Opinion
April 22, 1993
Appeal from the Supreme Court, Albany County.
To be eligible for accidental or performance of duty disability retirement benefits, the employee's incapacitation must be the natural and proximate result of an accident or disability sustained while in service (see, Retirement and Social Security Law § 363 [a] [1]; § 363-c [b] [1]). In our view, there is substantial evidence in the record to support the Comptroller's determination that petitioner was not engaged in the performance of his duties at the time the disabling event occurred (see, Matter of Martinson v Regan, 176 A.D.2d 1121; Matter of Marino v Regan, 117 A.D.2d 845) and that his conduct constituted willful negligence.
Petitioner's injuries were sustained during a lunch hour argument he was having with his wife. In the course of the argument, she got possession of his revolver, shot him and then fatally wounded herself. The fact that petitioner had reported to his headquarters that he was back in service from his lunch hour does not compel a different result; he never actually returned to his duties as a police officer, but instead continued quarreling with his wife. On the evidence presented, we cannot say that the Comptroller erred in concluding that petitioner was not in service at the time of the incident (see, Matter of Martinson v Regan, supra).
There is also record support for the Comptroller's determination that petitioner's conduct amounted to "willful negligence" (see, Retirement and Social Security Law § 363 [a] [1]; § 363-c [b] [1]). That phrase has been construed by the Comptroller to mean that the employee "acted in conscious disregard of the consequences of his actions" (Matter of Ramsden v Regan, 91 A.D.2d 773, lv denied 58 N.Y.2d 609). Here, the evidence is that even though petitioner had the opportunity to do so, he never reported the loss of his revolver to his superiors nor called for assistance to regain its possession. This, despite the fact that the incident took place in a public parking lot in the middle of the day and that his wife, who was infuriated with him because of perceived infidelities and who had previously threatened him with guns, was unfamiliar with the operation of his service revolver. Given these circumstances, there is substantial evidence to support the Comptroller's conclusion that petitioner's actions constituted willful negligence (see, supra). Petitioner's remaining contentions have been considered and rejected for lack of merit.
Weiss, P.J., Mercure, Mahoney and Casey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.