| Matter of Rodriquez v DiNapoli |
| 2013 NY Slip Op 06415 [110 AD3d 1125] |
| October 3, 2013 |
| Appellate Division, Third Department |
| In the Matter of Paul Rodriquez,Petitioner, v Thomas DiNapoli, as Comptroller, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Peters, P.J. Proceeding pursuant to CPLR article 78 (transferred to this Court byorder of the Supreme Court, entered in Albany County) to review a determination ofrespondent Comptroller which denied petitioner's applications for accidental disabilityretirement benefits.
Petitioner was employed as a police officer by the Port Authority of New York andNew Jersey. On May 19, 2004, he was assigned to work at the Newark InternationalAirport and, while he was approaching a vehicle to direct it to move away from the curboutside one of the terminals, he slipped on a wet, metal encased curb and fell to theground, injuring his right knee. Thereafter, on June 5, 2006, while working at theHolland Tunnel, he and other police officers were in a patrol vehicle pursuing a suspectwho had run into the tunnel. When petitioner exited the vehicle and confronted thesuspect in an attempt to subdue him, the suspect punched and kicked petitioner beforebeing arrested, resulting in additional injuries to petitioner's right knee. Petitioner filedapplications for, among other things, accidental disability retirement benefits with [*2]respect to both of these incidents.[FN*] His applications were denied by respondent New York State and Local Employees'Retirement System. Following a hearing, a Hearing Officer upheld the denials,concluding that the incidents of May 19, 2004 and June 5, 2006 did not constituteaccidents within the meaning of the Retirement and Social Security Law. The HearingOfficer further found that petitioner did not file timely notice of his June 5, 2006 injury.After issuing supplemental conclusions of law, respondent Comptroller likewise ruledthat petitioner was not entitled to receive accidental disability retirement benefits. ThisCPLR article 78 proceeding ensued.
We confirm. Initially, we note that petitioner has the burden of demonstrating that heis entitled to receive accidental disability retirement benefits, and the Comptroller'sdetermination will be upheld if supported by substantial evidence (see Matter of Madaffari vDiNapoli, 104 AD3d 1047, 1047 [2013]; Matter of Murphy v New York State Comptroller, 92 AD3d1022, 1022 [2012]). In order to qualify as an accident, the precipitating event mustbe "a sudden, fortuitous mischance that is unexpected, out of the ordinary and injuriousin impact" (Matter of Kenny vDiNapoli, 50 AD3d 1445, 1445 [2008], affd 11 NY3d 873 [2008];see Matter of Lichtenstein v Board of Trustees of Police Pension Fund of PoliceDept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]). Notably, an injury willnot be considered accidental if it " 'results from an expected or foreseeable event arisingduring the performance of routine employment duties' " (Matter of Conroy v Murray,102 AD3d 1074, 1075 [2013], quoting Matter of Ruggiero v DiNapoli, 85 AD3d 1282, 1283[2011], lv denied 17 NY3d 711 [2011]).
Turning first to the May 19, 2004 incident, petitioner testified that he was performingroutine traffic duties at the time and was not looking where he was walking, but wasfocused on the driver of the vehicle he was approaching. He further stated that it hadbeen raining about 1½ hours prior to the incident and that the metal strip on thecurb was covered with water. Under these circumstances, petitioner could havereasonably anticipated that the curb would be wet and that he might slip on it whileapproaching the vehicle in question (see Matter of Messina v New York State & Local Employees'Retirement Sys., 102 AD3d 1068, 1069 [2013], lv denied 21 NY3d 855[2013]; Matter of Randolph vDiNapoli, 85 AD3d 1288, 1289 [2011]; Matter of Stymiloski v DiNapoli, 64 AD3d 865, 866[2009]; Matter of Kenny v DiNapoli, 50 AD3d at 1446). Accordingly, we findthat substantial evidence supports the Comptroller's conclusion that the incident did notconstitute an accident entitling petitioner to receive benefits.
Turning to the June 5, 2006 incident, the record is inconclusive as to whetherpetitioner obtained a waiver of the notice provisions of Retirement and Social SecurityLaw § 363 (c) (a) as no testimony was presented on this issue and the documentaryevidence does not indicate when the employer received the injury report with respect topetitioner's workers' compensation claim. In any event, we find that substantial evidencesupports the Comptroller's conclusion that this incident did not constitute an accidententitling petitioner to receive benefits. Petitioner was involved in the pursuit of a suspect,an ordinary part of his police duties (see Matter of Roth v DiNapoli, 105 AD3d 1183, 1184[2013]), and was attempting to effectuate an arrest at the time the suspect struck him.Notwithstanding the evidence that the suspect assaulted petitioner, this does not negatethe finding that he was injured as a result of physical contact inherent in the [*3]performance of his duties as a police officer (see Matter of Jarosz vDiNapoli, 95 AD3d 1500, 1501 [2012]; Matter of Welsh v New York State Comptroller, 67 AD3d1167, 1169 [2009], lv denied 14 NY3d 706 [2010]; Matter of Wise v New York StateComptroller, 38 AD3d 1032, 1034 [2007], lv denied 9 NY3d 811[2007]). Therefore, given that there is no reason to disturb the Comptroller'sdetermination, it must be confirmed.
Rose, Lahtinen and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner also filed anapplication with respect to an incident occurring on June 29, 2009, but subsequentlywithdrew it.