
    In the Matter of Simonne St. Louis, Petitioner, v New York State Comptroller et al., Respondents.
   Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner’s application to change her deceased husband’s option election of retirement benefits.

Petitioner contends that due to the physical illness and unstable condition of decedent, her husband, he was not physically or mentally capable of making an intelligent, knowing and voluntary retirement option election and that she therefore should have been permitted to change that election. However, petitioner’s own testimony shows that decedent was aware that he exercised his retirement option, and his physician conceded that decedent was capable of lucid periods and that he was not psychotic. Under these circumstances, the conclusion by respondent Comptroller that petitioner failed to sustain her burden of proving that decedent was incompetent and that she failed to establish psychosis at the time of the option election was rational and supported by substantial evidence (see, Matter of Allaway v Regan, 133 AD2d 962; Matter of Boucher v Regan, 88 AD2d 1066). In view of this result, petitioner’s remaining argument is rendered academic.

Mahoney, P. J., Casey, Mikoll, Mercure and Crew III, JJ., concur. Adjudged that the determination is confirmed, and petition dismissed, without costs.  