| Matter of Quartucio v DiNapoli |
| 2013 NY Slip Op 06928 [110 AD3d 1336] |
| October 24, 2013 |
| Appellate Division, Third Department |
| In the Matter of John P. Quartucio,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Egan Jr., 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 which denied petitioner's application for accidental disability retirementbenefits.
In 2007, petitioner, a police lieutenant with the Village of Ossining PoliceDepartment, filed an application for accidental disability retirement benefits contendingthat he was permanently incapacitated as the result of bilateral knee injuries sustained inJune 1995, May 1999, April 2002 and January 2005. Petitioner's application was deniedupon the ground that the cited incidents did not constitute accidents within the meaningof Retirement and Social Security Law § 363 (c) and, further, that petitioner failedto give the required notice for the April 2002 incident.[FN1] Following a hearing and redetermination, a Hearing Officer upheld the denial of [*2]petitioner's application. Respondent subsequently adoptedthe Hearing Officer's findings and conclusions, prompting petitioner to commence thisCPLR article 78 proceeding to challenge respondent's determination.
We confirm. Petitioner bore the burden of demonstrating his entitlement toaccidental disability retirement benefits, and respondent's determination in this regard, ifsupported by substantial evidence in the record as a whole, will not be disturbed (see Matter of Ruggiero vDiNapoli, 85 AD3d 1282, 1283 [2011], lv denied 17 NY3d 711 [2011];Matter of Bleeker v New YorkState Comptroller, 84 AD3d 1683, 1683 [2011], lv denied 17 NY3d 709[2011]). To qualify as an accident, "the precipitating event must be a sudden, fortuitousmischance, unexpected, out of the ordinary, and injurious in impact" (Matter of Hunce v DiNapoli,106 AD3d 1427, 1428 [2013] [internal quotation marks and citations omitted]; see Matter of Kempkes vDiNapoli, 81 AD3d 1071, 1072 [2011]). Notably, an incident is not an accidentwithin the meaning of the Retirement and Social Security Law where the underlyinginjuries "result[ ] from an expected or foreseeable event arising during the performanceof routine employment duties" (Matter of Ruggiero v DiNapoli, 85 AD3d at1283 [internal quotation marks and citations omitted]), "arise from the injuredemployee's own misstep or inattention" (Matter of Dilello v DiNapoli, 83 AD3d 1361, 1362 [2011],lv denied 17 NY3d 717 [2011]) or occur during the course of "a training programconstituting an ordinary part of [the employee's] job duties and the normal risks arisingtherefrom" (Matter of Wolak vDiNapoli, 71 AD3d 1370, 1371 [2010] [internal quotation marks and citationomitted]).
With respect to the June 1995 incident, the record reflects that petitioner respondedto a citizen complaint regarding drug activity and thereafter was injured while attemptingto apprehend and subdue one of the suspects in question. Pursuing and subduing afleeing suspect "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]; see Matter of Hunce v DiNapoli, 106 AD3d at 1428; Matter of Held v DiNapoli, 82AD3d 1444, 1445 [2011]). To the extent that the record contains evidence fromwhich it could be inferred that petitioner was injured as the result of an assault, therenonetheless is substantial evidence to support the finding that petitioner's injury wasprecipitated "by physical contact . . . inherent in the routine performance ofhis duties" (Matter of Kilbride vNew York State Comptroller, 95 AD3d 1496, 1497 [2012], lv denied 19NY3d 813 [2012]; see Matter ofJarosz v DiNapoli, 95 AD3d 1500, 1501 [2012]; Matter of Wise v New York StateComptroller, 38 AD3d 1032, 1034 [2007], lv denied 9 NY3d 811[2007]).
Nor are we persuaded that the May 1999 incident constituted a compensableaccident. Petitioner entered the desk area at the police station to record his vehicleassignment for his scheduled shift and, upon exiting that location, tripped over a basketthat was part of a large commercial shredder. The record reflects that petitioner wasaware of the shredder's location, as well as the need to periodically remove the basket inorder to empty its contents. Under these circumstances, substantial evidence supportsrespondent's finding that petitioner's injuries occurred as the result of his own misstep orinattention (see Matter of Meyerv New York State Comptroller, 92 AD3d 1122, 1122-1123 [2012]; Matter of Magliato vDiNapoli, 78 AD3d 1457, 1458 [2010]; Matter of Lassen v Hevesi, 9 AD3d 780, 781 [2004]).
Substantial evidence also supports respondent's findings as to the April 2002incident. At the time of this incident, petitioner was engaged in a firearms trainingexercise designed to [*3]simulate combat situations. Ashe proceeded through the designated course, petitioner tripped over the wooden framesecuring a simulated telephone pole to the ground and was injured. Inasmuch aspetitioner acknowledged that firearms training was a job requirement, the record supportsa finding that "petitioner's injury was the ordinary and foreseeable result of his owninattention or misstep during an activity performed in the course of his employment"(Matter of Santorsola v McCall, 302 AD2d 727, 728 [2003]; see Matter ofWolak v DiNapoli, 71 AD3d at 1371; Matter of Neely v DiNapoli, 71 AD3d 1367, 1368-1369[2010]; Matter of DeLaCruz vDiNapoli, 67 AD3d 1297, 1298 [2009]; Matter of Felix v New York State Comptroller, 28 AD3d993, 994 [2006]).[FN2]
We reach a similar conclusion regarding the January 2005 incident, during the courseof which petitioner slipped and fell while exiting his vehicle at the fuel dock of the localhighway garage. According to petitioner, he slipped and fell in a puddle containing amixture of water and gasoline or diesel fuel. Although the area where petitioner fell wascovered by an overhead roof, he acknowledged that it had been raining that evening andtestified that he had worked at a gas station during high school and college. Under thesecircumstances, the hazard encountered by petitioner on the evening in questionreasonably could have been anticipated (see Matter of Butrico v New York State Comptroller, 97 AD3d1033, 1034 [2012]; Matter of Bleeker v New York State Comptroller, 84AD3d at 1684), and we discern no basis upon which to disturb respondent's finding thatpetitioner's fall was occasioned by his own inattention or misstep.
Peters, P.J., Rose and Lahtinen, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote 1: Petitioner's applicationfor performance of duty disability retirement benefits—also filed in2007—subsequently was granted.
Footnote 2: In light of thisconclusion, we need not address respondent's additional finding that petitioner failed toprovide timely notice of this incident to his employer.