| Matter of Franks v New York State & Local Retirement Sys. |
| 2008 NY Slip Op 00328 [47 AD3d 1115] |
| January 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Mark Franks, Petitioner, v New York State andLocal Retirement System et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Kavanagh, 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.
On February 11, 1999, petitioner, a police officer employed by the City of Yonkers inWestchester County, responded to an alarm regarding an armed robbery. Looking for the suspect,petitioner and his partner went to an abandoned motel which was in the process of beingdemolished. Approaching the motel, petitioner walked up the sidewalk, a portion of which wasdamaged pavement and curbing. He stepped over the curb, into a depression, and sustained aninjury to his knee. Petitioner applied for accidental disability retirement benefits in October 2004,but his request was denied. Upon petitioner's request for a redetermination, a hearing was heldand the Hearing Officer ultimately concluded that the incident giving rise to petitioner's injurywas not an accident within the meaning of Retirement and Social Security Law § 363 anddenied petitioner's application. Respondent Comptroller agreed with this determination,prompting petitioner to commence this proceeding.
"[A]n injury which occurs without an unexpected event as the result of activity undertaken inthe performance of ordinary employment duties, considered in view of the [*2]particular employment in question, is not an accidental injury"(Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City ofN.Y., Art. II, 57 NY2d 1010, 1012 [1982]; see Matter of Sinclair v New York State & Local Retirement Sys., 42AD3d 595, 596 [2007]; Matter ofEngber v New York State Comptroller, 39 AD3d 1133, 1133 [2007]; Matter ofForlano v McCall, 304 AD2d 970, 971 [2003]). The petitioner bears the burden of provingthat an injury was accidental and the Comptroller's determination in this regard will be upheld ifsupported by substantial evidence (see Matter of Sinclair v New York State & LocalRetirement Sys., 42 AD3d at 596; Matter of Forlano v McCall, 304 AD2d at 971).Here, petitioner admitted that he was aware that the curb was damaged and, while crossing overit, he stepped into a shallow depression which he had not noticed. Under the circumstances, "thehazard presented was one that petitioner could have reasonably anticipated, even if he did notactually see it until after [sustaining his injury]" (Matter of Avery v McCall, 308 AD2d677, 678 [2003]; see Matter of Fischer vNew York State Comptroller, 46 AD3d 1006 [2007]; Matter of Coon v New York StateComptroller, 30 AD3d 884, 885 [2006], lv denied 7 NY3d 717 [2006]; Matter of Lassen v Hevesi, 9 AD3d780, 781 [2004]; Matter of Madonna v New York State Police & Firemen RetirementSys., 257 AD2d 971, 971 [1999], lv denied 93 NY2d 806 [1999]; Matter ofO'Donnell v New York State & Local Retirement Sys., 249 AD2d 607, 607 [1998]).
Petitioner's argument that there should be a different result because his search for the armedrobbery suspect left him "faced with a dire emergency" is unavailing. Petitioner admitted totaking part in searches for suspects "[m]any times" during his years as a police officer, and hisjob description—which was entered into evidence at the hearing—is replete withreferences to acting in response to crimes and in emergency situations (see Matter of Engberv New York State Comptroller, 39 AD3d at 1134; Matter of Pappalardo v Hevesi, 34 AD3d 1021, 1022 [2006]).Accordingly, " 'the incident in question emanated from a risk inherent in his regular job duties' "(Matter of Engber v New York State Comptroller, 39 AD3d at 1134, quoting Matterof Pappalardo v Hevesi, 34 AD3d at 1022; see Matter of Fisher v New York StateComptroller, supra; Matter of Coon v New York State Comptroller, 30 AD3d at 885;Matter of Penkalski v McCall, 292 AD2d 735, 736 [2002]) and, since substantialevidence supports the Comptroller's determination, we confirm.
Mercure, J.P., Peters, Rose and Lahtinen, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.