N.Y. Retirement & Social Security Law § 558: Retirement for disability incurred in performance of duty

§ 558. Retirement for disability incurred in performance of duty. a.

After January first, nineteen hundred eighty-five, a member who becomes

physically or mentally incapacitated for the performance of duty shall

be covered by the provisions of this section in lieu of the provisions

of section five hundred fifty-six of this article; except, however, any

such member who last entered or re-entered service prior to that date

shall be entitled to apply for disability retirement pursuant to such

section and to receive the benefit so payable in lieu of the benefit

payable pursuant to this section.

b. Eligibility. A member shall be entitled to retirement for

disability incurred in the performance of duty if, at the time

application therefor is filed, he or she is:

1. Physically or mentally incapacitated for performance of duty as the

natural and proximate result of a disability not caused by his or her

own willful negligence sustained in such service and while actually a

member of the retirement system, and

2. Actually in service upon which his or her membership is based.

However, in a case where a member is discontinued from service, and

provided that the member meets the requirements of paragraph one of this

subdivision, application may be made, either (a) by a vested member

incapacitated as the result of a qualifying World Trade Center condition

as defined in section two of this chapter at any time, or (b) not later

than two years after the member is discontinued from service and

provided that the member meets the requirements of subdivision a of this

section and this subdivision.

An application for disability retirement shall not be disapproved on

the basis of a deputy sheriff having failed to engage directly in

criminal law enforcement activities that aggregate fifty per centum of a

deputy sheriff's service during a period preceding the filing of the

application provided the failure to do so was the result of the

disability alleged in the application and further provided the deputy

sheriff was certified as so engaged in criminal law enforcement

activities by the county sheriff at the time the physical or mental

incapacitation for the performance of duty is alleged to have occurred.

c. Application. Application for retirement for disability incurred in

performance of duty may be made by:

1. Such member, or

2. The head of the department in which such member is employed.

d. Verification of disability. After the filing of such an

application, such member shall be given one or more medical

examinations. If the comptroller determines that the member is

physically or mentally incapacitated for the performance of duty

pursuant to subdivision b of this section and ought to be retired, he or

she shall be so retired. Such retirement shall be effective as of a

date approved by the comptroller.

e. 1. No such application shall be approved, however, unless the

member or some other person on his or her behalf shall have filed

written notice in the office of the comptroller within ninety days after

the occurrence which is the basis for the disability incurred in the

performance of duty, setting forth:

(a) The time, date and place of such occurrence, and

(b) The particulars thereof, and

(c) The nature and extent of the member's injuries, and

(d) The alleged disability.

2. The notice herein required need not be given:

(a) If notice of such occurrence shall be filed in accordance with the

provisions of the workers' compensation law of any state within which a

participating employer shall have its employees located or performing

functions and duties within the normal scope of their employment, or

(b) If the application for retirement for disability incurred in the

performance of duty is filed within one year after the date of the

occurrence which forms the basis for the application, or

(c) If a failure to file notice has been excused for good cause shown

as provided by rules and regulations promulgated by the comptroller.

3. Notwithstanding any other provision of law to the contrary, the

provisions of this subdivision shall apply to all occurrences before or

after the effective date of this section.

f. The retirement allowance payable upon retirement for disability

incurred in the performance of duty shall consist of a pension of

one-half of his or her final average salary plus an annuity which shall

be the actuarial equivalent of the member's accumulated contributions,

if any.

g. If the member, at the time of the filing of an application under

the provisions of subdivision c of this section, is eligible for a

service retirement benefit, then and in that event, he or she may

simultaneously file an application for service retirement provided that

the member indicates on the application for service retirement that such

application is filed without prejudice to the application for the

retirement for disability incurred in performance of duty.

h. Any benefit provided pursuant to this section shall not be

considered as an accidental disability benefit within the meaning of

section five hundred fifty-six of this article. Any benefit payable

pursuant to the workers' compensation law to a member receiving a

disability allowance pursuant to this section shall be in addition to

such retirement for disability incurred in performance of duty

allowance.

i. A final determination of the comptroller that the member is not

entitled to retirement benefits pursuant to this section shall not in

any respect be, or constitute, a determination with regard to benefits

payable pursuant to section two hundred seven-c of the general municipal

law.

j. 1. (a) Notwithstanding any provisions of this chapter or of any

general, special or local law, charter, administrative code or rule or

regulation to the contrary, if any condition or impairment of health is

caused by a qualifying World Trade Center condition as defined in

section two of this chapter, it shall be presumptive evidence that it

was incurred in the performance and discharge of duty and the natural

and proximate result of an accident not caused by such member's own

willful negligence, unless the contrary be proved by competent evidence.

(b) The comptroller is hereby authorized to promulgate rules and

regulations to implement the provisions of this paragraph.

2. (a) Notwithstanding the provisions of this chapter or of any

general, special or local law, charter, administrative code or rule or

regulation to the contrary, if a member who participated in World Trade

Center rescue, recovery or cleanup operations, as defined in section two

of this chapter, and subsequently retired on a service retirement, an

ordinary disability retirement or a performance of duty disability

retirement and subsequent to such retirement is determined by the

comptroller to have a qualifying World Trade Center condition, as

defined in section two of this chapter, upon such determination by the

comptroller it shall be presumed that such disability was incurred in

the performance and discharge of duty as the natural and proximate

result of an accident not caused by such member's own willful

negligence, and that the member would have been physically or mentally

incapacitated for the performance and discharge of duty of the position

from which he or she retired had the condition been known and fully

developed at the time of the member's retirement, unless the contrary is

proven by competent evidence.

(b) The comptroller shall consider a reclassification of the member's

retirement as an accidental disability retirement effective as of the

date of such reclassification.

(c) Such member's retirement option shall not be changed as a result

of such reclassification.

(d) The member's former employer at the time of the member's

retirement shall have an opportunity to be heard on the member's

application for reclassification by the comptroller according to

procedures developed by the comptroller.

(e) The comptroller is hereby authorized to promulgate rules and

regulations to implement the provisions of this paragraph.

k. Notwithstanding any other provision of this chapter or of any

general, special or local law, charter, administrative code or rule or

regulation to the contrary, if a retiree who:

(1) has met the criteria of subdivision j of this section and retired

on a service or disability retirement, or would have met the criteria if

not already retired on an accidental disability; and

(2) has not been retired for more than thirty-five years; and

(3) dies from a qualifying World Trade Center condition, as defined in

section two of this chapter, as determined by the applicable head of the

retirement system or applicable medical board, then unless the contrary

be proven by competent evidence, such retiree shall be deemed to have

died as a natural and proximate result of an accident sustained in the

performance of duty and not as a result of willful negligence on such

retiree's part. Such retiree's eligible beneficiary, as set forth in

section five hundred one of this chapter, shall be entitled to an

accidental death benefit as provided by section five hundred nine of

this chapter, however, for the purposes of determining the salary base

upon which the accidental death benefit is calculated, the retiree shall

be deemed to have died on the date of such retiree's retirement. Upon

the retiree's death, the eligible beneficiary shall make a written

application to the head of the retirement system within the time for

filing an application for an accidental death benefit as set forth in

section five hundred nine of this chapter requesting conversion of such

retiree's service or disability retirement benefit to an accidental

death benefit. At the time of such conversion, the eligible beneficiary

shall relinquish all rights to the respective benefits payable under the

service or disability retirement benefit, including any post-retirement

death benefits, since the retiree's death. If the eligible beneficiary

is not the only beneficiary receiving or entitled to receive a benefit

under this service or disability retirement benefit (including, but not

limited to, post-retirement death benefits or benefits paid or payable

pursuant to the retiree's option selection), the accidental death

benefit payments to the eligible beneficiary will be reduced by any

amounts paid or payable to any other beneficiary.

l. Notwithstanding any other provision of this chapter or of any

general, special or local law, charter, administrative code or rule or

regulation to the contrary, if a member who:

(1) has met the criteria of subdivision j of this section; and

(2) dies in active service from a qualifying World Trade Center

condition as defined in section two of this chapter, as determined by

the applicable head of the retirement system or applicable medical

board, then unless the contrary be proven by competent evidence, such

member shall be deemed to have died as a natural and proximate result of

an accident sustained in the performance of duty and not as a result of

willful negligence on his or her part.

Such member's eligible beneficiary, as set forth in section five

hundred one of this article, shall be entitled to an accidental death

benefit provided he or she makes written application to the head of the

retirement system within the time for filing an application for an

accidental death benefit as set forth in section five hundred nine of

this article.