| Matter of Roth v DiNapoli |
| 2013 NY Slip Op 02441 [105 AD3d 1183] |
| April 11, 2013 |
| Appellate Division, Third Department |
| In the Matter of Roger S. Roth,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), forrespondent.
Rose, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by orderof the Supreme Court, entered in Albany County) to review a determination ofrespondent which denied petitioner's application for accidental disability retirementbenefits.
While on duty as a police officer, petitioner received a call of a larceny in progress ata local department store. He responded to the scene where he observed the suspectfleeing on a bicycle and then on foot. Petitioner left his vehicle and began chasing thesuspect through a wooded area. When he observed the suspect jump over a ravine, hedecided not to attempt to cross it for safety reasons. Instead, he stood within a foot of theedge of the ravine and made a radio call to report that the suspect was escaping. The edgeof the ravine then collapsed and petitioner fell into the ravine, sustaining injuries.Petitioner filed an application for accidental disability retirement benefits, but it wasdenied on the ground that the incident did not constitute an accident within the meaningof the Retirement and Social Security Law.[FN*]Following a [*2]hearing, the Hearing Officer deniedpetitioner's application for the same reason. This decision was upheld by respondent,resulting in this CPLR article 78 proceeding.
Initially, it is well settled that the burden is upon petitioner to demonstrate that hisinjury was the result of an accident (see Matter of Lenci v DiNapoli, 92 AD3d 1078, 1079[2012]; Matter of Murphy vNew York State Comptroller, 92 AD3d 1022, 1022 [2012]). For purposes of theRetirement and Social Security Law, the accident must be " 'a sudden, fortuitous, out ofthe ordinary and unexpected event that does not result from an activity undertaken in theperformance of regular or routine employment duties' " (Matter of Welsh v New York StateComptroller, 67 AD3d 1167, 1168 [2009], lv denied 14 NY3d 706[2010], quoting Matter of Dzwielewski v McCall, 277 AD2d 622, 622 [2000];see Matter of Neidecker vDiNapoli, 82 AD3d 1483, 1483-1484 [2011]). Notably, respondent'sdetermination in this regard will be upheld if supported by substantial evidence (see Matter of Sweeney v NewYork State Comptroller, 86 AD3d 893, 893 [2011]).
Here, petitioner was performing his regular police duties chasing a suspect within hisauthorized patrol area at the time he was injured. As we have recognized, the "pursuit ofsuspects is an ordinary employment duty of a police officer" (Matter of Melendez v New YorkState Comptroller, 54 AD3d 1128, 1129 [2008], lv denied 12 NY3d 706[2009]). Petitioner's pursuit took him through a wooded area to the edge of a ravinewhere he stopped because he recognized the danger of falling into it. Nevertheless, hestood too close to the edge, the edge gave way under his weight and he fell into theravine in a manner that he reasonably could have anticipated (see e.g. Matter ofSweeney v New York State Comptroller, supra; Matter of Neidecker v DiNapoli,supra; Matter of Melendez v New York State Comptroller, supra; Matter of Franks v New York State& Local Retirement Sys., 47 AD3d 1115, 1116 [2008]; Matter of Fischer v New YorkState Comptroller, 46 AD3d 1006, 1006 [2007]; Matter of Penkalski vMcCall, 292 AD2d 735, 736 [2002]). Therefore, we conclude that substantialevidence supports respondent's determination and we decline to disturb it. Petitioner'sremaining contentions have been considered and are unavailing.
Mercure, J.P., Lahtinen and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner's applicationincluded another incident that occurred on December 10, 2002, but petitioner has sincewithdrawn his claim for benefits based upon this incident.