Matter of Salerno v. Kelly

Matter of Salerno v Kelly (2016 NY Slip Op 03833)

Matter of Salerno v Kelly

2016 NY Slip Op 03833

Decided on May 17, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 17, 2016
Mazzarelli, J.P., Moskowitz, Manzanet-Daniels, Gesmer, JJ.

1165 100213/12

[*1]In re Sara Salerno, Petitioner-Appellant, —

v

Raymond Kelly, etc., et al., Respondents-Respondents.

Law Firm of Jeffrey L. Goldberg, Port Washington (Eileen J. Goggin of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.

Order, Supreme Court, New York County (Paul Wooten, J.), entered December 20, 2013, which, inter alia, denied the petition to annul respondents' determination, dated September 14, 2011, denying petitioner's application for World Trade Center accidental disability retirement benefits, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondents' determination that petitioner failed to establish that she was present at the World Trade Center (WTC) site during the statutorily required time period is supported by credible evidence and is not arbitrary and capricious (see Retirement and Social Security Law [RSSL] § 2[36][a], [e], [f], [g]; Matter of Meyer v Board of Trustees of N.Y. City Fire Dept.,

Art. 1-B Pension Fund, 90 NY2d 139, 145 [1997]). Respondents' investigation revealed no contemporaneous records indicating that petitioner was present at the WTC site (see Matter of Brennan v Kelly, 111 AD3d 407 [1st Dept 2013], lv denied 23 NY3d 907 [2014]). Rather, it established that petitioner was assigned to and present at her command and control, located at 315 Hudson Street, during the relevant period.

Respondents were entitled to reject petitioner's statements and the letters by her two superior officers, which neither established that petitioner performed the statutorily required "rescue, recovery or clean-up" work nor identified a specific location within the statutorily defined area (RSSL § 2[36][a], [f]; see Matter of Velez v Kelly, 84 AD3d 693 [1st Dept 2011]). Additional documentation submitted by petitioner, including undated photographs in which she did not appear and the photographer was not identified, as well as a letter from a colleague, the contents of which, among other things, were contradicted by Police Department records, failed to establish her presence at the WTC site.

We decline to consider evidence outside of the administrative record (see Matter of [*2]Yarbough v Franco, 95 NY2d 342, 347 [2000]).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 17, 2016

CLERK