                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 21, 2016                   519326
________________________________

In the Matter of ERIC M. CLOSE,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS NITIDO, as Deputy
   Comptroller of the
   State of New York,
                    Respondent.
________________________________


Calendar Date:   November 23, 2015

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

                             __________


     Eric M. Close, Waxhaw, North Carolina, petitioner pro se.

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

                             __________


McCarthy, 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 designation of death benefits.

      Petitioner's father, William Close (hereinafter decedent),
passed away in January 2012. Decedent's mother, Peggy Eythe, was
listed as his primary beneficiary on his last designation of
beneficiary form, dated November 17, 2011. On a previous
designation of beneficiary form, dated July 26, 2010, petitioner
was listed as decedent's primary beneficiary. After decedent's
death and upon being informed that he was no longer a primary
beneficiary of decedent's death benefits, petitioner submitted an
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application for designation of death benefits to the New York
State and Local Retirement System and requested an investigation
and a hearing into whether Eythe submitted a fraudulent
designation of beneficiary form. In response to petitioner's
application, the Retirement System informed him that its records
indicated that decedent had submitted a notarized change of
beneficiary form and that payment would be made in accordance
with the last valid designation. After a hearing, the Hearing
Officer found that petitioner's testimony and the testimony of
his witnesses were less credible than the Retirement System's
witnesses and determined that petitioner had failed to meet his
burden of establishing that the 2011 designation was invalid.
Respondent accepted in its entirety the Hearing Officer's
determination and, as a result, denied petitioner's application
for designation of decedent's death benefits. Petitioner then
commenced this CPLR article 78 proceeding to challenge
respondent's determination. Supreme Court, finding an issue of
substantial evidence, transferred the proceeding to this Court.

      The Comptroller has exclusive authority to determine the
validity of beneficiary designations on applications for death
benefits, and when such a determination is supported by
substantial evidence it must be upheld (see Matter of Hansen v
McCall, 10 AD3d 832, 833 [2004]; Matter of Nisnewitz v Regan, 207
AD2d 605, 605 [1994], lv denied 84 NY2d 812 [1995]). As relevant
here, petitioner had the burden of proving that the 2011
beneficiary designation was invalid (see State Administrative
Procedure Act § 306 [1]; Matter of Wilson v DiNapoli, 52 AD3d
931, 933 [2008]; Matter of Swick v New York State & Local
Employees' Retirement Sys., 213 AD2d 934, 935 [1995]).

      According to petitioner, despite his knowledge that
decedent had been diagnosed with stage four cancer, petitioner
had not visited decedent – who lived in the same state and
sometimes the same city – for approximately five months leading
up to decedent's death. In contrast, Eythe, the primary
beneficiary of the 2011 designation form, had moved in with
decedent to help care for him. One reason that petitioner gave
for his lack of consistent contact with decedent prior to
decedent's death was that petitioner was busy "trying to inherit
[an] apartment" from his recently deceased grandmother. Further,
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although petitioner provided the testimony of a handwriting
expert who opined that the signature on the 2011 designation of
beneficiary form was forged, decedent's attorney testified
directly to the contrary; he averred that he had witnessed
decedent sign the 2011 change of beneficiary form and that he
then notarized that form for decedent. Given the eyewitness
testimony regarding decedent's signature of the 2011 designation,
the compelling evidence explaining decedent's motivation for
changing his beneficiary from petitioner to Eythe and providing
due deference to respondent's credibility determinations, we find
that substantial evidence supports respondent's determination
(see Matter of Wilson v DiNapoli, 52 AD3d at 933; see generally
Felt v Olsen, 51 NY2d 977, 979 [1980]). Petitioner's remaining
contentions are without merit.

     Peters, P.J., Egan Jr., Devine and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
