| Matter of Crisera v New York State Comptroller |
| 2010 NY Slip Op 09617 [79 AD3d 1573] |
| December 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of Matthew Crisera, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondents.
McCarthy, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent Comptroller whichdenied petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer, was dispatched to the residence of a "possibly intoxicated" 32-year-oldfemale. Upon arrival, petitioner ascertained that the woman had ingested mouthwash and called for anambulance. As the two were walking into the woman's living room to wait for the ambulance, thewoman lost her balance and fell backward into petitioner. Petitioner injured his wrist while attempting tocatch the woman and thereafter applied for accidental disability retirement benefits arising out of theincident. Respondent Comptroller ultimately denied petitioner's application on the basis that the incidentdid not constitute an accident within the meaning of Retirement and Social Security Law § 363.This CPLR article 78 proceeding ensued.
We confirm. "[A]n injury which occurs without an unexpected event as the result of activity [*2]undertaken in the performance of ordinary employment duties,considered in view of the particular employment in question, is not an accidental injury" (Matter ofLichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II,57 NY2d 1010, 1012 [1982]; accord Matterof Rolon v DiNapoli, 67 AD3d 1298, 1299 [2009]). Here, petitioner acknowledged that itwas his duty as a police officer to respond to calls involving intoxicated persons.[FN*]Indeed, he indicated that he regularly dealt with such individuals and was aware that they sometimeslose their balance. Accordingly, substantial evidence supports the Comptroller's determination thatpetitioner's injury occurred while he was performing a routine task inherent in his regular employmentduties (see Matter of Grutzner v Murray,68 AD3d 1231, 1232-1233 [2009]; Matter of Wise v New York State Comptroller, 38 AD3d 1032,1033-1034 [2007], lv denied 9 NY3d 811 [2007]; Matter of Pugliese v New York State& Local Empls. Retirement Sys., 161 AD2d 1095, 1095 [1990]).
Peters, J.P., Spain, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.
Footnote *: We note that petitioner testified thatthe woman did not appear intoxicated. However, a report prepared on the day of the incident, as wellas petitioner's own application for accidental disability retirement benefits, indicate that petitioner wasinjured while assisting an intoxicated subject. Such inconsistencies presented a credibility issue for theComptroller to resolve (see Matter ofConfreda v New York State Comptroller, 56 AD3d 938, 939-940 [2008], lv denied12 NY3d 708 [2009]; Matter of Walters vHevesi, 23 AD3d 982, 983 [2005]).