| Matter of Manning v DiNapoli |
| 2017 NY Slip Op 03591 [150 AD3d 1382] |
| May 4, 2017 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Joan Jamison Manning,Petitioner, v Thomas P. DiNapoli, as State Comptroller, et al.,Respondents. |
Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP, New York City (Paul N.Macerino of counsel), for petitioner.
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 order of theSupreme Court, entered in Albany County) to review a determination of respondent Comptrollerdenying petitioner's application for accidental disability retirement benefits.
In September 2000, petitioner began working as a police officer for the Suffolk CountyPolice Department. On December 14, 2007, after responding to the scene of an automobileaccident, petitioner stepped into a pothole, tripped and fell to the ground. On February 27, 2013,while working at her desk, one of the wheels to her chair got caught in a rut in the floor surfacecausing her chair to tip, and petitioner sustained injuries in her attempt to avoid falling to thefloor. Thereafter, as a result of injuries that she sustained from these incidents, petitioner filed anapplication for accidental disability retirement benefits. Respondent New York State and LocalPolice and Fire Retirement System denied her application on the ground that neither theDecember 2007 incident nor the February 2013 incident constituted an accident within themeaning of the Retirement and Social Security Law.[FN*] A Hearing Officer upheld the denial of her[*2]application for the same reason, and respondent Comptrollersubsequently adopted the Hearing Officer's decision. This CPLR article 78 proceedingensued.
We confirm. "Injuries sustained due to conditions that are readily observable and that couldbe reasonably anticipated, or attributable to an employee's own misstep or inattention, do notconstitute accidents within the context of the Retirement and Social Security Law" (Matter of Powers v DiNapoli, 144AD3d 1380, 1381 [2016]; seeMatter of Lamb v DiNapoli, 139 AD3d 1312, 1313 [2016]; Matter of Holden v DiNapoli, 122AD3d 1105, 1106 [2014]). "The burden is on the party seeking benefits to establish that theinjury-producing event was accidental in nature" (Matter of Magistro v DiNapoli, 142 AD3d 750, 751 [2016][citations omitted]; see Matter ofRosenbergen v DiNapoli, 144 AD3d 1384, 1385 [2016]).
Regarding the incident of December 14, 2007, petitioner testified that after responding to anautomobile accident on a highway and exiting her vehicle to speak to individuals present at thescene of the accident, she decided to return to her police car to obtain paperwork. As she waswalking back to her vehicle traversing the same route that she had previously taken, petitioner"inadvertently" stepped into a pothole in the road and fell to the pavement. Petitioner explainedthat the pothole was oval shaped and a couple of feet wide in diameter. In our view, petitionerhas failed to establish that the condition of the road was not readily observable prior to her fall orthat her fall was caused by anything other than her own inattention or misstep (see Matter of Yurko v DiNapoli, 122AD3d 1047, 1048 [2014]; Matter ofMadaffari v DiNapoli, 104 AD3d 1047, 1047-1048 [2013]; Matter of Piccinini v DiNapoli, 68AD3d 1212, 1212-1213 [2009]; Matter of Coon v New York State Comptroller, 30 AD3d 884, 885[2006], lv denied 7 NY3d 717 [2006]; compare Matter of Pratt v Regan, 68 NY2d746, 747-748 [1986]).
Turning to the incident of February 27, 2013, petitioner testified that, while at her computerworkstation desk, she was seated in her chair when one of its wheels got stuck in an elongatedopening in the floor surface that was approximately eight inches in length and 1
Garry, J.P., Lynch, Clark and Aarons, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *:Petitioner testified that she is nolonger employed as a police officer and receives performance of duty disability retirementbenefits.