioning her, a man,
who appeared to be carrying a weapon and was yelling loudly,
                              -2-                522491

rushed toward them. In response, petitioner turned toward the
man, extended his left arm and fired his weapon twice, striking
the man. Petitioner injured his left shoulder during the
incident and subsequently filed an application for accidental
disability retirement benefits. His application was denied upon
the ground that the incident did not constitute an accident
within the meaning of the Retirement and Social Security Law.
Petitioner requested a hearing and redetermination and, following
further proceedings, a Hearing Officer upheld the denial, finding
that the initial determination was supported by substantial
evidence. Respondent Comptroller adopted the Hearing Officer's
decision with supplemental findings of fact, and this CPLR
article 78 proceeding ensued.

      Respondents concede, and we agree, that the Hearing Officer
applied the incorrect legal standard in rendering her decision.
Specifically, the Hearing Officer confined her analysis to
whether the initial determination was supported by substantial
evidence, rather than undertaking a "'redetermination'" and
exercising "'the same powers upon such hearing as upon the
original application'" (Matter of Britt v DiNapoli, 91 AD3d 1102,
1103 [2012], quoting Retirement and Social Security Law § 74
[d]). As this Court recently noted in Matter of DeMaio v
DiNapoli (137 AD3d 1545, 1545-1546 [2016]), such deficiency
constitutes an error of law requiring annulment of the
determination. Accordingly, the determination is annulled, and
the matter is remitted to the Comptroller for a new hearing.

     Garry, J.P., Devine, Mulvey and Aarons, JJ., concur.
                              -3-                  522491

      ADJUDGED that the determination is annulled, without costs,
and matter remitted to respondent Comptroller for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
