| Matter of Melendez v New York State Comptroller |
| 2008 NY Slip Op 06921 [54 AD3d 1128] |
| September 18, 2008 |
| Appellate Division, Third Department |
| In the Matter of Robert Melendez, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Peters, 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 Comptrollerwhich denied petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer employed by the Village of Freeport Police Department in NassauCounty, was injured in February 2004 after tripping over a snowbank while chasing two suspects.In October 2004, petitioner was also injured while pursuing two individuals when he fell whilescaling a fence. Petitioner had climbed to the top of the fence and, as he tried to jump to theground, his foot allegedly hit the top of an unseen second fence built adjacent to the fence he hadclimbed, causing him to fall onto a concrete patio. Petitioner sustained two broken elbows andinjured his neck. His subsequent application for accidental disability retirement benefits wasdenied on the ground that the two incidents which caused his injuries were not accidents withinthe meaning of Retirement and Social Security Law § 363. Following a hearing andredetermination, a Hearing Officer denied the application on the same ground and respondentComptroller subsequently adopted that decision, prompting this CPLR article 78 proceeding.
We confirm. Petitioner must prove that an injury was accidental and the Comptroller's [*2]determination with regard to this issue will be upheld if supportedby substantial evidence (see Matter ofSinclair v New York State & Local Retirement Sys., 42 AD3d 595, 596 [2007]). "[A]ninjury that occurs without an unexpected event, as the result of activity undertaken in theperformance of ordinary employment duties (considered in view of the particular employment inquestion) is not an accidental injury" (Matter of Cadiz v McCall, 236 AD2d 766, 766[1997]; accord Matter of Fischer v NewYork State Comptroller, 46 AD3d 1006, 1006 [2007]; Matter of Engber v New York StateComptroller, 39 AD3d 1133, 1133 [2007]). Clearly, pursuit of suspects is an ordinaryemployment duty of a police officer (seeMatter of Franks v New York State & Local Retirement Sys., 47 AD3d 1115, 1116[2008]; Matter of Fischer v New York State Comptroller, 46 AD3d at 1006; Matter ofPenkalski v McCall, 292 AD2d 735, 736 [2002]). Moreover, petitioner testified that suchpursuits often involved him having to climb fences. Inasmuch as petitioner's tripping over asnowbank and falling from a fence while chasing suspects are inherent risks of his employmentand not the result of unexpected events, even without seeing the actual hazard that caused him tofall (see Matter of Franks v New York State & Local Retirement Sys., 47 AD3d at 1116;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 Lucian vMcCall, 7 AD3d 905, 906 [2004]), the Comptroller's decision is supported bysubstantial evidence and will not be disturbed.
Mercure, J.P., Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.