| Matter of Holden v DiNapoli |
| 2014 NY Slip Op 08081 [122 AD3d 1105] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Kevin T. Holden,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
Bartlett, McDonough & Monaghan, LLP, White Plains (Sean Dooley ofcounsel), for petitioner.
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.
Petitioner, a police lieutenant, was injured in June 2010 when he twisted his ankle onthe edge of a drainage grate as he was exiting his police vehicle in the precinct parkinglot. After petitioner's subsequent application for accidental disability retirement benefitswas denied, he requested a rehearing and redetermination. Following that hearing, theHearing Officer concluded that the incident was not an accident within the meaning ofRetirement and Social Security Law § 363 and denied petitioner'sapplication. Upon review, respondent accepted the Hearing Officer's decision and deniedthe application. Petitioner then commenced this proceeding pursuant to CPLR article 78to challenge respondent's determination.[FN*]
We confirm. As the applicant, petitioner bore the burden of establishing hisentitlement to accidental disability retirement benefits, and respondent's determination inthis regard—if supported by substantial evidence—will not be disturbed (see Matter of Walion v New YorkState & Local Police & Fire Retirement Sys., 118 AD3d 1215, 1215[2014]; Matter of DiGiacomo vDiNapoli, 115 AD3d 1138, 1139 [2014]). In this regard, injuries arising out of apetitioner's own misstep or inattention do not constitute an accident (see Matter of Quartucio vDiNapoli, 110 AD3d 1336, 1337 [2013]; Matter of Madaffari v DiNapoli, 104 AD3d 1047, 1047[2013]; Matter of Meyer v NewYork State Comptroller, 92 AD3d 1122, 1122 [2012]).
Here, although petitioner testified that he was not parked in his usual parking spaceat the time that the incident occurred, he acknowledged that he was aware of the drainagegrate, as he was required to walk past it to get to his customary parking space—aspace that he had utilized for the past nine years. Petitioner further acknowledged that helooked before stepping out of his patrol vehicle on the day in question. To the extent thatpetitioner contended that his injury was the result of stepping on a missing piece ofpavement abutting the drainage grate, we note that the accident report prepared on theday of the incident made no mention of this alleged defect, and petitioner's testimony asto whether he observed the particular condition of the pavement prior to exiting hisvehicle was inconsistent (seegenerally Matter of Assmann v DiNapoli, 95 AD3d 1487, 1488 [2012]; Matter of Hardy v DiNapoli,82 AD3d 1490, 1491 [2011]). Thus, inasmuch as petitioner failed to demonstratethat the condition of the grate was not readily observable or that his injury was caused byanything other than his own inattention or misstep, respondent's determination issupported by substantial evidence (see Matter of Madaffari v DiNapoli, 104AD3d at 1047-1048; Matter of Assmann v DiNapoli, 95 AD3d at 1488).
Peters, P.J., Stein, Garry and Devine, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *:Petitioner's ordinarydisability retirement became effective February 8, 2012.