ALBANY – The wife of a state police investigator was not unfairly denied disability retirement because he died seven minutes before his application for benefits was received by the state, a divided appeals court has determined.

The Appellate Division, Third Department, said the Retirement and Social Security Law (RSSL) is clear that in order to be eligible for disability retirement, state employees must be active members of the State and Local Retirement System when they apply.

But medical records showed that investigator Richard O’Brien died from a fall while off-duty at 6:24 p.m. on Dec. 7, 2009, and that the retirement system did not receive the application filled out by his wife and his state police colleagues until 6:31 p.m. that evening.

“While it is unfortunate that so many failed attempts were made to fax the retirement documents while decedent was still alive, there is no dispute that he died—and his membership in the retirement system therefore terminated— prior to their receipt,” Presiding Justice Karen Peters (See Profile) wrote for the 3-1 majority in O’Brien v. DiNapoli, 517147.

Peters said the court had no basis on which to overrule the state comptroller’s finding disallowing O’Brien’s application. She wrote that one provision of the RSSL, §390-bb(1), allows the comptroller to extend the filing deadlines for benefit applications, but it applies only to changing the options recipients elect on their forms, not to the timeliness of their applications for the program.

Justice John Lahtinen (See Profile) and Leslie Stein (See Profile) joined the majority.

The failure to apply in time for disability retirement benefits could have significant long-term implications for O’Brien’s family.

O’Brien, whose base salary was about $90,000 a year as an investigator, qualifies for a nonservice-related death benefit equal to three times the compensation he earned during his final 12 months on the job.

The disability retirement benefit, on the other hand, would entitle O’Brien’s widow to 75 percent of the overall compensation he earned during the highest 36 consecutive months of his 13 1/2-year state police career. The retirement benefit would be paid for her lifetime.

The O’Brien family’s lawyer, Alan Sash of McLaughlin & Stern, said the lifetime disability retirement is almost always preferable to the death benefit for younger beneficiaries.

Richard O’Brien’s widow, Stephanie, now 36, gave birth to his daughter about six months after he died.

O’Brien, 42, was helping to side his mother’s home in Walden, Orange County, when he fell between 20 feet and 30 feet from a ladder and his head hit two-by-fours on the ground. He died at St. Luke’s Cornwall Hospital in Newburgh about three hours later.

According to O’Brien’s brief, fellow investigators who gathered at the hospital filled out an application for disability retirement that his wife signed when the gravity of his injuries became clear.

But due to a faulty fax machine at St. Luke’s, O’Brien’s widow argued that attempts to get the completed forms to the retirement system in Albany were delayed for a total of 18 minutes. The papers went through on the 10th try, according to court papers.

Confirmation of receipt of the papers at the comptroller’s office was finally received at 6:31 p.m., seven minutes after O’Brien died of massive head injuries, according to the ruling.

The dissenter, Justice John Egan Jr. (See Profile), said he believed O’Brien’s application was valid.

Egan said that when the Retirement and Social Security Law is read in conjunction with 2 NYCRR 366.2, it indicates that the application was timely if received on the date it was sent, with the time of the day being unimportant.

“Notably, both the relevant statute and the subject regulation provide that the document in question is deemed to be filed on the date that it is faxed or mailed—not the precise moment in time that it is successfully received by the postal service or via fax machine,” Egan wrote. “Decedent died on Dec. 7, 2009, and his application for retirement was received on Dec. 7, 2009.”

Egan also noted that the unique circumstances of the case should prompt the retirement system to cut Stephanie O’Brien some slack, even if the letter of the statute is read to bar the system from recognizing the application. It is undisputed, he noted, that the application was completed by 6 p.m. and the failure of the hospital fax machine was to blame for the subsequent delay in its receipt in Albany.

“It is readily apparent that petitioner and those assisting her—recognizing the dire nature of decedent’s injuries—endeavored to promptly and diligently submit the underlying application in a timely fashion,” Egan wrote. “Under these circumstances, the comptroller’s decision to deny petitioner the requested benefits is, to my analysis, arbitrary and capricious.”

Sash said he wished Egan’s opinion was the majority ruling and is considering whether to appeal to the Court of Appeals.

Sash said his firm is representing Stephanie O’Brien pro bono.

Assistant Solicitor General William Storrs represented the retirement system.

The state comptroller’s office is the administrator of the State and Local Retirement System.