| Matter of O'Brien v New York State Comptroller |
| 2008 NY Slip Op 08592 [56 AD3d 937] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Gerard O'Brien, Petitioner, v New York StateComptroller 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 was a police officer employed by the Port Authority of New York and New Jersey,assigned to the emergency services unit at John F. Kennedy International Airport. In June 2003,petitioner injured his knee when, while helping to set up a training exercise in a garage, hestepped backwards and caught his foot in a sewer grate. Petitioner applied for accidentaldisability retirement benefits, which was denied on the ground that the incident which caused hisinjury was not an accident within the meaning of Retirement and Social Security Law §363. Following a request for a redetermination, a hearing was held and the Hearing Officerultimately denied the application on the same ground and respondent Comptroller subsequentlyadopted that decision, prompting this CPLR article 78 proceeding.[*2]
We confirm. To be considered an accident within themeaning of Retirement and Social Security Law § 363, the precipitating cause of the injurymust be "a 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious inimpact' " (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept.of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982], quoting Arthur A. Johnson Corp. vIndemnity Ins. Co. of N. Am., 6 AD2d 97, 100 [1958], affd 7 NY2d 222 [1959]; accord Matter of Stimpson v Hevesi,38 AD3d 979, 980 [2007]). Therefore, "an injury which occurs without an unexpected eventas the result of activity undertaken in the performance of ordinary employment duties, consideredin view of the particular employment in question, is not an accidental injury" (Matter ofLichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art.II, 57 NY2d at 1012; accord Matterof McGerald v DiNapoli, 51 AD3d 1328, 1329 [2008]). Petitioner bears the burden ofproving that his injury was accidental and the Comptroller's determination in that regard will beupheld if supported by substantial evidence (see Matter of Brennan v New York State & Local Empls. RetirementSys., 50 AD3d 1374, 1375 [2008]).
Here, petitioner testified that he was aware on the day of his injury that there was a sewergrate located on the garage floor where he was stepping, but that the grate had been covered witha piece of plywood for several years. Petitioner stated that he had not checked behind him priorto stepping backwards and he was unaware that the plywood had been removed and that the gratewas uncovered. Insofar as the injury occurred during the performance of petitioner's ordinaryduties and "the hazard presented was one that petitioner could have reasonably anticipated, evenif he did not actually see it until after [sustaining his injury]" (Matter of Avery v McCall,308 AD2d 677, 678 [2003]; accordMatter of Franks v New York State & Local Retirement Sys., 47 AD3d 1115, 1116[2008]; see Matter of Fischer v NewYork State Comptroller, 46 AD3d 1006, 1006 [2007]; Matter of Coon v New York StateComptroller, 30 AD3d 884, 885 [2006], lv denied 7 NY3d 717 [2006]), theComptroller's determination is supported by substantial evidence and we will not disturb it.
Peters, J.P., Rose, Lahtinen and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.