| Matter of Kenny v DiNapoli |
| 2008 NY Slip Op 03563 [50 AD3d 1445] |
| April 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Paul G. Kenny, Petitioner, v Thomas P.DiNapoli, as New York State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Lahtinen, 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 retirement benefits.
Petitioner, a detective employed by the City of Rye Police Department in WestchesterCounty, allegedly sustained certain injuries in May 2003 when he jarred his left knee after exitinga local deli with two of his coworkers. Petitioner's subsequent application for accidentaldisability retirement benefits was denied upon the basis that the May 2003 incident did notconstitute an accident within the meaning of Retirement and Social Security Law §363.[FN*]Upon administrative review, a Hearing Officer agreed, finding that petitioner's injuries were theproduct of his own misstep rather than the result of an accident. Respondent thereafter adoptedthe Hearing Officer's findings and denied petitioner's application, prompting petitioner to [*2]commence this proceeding pursuant to CPLR article 78 to challengethat determination.
We confirm. The case law makes clear that in order to qualify as an accident within themeaning of Retirement and Social Security Law § 363, the event precipitating the injurymust have been a sudden, fortuitous mischance that is unexpected, out of the ordinary andinjurious in impact (see Matter of Lichtenstein v Board of Trustees of Police Pension Fund ofPolice Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]; Matter of Lucian v McCall, 7 AD3d905, 906 [2004]; Matter of Flynn v Hevesi, 308 AD2d 674, 675 [2003], lvdenied 1 NY3d 504 [2003]). Hence, "an injury that occurs without an unexpected event, asthe result of activity undertaken in the performance of ordinary employment duties. . . is not an accidental injury" (Matter of Cadiz v McCall, 236 AD2d 766,766 [1997]; see Matter of Pryor vHevesi, 14 AD3d 776 [2005]).
Petitioner testified that as he exited the deli via a sloping ramp that he had traversed on manyprior occasions, he slipped, then caught himself and jarred his left knee. Although petitionermakes much of the fact that he previously did not have occasion to use the ramp on a wet, rainyday, he nevertheless testified that he knew it was raining before he arrived at the deli andrecognized that the ground was still wet when he and his coworkers finished their lunch, exitedthe deli and started to walk to their vehicle. In our view, the hazard posed by a wet, sloping ramphardly may be characterized as unexpected or out of the ordinary; thus, respondent rationallyconcluded that petitioner's injury did not result from an accident (see Matter of Mariuz vMcCall, 282 AD2d 918, 919 [2001], lv denied 96 NY2d 720 [2001]; cf. Matter ofLucian v McCall, 7 AD3d at 906). Petitioner's remaining arguments, to the extent notspecifically addressed, have been examined and found to be lacking in merit.
Peters, J.P., Spain, Rose and Kavanagh, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner also applied for andultimately was granted performance of duty disability retirement benefits.