| Matter of Walsh v New York State & Local Retirement Sys. |
| 2011 NY Slip Op 01563 [82 AD3d 1341] |
| March 3, 2011 |
| Appellate Division, Third Department |
| In the Matter of Daniel J. Walsh, Petitioner, v New York State andLocal Retirement System et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondents.
Spain, 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 Comptrollerwhich denied petitioner's application for accidental disability retirement benefits.
Petitioner, a field supervisor for the Port Authority of New York and New Jersey, wasinjured in August 2006 while attempting to move a fire recovery machine system. Following thedenial of his application for accidental disability retirement benefits, petitioner sought a hearingand redetermination. The Hearing Officer thereafter denied petitioner's application, finding thatthe August 2006 incident did not constitute an accident within the meaning of Retirement andSocial Security Law § 63. Respondent Comptroller upheld the Hearing Officer's decision,prompting petitioner to commence this CPLR article 78 proceeding to challenge thatdetermination.
As the applicant, petitioner bore the burden of demonstrating his entitlement to accidentaldisability retirement benefits, and the Comptroller's determination, if supported by substantialevidence in the record as a whole, will be upheld (see Matter of Carducci v DiNapoli, 77 AD3d 1052 [2010]; Matter of Napoli v DiNapoli, 68 AD3d1616 [2009]). "[A]n injury which [*2]occurs without anunexpected event as the result of activity undertaken in the performance of ordinary employmentduties" (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. ofCity of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]), and where "the hazard presented was onethat [the] petitioner could have reasonably anticipated, even if he [or she] did not actually see ituntil after his [or her] fall," is not an accidental injury (Matter of Avery v McCall, 308AD2d 677, 678 [2003]; see Matter ofO'Brien v New York State Comptroller, 56 AD3d 937, 938 [2008], lv denied 12NY3d 708 [2009]).
Here, petitioner testified that as he was walking backwards, slowly rolling the 450-pound firerecovery machine system down a slight decline, he stepped in a pothole located near anexpansion joint in the floor with his right foot, causing him to lose his balance, and grabbed ontothe machine for support. Petitioner acknowledged that he had been involved in the testing of thefire recovery machine system at least every other month for a period of 15 years and, further, thatpotholes had developed around expansion joints in the past. Although petitioner testified at thehearing that the wheels on the machine caught on the pothole, causing the machine to stop,topple and pin him against a wall, the incident report completed that same day makes no mentionof the wheels catching on the depression in the pavement.[FN*]"It is well settled that any apparent inconsistency between a petitioner's sworn testimony andwritten documents presents a credibility issue for resolution by the finder of fact" (Matter of Hamilton v Hevesi, 28 AD3d965, 966 [2006] [citations omitted]; see Matter of Rutledge v New York State & LocalEmployees' Retirement Sys., 302 AD2d 731, 732 [2003]; Matter of Slagle v McCall,293 AD2d 923, 924 [2002]). As the report contains a description of the incident from which theComptroller could reasonably infer that it was petitioner's own misstep, coupled with his decisionto hang onto the machine, that caused the machine to topple, we cannot say that the Comptroller'sdetermination is not supported by substantial evidence (see Matter of O'Brien v New YorkState Comptroller, 56 AD3d at 938; Matter of Hamilton v Hevesi, 28 AD3d at965-966; Matter of Rutledge v New York State & Local Employees' Retirement Sys., 302AD2d at 732).
Mercure, J.P., Rose, Lahtinen and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner's supervisorcompleted this report based upon petitioner's description of the incident using "[petitioner's]words as if he wrote them."