                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522974
________________________________

In the Matter of JESUS
   ECHEVARRIA,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State
   Comptroller,
                    Respondent.
________________________________


Calendar Date:   November 18, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Michael
Catallo of counsel), for petitioner.

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

                             __________


Peters, P.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 denying petitioner's
application for performance of duty disability retirement
benefits.

      Petitioner filed an application for performance of duty
disability retirement benefits in which he alleged a permanent
disability from injuries sustained as a result of incidents that
occurred on September 14, 2001, January 4, 2006, February 15,
2007 and January 2, 2010 while employed as a correction officer
with the Department of Corrections and Community Supervision.
                              -2-                522974

The application was initially denied, and petitioner requested a
hearing and redetermination. At the ensuing hearing, petitioner
conceded that the incidents in 2006, 2007 and 2010 were not the
"act[s] of an inmate" for purposes of obtaining benefits pursuant
to Retirement and Social Security Law § 507-b. With regard to
the September 2001 incident, which involved a physical
altercation with an inmate, the New York State and Local
Employees' Retirement System conceded that petitioner is
permanently disabled and that the incident was an "act of an
inmate." The only remaining contested issue was whether the
injuries sustained during the incident are the natural and
proximate cause of petitioner's disability. Following the
conclusion of the hearing, a Hearing Officer upheld the initial
denial of his application for benefits, finding that petitioner
did not meet his burden of establishing that the September 2001
incident was the natural and proximate result of his disability
and that the initial determination was supported by substantial
evidence. Respondent adopted the Hearing Officer's decision, and
this CPLR article 78 proceeding ensued.

      Respondent concedes, and we agree, that the Hearing
Officer's analysis and decision was affected by an error of law
inasmuch as he misstated and applied the incorrect legal standard
in rendering his decision. Specifically, the Hearing Officer
improperly analyzed 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 Bodenmiller v
DiNapoli, 142 AD3d 752, 753 [2016] [internal quotation marks and
citations omitted]; see Retirement and Social Security Law § 74
[d]; Matter of DeMaio v DiNapoli, 137 AD3d 1545, 1545-1546
[2016]). Under these circumstances, given respondent's failure
to recognize this error of law prior to adopting the Hearing
Officer's decision, we conclude that the determination must be
annulled and the matter remitted to respondent for a new hearing.

     McCarthy, Egan Jr., Lynch and Devine, JJ., concur.
                              -3-                  522974

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
