| Matter of Confreda v New York State Comptroller |
| 2008 NY Slip Op 08593 [56 AD3d 938] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Joseph Confreda, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Rose, 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 was a police officer employed by the Port Authority of New York and New Jersey.In January 2005, petitioner was injured when he slipped and fell on snow and ice that hadaccumulated on a wooden plank that had been laid down between the sidewalk and the street infront of his command post. Petitioner applied for accidental disability retirement benefits, whichwas denied on the ground that the incident which caused his injury was not an accident within themeaning of Retirement and Social Security Law § 363. Following a request for aredetermination, a hearing was held and the Hearing Officer denied the application on the sameground. Respondent Comptroller subsequently adopted that decision, prompting this CPLRarticle 78 proceeding.
We confirm. "[A]n injury which occurs without an unexpected event as the result of activity[*2]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 McGerald v DiNapoli, 51 AD3d 1328, 1329[2008]). Moreover, petitioner bears the burden of proving that his injury was accidental and theComptroller's determination in that regard will be upheld if supported by substantial evidence (see Matter of Brennan v New York State &Local Empls. Retirement Sys., 50 AD3d 1374, 1375 [2008]).
Here, petitioner testified that he had traversed the wooden plank numerous times during hisshift and that, up until the time he fell, the plank was clear of snow and ice. He testified that nosnow fell that night and he did not see any dangerous condition on the plank until after he hadfallen and felt black ice underneath him. In the injury report he filled out the day of the incident,however, petitioner wrote that he "slipped and fell on snow and ice which was covering [the]plywood" and that "proper snow removal" was necessary to prevent a reoccurrence of theincident. On that form, petitioner's supervisor noted that, after the incident, the area was clearedof snow and ice and salt was applied. "It is well settled that any apparent inconsistency between apetitioner's sworn testimony and written documents presents a credibility issue for resolution bythe finder of fact" (Matter of Hamilton vHevesi, 28 AD3d 965, 966 [2006] [citations omitted]; see Matter of Callanan vMcCall, 301 AD2d 780, 781 [2003]). Given that petitioner's written statement characterizedthe plank as being covered with snow and ice, with snow removal being necessary to prevent areoccurrence, the Comptroller's conclusion, that the condition of the plank was a hazard heshould have anticipated and his fall, therefore, did not result from an unexpected eventconstituting an accidental injury, is supported by substantial evidence and will not be disturbed(see Matter of Jonigan v McCall, 291 AD2d 766, 766-767 [2002]).
Peters, J.P., Lahtinen, Kavanagh and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.