| Matter of Hoehn v New York State Comptroller |
| 2014 NY Slip Op 07547 [122 AD3d 984] |
| November 6, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Robert E. Hoehn, Jr., Petitioner, v NewYork State Comptroller et al., Respondents. |
Edelstein & Grossman, New York City, (Jonathan I. Edelstein of counsel), forpetitioner.
Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), forrespondents.
Lahtinen, J.P. 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 performance of dutyand accidental disability retirement benefits.
Petitioner, a police detective, was driving home from work after his shift in May2010 at around 5:30 p.m. when he came upon a disabled vehicle causing a backup on aheavily traveled roadway. He parked his car in the median, identified himself as a policeofficer and, with petitioner positioned near the steering wheel and the motorist behind thecar, the two attempted to push the car up a slight incline onto the median. After anunsuccessful first attempt, the two began to push again and, as the car rolled backwards,petitioner slipped and lost his balance, causing him to rupture his Achilles tendon.Petitioner subsequently applied for both performance of duty and accidental disabilityretirement benefits. Those applications were denied, prompting him to request a hearingand redetermination. Following a hearing, the Hearing Officer upheld the denials,finding both that petitioner was not in service at the time of his injury and that theincident did not constitute an accident within the meaning of Retirement and SocialSecurity Law § 363. Respondent Comptroller (hereinafter respondent)accepted the Hearing Officer's decision,[FN1] and petitioner thereafter commencedthis CPLR article 78 proceeding.
Petitioner first contends that respondent erred in determining that he was not inservice at the time of his injury. Undoubtedly, the authority to determine applications forretirement benefits is vested with respondent, including whether an applicant was inservice when an injury was suffered, but such decision must be supported by substantialevidence to be sustained (seeMatter of Welch v Hevesi, 32 AD3d 564, 564 [2006]; Matter of Jetter v Hevesi, 5AD3d 941, 941 [2004]). The determination with respect to whether an applicant wasin service turns on whether he or she was performing job duties at the time of the injury(see Matter of Crisanti v McCall, 302 AD2d 672, 673-674 [2003]; Matter ofDe Zago v New York State Police & Firemen's Retirement Sys., 157 AD2d 957,958 [1990]). Here, petitioner testified without contradiction that he had been instructedby the police department to respond to any type of emergency situation, whether or nothe was on duty. He further testified that, given that it was rush hour on a well-traveledhighway, it was necessary for him to render assistance to prevent an accident or an injuryto a pedestrian. Petitioner's supervisor also testified that officers in the department wereinstructed to assist the public at any time, and that the activity that petitioner undertookwould have been expected of him. Accordingly, respondent's determination thatpetitioner was not in service at the time of his injury was not supported by substantialevidence and petitioner is entitled to performance of duty disability retirement benefits(see Matter of Crisanti v McCall, 302 AD2d at 673-674; Matter of De Zago vNew York State Police & Firemen's Retirement Sys., 157 AD2d at 958;compare Matter of Welch v Hevesi, 32 AD3d at 564 [even though on duty, thepetitioner not in service when "engaged in a personal activity rather than performingwork duties"]; Matter ofEconomico v New York State & Local Police & Fire Retirement Sys., 7AD3d 913, 914 [2004], lv denied 3 NY3d 611 [2004] [the petitioner not inservice when engaged in personal activity during lunch break]; Matter of Waldron vMcCall, 302 AD2d 742, 743 [2003], lv denied 100 NY2d 503 [2003] [thepetitioner not in service when retrieving weapon for purely personal reasons]).
Turning to respondent's determination that petitioner is not entitled to accidentaldisability retirement benefits, we confirm. Petitioner bore the burden of demonstratinghis entitlement to benefits by demonstrating that the injury-causing incident was "asudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact"(Matter of Cavallo vDiNapoli, 117 AD3d 1366, 1367 [2014] [internal quotation marks and citationsomitted]). By contrast, an incident will not be considered accidental when it results froman event that arises during the performance of routine employment duties and is expectedor foreseeable (see Matter ofDiGiacomo v DiNapoli, 115 AD3d 1138, 1139 [2014]; Matter of [*2]Rodriquez v DiNapoli, 110 AD3d 1125, 1126[2013]). Here, both petitioner and his supervisor related that pushing a disabled vehicleoff the road was the type of activity normally undertaken by a police officer, and avehicle rolling back down an incline cannot be said to be unexpected. To the extent thatpetitioner now contends that the cause of the vehicle rolling backward can be attributedto the fact that the motorist unexpectedly stopped pushing to receive a phone call, wenote that the incident reports by both petitioner and the motorist did not depict the eventsas such and that the discrepancy between the reports and petitioner's testimony isproperly resolved by respondent (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 Carpiniello vDiNapoli, 88 AD3d 1045, 1046 [2011]).[FN2] Accordingly, respondent'sdetermination denying accidental disability retirement benefits is supported by substantialevidence (see Matter of Bennettv DiNapoli, 119 AD3d 1310, 1311 [2014]; Matter of Pufahl v Murray, 111 AD3d 1050, 1051[2013]).
Stein, McCarthy, Rose and Clark, JJ., concur. Adjudged that the determination ismodified, without costs, by annulling so much thereof as found petitioner ineligible toreceive performance of duty disability retirement benefits; petition granted to that extentand matter remitted to respondent Comptroller for further proceedings not inconsistentwith this Court's decision; and, as so modified, confirmed.
Footnote 1:While the HearingOfficer's decision denied both petitioner's performance of duty and accidental disabilityretirement benefit applications, respondent's determination stated that the onlyapplication before the Hearing Officer was that for accidental disability retirementbenefits and affirmed only to that extent. However, the parties have stipulated that thisCourt's determination with respect to whether petitioner was injured in the course ofperforming his duties will be dispositive of his application for performance of dutydisability retirement benefits.
Footnote 2:We further note that, inhis report of the incident, the motorist noted that petitioner stated that he had "hurt thisankle in the past and that he was going to have surgery on it."