| Matter of Campbell v DiNapoli |
| 2008 NY Slip Op 08594 [56 AD3d 940] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Robert K. Campbell, Petitioner, v ThomasP. DiNapoli, as State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondent.
Lahtinen, 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 which deniedpetitioner's application for accidental disability retirement benefits.
After he sustained various injuries in November 2000 when he slipped and fell on a patch ofice while hooking up an additional water line, petitioner, an experienced firefighter, applied forand was granted performance of duty disability retirement benefits. Petitioner thereafter soughtaccidental disability retirement benefits. Upon the denial of that application, petitioner requesteda hearing and redetermination. The Hearing Officer upheld the denial, finding that the underlyingincident did not constitute an "accident" within the meaning of Retirement and Social SecurityLaw § 363. Respondent accepted that finding, prompting petitioner to commence thisproceeding pursuant to CPLR article 78 seeking to annul that determination.[*2]
We confirm. The case law makes clear that "an incidentdoes not qualify as an accident justifying the award of accidental disability retirement benefitswhere the injury results from an expected or foreseeable event arising during the performance ofroutine employment duties" (Matter ofO'Brien v Hevesi, 12 AD3d 895, 896 [2004]; see Matter of McGerald v DiNapoli, 51 AD3d 1328, 1329 [2008];Matter of Conkling v Hevesi, 42AD3d 630, 631 [2007]). Petitioner, who confirmed that there was no ice on the street whenhe hooked up the first line, candidly testified as to several possible sources of water leaks on theday of the incident, including off spray from hose connections, imperfect seals in the hydrant/lineconnection and water dripping from the engine block and/or the down spout on the coolingsystem, and the record reflects that such leaks are routine. Petitioner further acknowledged that itwas sufficiently cold on the day in question to freeze water from these sources within a one-hourperiod and stated that his fall occurred approximately 45 minutes after he connected the first line.Simply put, petitioner slipped and fell on ice that formed while he was fighting a fire insubfreezing temperatures. In our view, substantial evidence supports respondent's conclusion thatthis was a risk inherent in the performance of petitioner's duties as a firefighter (see Matter of Pryor v Hevesi, 14 AD3d776, 777 [2005]; Matter of Mirrer vHevesi, 4 AD3d 722, 723 [2004])—even if petitioner was unaware of theparticular hazard that caused his fall (seeMatter of Coon v New York State Comptroller, 30 AD3d 884, 885 [2006], lvdenied 7 NY3d 717 [2006]).
Peters, J.P., Rose, Kane and Malone Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.