| Matter of Tomita v DiNapoli |
| 2009 NY Slip Op 06753 [66 AD3d 1071] |
| October 1, 2009 |
| Appellate Division, Third Department |
| In the Matter of Theodore Tomita, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
McCarthy, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichdenied petitioner's application for accidental disability retirement benefits.
Petitioner, a police lieutenant employed by the City of Newburgh Police Department inOrange County, tripped on a curb in the department's unlit parking lot and allegedly sustaineddisabling injuries. The incident occurred at approximately 5:15 a.m. on October 26, 2004,immediately after petitioner parked his patrol car and prepared to go off-duty following anovernight shift. Although his initial application for accidental disability retirementbenefits[FN*]was denied, petitioner requested a redetermination and a hearing was held. A Hearing Officer[*2]subsequently determined that the incident qualified as anaccident within the meaning of Retirement and Social Security Law § 363. Upon review,respondent reversed that determination and denied petitioner's application, prompting this CPLRarticle 78 proceeding.
We confirm. An accident within the meaning of Retirement and Social Security Law §363 "is a sudden and extraordinary event that does not result from an activity performed in thecourse of ordinary employment duties" (Matter of Dooley v McCall, 252 AD2d 724, 724[1998]). Petitioner bears the burden of proving that his injuries were accidental and respondent'sdetermination in that regard will be upheld if it is supported by substantial evidence (see Matter of Brennan v New York State &Local Empls. Retirement Sys., 50 AD3d 1374, 1375 [2008]; Matter of Sinclair v New York State &Local Retirement Sys., 42 AD3d 595, 596 [2007]).
Petitioner had just concluded a routine patrol and was on his way into the public safetybuilding when he "either caught the curb or missed the curb of the sidewalk and fell onto thesidewalk." He asserts that the incident qualifies as an accident because the streetlights thatnormally illuminated the parking lot were out, rendering the premises "pitch black." He testified,however, that he was familiar with the parking lot, had been parking there since 1975 and that"sometimes [the lights] were on and sometimes they weren't." Under such circumstances, "thehazard presented was one that petitioner could have reasonably anticipated" (Matter of Averyv McCall, 308 AD2d 677, 678 [2003]; see Matter of Franks v New York State & Local Retirement Sys., 47AD3d 1115, 1116 [2008]), and the determination that petitioner was injured as a result ofhis own misstep is supported by substantial evidence (see Matter of McCabe v Hevesi, 38 AD3d 1035, 1036 [2007]).
Rose, J.P., Kane, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.
Footnote *: Petitioner's contemporaneousapplication for performance of duty disability retirement benefits is not a subject of thisproceeding.