                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 2, 2014                   518425
________________________________

In the Matter of JOHN P.
   DREHER,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   September 5, 2014

Before:   Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

                             __________


      Max D. Leifer, PC, New York City (Max D. Leifer 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 which denied
petitioner's application for accidental disability retirement
benefits.

      Petitioner worked as a senior court officer and was tasked
with, among other things, transporting a judge who needed
assistance to the courthouse. While traveling to the judge's
residence in October 2008, petitioner took a brief detour in
order to purchase a cup of coffee and was struck by a car while
crossing the street, sustaining various injuries. Petitioner
                              -2-                518425

obtained line of duty injury benefits provided under the
collective bargaining agreement applicable to him and thereafter
applied for accidental disability retirement benefits, which were
denied. Following a hearing and redetermination, the Hearing
Officer upheld the denial of benefits, as did respondent
Comptroller, prompting petitioner to commence this CPLR article
78 proceeding.

      We confirm. There is no question that the Comptroller "is
vested with exclusive authority to determine all applications for
retirement benefits, including the question of whether an
accidental injury was sustained while in service, and if
supported by substantial evidence, the determination must be
upheld" (Matter of Welch v Hevesi, 32 AD3d 564, 564 [2006]
[internal quotation marks and citations omitted]; see Retirement
and Social Security Law § 74 [b]). Although petitioner testified
that he was on duty when he was injured, the fact remains that he
"'was engaged in a personal activity rather than performing work
duties' at the time when the incident occurred" (Matter of Welch
v Hevesi, 32 AD3d at 564, quoting Matter of Economico v New York
State & Local Police & Fire Retirement Sys., 7 AD3d 913, 914
[2004], lv denied 3 NY3d 611 [2004]; see Matter of Gonzalez v New
York State & Local Employees' Retirement Sys., 79 AD3d 1562, 1563
[2010]; Matter of Mellor v Hevesi, 29 AD3d 1205, 1206 [2006]).
Substantial evidence thus supports the Comptroller's
determination that petitioner was not in service when he was
injured (see Matter of Mellor v Hevesi, 29 AD3d at 1206),
notwithstanding the fact that he received line of duty injury
benefits under the terms of the collective bargaining agreement.
Petitioner's remaining contention, to the extent that it is
preserved for our review, has been considered and found to be
lacking in merit.

     Stein, J.P., McCarthy, Lynch and Clark, JJ., concur.
                              -3-                  518425

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
