| Matter of Jarosz v DiNapoli |
| 2012 NY Slip Op 03709 [95 AD3d 1500] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Alexander Jarosz,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Stein, 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 which deniedpetitioner's application for accidental disability retirement benefits.
Petitioner, a police officer with the City of Mount Vernon Police Department, applied foraccidental disability retirement benefits after he injured his right hand and elbow during astruggle with a suspect. After a hearing, a Hearing Officer denied his application, finding that hisdisability was not the result of an accident pursuant to the Retirement and Social SecurityLaw.[FN*]Respondent adopted the Hearing Officer's findings and this CPLR article 78 proceeding ensued.[*2]
Petitioner contends that he is entitled to accidentaldisability retirement benefits because his injuries were the result of an assault—which iscompensable under the Retirement and Social Security Law (see Matter of Ammann v New York State Comptroller, 13 AD3d858, 858-859 [2004], lv denied 5 NY3d 702 [2005])—and not simply as aresult of the performance of his duties as a police officer. To that end, it is petitioner's burden todemonstrate that his injuries resulted from an accident, meaning "that they were caused by asudden and extraordinary event that is unrelated to the ordinary risks of employment" (Matter of Held v DiNapoli, 82 AD3d1444, 1445 [2011] [internal quotation marks and citations omitted]). Here, the recordestablishes that petitioner reported to the police physician that he was injured when he tackled asuspect to the ground while attempting to place him under arrest. Because such evidenceprovides substantial evidence to support respondent's finding that petitioner was injured whileengaged in a risk inherent in his normal police duties, the determination will not be disturbed(see id.; Matter of Welsh v NewYork State Comptroller, 67 AD3d 1167, 1168 [2009], lv denied 14 NY3d 706[2010]). The fact that the record contains proof from which it could be concluded that petitionerwas injured as the result of an assault does not negate the fact that there is substantial evidencesupporting the finding that petitioner's injury did not stem from a compensable accident (seeMatter of Kilbride v New York State Comptroller, 95 AD3d 1496, 1497 [2012] [decidedherewith]; Matter of Wise v New YorkState Comptroller, 38 AD3d 1032, 1034 [2007], lv denied 9 NY3d 811 [2007])inasmuch as any inconsistency in the evidence presents a credibility issue for respondent toresolve (see Matter of Welsh v New York State Comptroller, 67 AD3d at 1169; Matter of Hughes v Hevesi, 56 AD3d934, 936 [2008], lv denied 12 NY3d 711 [2009]).
Mercure, J.P., Rose, Garry and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner's application forperformance of duty disability retirement benefits was granted.