                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: February 9, 2017                    522986
________________________________

In the Matter of SCOTT
   HUNTINGTON,
                    Petitioner,
      v                                      MEMORANDUM AND JUDGMENT

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


Calendar Date:   January 17, 2017

Before:    Peters, P.J., McCarthy, Egan Jr., Rose and Mulvey, JJ.

                              __________


     Scott Huntington, Wilmington, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Frederick
A. Brodie of counsel), for respondents.

                              __________


Rose, J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of Supreme Court, entered in Albany County) to
review a determination of respondent Comptroller denying
petitioner's application for disability retirement benefits.

      On October 13, 2011, petitioner, a laborer, was notified by
his employer, the Olympic Regional Development Authority
(hereinafter ORDA), that it was terminating his employment for
misconduct, and he received no further paychecks. On March 30,
over 17 months later, petitioner filed an application for
disability retirement benefits under Retirement and Social
Security Law article 15. The New York State and Local Employees'
Retirement System denied the application on the basis that the
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application had not been timely filed. Petitioner requested a
hearing and redetermination, and, following a hearing, the
Hearing Officer sustained the initial determination. Respondent
Comptroller accepted the Hearing Officer's findings, and
petitioner commenced this CPLR article 78 proceeding challenging
this determination.

      We confirm. Contrary to petitioner's contention, the
Comptroller has exclusive authority to determine all applications
for retirement benefits (see Retirement and Social Security Law
§ 74 [b]; Matter of Croshier v Levitt, 5 NY2d 259, 263 [1959]),
and the Comptroller's determination will be upheld if the
underlying factual findings are supported by substantial evidence
(see Matter of Heil v New York State & Local Retirement Sys., 125
AD3d 1088, 1088 [2015], lv denied 25 NY3d 906 [2015]; Matter of
Lewandowski v New York State & Local Police & Fire Retirement
Sys., 69 AD3d 1027, 1028 [2010]). An application for disability
retirement benefits must generally be filed "within three months
from the last date the member was being paid on the payroll"
(Retirement and Social Security Law § 605 [b] [2]; see Matter of
Biscardi v New York State & Local Retirement Sys., 138 AD3d 1380,
1381 [2016]; Matter of Heil v New York State & Local Retirement
Sys., 125 AD3d at 1088), or, if the member "was placed on unpaid
medical leave, 'not later than [12] months after' receiving
notice that his or her employment has been terminated" (Matter of
Komolafe v Cuomo, 83 AD3d 1258, 1259 [2011], quoting Retirement
and Social Security Law § 605 [b] [2]).

      Here, the record reflects that petitioner's employment was
terminated on October 13, 2011 and that he last received payment
on ORDA's payroll on that same day. In addition, petitioner
acknowledged having received the October 13, 2011 notice of
discipline in the mail from ORDA, and our review of that notice
confirms that it unambiguously informed him that his employment
was being terminated. Petitioner's contention that he received a
subsequent letter from ORDA in April 2012 that first informed him
of his termination is not supported by the record and presented a
credibility issue for the Hearing Officer, and ultimately the
Comptroller, to resolve (see Matter of Yurko v DiNapoli, 122 AD3d
1047, 1048 [2014]; Matter of Messina v New York State & Local
Employees' Retirement Sys., 102 AD3d 1068, 1069 [2013], lv denied
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21 NY3d 855 [2013]). Accordingly, inasmuch as petitioner did not
file his application for disability retirement benefits until
March 30, 2013, we find that substantial evidence supports the
Comptroller's determination that petitioner failed to file a
timely application, and we decline to disturb that determination
(see Matter of Biscardi v New York State & Local Retirement Sys.,
138 AD3d at 1381; Matter of Heil v New York State & Local
Retirement Sys., 125 AD3d at 1088). Petitioner's remaining
contentions are either beyond the scope of the Comptroller's
determination and not properly before us or are unnecessary to
address in light of our determination herein (see Retirement and
Social Security Law § 74 [b]).

     Peters, P.J., McCarthy, Egan Jr. and Mulvey, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
