| Matter of Batista v New York State Comptroller |
| 2008 NY Slip Op 08585 [56 AD3d 927] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Pedro A. Batista, 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 by respondent Comptrollerwhich denied petitioner's application for accidental disability retirement benefits.
Petitioner, a police sergeant employed by the Port Authority of New York and New Jersey,investigated a radiation alarm located within the Lincoln Tunnel. He then ascended up a five-stepstairway to inform his supervisor of his findings. Upon descending the stairway, he slipped onthe second step, fell down the stairs and was injured. Petitioner's subsequent application foraccidental disability retirement benefits was denied on the basis that the incident in question didnot constitute an accident within the meaning of Retirement and Social Security Law § 363and, upon administrative review, a Hearing Officer agreed. Respondent Comptroller thereafteradopted the Hearing Officer's findings and denied petitioner's application, prompting this CPLRarticle 78 proceeding.
Initially, we reject petitioner's contention that the Hearing Officer abused his discretion indisregarding both an inspection report concerning the condition of the stairs and two PortAuthority e-mails which discussed the inspection and repair of the stairs. It is well settled that[*2]the weight to be accorded evidence presented at anadministrative hearing is within the exclusive province of the administrative agency (seeMatter of Spencer v New York State & Local Employees' Retirement Sys., 220 AD2d 792,794 [1995]; Matter of Nolan v Comptroller of State of N.Y., 59 AD2d 799, 800 [1977]).Given that both the inspection report and the e-mails were not subject to cross-examination andwere compiled several months after petitioner's fall, with no indication as to whether thecondition of the stairs reflected in the documents was substantially the same as existed on the dayof the occurrence (see Rivera v NewYork City Tr. Auth., 22 AD3d 554, 555 [2005]; Richardson v Rotterdam Sq.Mall, 289 AD2d 679, 680-681 [2001]; La Duke v Albany Motel Enters., 282 AD2d974, 975 [2001]; Santiago v United Artists Communications, 263 AD2d 407, 408[1999]), we cannot conclude that the Hearing Officer abused his discretion in declining to accordthem any weight.
Addressing the merits, an injury is considered accidental under the Retirement and SocialSecurity Law if it results from a " 'sudden, fortuitous mischance, unexpected, out of the ordinary,and injurious in impact' " (Matter of Lichtenstein v Board of Trustees of Police Pension Fundof Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982], quoting Arthur A.Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 AD2d 97, 100 [1958], affd 7 NY2d222 [1959]). Thus, " 'an injury that occurs without an unexpected event, as the result of activityundertaken in the performance of ordinary employment duties (considered in view of theparticular employment in question) is not an accidental injury' " (Matter of Pryor v Hevesi, 14 AD3d776, 776 [2005], quoting Matter of Cadiz v McCall, 236 AD2d 766, 766 [1997]; see Matter of McCabe v Hevesi, 38AD3d 1035, 1036 [2007]). Further, petitioner bears the burden of proving that such injurywas accidental and the Comptroller's determination as to the cause of the injury will be upheld solong as it is supported by substantial evidence (see Matter of Sweeney v Hevesi, 50 AD3d 1366, 1366 [2008]; Matter of Sinclair v New York State &Local Retirement Sys., 42 AD3d 595, 596 [2007]).
Here, petitioner testified, consistent with the incident report, that while descending the stairs,a function within his ordinary employment duties, he "just lost [his] footing and fell." Althoughpetitioner testified that he subsequently learned that the steps were uneven, his testimony failedto establish that any purported defect in the steps caused him to fall (see Matter of Zidan v Hevesi, 24 AD3d1160, 1161 [2005]; Matter of Van Roten v McCall, 276 AD2d 944, 945 [2000];Matter of Hetzler v New York State & Local Retirement Sys., 232 AD2d 946, 947[1996]; compare Matter of Balduzzi v McCall, 220 AD2d 796 [1995]). Further,inasmuch as petitioner testified that he had traversed the stairway in question on prior occasionsand had ascended those same stairs only moments prior to the fall, the Comptroller couldrationally conclude that the condition of the steps was not unexpected (see Matter of Engber v New York StateComptroller, 39 AD3d 1133, 1134 [2007]). Thus, we find that substantial evidencesupports the determination that petitioner's fall was the result of his own misstep, rather than asudden or unexpected event, notwithstanding the presence of evidence that could support adifferent conclusion.
Petitioner's remaining contention, that an improper standard was employed in determininghis application, has been examined and found to be lacking in merit.
Mercure, J.P., Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.