| Matter of Schultz v DiNapoli |
| 2016 NY Slip Op 01898 [137 AD3d 1454] |
| March 17, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Gary G. Schultz,Petitioner, v Thomas P. DiNapoli, as Comptroller of the State of New York, etal., Respondents. |
Flaherty & Shea, Buffalo (James P. Shea of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Peters, P.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 Comptroller denying petitioner's application for accidental disabilityretirement benefits.
Petitioner worked as a firefighter for the City of Buffalo Fire Department forapproximately 18 years. On June 2, 2008, he was injured when he inhaled toxic fumeswhile fighting a fire at a pool warehouse where hazardous chemicals were stored.Thereafter, he filed an application for accidental disability retirement benefits based uponthis incident as well as another that occurred on February 26, 2013. His application wasdenied on the ground that the incidents in question did not constitute accidents within themeaning of Retirement and Social Security Law § 363. Petitioner requesteda hearing and redetermination and later withdrew his application with respect to theFebruary 26, 2013 incident. At the conclusion of the hearing, the Hearing Officer foundthat the June 2, 2008 incident constituted an accident entitling him to accidental disabilityretirement benefits. Respondent Comptroller, however, disagreed and denied petitioner'sapplication. This CPLR article 78 proceeding ensued.
We confirm. It is well settled that in order for an incident to constitute an accident[*2]within the meaning of the Retirement and SocialSecurity Law, it must be a " 'sudden, fortuitous mischance, unexpected, out ofthe ordinary, and injurious in impact' " (Matter of Lichtenstein v Board ofTrustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d1010, 1012 [1982], quoting Arthur A. Johnson Corp. v Indemnity Ins. Co. of N.Am., 6 AD2d 97, 100 [1958], affd 7 NY2d 222 [1959]; see Matter of Stimpson vHevesi, 38 AD3d 979, 980 [2007]). Significantly, it must result from an activitythat is not undertaken in the performance of ordinary job duties (see Matter of Baron vDiNapoli, 57 AD3d 1202, 1203 [2008]; Matter of Pryor v Hevesi, 14 AD3d 776, 776 [2005]) andthat is not an inherent risk of such job duties (see Matter of Walion v New York State & Local Police &Fire Retirement Sys., 118 AD3d 1215, 1215-1216 [2014]; Matter of Carrella v DiNapoli,98 AD3d 1220, 1221 [2012]). Notably, the burden is on the petitioner todemonstrate that the precipitating event constituted an accident, and the Comptroller'sdetermination in this regard will be upheld if supported by substantial evidence (seeMatter of Walion v New York State & Local Police & Fire RetirementSys., 118 AD3d at 1215; Matter of Hunce v DiNapoli, 106 AD3d 1427, 1428[2013]).
Here, petitioner contends that the injuries he sustained in the June 2, 2008 warehousefire were the result of an accident because the sprinkler system was not operatingproperly, the proper protocol for fighting fires involving hazardous materials was notfollowed and the owner of the warehouse building failed to obtain the proper license tostore dangerous chemicals. These factors, however, do not transform the incident inquestion into an accident within the meaning of the Retirement and Social Security Law.Petitioner's injuries were the direct result of his inhalation of smoke and fumes thatoccurred, as he conceded, while performing his ordinary firefighting duties.[FN*] Indeed, cases involvingsimilar applications for accidental disability retirement benefits have held that exposureto toxic fumes while fighting fires is an inherent risk of a firefighter's regular duties(see Matter of Huether v Regan, 155 AD2d 860, 861 [1989], lv denied 75NY2d 705 [1990]; Matter of Daly v Regan, 97 AD2d 575, 576 [1983], lvdenied 61 NY2d 602 [1984]). Therefore, substantial evidence supports theComptroller's determination that the June 2, 2008 incident did not constitute an accidentwithin the meaning of Retirement and Social Security Law § 363.
Petitioner's remaining contentions are without merit.
Garry, Rose, Devine and Clark, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *:We note that petitionerhad previous experience combating fires involving hazardous materials and was awarethat the warehouse contained pool chemicals.