| Matter of McGerald v DiNapoli |
| 2008 NY Slip Op 04600 [51 AD3d 1328] |
| May 22, 2008 |
| Appellate Division, Third Department |
| In the Matter of Robert J. McGerald, Petitioner, v ThomasP. DiNapoli, as State Comptroller, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Malone Jr., 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 officer for the Suffolk County Police Department, applied for accidentaldisability retirement benefits after allegedly sustaining disabling injuries to his back due to threeseparate incidents occurring on February 2, 1990, March 29, 1998 and March 30, 1998. OnFebruary 2, 1990, petitioner was injured when he slipped and fell on wet grass while carryingathletic equipment. On March 29, 1998, he was injured while helping to move bleachers during apolice-sponsored softball tournament. Finally, on March 30, 1998, he was injured when heslipped on the stairs at police headquarters. Following a hearing, petitioner's application withregard to the February 2, 1990 and March 30, 1998 incidents was denied on the ground that theydid not constitute accidents within the meaning of Retirement and Social Security Law §363. As for the March 29, 1998 incident, respondent Comptroller concluded that petitioner failedto file timely notice pursuant to Retirement and Social Security Law § 363 (c). This CPLRarticle 78 proceeding ensued.[*2]
It is well settled that "an injury which occurs without anunexpected event as the result of activity undertaken in the performance of ordinary employmentduties, considered in view of the 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]; accord Matter of Franks v New York State & Local Retirement Sys., 47AD3d 1115, 1115-1116 [2008]). At the time he fell on February 2, 1990, petitioner wascarrying athletic equipment across a wet grassy area in the course of his usual assigned duties.Inasmuch as exposure to wet grass is an inherent risk that would ordinarily be anticipated in thecontext of performing such duties, the Comptroller's determination that his injuries were not theresult of an accident is supported by substantial evidence (see Matter of Fischer v New York State Comptroller, 46 AD3d1006, 1006 [2007]; Matter ofMirrer v Hevesi, 4 AD3d 722, 723 [2004]; Matter of Penkalski v McCall, 292AD2d 735, 736 [2002]). Similarly, there is substantial evidence supporting the Comptroller'sconclusion that the March 30, 1998 mishap in which petitioner slipped on the stairs at policeheadquarters, which he frequently used and does not claim were obstructed or defective at thetime he slipped, was caused by his own misstep while performing routine employment duties andwas not the result of an unexpected event (see Matter of Mruczek v McCall, 299 AD2d638, 639 [2002]; Matter of Michalczyk v New York State & Local Retirement Sys., 286AD2d 852, 853 [2001]).
With regard to the March 29, 1998 incident for which the Comptroller found lack of timelynotice, petitioner contends that the Hearing Officer erred in failing to admit into evidence a May5, 1998 internal memo allegedly showing that he provided his employer with timely notificationof his injury. However, by not providing notice of the accident to the Comptroller, petitioner wasrequired to provide written notice of the accident to his employer within 30 days (seeRetirement and Social Security Law § 363 [c]; Workers' Compensation Law § 18).As the offered internal memo is not proof that written notice was provided to the employerwithin the requisite time period, the Hearing Officer's refusal to admit it was not an abuse ofdiscretion (see Matter of Flynn v Hevesi, 308 AD2d 674, 676 [2003], lv denied 1NY3d 504 [2003]).
Spain, J.P., Lahtinen, Kane and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.