                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   520745
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In the Matter of GARY S.
   WHITEHEAD,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State
   Comptroller, et al.,
                    Respondents.
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Calendar Date:   September 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


      Sheehan Greene Golderman & Jacques, Albany (Thomas D. Latin
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 performance of duty disability
retirement benefits.

      Petitioner, a correction officer, was injured in September
2009 when he struck his head on a wall-mounted metal toolbox
while attempting to subdue an inmate. Petitioner did not return
to work and, in April 2011, applied for performance of duty
disability retirement benefits. The application was denied, and
petitioner sought a hearing and redetermination. At the
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conclusion of the hearing that followed, the Hearing Officer
upheld the initial denial, finding that petitioner's permanent
incapacitation was not the natural and proximate result of the
September 2009 incident. Respondent Comptroller agreed,
prompting petitioner to commence this CPLR article 78 proceeding
to challenge the Comptroller's determination.

      By letter dated May 14, 2015, respondents conceded that the
Comptroller's determination is not supported by substantial
evidence. Upon our independent review of the record, we agree.
Accordingly, the underlying determination is annulled (see Matter
of Hokes v DiNapoli, 106 AD3d 1365, 1365 [2013]).

     Lahtinen, J.P., Devine and Clark, JJ., concur.



      ADJUDGED that the determination is annulled, with costs,
petition granted and matter remitted to respondents for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
