
    In the Matter of Terry T. McKay, Respondent, v Arthur Levitt, as Comptroller of the State of New York, et al., Appellants.
   Appeal from a judgment of the Supreme Court at Special Term, entered August 9, 1978 in Albany County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, seeking ordinary disability retirement benefits as of April 23, 1976. The petitioner commenced this proceeding to review a determination of the appellant State Comptroller which held that the effective date of his "ordinary” disability retirement was the date of his application for such retirement. Petitioner contends that it should be retroactive to the date that he previously filed for "accidental” disability retirement benefits and Special Term has agreed. Pursuant to subdivision d of section 362 of the Retirement and Social Security Law, a member may file for both accidental and ordinary disability retirement at the same time or at any time after the application for accidental benefits. It also provides in said section 362 that the Comptroller is to set the effective date of the retirement. Section 309.5 of the rules and regulations of the retirement system (2 NYCRR 309.5) specifically provides that the date of filing will be the effective date of retirement. The petitioner contended that he was misled by a representative of the State and, therefore, did not file for ordinary benefits at the same time as he filed for accidental benefits. At most, this was an issue of fact for the Comptroller and the finding of Special Term that the Comptroller has acted arbitrarily or capriciously has no support in this record. Judgment reversed, on the law and the facts, and petition dismissed, without costs. Greenblott, J. P., Kane, Main, Mikoll and Herlihy, JJ., concur.  