Dormeyer v. McCall

Full title: In the Matter of RICHARD L. DORMEYER, Petitioner, v. H. CARL McCALL, as…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Dec 13, 2001

289 A.D.2d 774 (N.Y. App. Div. 2001)

733 N.Y.S.2d 658

Opinion

90060

December 13, 2001.

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 which denied petitioner's application for performance of duty disability retirement benefits.

Erwin, McCane Daly (Kevin F. McCane of counsel), Albany, for petitioner.

Eliot Spitzer, Attorney-General (Robert M. Goldfarb of counsel), Albany, for respondent.

Before: Mercure, J.P., Crew III, Carpinello, Mugglin and, Rose, JJ.

MEMORANDUM AND JUDGMENT

Carpinello, J.

Petitioner's application for performance of duty disability retirement benefits was denied on the basis of his failure to provide the written notice required by Retirement and Social Security Law § 363-c (e) (a). In this CPLR article 78 proceeding to review the determination, petitioner contends that his failure to comply with the written notice requirement should have been excused for good cause (see, Retirement and Social Security Law § 363-c [e] [b] [3]). At the administrative hearing, however, petitioner did not raise the good cause issue and, therefore, it was not preserved for our review (see, Matter of Puterio v. Regan, 161 A.D.2d 1109). Nor can respondent be faulted for failing to consider the issue sua sponte, for the facts of this case do not appear to fall within any of the categories of good cause defined by the relevant regulation (see, 2 NYCRR 344.2).

At the hearing, petitioner expressly relied on the exception to the notice requirement for notice given in accordance with the Workers' Compensation Law (see, Retirement and Social Security Law § 363-c [e] [b] [1]). As to this issue, however, we find no basis to disturb respondent's determination that the oral notice to petitioner's employer was insufficient to trigger this exception (see, Matter of Wilson v. New York State Local Policemen's Firemen's Retirement Sys., 288 A.D.2d 602, 732 N.Y.S.2d 292).

Mercure, J.P., Crew III, Mugglin and Rose, JJ., concur.

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