Firefighter’s injury suffered at the World Trade Center after 9/11 ruled the result of a personal activity rather than the performance of official duties

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Firefighter’s injury suffered at the World Trade Centerafter 9/11 ruled the result of a personal activity rather than the performanceof official duties
Cavanaugh v DiNapoli, 2012 NY Slip Op 07177, Appellate Division, ThirdDepartment
A firefighter for the City of Syracuse filed an applicationfor accidental disability retirement benefits following an injury he sufferedat the World Trade Center [WTC] in the aftermath of 9/11.
The Comptroller denied the application on the grounds thatthe firefighter had not established he was performing duties in his officialcapacity at the time he was working at the WTC.
The firefighter appealed the Comptroller’s determinationcontending that it was not his burden to establish that he was working in hisofficial capacity as a firefighter at the time of his injury because therebuttable presumption set forth in Retirement and Social Security Law §363(g)(2)(a)placed that burden upon the New York State and Local Retirement System.
The Appellate Division never reached that issue as it foundthat there was substantial evidence that firefighter presence at the WTCfollowing 9/11 was a “personal pursuit” rather than part of his job as aSyracuse firefighter.
According to the decision, the record showed that thefirefighter had been granted a leave of absence from his position to go to theWTC and was considered to be on vacation during the time he was there. Thus,said the court, the firefighter was not working in an official capacity when the 9/11 attacks occurredand he went to the WTC the next day at the invitation of a friend who owned aprivate ambulance service.
The bottom line: Although the firefighter had the approval ofhis fire chief to go to the WTC and took his firefighting gear with him, theAppellate Division said that there was substantial evidence supports theRetirement System’s finding that he was engaged in a personal activity and notperforming or discharging his official duties as a Syracuse firefighter whileat the WTC site.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07177.htm