N.Y. Retirement & Social Security Law § 63-e: Retirement for disability incurred in performance of duty; Westchester county district attorney investigators

§ 63-e. Retirement for disability incurred in performance of duty;

Westchester county district attorney investigators. a. The county of

Westchester may elect to make the benefits provided in this section

available to criminal investigators, senior criminal investigators,

deputy chief criminal investigators, and chief criminal investigators

who are in the employ of the Westchester county district attorney.

b. 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, either

voluntarily or involuntarily, subsequent to sustaining a disability in

such service, application may be made 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.

c. 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. 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

the county of Westchester 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 sixty-three, sixty-four, five hundred seven-f, five hundred

seven-g, six hundred seven-e, or six hundred seven-f of this chapter.

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. Nothing in this section shall be deemed to preclude the

simultaneous filing of an application for benefits pursuant to any other

section of law nor the consideration of such application by the

retirement system, including an accidental disability benefit pursuant

to section sixty-three of this article.