                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 19, 2016                      521833
________________________________

In the Matter of DANIEL G.
   KOENIG,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   April 20, 2016

Before:   Lahtinen, J.P., McCarthy, Devine, Clark and Mulvey, JJ.

                             __________


      Davis & Ferber, LLP, Islandia (Christopher S. Rothemich of
counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold of counsel), for respondents.

                             __________


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 Comptroller denying
petitioner's application for accidental disability retirement
benefits.

      In July 2007, petitioner, a police officer, was injured
when a bullet fragment from another police officer's gunshot
ricocheted off a target at the firing range and struck petitioner
in the leg. Upon his return to work in December 2007, petitioner
was placed on light duty assignment. In January 2009, petitioner
filed an application for accidental disability retirement
                              -2-                521833

benefits. Following the commencement of a hearing, respondent
New York State and Local Police and Fire Retirement System moved
to assess petitioner's disability application on whether he was
incapacitated from the performance of the duties assigned to
light duty work in accordance with 2 NYCRR 364.3 (c) inasmuch as
petitioner worked 100 or more hours of paid overtime within a 12-
month period while working in a light duty capacity in the 12
months prior to filing the application for accidental disability
retirement benefits. Petitioner objected, noting that the
hearing had already been commenced under the full duty
performance standard and also contesting the 100 hours of
overtime worked. Respondent Comptroller, accepting the findings
and conclusions of the Hearing Officer, found that whether
petitioner was permanently disabled from the performance of his
duties should be evaluated on the basis of his light duty
assignment and thereafter denied his application for accidental
disability retirement benefits. This CPLR article 78 proceeding
ensued.

      Petitioner's contention that it was error, following the
commencement of the hearing, to change the standard upon which to
evaluate his disability retirement application from full duty to
light duty performance, particularly given that he already had
presented medical testimony based upon his full duty assignment,
is without merit. Here, evidence in the record established that
petitioner continuously performed light duty assignment for a
year following his return to work and also performed at least 100
hours of paid overtime during a 12-month period prior to filing
his application for disability retirement benefits in accordance
with 2 NYCRR 364.3 (c), which therefore requires that the
determination on the issue of permanent incapacity be evaluated
on the basis of the light duty assignment. Although petitioner
sought to deduct mandatory overtime for medical evaluations or
court appearances and contractual travel overtime from
petitioner's total hours of overtime,1 we find nothing
irrational, unreasonable, arbitrary or capricious in the


    1
        Notably, even under his own assessment, petitioner
completed more than 90 hours of voluntary overtime during the
relevant 12-month period.
                              -3-                  521833

Comptroller's interpretation that, under the circumstances
herein, such overtime was reasonably anticipated by the
regulation and should not be excluded from the total overtime
hours reported (see generally Matter of Cook v DiNapoli, 113 AD3d
949, 950 [2014]; Matter of Nigro v McCall, 218 AD2d 846, 848
[1995]; Matter of Natoli v Regan, 196 AD2d 945, 946 [1993]). In
any event, "[t]he Comptroller is vested with . . . the duty to
correct errors and cannot be estopped to create rights to
retirement benefits to which there is no entitlement" (Matter of
Bombace v Nitido, 117 AD3d 1375, 1376 [2014] [internal quotation
marks and citations omitted]; see Matter of Galanthay v New York
State Teachers' Retirement Sys., 50 NY2d 984, 986 [1980]; Matter
of Kempkes v DiNapoli, 111 AD3d 1009, 1010 [2013]). Notably, no
prejudice to petitioner resulted as he was afforded the
opportunities to recall or have his medical expert submit an
affidavit regarding petitioner's ability to perform light duty
work and also was informed that appropriate time would be given
in order for him to present any additional evidence or witnesses
– opportunities of which petitioner declined to avail himself
(see Matter of Perez-Dunham v McCall, 279 AD2d 884, 885 [2001]).
Given that petitioner presented no evidence regarding his
inability to perform light duty work, the Comptroller's denial of
petitioner's application for accidental disability retirement
benefits will not be disturbed. Petitioner's remaining
contentions have been reviewed and found to be without merit.

     Lahtinen, J.P., Devine, Clark and Mulvey, JJ., concur.


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



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
