| Matter of Walion v New York State & Local Police &Fire Retirement Sys. |
| 2014 NY Slip Op 04554 [118 AD3d 1215] |
| June 19, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Christopher M. Walion, Petitioner, vNew York State and Local Police and Fire Retirement System et al.,Respondents. |
Gleason, Dunn, Walsh & O'Shea, Albany (Mark T. Walsh of counsel), forpetitioner.
Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel),for respondents.
Stein, 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, a police officer, filed a claim for accidental disability retirement benefitsclaiming that he is permanently incapacitated from performing his job duties as a resultof a knee injury that he sustained on the job in 2010. The incident precipitating the injuryoccurred when petitioner stumbled on the landing of unlit front steps while investigatinga possible intruder at a residence. After petitioner's application was initially disapproved,he requested a hearing and redetermination. Following the hearing, the Hearing Officerdetermined that the incident constituted an accident within the meaning of Retirementand Social Security Law § 363. However, upon review, respondentComptroller reversed that determination and denied petitioner's application. This CPLRarticle 78 proceeding ensued.
Because we find, based upon our review of the record as a whole, that theComptroller's determination is supported by substantial evidence, we confirm. Petitionerbears the burden of [*2]proving that his injury was due toan accident as that term is defined by Retirement and Social Security Law§ 363, and the Comptroller's determination of that issue will be upheld ifsupported by substantial evidence (see Matter of Sikoryak v DiNapoli, 104 AD3d 1042, 1042[2013]; Matter of Kempkes vDiNapoli, 81 AD3d 1071, 1072 [2011]). To qualify as an accident for purposesof an accidental disability retirement application, the event "must emanate from a riskthat is not an inherent element of the petitioner's regular employment duties" (Matter of Amadio v McCall, 2AD3d 1131, 1132 [2003]; see Matter of Canner v New York State Comptroller, 97 AD3d1091, 1092 [2012], lv denied 20 NY3d 851 [2012]; Matter of McCabe v Hevesi, 38AD3d 1035, 1036 [2007]). Here, it is evident from the record that petitioner'sregular employment duties included investigation of possible intruders and that suchinvestigations are routinely conducted under cover of darkness so as not to give away theofficer's location.[FN*] The risk that an officer may trip on anunseen condition while engaged in such an investigation is not unforeseen but, rather, isan inherent risk of the officer's employment duties (see Matter of Sikoryak vDiNapoli, 104 AD3d at 1043; Matter of Canner v New York StateComptroller, 97 AD3d at 1092).
Nor are we persuaded by petitioner's argument that the Hearing Officer should haveallowed petitioner to submit proof that the handrails on the steps were in violation of themunicipality's building code. Even assuming that the handrails were not code compliantand that such a violation would be relevant to the determination of whether this was anaccident (cf. Matter of McCabe v Hevesi, 38 AD3d at 1036), petitioner did nottestify that the allegedly short railing was a contributing factor in causing the injury. Infact, petitioner's testimony is devoid of any indication that he relied upon the railing inascertaining where the steps ended and the sidewalk began. Accordingly, on this record,we find that substantial evidence supports the Comptroller's determination that petitionerwas injured as a result of his own misstep and not as a result of an accident.
To the extent not specifically addressed herein, petitioner's remaining contentionshave been considered and found to be lacking in merit.
Lahtinen, J.P., Garry and Rose, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *:Petitioner testified thathe used a flashlight to check the doors and windows of the residence, but did not use itwhile ascending or descending the steps.