                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 8, 2015                   520762
________________________________

In the Matter of HELENA T.
   LAURINO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   September 14, 2015

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

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Ryan K.
Allen of counsel), for petitioner.

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

                             __________


Devine, 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, a correction officer, worked in the Regional
Medical Unit at Fishkill Correctional Facility. On June 4, 2011,
she was stationed at a desk near the recreation area when an
inmate informed her that another inmate was having a seizure.
She found the inmate walking in a daze and, as she and a nurse
slowly lowered him to the floor, he went limp and started to
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fall. The inmate did not struggle or strike petitioner while she
was holding on to him; nevertheless, she injured her right
shoulder while guiding his fall. As a result of this incident,
she filed an application for performance of duty disability
retirement benefits under Retirement and Social Security Law
§ 507-b. Her application was denied on the ground that her
injury was not the result of an act of an inmate. Following a
hearing, a Hearing Officer agreed and recommended that
petitioner's application be denied. Respondent accepted the
Hearing Officer's recommendation and issued a final determination
denying her benefits. This CPLR article 78 proceeding ensued.

      Retirement and Social Security Law § 507-b (a) provides for
performance of duty disability retirement benefits to correction
officers employed by the Department of Corrections and Community
Supervision who are unable to perform their job duties "as the
natural and proximate result of an injury, sustained in the
performance or discharge of [their] duties by, or as a natural
and proximate result of, an act of an inmate." The statute does
not specifically define an "act of an inmate." The legislative
history, however, reveals that "the statute was clearly intended
to compensate correction officers who, because of the risks
created by their 'daily contact with certain persons who are
dangerous [and] profoundly antisocial' . . . become permanently
disabled" (Matter of Kaler v DiNapoli, 86 AD3d 898, 899 [2011],
lv denied 18 NY3d 808 [2012], quoting Governor's Mem approving L
1996, ch 722, 1996 McKinney's Session Laws of NY, at 1943; see
Matter of Naughton v DiNapoli, 127 AD3d 137, 140-141 [2015]). In
accordance with this intent, courts have construed the language
to require that the injuries be caused by direct interaction with
an inmate in order to qualify for benefits under the statute (see
Matter of Naughton v DiNapoli, 127 AD3d at 139; Matter of
Palmateer v DiNapoli, 117 AD3d 1228, 1229 [2014], lv denied 24
NY3d 901 [2014]; Matter of Escalera v Hevesi, 9 AD3d 666, 667
[2004], lvs denied 3 NY3d 608 [2004]).

      Petitioner contends that she had direct interaction with
the inmate while she was lowering him to the floor during his
seizure. However, in analogous circumstances where a correction
officer was injured while assisting an incapacitated inmate
during a medical emergency, we held that the "inmate was not
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engaged in any act that was a proximate cause of petitioner's
. . . injury" (Matter of Esposito v Hevesi, 30 AD3d 667, 668
[2006]). Given the absence of any affirmative act on the part of
the inmate here, we perceive no meaningful distinction to be
drawn between this case and Matter of Esposito v Hevesi (supra).
In view of this, substantial evidence in the record supports
respondent's denial of petitioner's application on the basis that
her injuries were not the result of an act of an inmate under
Retirement and Social Security Law § 507-b.

     Egan Jr., J.P., Rose and Clark, JJ., concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
