| Matter of Shea v DiNapoli |
| 2014 NY Slip Op 01485 [115 AD3d 1023] |
| March 6, 2014 |
| Appellate Division, Third Department |
| In the Matter of Raymond Shea,Petitioner, v Thomas P. DiNapoli, as State Comptroller, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
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 Comptroller which denied petitioner's application for accidental disabilityretirement benefits.
Petitioner was a police officer with the Port Authority of New York and New Jerseywho began treating for depression in January 2006. In 2007, he applied for accidentaldisability retirement benefits alleging a psychological disability related to the attacks atthe World Trade Center (hereinafter WTC) and injuries to his left wrist suffered in 1989,1997 and 2000.[FN1]Respondent New York State and Local Retirement System denied the application,finding that, although petitioner is incapacitated from the performance of his duties, noneof his injuries is the result of an accident within the meaning of Retirement and SocialSecurity Law § 363.
Petitioner requested a hearing and redetermination and, at the resultant hearing, [*2]petitioner and the Retirement System stipulated thatpetitioner is permanently disabled due to major depression and the condition of his leftwrist. The parties also stipulated that the WTC presumption (see Retirement andSocial Security Law § 363 [g] [1] [a]) is inapplicable to petitioner's claims.Following the hearing, the Hearing Officer upheld the denial of the application.Respondent Comptroller affirmed the Hearing Officer's determination and this CPLRarticle 78 proceeding ensued.[FN2]
To be eligible for accidental disability retirement benefits, petitioner's incapacitationmust be "the natural and proximate result of an accident" sustained while in service(Retirement and Social Security Law § 363 [a] [1]). "In order to be considered anaccident within the meaning of Retirement and Social Security Law § 363, theprecipitating event must be a sudden, fortuitous mischance, unexpected, out of theordinary, and injurious in impact" (Matter of Hunce v DiNapoli, 106 AD3d 1427, 1428 [2013][internal quotation marks and citations omitted]). Here, petitioner "bore the burden ofestablishing that [his] injuries were the result of an accident, and the Comptroller'sdetermination will be upheld if supported by substantial evidence" (Matter of Messina v New YorkState & Local Employees' Retirement Sys., 102 AD3d 1068, 1068 [2013], lvdenied 21 NY3d 855 [2013]).
We initially note that petitioner concedes in his brief that the 1997 injury to his wristdid not result from an accident within the meaning of the Retirement and Social SecurityLaw. Turning to the December 2000 wrist injury, petitioner testified that he responded toan alarm going off in a building at 4:30 a.m., it was "bitter cold" that morning and henoted in his incident report that "the area had icy patches due to freezing conditions."Petitioner was checking the doors of the building when he climbed an uncovered exteriormetal stairway and slipped on some ice that had accumulated at the top of the stairs,injuring his left wrist. According to petitioner, the stairway was poorly lit and, althoughhe was carrying a lighted flashlight, he did not check the condition of the stairs, as thelight was "mainly focused on the door handle, unfortunately," and he failed to see the ice.Under these circumstances, the icy condition on the stairs represented a hazard thatpetitioner should have reasonably anticipated in light of the observable conditions thatmorning, even if he did not actually see it (see Matter of Conroy v Murray, 102 AD3d 1074, 1075[2013]; Matter of Ruggiero vDiNapoli, 85 AD3d 1282, 1283 [2011], lv denied 17 NY3d 711[2011]). Accordingly, the Comptroller's determination as to petitioner's wrist injury issupported by substantial evidence.
We also find substantial evidence supporting the Comptroller's determination thatpetitioner's psychological disability could not be considered to have been caused by anaccident because he was never assigned to the WTC site. Petitioner testified that he wason sick leave on September 11, 2001 in connection with his wrist injury but that hereported to duty that day at his usual post at Port Newark in New Jersey, approximately20 miles from the WTC site. Beginning on September 13, 2001, while assigned to deskduty in New Jersey, he began voluntarily driving personnel between NewarkInternational Airport and the WTC site two or three times a week. After two weeks,petitioner was returned to full duty at the New Jersey location. He testified that, for fourto six months after that, he voluntarily drove individuals from New Jersey to the WTCsite approximately once or twice a week, although he was never ordered by hissupervisors to do so. He also testified that, at all relevant times, he was always assignedto New Jersey.[*3]
The Retirement System's Director of DisabilityServices testified that because petitioner was not involved in rescue and recoveryoperations at the WTC on September 11, 2001, the Retirement System would notconsider the events of that day as an accident. The Director also testified, however, thatthe Retirement System does consider the events of September 11, 2001 to be an accidentfor individuals who were not present at the WTC on that date, but were injured whilesubsequently assigned to the WTC site for search, rescue and recovery operations at anytime between September 11, 2001 and May 30, 2002. In his decision, the Hearing Officerconcluded that petitioner had not established that the events of September 11, 2001constituted an accident because the WTC site was never his duty assignment.
Petitioner concedes that he is not entitled to accidental disability retirement benefitsas a result of any trips he took to the WTC site prior to returning to full duty. Rather, heargues that the trips he made to the site after that time were part of his duties. While weagree that there is evidence in the record that petitioner was in service when he drovepeople to the WTC site, there is also substantial evidence that he did so as part of hisNew Jersey duty assignment and, at all relevant times, he was assigned to duty in NewJersey. There is no evidence the he was ever assigned to the WTC site. Accordingly, wefind no basis to disturb the Comptroller's determination (see generally Matter of Chilelli vDiNapoli, 91 AD3d 1098, 1099 [2012]; see also Matter of Cavanaugh v DiNapoli, 99 AD3d 1154,1154 [2012]).
Peters, P.J., Lahtinen and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote 1: Petitioner subsequentlywithdrew his claim regarding the 1989 injury.
Footnote 2: Petitioner was awardedperformance of duty disability retirement benefits.