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Alessio v. New York City Employees' Retirement System

67 N.Y.2d 978 Court N.Y. Decision date 1986-05-06 English

Contents

Majority

p. 978
In the Matter of Joseph V. Alessio, Appellant, v New York City Employees’ Retirement System, Respondent.
Decided May 6, 1986
p. 979
APPEARANCES OF COUNSEL
Arthur I. Strier and Simon Wynn for appellant.
Frederick A. O. Schwarz, Jr., Corporation Counsel (Fred Kolikoff of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order should be affirmed, with costs.

We agree with the Appellate Division that there is no basis for upsetting the determination denying petitioner’s application for accident disability retirement. The restrictive language of Administrative Code of the City of New York § B340.0 permits retirement on accident disability only where the "time, place and conditions” of whatever "resulted] in such disability” can be certified as "city-service”. Here it is not disputed that petitioner’s injury occurred while on the way to work rather than while actually engaged therein.

Petitioner’s reliance on case law construing Workers’ Compensation Law § 10 is misplaced. The language of that statute provides for benefits whenever the injury is one "arising out of and in the course of the employment”. By contrast, the language of section B3-40.0 of the Code limits accident disability benefits to those situations where actual "city service performed” results in the employee’s disability.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.