| Matter of Fischer v New York State Comptroller |
| 2007 NY Slip Op 09659 [46 AD3d 1006] |
| December 6, 2007 |
| Appellate Division, Third Department |
| In the Matter of Gregory V. Fischer, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Cardona, P.J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondentComptroller which denied petitioner's application for accidental disability retirement benefits.
Petitioner, a police lieutenant employed by the City of Newburgh Police Department inOrange County, allegedly sustained disabling injuries to his back after he fell on unevenpavement while searching for a prowler at night in an unlit backyard overgrown with vegetation.Petitioner's application for accidental disability retirement benefits was denied on the ground thatthe incident causing his injuries was not an accident within the meaning of Retirement and SocialSecurity Law § 363. This CPLR article 78 proceeding ensued.
It is well settled that " 'an injury that occurs without an unexpected event, as the result ofactivity undertaken in the performance of ordinary employment duties (considered in view of theparticular employment in question) is not an accidental injury' " (Matter of Pryor v Hevesi, 14 AD3d776, 776 [2005], quoting Matter of Cadiz v McCall, 236 AD2d 766, 766 [1997]). Atthe time of his injury, petitioner was engaged in ordinary police work in searching for a prowler.In [*2]performing such work, exposure to various conditions,including uneven pavement, is an inherent risk that would ordinarily be anticipated (see Matter of McCabe v Hevesi, 38AD3d 1035, 1036 [2007]; Matter ofCoon v New York State Comptroller, 30 AD3d 884, 885 [2006], lv denied 7NY3d 717 [2006]; Matter of Penkalski v McCall, 292 AD2d 735, 736 [2002]). Althoughpetitioner contends that, as a lieutenant, his duties were supervisory in nature and at the time ofthe injury he was acting beyond the scope of his usual duties, the record establishes that assistingon emergency calls to investigate prowlers is within the ordinary duties and responsibilities of aCity of Newburgh police lieutenant. Inasmuch as substantial evidence supports thedetermination, it will not be disturbed.
Mercure, Crew III, Mugglin and Rose, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.