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A court officer injured during a lunch-hour accident in his employer’s locker room is not entitled to New York State accidental disability retirement benefits because he was not in service at the time of the accident, an appellate court has ruled. The New York Appellate Division, Third Department, upheld State Comptroller H. Carl McCall in rejecting the claim of Alexander Cossifos of Yonkers. Cossifos, a senior court officer who had worked for the state for more than 28 years, was injured on April 16, 1998, when another employee accidentally knocked over a seven-foot metal locker at the Westchester County Courthouse in White Plains. The locker struck Cossifos, who was eating his lunch in the locker room, on the head, resulting in a concussion, vertigo and depression. Cossifos was treated in the emergency room at White Plains Hospital and then transferred to St. John’s Hospital, where he spent four days. At issue before the hearing examiner, Arthur Shapiro of Middletown, and the Third Department, was whether Cossifos was on or off duty at the time of the accident. Both found that he was not on duty, and therefore is not entitled to state accidental disability retirement benefits. Justice Anthony J. Carpinello, writing for the unanimous court, rejected Cossifos argument that he was essentially on the job because he could, at any moment, be asked to perform a work-related task. Justice Carpinello noted that Cossifos could have left the premises had he chosen to do so, and also that he was not paid for his lunch break. “The fact that petitioner was within the confines of the employer’s premises at the time of the injury and could have been summoned to assist in a work-related matter while he was on his lunch break does not warrant a contrary finding,” Justice Carpinello wrote. Also on the panel for Matter of Alexander Cossifos v. New York State and Local Employees’ Retirement System, 86996, were Justices Thomas E. Mercure, Karen K. Peters, Edward O. Spain and Victoria A. Graffeo. Jeffrey L. Goldberg of Elmhurst appeared for Cossifos. Assistant Attorney General William E. Storrs defended the state of New York. INJURED HAND In another state disability retirement case, the Third Department denied benefits to a State Department of Motor Vehicles worker whose hand was slammed in a door by an irate customer. The court also articulated a policy of deferring to the Comptroller on credibility issues. Matter of Kathleen Pellino v. H. Carl McCall, 87136, arises out of an incident on Aug. 11, 1994. Kathleen Pellino, a representative in the Binghamton branch of the Department of Motor Vehicles, was closing the office when a belligerent customer, irritated that he would have to return the following day, closed her right hand in a door. Pellino, of Port Crane, sought permanent disability status, alleging reflex sympathetic dystrophy. Her treating orthopedic surgeon said she is permanently disabled, but a neurologist who testified on behalf of the retirement system provided a conflicting opinion. McCall denied benefits in a determination upheld last Thursday by the Third Department. “While we recognize that the record contains evidence that might support a contrary conclusion, this created a credibility issue within the Comptroller’s exclusive province to resolve,” Justice Graffeo wrote for the court. She was joined by Presiding Justice Anthony V. Cardona and Justices Carpinello, Carl J. Mugglin and John A. Lahtinen. Appearing were Robert T. DeCataldo of DeCataldo and DeCataldo in Schenectady for Pellino, and Assistant Solicitor General Francis V. Dow for the Comptroller.

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