| Matter of Quigley v Hevesi |
| 2008 NY Slip Op 01683 [48 AD3d 1023] |
| February 28, 2008 |
| Appellate Division, Third Department |
| In the Matter of Kathryn T. Quigley, Petitioner, v Alan G. Hevesi,as Comptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
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 which deniedpetitioner's application for accidental disability and performance of duty disability retirementbenefits.
Petitioner applied for accidental and performance of duty disability retirement benefits forthe injuries she sustained on three occasions while working as a police officer. Following ahearing, her application with regard to the first two incidents was denied on the ground that theseincidents were not accidents within the meaning of Retirement and Social Security Law §363 because she fell while walking on pavement in performance of her normal duties. As for thethird incident, a low-speed motor vehicle accident after which petitioner experienced pain in herhip and back, respondent concluded that petitioner failed to prove that those injuries permanentlyincapacitated her from the performance of her job duties. This CPLR article 78 proceedingensued.
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 the[*2]particular employment in question) is not an accidental injury'" (Matter of Pryor v Hevesi, 14AD3d 776, 776 [2005], quoting Matter of Cadiz v McCall, 236 AD2d 766, 766[1997]). At the times when she fell, petitioner was walking on a paved surface during daylighthours while investigating a traffic violation and a disturbance in the course of her usual policeduties. Inasmuch as stepping on uneven or cracked pavement is an inherent risk that wouldordinarily be anticipated in the context of performing those duties (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]), the recordsupports respondent's determination that petitioner's falls occurred in the course of herperformance of the ordinary duties and responsibilities of a police officer.
As for the injuries arising out of the motor vehicle accident, a board-certified orthopedicsurgeon, who conducted an independent medical examination of petitioner, filed a report andtestified that she is not permanently incapacitated because her allegedly disabling conditions,namely an entrapped nerve and bursitis, can be effectively relieved by surgery. "It is wellestablished that [respondent] is vested with the authority to weigh conflicting medical evidenceand to credit the opinion of one expert over another" (Matter of Rolandelli v Hevesi, 27 AD3d 945, 946 [2006] [citationsomitted]; see Matter of Davenport vMcCall, 5 AD3d 850, 851 [2004]). Further, given the orthopedic surgeon's testimonythat such surgery is generally safe and successful, it is not unreasonable for petitioner to berequired to have the surgery to relieve her conditions. Nor did petitioner otherwise justify herrefusal to submit to the remedial procedures (see Matter of Beckley v New York State & Local Retirement Sys., 43AD3d 1267, 1268 [2007]; Matter ofDymond v Hevesi, 24 AD3d 938, 938 [2005]). Considering that the orthopedic surgeonreviewed petitioner's medical records and conducted a physical examination, his opinionprovides credible evidence supporting respondent's determination (see Matter of Rolandelli vHevesi, 27 AD3d at 946; Matter of Harper v McCall, 277 AD2d 589, 590 [2000]),notwithstanding the testimony of petitioner's treating physician and other evidence in the recordwhich may support a contrary conclusion (see Matter of Rolandelli v Hevesi, 27 AD3d at946; Matter of Kesick v New York State & Local Employees' Retirement Sys., 257AD2d 831, 831 [1999]).
Mercure, J.P., Spain, Carpinello and Kavanagh, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.