| Matter of Brennan v New York State & Local Empls. RetirementSys. |
| 2008 NY Slip Op 03376 [50 AD3d 1374] |
| April 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Dorothy A. Brennan, Petitioner, v New York Stateand Local Employees 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.
Petitioner claims that on August 30, 2002, while working as assistant to the White PlainsCommissioner of Public Safety, she was involved in two separate accidents which resulted ininjuries that rendered her unable to work. On June 2004, petitioner submitted an applicationfor accidental disability retirement benefits pursuant to Retirement and Social Security Law§ 363 alleging that she suffers lower back pain, anxiety and depression as the result ofthese work-related accidents. In December 2004, petitioner's application was denied on theground that the incidents were not accidents and, therefore, she did not qualify for accidentaldisability retirement benefits. Upon petitioner's request for a redetermination, a hearing was heldand the Hearing Officer concluded that neither of petitioner's falls was an accident as that term isdefined by Retirement and Social Security Law § 363 and denied petitioner's claim foraccidental disability retirement benefits. Respondent Comptroller agreed with this determination,prompting petitioner to commence this proceeding.[*2]
We confirm. Petitioner bears the burden of proving thather injuries were the result of an accident within the meaning of Retirement and Social SecurityLaw § 363 (see Matter of Franksv New York State & Local Retirement Sys., 47 AD3d 1115, 1116 [2008]; Matter of Sinclair v New York State &Local Retirement Sys., 42 AD3d 595, 596 [2007]). As the Comptroller has the exclusiveauthority to determine all applications for retirement benefits (see Matter of Morgan v Hevesi, 46AD3d 1007, 1007 [2007]), his determination will be upheld if it is supported by substantialevidence (see Matter of Harko v NewYork State Comptroller, 46 AD3d 1185, 1187 [2007]; Matter of Zuckerberg v New York StateComptroller, 46 AD3d 1057, 1058 [2007]).
"[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 particular employmentin question, is not an accidental injury" (Matter of Lichtenstein v Board of Trustees of PolicePension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]; accord Matter of Quigley v Hevesi, 48AD3d 1023, 1024 [2008]). Here, petitioner claims that upon leaving a meeting with theWhite Plains Commissioner of Public Safety, she was walking to her office when she tripped ona cutout in the carpet and fell to the floor.[FN*] As she fell, petitioner struck the door jam of her office door and landed on her knees. Shetestified that the area in question was near a coffee machine where a portion of the carpet hadbeen removed and replaced with tile or linoleum so that coffee would not drip on the carpet. Sheadmitted that this alteration in the carpet had been present in the area near her office for sometime, that she was aware of it and acknowledged crossing it many times prior to her fall. As such,the incident as related by petitioner did not constitute a " 'sudden, fortuitous mischance,unexpected, [and] out of the ordinary' " event which would constitute an accident underapplicable laws (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of PoliceDept. of City of N.Y., Art. II, 57 NY2d at 1012, quoting Arthur A. Johnson Corp. vIndemnity Ins. Co. of N. Am., 6 AD2d 97, 100 [1958], affd 7 NY2d 222 [1959]; see Matter of McCabe v Hevesi, 38AD3d 1035, 1036 [2007]; Matter ofWise v New York State Comptroller, 38 AD3d 1032, 1033 [2007], lv denied 9NY3d 811 [2007]), and the Comptroller's determination denying disability retirement benefits issupported by substantial evidence presented at the hearing (see Matter of Zuckerberg v NewYork State Comptroller, 46 AD3d at 1058; Matter of McCabe v Hevesi, 38 AD3d at1036; Matter of Hamilton v Hevesi,28 AD3d 965, 965-966 [2006]).
Petitioner also alleges that after her initial fall, she was helped to her feet and guided to achair that was located immediately behind a desk in her office. While she sat in the chair,according to petitioner, it suddenly moved out from under her causing her once again to fall tothe floor. Before coming to rest, the chair struck petitioner in the back causing her additionalinjury. Petitioner not only failed to submit any evidence that the chair was defective, but sheoffers no explanation as to what may have caused it to suddenly move out from under her forcingher to the floor. She admits that she did not lose consciousness or feel faint prior to this fall anddenied having leaned forward and then slipping from the chair. A witness to the event testifiedthat petitioner never sat down in the chair prior to her fall, and that, in her view, the entireincident "seemed to be a dramatic gesture." This testimony was corroborated by a statement of anadditional witness who said that, prior to the fall, petitioner bent forward on her desk then [*3]suddenly slipped to the floor. Deferring to the Comptroller'sevaluation of this evidence and his determination regarding the credibility of witnesses whotestified at the hearing (see Matter of McCabe v Hevesi, 38 AD3d at 1036), we find thatsubstantial evidence supports the determination that petitioner's fall from her chair was not anaccident (see Matter of Zuckerberg v New York State Comptroller, 46 AD3d at 1058;Matter of Hamilton v Hevesi, 28 AD3d at 965-966).
Similarly unavailing is petitioner's claim that she was denied due process becauserespondents appointed and compensated the Hearing Officer who presided at the hearing and, asa result of this relationship, he was biased in the Comptroller's favor. Having failed to raise anobjection at the hearing to the Hearing Officer's appointment, petitioner's argument is notpreserved (see Matter of Feliciano v Selsky, 263 AD2d 810, 811 [1999]; Matter ofLyde v Senkowski, 262 AD2d 908, 909 [1999]; Matter of Cruz v Amico, 186 AD2d841, 841 [1992]). In any event, petitioner fails to support this claim with any competent evidencethat would, if believed, establish the existence of such a bias on behalf of the officer (seeMatter of Helmer v New York State & Local Employees' Retirement Sys., 305 AD2d 949,950 [2003]; see also Matter ofCompasso v Sheriff of Sullivan County, 29 AD3d 1064, 1064-1065 [2006]; Matter of Boatwright v McGinnis, 24AD3d 1136, 1137 [2005]).
Peters, J.P., Carpinello, Kane and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner, a 28-year employeeof the Department of Public Safety, had been informed at this meeting that her employment wasbeing terminated.